Michael Colin Hall v On Care Support Services Pty Ltd

[2022] FWC 3324

[2022] FWC 3324

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Michael Colin Hall
v

On Care Support Services Pty Ltd

(U2022/9576)

COMMISSIONER MCKINNON SYDNEY, 19 DECEMBER 2022

Application for an unfair dismissal remedy

1. Mr Michael Hall was employed as a casual disability support worker by On Call Support Services Pty Ltd (On Call Support Services) from 4 February 2022 until 17 September 2022 when he was dismissed with immediate effect. On 27 September 2022, Mr Hall applied in time for an unfair dismissal remedy from the Commission.

1. Mr Hall was dismissed for alleged multiple breaches of confidentiality and the bullying of a client. Mr Hall submits that these allegations are false; that he got on very well with the client and was often praised for the help and work he did for them. He submits that he was never given a warning or a chance to discuss the situation with On Call Support Services before he was dismissed.

1. On Call Support Services denies that the dismissal was unfair. It submits that it could no longer give Mr Hall work with the client in question, and that it had no other clients that Mr Hall could work for. As a casual employee, Mr Hall was not entitled to notice of termination.

1. I have decided that Mr Hall’s dismissal was unfair. These are my reasons.

Protection from unfair dismissal

1. A person is protected from unfair dismissal if, at the time of dismissal, they have completed at least the minimum employment period and they are covered by a modern award.[1] The relevant minimum employment period in this case is 6 months on the basis that On Call Support Services is a small business employer.

1. Mr Hall has completed the minimum employment period as an employee of On Call Support Services. At the time of his dismissal, Mr Hall’s hourly rate of pay was $39.26 and he was covered by the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award). Mr Hall is protected from unfair dismissal in relation to his employment with On Call Support Services.

1. Under section 385 of the Act, a person has been unfairly dismissed if the Commission is satisfied that they have been dismissed; the dismissal was harsh, unjust or unreasonable; the dismissal was not consistent with the Small Business Fair Dismissal Code and the dismissal was not a case of genuine redundancy.[2]

1. There is no dispute that Mr Hall was dismissed from his employment. The dismissal could not have been consistent with the Small Business Fair Dismissal Code[3], because On Call Support Services was not a small business employer at the time of dismissal.[4] The dismissal was not a case of genuine redundancy. Mr Hall was dismissed for misconduct.

1. The question is whether the dismissal was harsh, unjust or unreasonable.

The events leading to dismissal

1. Mr Hall worked with a client with an acquired brain injury. On 17 September 2022, the client informed On Call Support Services that there had been a breach of confidentiality and asked for a meeting with the business as soon as possible.

1. A meeting was scheduled, where the client requested that Mr Hall not return due to creating issues between the client and their daughter. Getting to know and spend time with their daughter was the most important goal on the client’s National Disability Insurance Service (NDIS) plan, and the client was unhappy that their daughter’s willingness to spend time and have contact with them had been affected by the conduct of Mr Hall.

1. Upon further investigation, On Call Support Services formed the view that Mr Hall had demonstrated other concerning behaviours towards the client, including bullying and control. These included threatening the client to keep quiet, taking the client to his house so that he could have a shower, and allowing the client to mow his lawns.

1. At 11:21pm on 17 September 2022 after the meeting with the client, Ms Janelle O’Neill (Director of On Call Support Services) emailed the letter of termination to Mr Hall. The reason given for dismissal was “multiple breaches of confidentiality and the bullying of a client under our care”. The specific allegation made against Mr Hall was that he had discussed and disclosed other staff and client’s personal information to other clients, previous clients and staff in breach of a confidentiality agreement signed on 18 February 2022.

1. On Call Support Services relies on 32 separate matters in defence of Mr Hall’s claim. Many cannot be substantiated because they are either denied or the state of the evidence is unsatisfactory. The allegations include:

1. Telling the client’s daughter that another staff member that had left On Call Support Services to be their daughter’s carer had returned to On Call Support Services, creating a lot of drama. Mr Hall says he did no more than listen to a conversation between the client and daughter on speaker phone. 

2. Regularly taking the client to his home to do things he needed to get done, including to have a shower and to use his massage chair. Sometimes the client would stay in the car to listen to music and other times the client would go inside. The client mowed Mr Hall’s lawn on occasion. Mr Hall submits that when the client stayed in the car waiting for him, she did so by her choice. He agrees she mowed the lawn once but says she asked to, because it was something she had done at an earlier time in her life. Mr Hall says he was not allowed to shower at the client’s home due to the lack of scheduled break, so his only option was to go home and have a shower. The evidence does not support this version of events. Mr Hall had adequate time between active shifts to take a shower at the client’s house, which was allowed. The reason he did not do so was that he did not think it was appropriate to use the client’s shower.

3. Calling members of staff derogatory names in front of the client and threatening the client not to tell others about the things they had done, because he would know who had said it. Mr Hall denies the allegations.

4. Taking the client to meetings with “Deb”, a friend of Mr Hall’s who worked for another support service. This included taking her to collect her car from Wodonga one day while the client was in the car during his shift and introducing the client to Deb at Mr Hall’s home and then giving her contact details for a new support coordinator so that she could change from On Call Support Services. Mr Hall admits these two allegations and says his job is to help socialise the client in the community and be a constant companion in the community as well as at the client’s home. He denies taking the client to Yarrawonga from Albury to meet Deb with her client(s) and says it was a coincidence that they ran into Deb and her client at the Yarrawonga golf course, even though Deb lives in Shepparton. What is striking about this ‘coincidence’ is that Yarrawonga is approximately half‑way between Albury and Shepparton. It seems unlikely there was no planning involved.

5. Meeting his daughter and her boyfriend for lunch while on shift with the client and taking the client on a shopping excursion for their daughter, as well as making personal telephone calls while on shift. Calls were mostly to his family and on one occasion, to the Fair Work Ombudsman, when he spoke in front of the client about his belief that he was being underpaid by On Call Support Services. Mr Hall admits these allegations.

6. Dropping the client at a Country Women’s Association (CWA) meeting and leaving them without support for 2 hours and claiming these 2 hours as time worked. Mr Hall admits these allegations and says the client didn’t want him to stay at the CWA meeting. Instead, he waited up the street for 2 hours until she called him to collect her. He says he was working during this period because he was waiting on the client’s call, which could have come at any time.

7. Writing up the end of shift notes at the end of shift in front of the client instead of after leaving the client and disclosing the internal business communications to the client. Mr Hall denies these allegations and says he did not write shift notes in front of the client. At the same time, he says the client “asked him what he was writing”. The two are inconsistent. I find that Mr Hall wrote shift notes in front of the client.

1. A common theme in the allegations made against Mr Hall is that he often prioritised his own needs over those of his client during working hours. Some of the admitted conduct occurred because Mr Hall did not see anything wrong with it. Sometimes his judgment about what constituted appropriate carer activities was poor.

1. It is not necessary to determine whether each of the allegations against Mr Hall are established, because ultimately the reason for dismissal was that the client asked On Call Support Services not to have Mr Hall as their support worker anymore. On Call Support Services acquiesced by dismissing Mr Hall. It says it had no other clients that Mr Hall could be sent to, and as a casual, he was not entitled to notice of termination. Once he was dismissed, Ms O’Neill did not consider it necessary to take further steps in relation to the various allegations made against Mr Hall.

Was the dismissal harsh, unjust or unreasonable?

Was there a valid reason for dismissal related to capacity or conduct?

1. I cannot find a valid reason for dismissal related to Mr Hall’s capacity or conduct. The decision of the client to no longer have Mr Hall supporting them was a valid reason to no longer roster Mr Hall on with that client, but not on its own a valid reason for dismissal. On Call Support Services submits that there was no other client that Mr Hall could be sent to work with and I accept that its options were limited. Even so, the evidence suggests that a conversation with Mr Hall about options for work with other clients (to avoid dismissal) may have eventually borne fruit, if not immediately.

1. I accept that the client no longer wanted Mr Hall to support them. I have found above that at times, Mr Hall lacked judgment in relation to what was, and what was not, appropriate conduct in the performance of his duties. Mr Hall was engaged to provide support to the client. He was not engaged so that the client could tag along to Mr Hall’s personal activities, and it was not appropriate for Mr Hall to regularly take the client to his home while he had a shower.

1. However, I also find that communication was generally poor between Mr Hall and On Call Support Services. On Call Support Services did not clearly explain its rules, policies and procedures to Mr Hall. It did not have a good grasp on how Mr Hall conducted himself on shift, or whether the client was being appropriately supported. Mr Hall did not ask for clarification when problems arose, such as where he should shower on his sleepover shift. Instead, he took it upon himself to conduct his duties in the way he saw fit, sometimes in ways that put his needs above those of the client.

1. While it is possible that there were inappropriate disclosures made by Mr Hall to other staff and clients, the evidence does not establish multiple breaches of confidentiality or the bullying of the client.

Was the valid reason for dismissal notified to Mr Hall?

1. I find that there was no valid reason for dismissal notified to Mr Hall.

Was there an opportunity to respond to any capacity or conduct related reason?

1. Mr Hall was not given an opportunity to respond to On Call Support Services’ concerns about his behaviour.

Was there any unreasonable refusal to allow a support person to be present to assist at any discussions relating to dismissal?

1. There was no unreasonable refusal to allow Mr Hall to have a support person assist in discussions about the dismissal. There were no discussions about the dismissal.

Was Mr Hall warned about relevant unsatisfactory performance?

1. Mr Hall was not warned about unsatisfactory performance. He was, however, regularly reminded about his obligations of confidentiality as an employee of On Call Support Services.

Degree to which the size of the employer’s business and any absence of dedicated human resources management specialists or expertise in the business would be likely to impact on procedures followed in effecting the dismissal

1. On Call Support Services is not a small business but it is also not well-resourced. There is no apparent human resources function and it is not apparent that Ms O’Neill is familiar with ordinary workplace relations practices. These deficiencies are likely to have contributed to the decision to dismiss Mr Hall without notice or any investigation into the allegations against him, and without any efforts to find him alternative work.

Other relevant matters

1. There are three other relevant matters.

1. Firstly, Mr Hall’s conduct in the hearing at times bordered on aggressive. This might be explained by the stress of participation in a legal case as a self-represented party. However, it might also indicate that there is some legitimacy to concerns raised by the client about feeling intimidated or threatened, despite Mr Hall’s denials. There is not enough evidence to establish either the nature of these concerns or their validity. These are matters properly for the authorities regulating the NDIS.

1. Secondly, the case highlights a common misconception among providers of NDIS services that employees can be dismissed at will in connection with the client’s right to choose their carer, just as it shows how poorly resourced some of those providers are. While it is beyond the scope of this jurisdiction, there appears to be genuine need for improved workplace relations practices in the sector, including through higher levels of education and training.

1. Thirdly, On Call Support Services submitted to the jurisdiction on the basis that it was not a small business employer. While the position is not clear, the business appears to rely on casual employment. It is not apparent that any consideration has been given to whether its employees are all “regular casual employees” for the purposes of sections 12 and 23 of the Act, such that the Small Business Fair Dismissal Code might apply. Absent any contention or evidence to that effect, I have proceeded on the basis that it did not.

Conclusion on merits

1. In the circumstances, I find that Mr Hall’s dismissal was unjust and unreasonable. Mr Hall was unfairly dismissed.

Remedy

1. Reinstatement would be inappropriate in this case because of the breakdown in the relationship between Mr Hall and Ms O’Neill.

1. Compensation is the appropriate remedy.

Viability (s.392(2)(a))

1. There is no evidence that an order of compensation in favour of Mr Hall would impact on the viability of On Call Support Services, although I do not exclude the possibility.

Remuneration that would have been received, or would have been likely to receive (s.392(2)(c))

1. But for the dismissal, Mr Hall is likely to have remained in employment with On Call Support Services for two more weeks. I make this assessment on the basis that Mr Hall was a casual employee. By the time of his dismissal, he was not enamoured with On Call Support Services, and from the day the dismissal took effect, Mr Hall could no longer have been assigned to the client. This would have left him with no work to do while other options were explored. Further, if the allegations made against Mr Hall had been investigated and discussed with Mr Hall, it is likely that the parties would have agreed to part ways on mutual terms, including because of the limited other client opportunities that were available at the time.

1. Mr Hall’s average weekly earnings as a casual employee were $1,727.44 gross per week. The amount that Mr Hall is likely to have earned before tax if it had not been for his dismissal is $3,454.88 gross.

Remuneration earned (s.392(2)(e)) and income reasonably likely to be earned (s.392(2)(f))

1. As a casual employee, Mr Hall was not given notice of termination or paid in lieu. There is no evidence of other income earned by Mr Hall in the period after his dismissal.

Length of service (s.392(2)(b))

1. Mr Hall had just over 7 months’ service with On Call Support Services. No adjustment in the amount of compensation is made on this account.

Mitigation efforts (s.392(2)(d))

1. Mr Hall found another job within 2 weeks of the dismissal, on and from 1 November 2022. His hours of work in that role are less than the hours of work he performed for On Call Support Services. No reduction in the compensation amount will be made.

Other matters (s.392(2)(g))

1. Given the brief anticipated period of future employment, the amount of compensation will not be adjusted for contingencies.

Misconduct (s.392(3))

1. No reduction in the amount of compensation is made on account of misconduct in the circumstances.

Shock, Distress (s.392(4))

1. The amount of compensation does not include a component for shock, humiliation or distress.

Compensation cap (s.392(5)&(6))

1. The gross amount of $3,454.88 is less than the compensation cap of 26 weeks’ pay. No further adjustment of the amount is necessary.

Instalments (s.393)

1. On Call Support Services did not apply to pay any award of compensation by instalments. No order will be made to that effect.

Conclusion on remedy

1. The compensation amount is neither clearly excessive nor clearly inadequate in the circumstances. I am satisfied that an order for compensation in the sum of $3,454.88 gross should issue in favour of Mr Hall in the circumstances. Order [PR749063] will issue separately to that effect.

COMMISSIONER

Appearances:

M Hall on his own behalf.
J O’Neill for the respondent.

Hearing details:

2022.
Sydney (by video):

December 8.

[1] Fair Work Act 2009 (Cth), s.382.

[2] Fair Work Act 2009 (Cth), s.385.

[3] Fair Work Act 2009 (Cth), s.388.

[4] Fair Work Act 2009 (Cth), s.23.

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