Michelle Infante v Doutta Galla Aged Services Ltd T/A Doutta Galla Aged Services
[2019] FWC 274
•17 JANUARY 2019
| [2019] FWC 274 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michelle Infante
v
Doutta Galla Aged Services Ltd T/A Doutta Galla Aged Services
(U2018/2118)
COMMISSIONER CIRKOVIC | MELBOURNE, 17 JANUARY 2019 |
Application for an unfair dismissal remedy.
Background
[1] Ms Michelle Infante (“the Applicant”) was employed by Doutta Galla Aged Services (“the Respondent”) as a registered nurse between December 2014 and 20 February 2018. The Respondent is an aged care provider that operates eight residential care facilities throughout Melbourne and regional Victoria as well as two independent living unit sites. 1 Lynch’s Bridge is a 57-bed aged care facility in Kensington run by Doutta Galla. The Applicant worked as a registered nurse on a permanent part-time basis at Lynch’s Bridge.2 Her employment was governed by the terms of her employment contract and the Doutta Galla Aged Services Ltd, ANMF and HSU Enterprise Agreement 2014 (“the Agreement”).
[2] The Applicant’s employment with the Respondent was terminated on the basis that it had substantiated allegations made against the Applicant, involving the administration of medication to a resident and failure to comply with the Respondent’s policies. The allegations were set out by the Respondent under four broad allegations, each of which contained a number of sub-allegations. 3 For ease of reference I have adopted this categorisation of the allegations.
[3] The first and second allegations stem from the Applicant’s administering medication to a resident ( “VP”) on 20 July 2017 and 21 July 2017. The third allegation stems from the Applicant’s alleged insistence to continue administering the incorrect drug following a discussion with a fellow nurse. The fourth allegation relates to an event that occurred on 27 July 2017 involving the Applicant’s response to unexplained bruising on a resident (“AV”).
[4] On 28 July 2017 the Applicant attended work at Lynch’s Bridge. During her shift, she was called to a meeting with the facility manager, Mr Sanjeet Sharma and Human Resource Manager, Ms Jenni Elford. During that meeting the Applicant was made aware of allegations against her and was told that she would receive a letter with the allegations in due course.
[5] On 4 August 2017 the Respondent sent a letter to the Applicant providing details of the allegations to be investigated. On 16 August 2017 the Applicant was interviewed in the presence of a support person. On 19 January 2018 the Respondent advised the Applicant that the investigation was complete and that the four allegations had been substantiated.
[6] The Applicant was issued with a termination letter on 19 February 2018 stating that “[she] will be summarily dismissed from [her] employment for serious and wilful misconduct. [Her] employment will be terminated effective as of close of business Tuesday 20 February 2018.” Subsequently the Applicant made an application for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (“the Act”) on 1 March 2018.
[7] The matter did not resolve at conciliation and proceeded to arbitration before me on 18 June, 19 June, 20 July and 6 December 2018. Permission to appear was granted under s.596 of the Act to Mr J McKenna on the Applicant’s behalf and Ms S Fitzgerald on the Respondent’s behalf.
Initial matters to be considered
[8] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the Applicant’s application.
[9] There is no dispute between the parties and I am satisfied on the evidence that:
(a) the Applicant’s application was made within the period required in s.394(2) of the Act; and
(b) the Applicant was a person protected from unfair dismissal;
(c) Doutta Galla Aged Services was not a “small business employer” as defined in s23 of the Act, so the Small Business Fair Dismissal Code does not apply to the dismissal; and
(d) the Applicant’s dismissal was not a case of genuine redundancy.
[10] Consequently I am satisfied that the Commission has jurisdiction to determine the merits of the application.
Evidence
[11] The Applicant gave evidence by filing a witness statement and was the subject of extensive cross examination by the Respondent.
[12] The Respondent relied on the witness statements of:
• Ms Robyn Simpson, General Manager - Operations and Service Development;
• Ms Sharon Robinson, General Manager - Organisational Capability;
• Mr Carlo Rizzi, Area Operational Manager; and
• Ms Florence Naidu, Endorsed Enrolled Nurse.
[13] Each of the Respondent’s witnesses was subject to cross examination by the Applicant.
[14] Overall there was little contest about the fundamental facts in this matter. I consider that all the witnesses gave truthful evidence about the relevant matters of fact and in most cases the factual issues between them can be explained by genuine differences in recollection or perception.
Was the dismissal harsh, unjust and/or unreasonable?
[15] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether the Applicant’s dismissal was harsh, unjust and/or unreasonable. I will address each of these statutory considerations in turn below:
Valid reason (s.387(a))
Legal Principles
[16] The employer must have a valid reason for the dismissal of the employee although it need not be the reason given to the employee at the time of the dismissal. 4 The reason for the dismissal should be “sound, defensible and well founded”5 and should not be “capricious, fanciful, spiteful or prejudiced.”6
[17] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 7 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).8
[18] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred. 9It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.10
[19] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post as follows: 11
“[35]... as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a “valid reason” should not impose a severe barrier to the right of an employer to dismiss an employee.
[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”
Valid reasons relied upon by the Respondent
[20] The Respondent relies on the below allegations that it claims are substantiated in support of its submission that a valid reason exists:
Allegation 1
“On 20 July 2017 the Applicant:
(a) administered an S8 medication to one of the Respondent’s high care residents without a lawful medication order to do so;
(b) failed to report a medication error;
(c) failed to notify the pharmacy of a dispensing error or the doctor of the medication error;
(d) failed to complete an incident report in relation to a medication error;
(e) entered a false record in the resident’s medication chart in relation to the administration of an S8 medication; and
(f) failed to implement appropriate monitoring and follow up of a resident after a medication administration error had occurred.”
Allegation 2
“On 21 July 2017 the Applicant:
(a) administered an S8 medication to one of the Respondent’s high care residents without a lawful medication order to do so;
(b) failed to report a medication error;
(c) failed to notify the pharmacy of a dispensing error or the doctor of the medication error;
(d) failed to complete an incident report in relation to a medication error;
(e) entered a false record in the resident’s medication chart in relation to the administration of an S8 medication; and
(f) failed to implement appropriate monitoring and follow up of a resident after a medication administration error had occurred.”
Allegation 3
“On 21 July 2017 the Applicant told Ms Naidu that she intended to continue to administer Endone in place of OxyContin, when she informed Ms Naidu “it was started by Ravin and I’m continuing it”.
Allegation 4
“On 27 July 2017, in respect of a high care resident with dementia who was taking blood thinning medication, the Applicant:
(a) failed to follow the Respondent’s policies in relation to a resident head injury;
(b) failed to undertake appropriate clinical assessment (neurological observations and vital signs);
(c) failed to arrange an urgent medical review of the resident;
(d) failed to ensure appropriate follow up and monitoring after an unwitnessed fall;
(e) behaved in a manner that was disrespectful, unsupportive and uncaring towards the daughter of the resident;
(f) placed the resident’s health and well-being at risk.”
[21] The Respondent submitted that the alleged conductwas in breach of contract and company policies, amounting to serious misconduct.
[22] The Respondent promulgated a number of provisions relating to allegations 1, 2 and 4, which I have considered in coming to my conclusion. The Respondent alleges breaches of: 12
• the Applicant’s employment contract;
• the Respondent’s Code of Conduct;
• the Respondent’s Medication Management Competency Assessment, including the Medication Administration Procedure;
• the Respondent’s Medication Policy and Procedure;
• the Respondent’s ‘daily checklist’ to be completed by ‘in-charge staff;
• the Respondent’s Falls Management Plan: Policy and Procedure; and
• the Respondent’s Falls Management Flow Chart.
[23] I have not reproduced all of the allegedly applicable sections of the Respondent’s Code of Conduct and policies. I have considered each of the provisions to which the Respondent has referred me.
[24] In relation to allegations 1 and 2, the applicantconfirmedthat:
“Ms Infante does not dispute the fact that she was obliged to administer correct medication to residents at Lynch’s Bridge. She does not deny that a medication error in relation [to] a S8 medication and that such an error is serious.”
[25] The Applicant raised particular objections to the applicability of the policies relied upon in relation to allegation 4.
Submissions of the parties in relations to allegations 1 and 2
[26] The parties are not in dispute as to the occurrence of allegations 1(a)(b)(d)(f) and 2(a)(b)(d)(f). There is some contest between the parties as to the occurrence of the conduct alleged with respect to 1(c)(e) and 2(c)(e).
Allegations 1(a)(b)(d)(f) & 2(a)(b)(d)(f)
[27] It is not in dispute that:
• VP’s treating doctor, Dr Garvey, ordered a change to her prescribed medication, ceasing her prescription for Targin and Lyrica and prescribing OxyContin CR, 5mg CR PO BD.
• Ms Naidu, a registered nurse, amended VP’s drug chart and faxed the drug chart to the pharmacy.
• At the time, OxyContin 5mg CR was no longer available and the pharmacy erroneously dispended Endone 5mg in lieu of OxyContin 5mg.
• Endone is designed to release the Oxycodone into the body quickly, whereas OxyContin is designed to release the Oxycodone slowly over a period up to 12 hours.
• Oxycodone is listed in Schedule 8 to the Commonwealth Standard for the Uniform Scheduling of Drugs and Poisons.
• On 19 July 2017 at approximately 7pm, the registered nurse (“RR”) administered Endone 5mg to VP in lieu of OxyContin 5mg CR.
[28] The Applicant attended Lynch’s Bridge for work on Thursday 20 July 2017 to commence her shift at 7am. The Applicant administered 5mg of Endone to VP at approximately 8am. The Applicant signed the drug as Oxycontin 5mg CR on the medication chart.
[29] On Friday 21 July 2017 the Applicant again worked the morning shift at Lynch’s Bridge. At 8am she again administered Endone 5mg to VP. At that time, the Applicant again signed VP’s medication chart as having administered OxyContin 5mg CR. The Applicant accepts that in administering Endone 5mg in lieu of OxyContin 5mg CR she made a repeat medication error. 13
[30] The Applicant accepts that “there is not a significant factual dispute regarding the allegations…[and] rather, the essential dispute is the characterisation of the conduct and whether it amounts to misconduct or a mistake made by the Applicant.” 14 The Applicant accepts that she committed errors in relation to allegations 1(a)(b)(d)(f) and 2(a)(b)(d)(f) but that these errors do not constitute a valid reason for dismissal and that these allegations must be viewed in a broader context of failures outside her control that allowed these mistakes to happen. The Applicant makes this submission for the following reasons:
• the GP prescribed a medication which was no longer being manufactured;
• at the time VP did have a lawful medication order for Endone 5mg as a PRN (as required medication ) but not as CR (as regular short term medication);
• the pharmacy dispensed a medication which differed from that which had been prescribed;
• RR signed Endone into the dangerous drug book in lieu of OxyContin;
• RR and an enrolled nurse administered Endone in lieu of OxyContin and failed to identify this error; and
• the enrolled nurse informed the Applicant that RR had said Endone and OxyContin were the same drug.
[31] The Respondent submits that the Applicant’s conduct with respect to these allegations constitutes serious and wilful misconduct and must be considered in the context of:
“• the seniority of the Applicant’s role and her previous experience in more senior roles, both within the Respondent’s business and with a previous employer;
• the nature of the Respondent’s business as a not for profit aged care provider and the vulnerability of its residents, in particular the high care residents with whom the Applicant was working;
• the serious consequences that could have flowed from those events, which are the reason for the various polices that the Respondent has in place;
• the importance that the legislature has placed on the control of S8 medications, noting that schedule deals with drugs that are dangerous and addictive …” 15
My findings regarding 1(a)(b)(d)(f) and 2(a)(b)(d)(f)
[32] Given the Applicant’s concessions above at [30],I am not required to make any further findings as to the occurrence of the conduct in these allegations. I am satisfied that allegations 1(a)(b)(d)(f) and 2(a)(b)(d)(f) are established.
Allegations 1(c) and 2(c) - failed to notify the pharmacy of a dispensing error or the doctor of the medication error
[33] The Applicant concedes that she did not notify the pharmacy or the doctor of the dispensing error prior to administering Endone 5mg to VP on 20 July 2017 in circumstances where she understood Endone 5 mg to be an appropriate substitute for OxyContin 5mg.
[34] The Applicant submits that later on 20 July 2017 she did seek out the pharmacist “Shane” whom she asked whether the OxyContin that was prescribed was the same medication as the Endone that had been provided. In response, the Applicant claims to have been advised by Shane that the production of OxyContin 5mg had ceased, which is why the Endone had been dispensed. He further told her it was the same drug but with a different release.
[35] TheRespondent submits that the Applicantdid not call the pharmacist to ask what CR was or what OxyContin was before she gave it the first time on 20 July 2017. 16 Further the Respondent submits that there is no recording of a discussion between the Applicant and the pharmacist on 20 July 2017 prior to the second administration of Endone.
My findings with respect to 1(c) and 2(c)
[36] I am satisfied that the Applicant did not notify the doctor of the dispensing error with respect to 1(c) and 2(c).
[37] However, I accept the Applicant’ s evidence that she spoke to Shane the pharmacist prior to the second administration of Endone.She struck me as a reliable and credible witness who gave a clear and cogent account as to the matters in dispute. The Applicant’s credibility was strengthened by important concessions that she made including:
• conceding that it was illegal to give a Schedule 8 drug to someone without a medication order; 17
• conceding that she knew the fact above at the time of administering the Endone;
• conceding that she held that knowledge since obtaining her registration; and
• conceding that she was unable to use her own judgement to second-guess the doctor’s prescription.18
[38] Given the aboveand the absence of any evidence to the contrary I am satisfied that the Applicant did not notify the pharmacy with respect to allegation1(c) but did notify the pharmacy with respect to allegation to 2(c).
Allegations 1(e) and 2(e) - entered a false record in the resident’s medication chart in relation to the administration of an S8 medication
[39] The Respondent contends that the Applicant entered a false record in the resident’s medication chart in relation to the administration of an S8 medication. The Applicant accepts that she made an error by documenting the administration of Endone 5 mg as OxyContin 5 mg, because she thought it was the same medication, but denies knowingly making a false record in the resident’s medication chart.
[40] The Respondent conceded that there was no allegation of fraudulent intent being made against the Applicant. 19
My findings with respect to 1(e) and 2(e)
[41] I accept that the Applicant recorded the administration as OxyContin despite administering Endone. This makes the recording inaccurate. I therefore accept that the conduct occurred only in so far as it relates to the recording of inaccurate information.
Overall findings with respect to allegations 1 and 2
[42] As stated above, I am satisfied that allegations 1(a)(b)(d)(f), 2(a)(b)(d)(f) and 2(c) in part have been established. I am also satisfied that allegations 1(e) and 2 (e) are established as found at [41] above.
[43] I have formed the view that the conduct found above is serious and is in breach of the Respondent’s policies. When viewed in light of the Respondent’s business as a provider of care to vulnerable residents, the Respondent’s reliance upon this conduct in terminating the Applicant’s employment can be characterised as sound, defensible and well founded. Accordingly, on these findings I conclude that there is a valid reason for termination.
[44] Allegations 1 (c) and 2 (c) have been largely established, save for my finding that the applicant spoke with the pharmacist “Shane” prior to the administration of Endone to the resident on 21 July 2018.
[45] The instances of conduct found under allegations 1(c), 2(c) 1(e) and 2(e) in isolation would not have been sufficient reason for termination. However, when considered together and in conjunction with the conduct found under allegations 1(a)(b)(d)(f) and 2 (a)(b)(d)(f), these instances of conduct contribute to my finding that there is a valid reason for termination.
Submissions of the parties in relation to allegation 3
[46] This allegation relates to a conversation between the Applicant and Ms Naidu. The Respondent alleges that on 21 July 2017 the Applicant told Ms Naidu that she intended to continue to administer Endone in place of OxyContin, when she informed Ms Naidu that “it was started by Ravin and I’m continuing it.” 20
[47] The Applicant rejects the factual basis of this allegation. 21
[48] The Respondent accepts that allegation “does not weigh heavily in the balance.” 22
[49] Ms Naidu’s evidence as to this conversation at the hearing was that she had no recollection of the Applicant saying to her that she was going to continue to administer Endone and does not think the Applicant advised as such. 23 Additionally in her written material, Ms Naidu states that “I cannot recall if the Applicant said that she would continue to administer Endone instead of OxyContin.”24
My finding with respect to allegation 3
[50] On the material before me, there is insufficient evidence to conclude on the balance of probabilities that the Applicant told Ms Naidu that she intended to continue administering Endone in lieu of OxyContin.
[51] Therefore I conclude that this allegation is not established and it cannot constitute a valid reason for dismissal.
Submissions of the parties in relation to allegation 4
[52] The fourth allegation relates to an event that is said to have taken place on 27 July 2017 in respect of a high care resident with dementia, AV, who was taking anticoagulant medication.
[53] It is not in contest that on the day in question, the Applicant was informed by the lifestyle coordinator that AV’s chin looked bruised. It is also not in contest that the Applicant then made enquiries about how AV sustained the bruising. Following those enquiries about how AV sustained the bruising, she:
(a) completed and faxed a referral to the resident’s GP requesting that he attend the facility to review the bruise and marked the referral routine rather than urgent;
(b) documented the bruise in the resident’s progress notes;
(c) called the resident’s next of kin and informed her about the bruising under the mother’s chin; and
(d) made an incident report about finding a “bruise of unknown origin.” 25
Allegation 4(a) - failed to follow the Respondent’s policies in relation to a resident head injury;
[54] The Respondent submitted that the Applicant had breached the Code of Conduct and four other policies:
(a) clause 13 of the Medication Policy and Procedure, 26 which is titled ‘Anticoagulant Administration Management’, and contains an anticoagulant safety checklist;27
(b) a ‘daily checklist’, to be completed by ‘in-charge staff’; 28
(c) the Falls Management Plan: Policy and Procedure; 29 and
(d) the Falls Management Flow Chart. 30
[55] I deal with each of these policies as they relate to sub-allegations 4(b), (c), (d) and (f), which are inextricably linked with allegation 4(a).
Allegation 4(b) - failed to undertake appropriate clinical assessment (neurological observations and vital signs);
[56] This allegation stems from the ‘daily checklist’, which reads:
‘Neuro obs for unwitnessed falls and head injuries. Compulsory reporting incidents: any OH&S issues. Report to manager.’ 31
[57] The Applicant submits that she made a clinical assessment that the resident did not fall. She also submits that she had never the seen the daily check list. 32 However, she concedes that the bruising to AV could be characterised as a head injury and as such required her to perform a neurological assessment of the resident.33
[58] The merits of the clinical assessment were not challenged during the cross-examination of the Applicant. Further, there is insufficient evidence before me to find on the balance of probabilities that the Applicant’s clinical judgment was incorrect.
[59] However, the Applicant readily admits that she ought to have conducted neurological observation of AV and did not undertake one. In this context, the fact that she had not seen the daily checklist is not determinative. Rather, she was aware of the obligation, and aware that she had not met that obligation.
[60] In coming to this conclusion I have also considered the fact that the Applicant is a registered nurse and as such comes to the job with the knowledge of a nurse with this level of qualification. Furthermore the Applicant underwent online medical training that is required annually for registered nurses. 34
[61] On the basis of the evidence before me I am satisfied that the Applicant failed to undertake appropriate clinical assessment (neurological observations and vital signs).
Allegation 4(c) - failed to arrange an urgent medical review of the resident
[62] The Respondent submits that this obligation arises from clause 13 of the Medication Policy and Procedure. Clause 13 reads as follows: 35
“Anti-Coagulant Administration Management
…
(h) RN must refer to the Anticoagulants safety checklist: caring for residents on oral anticoagulants (CS 1.3.21f), using this checklist as a prompt for changes in the resident to achieve safe use and monitoring of oral coagulants;
(i) Observations required for monitoring are documented in the resident’s skin care plan (1.Bruising, 2.Nose bleeds, 3.Bladder or bowel bleeding) and urgent referral [(emphasis added)] to a medical practitioner completed should these signs be observed
Refer to: Anticoagulants safety checklist: caring for residents on oral anticoagulants (CS 1.3.21f)
…”
[63] The relevant sections of the anticoagulants safety checklist are as follows: 36
“RN is required to notify the treating GP, Locum doctor (if applicable), Pharmacist and Pathology Service of any changes to the resident’s condition or diet in relation to Warfarin administration within 24 hours …
1. For all anticoagulants.
Has there been any:
• Signs of bleeding? Urgent help should be sort for any signs or symptoms that might suggest bleeding:
o Epistaxis (nose bleeds);
o Gum bleeding;
o Severe bruising
o Pink, dark or red urine;
o Red or black faeces;
o Other (e.g rectal bleeding).
…”
[64] The parties are in dispute as to the application of clause 13 of the Medication Policy and Procedure. The Respondent states that clause 13(i) required the Applicant to make an urgent, as opposed to routine, referral to a doctor, in circumstances where signs of bruising or bleeding are observed; and that the anticoagulant safety checklist imposes a similar obligation.
[65] The Applicant contends that the obligations imposed by clause 13(i) are dependent on the contents of the resident’s skin care plan, which was not in evidence. 37 Further, the Applicant states that she had not seen the anti-coagulant checklist and thus was unaware that she was required to make an urgent referral.
[66] On the basis of the material before me and the Applicant’s evidence in relation to the Medication Policy and Procedure, I have formed the view that the Applicant, whilst aware of the Respondent’s policies in a general sense and demonstrating an awareness of the importance of those policies in the context of “high risk” residents, was not aware of a specific obligation to make an urgent referral to a doctor in all circumstances where she observed signs of bruising or bleeding of a resident. 38
[67] Further, the Applicant submits that the bruise on AV’s chin did not present a clinical risk. 39 The merits of that assessment were not challenged during cross-examination and there is insufficient evidence to find on the balance of probabilities that the Applicant’s clinical judgment was incorrect.
[68] For the reasons above, allegation 4(c) is not made out.
[69] Given my findings in [66] and [67] above, it is unnecessary for me to resolve the differing opinions of the parties as to the meaning of clause 13(i).
Allegation 4(d) - failed to ensure appropriate follow up and monitoring after an unwitnessed fall
[70] This allegation relates to an alleged failure to observe the daily checklist referred to at [56] above, the Falls Management Plan: Policy and Procedure, and the Falls Management Flow Chart. All three instruments prescribe procedures to be followed in the case of a resident’s fall.
[71] The Applicant submits that she made a clinical judgment that AV did not fall, and that she was therefore not required to follow up and monitor in accordance with the above policies. The Respondent submits that there was a ‘policy directive’ to treat incidents of facial bruising as unwitnessed falls, 40 so that the Applicant was, despite her clinical judgment, required to follow up and monitor in accordance with the above policies.
[72] In coming to my conclusion, I have taken into account my finding at [57], [58] and [60] in relation to the Applicant’s clinical assessment and the following exchange between counsel for the Applicant and Mr Rizzi, as to the Respondent’s policy regarding unwitnessed falls:
“PN1950
Doutta Galla maintains a falls management policy and a falls management flow chart?---Correct, yes.
PN1951
And that policy and flow chart is only engaged where a resident has fallen?---Witnessed and unwitnessed falls, yes.
PN1952
Sorry, I missed that?---Witnessed and unwitnessed falls, yes.
PN1953
Yes, both of which are a species of fall?---Correct.
PN1954
So if no falls occurred – I'm sorry, again I might be repeating myself but if no fall has occurred that policy and that flow chart has no work to do?---It's also used as a guide if a fall is suspected. It's used as a guide, as well. It's a flow chart but it's used as a guide, as well.
PN1955
But presumably there must be an entry point for the flow chart and the guide?---Mm-hm.
PN1956
I want to put to you that the entry to the policy is a fall having occurred?---Yes.
PN1957
You have referred to a witnessed fall and that is always going to be obvious, is it not, someone that's seen the resident fall?---A witnessed, correct, yes.
PN1958
And an unwitnessed fall might be more difficult to determine?---Correct, yes.
PN1959
You in your evidence refer to the importance of a registered nurse to think critically to choose the best course of action?---Yes.
PN1960
You would expect a registered nurse to think critically to determine whether or not an unwitnessed fall has occurred?---Yes.
PN1961
At the end of the day that is going to involve a registered nurse making a clinical judgment?---Yes.
PN1962
The falls policy does not include a mandatory requirement for facial bruising to be treated as an unwitnessed fall, does it?---Correct.
PN1963
It does not?---It does not.
PN1964
But in determining whether that policy is engaged you would expect a registered nurse to undertake some inquiries in the facility?---I'd expect – yes, inquiries and assessment, yes.”
[73] On the basis of the above, this sub-allegation is not made out.
Allegation 4(e) - behaved in a manner that was disrespectful, unsupportive and uncaring towards the daughter of the resident;
[74] Allegation 4(e) is denied by the Applicant.
[75] The Respondent relies on the following points of evidence:
• the Applicant told Ms Robinson that AV’s daughter was “very frustrated and upset already”, “was always like that”, 41 and “knew how the family member was… she is very demanding”;42
• the Applicant told Ms Robinson that the daughter was not happy and wanted to know why no one knew what had happened; 43
• the Applicant told Ms Robinson that the daughter arrived at the facility before she could do handover and she said to the daughter “you didn’t tell me you were coming”; 44
• the daughter said to her “where’s my mum”, the Applicant told the daughter that the resident had already left and the daughter wanted to know why she wasn’t told that the resident was being taken out; 45
• the Applicant accepted that she had said words to the effect of “it’s not my business to know if they notify the family beforehand” and that the daughter became upset; 46
• the daughter “kept going on about it”; 47
[76] In general, the evidence suggests that the Applicant felt frustrated towards the way the daughter was acting. However other than the evidence that the Applicant told the daughter that “you didn’t tell me you were coming”, there is insufficient evidence before me to conclude that the Applicant acted in a way that was “disrespectful, unsupportive and uncaring” towards the daughter of AV. Therefore, this sub-allegation is not made out.
Allegation 4(f) - placed the resident’s health and well-being at risk
[77] I have found that the Applicant breached the Respondent’s policies in relation to allegation 4(b). Allegations 4(c), (d) and (e) are not made out.
[78] The Applicant submits that the bruise on AV’s chin did not present a clinical risk, 48 that she made a referral to the GP, completed an incident report and contacted AV’s daughter. Given my findings at [57], [58] and [60] above and the lack of evidence to the contrary, there is insufficient evidence before me to conclude that the Applicant place AV’s health and well-being at risk. Accordingly, this sub-allegation is not made out.
Overall conclusion regarding allegation 4
[79] I find that allegation 4(a) is made out insofar as it relates to the substantiated breaches of policy discussed under allegation 4(b). Allegations 4(c), (d), (e) and (f) are not made out.
[80] In those circumstances, I find that the Applicant’s failure to perform neurological obs when considered in light of my conclusion at [78], allegation 4(b) does not constitute a valid reason for termination. As a reason for termination, it cannot, in my view, be characterised as sound, defensible or well founded.
Overall conclusion regarding valid reason
[81] I have concluded at [42] - [45] that the Respondent had a valid reason for dismissal, in relation to my findings regarding allegations 1 and 2. The Applicant’s conduct was serious and inconsistent with the Respondent’s policies in a material way with the result that there was a sound, defensible and well-founded reason for the Applicant’s dismissal.
[82] Allegations 3 and 4 do not constitute valid reasons for dismissal. My reasons for these conclusions are found above at [50] - [51] and [79] - [80] respectively.
Notification of the reason for dismissal and given an opportunity to respond (s.387(b)&(c))
[83] The Respondent submits that the Applicant was notified of the reasons for her dismissal as required by subsection 387(b) of the Act. Those reasons were that the four allegations made against her had been found proven and the Respondent considered that in the context of its aged care business those allegations constituted serious misconduct that warranted summary dismissal. 49 The Applicant does not contest that she was notified of the reasons for dismissal and given an opportunity to respond to the allegations.
[84] I find that the Applicant was given clear notification of the reasons for her dismissal and provided with an opportunity to respond.This weighs in favour of a finding that the dismissal was not harsh, unjust and/or unreasonable.
Any unreasonable refusal to allow the Applicant to have a support person present (s.387(d))
[85] There is no positive obligation on an employer to offer an employee the opportunity to
have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 50
[86] The Respondent submits that the Applicant was supported by ANMF representatives in her meeting with the Respondent on 16 August 2017 and was later legally represented when she made submissions as to whether dismissal would be harsh, unjust or unreasonable. 51
[87] The Applicant did not challenge this submission.
[88] Accordingly the Respondent has not unreasonably refused to allow the Applicant to have a support person present to assist at any discussions related to her dismissal. This finding weighs in favour of a finding that the dismissal was not harsh, unjust and/or unreasonable.
Warnings about unsatisfactory performance (s.387(e))
[89] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance, before the dismissal.
[90] In this case, the reasons for dismissal related to the Applicant’s conduct, rather
than her performance, so this consideration is not relevant.
Impact of size of Doutta Galla Aged Services on procedures followed in effecting the dismissal and absence of dedicated human resource management specialists or expertise (s.387(f)&(g))
[91] The Respondent accepts that it is not a small business and it has the human resources expertise the Commission would expect of an enterprise of its size and nature. 52
[92] I do not consider there to be any factors which might have impacted on the ability of the Respondent to follow a fair process in effecting the Applicant’s dismissal.
Other relevant matters (s.387(h))
[93] Section 387(h) provides the Commission with broad scope to consider any other matters it considers relevant. The Applicant raises several matters for consideration under this subsection.
[94] A dismissal may be “harsh, unjust or unreasonable” , notwithstanding the finding that there is a valid reason for the dismissal. 53
The summary dismissal
[95] In a case involving summary dismissal, the determination of whether the conduct that constituted the reason for the dismissal justified summary dismissal is relevant to determining whether the termination was harsh, unjust or unreasonable. If the conduct did not justify summary termination, this indicates that the termination was harsh, unjust or unreasonable. 54
[96] There is no rule of law that defines the degree of misconduct which would justify a summary dismissal. The touchstone is whether the conduct was of such a grave nature as to be repugnant to the employment relationship. 55 I have also had regard to regulation 1.07 of the Fair Work Regulations 2009, which relevantly defines "serious misconduct” under the Act as follows:
“(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
…”
[97] I have found at [42] - [45] that the Applicant acted in a manner inconsistent with her training as a registered nurse and the Respondent’s policies with respect to allegations 1 and 2. These matters are serious, particularly with regard to the nature of the Respondent’s business as a provider of care to to vulnerable residents with significant health needs and the Applicant’s important role in the provision of that care.
[98] However, in my mind the Applicant’s errors with respect to allegations 1 and 2 are mitigated by the fact that there were a number of factors outside the control of the Applicant that contributed to her errors. In particular, I have had regard to the doctor’s prescribing medication that was no longer being manufactured, the pharmacist’s dispensing a non-prescribed medication, the administration of the incorrect medication to the resident by another nurse on a previous shift and the the fact that the applicant was informed by another nurse that the two medications were the same. For the reasons above, I cannot be satisfied that the Applicant’s conduct established at [42] - [45] was “wilful or deliberate” or of such a grave nature as to be repugnant to the employment relationship.
[99] The Applicant was summarily dismissed in circumstances where I have found the conduct did not justify summary dismissal. This weighs in favour of a finding that the dismissal was harsh.
The length of the investigation
[100] The Applicant was stood down pending an investigation on 28 July 2017. The allegations against her were provided on 4 August 2017 and she responded to these allegations in an interview on 16 August 2017. It took the Respondent until 19 January 2018 - over five months after the interview - to advise the Applicant in a letter that the allegations had been substantiated. 56
[101] The Applicant’s employment was not terminated until 19 February 2018. However I note that the Applicant’s lawyers requested an extension of time to respond to the findings. Therefore I only consider the Applicant’s submission regarding the length of time in the context of the period of 4 August to 19 January 2018.
[102] I note the Respondent’s submission that the Applicant was stood down on full pay during this period. Further I have considered that the Applicant gave birth during this period so would have taken a period of leave anyway. 57 However, taking maternity leave is different to being on leave as a consequence of being stood down. Therefore these submissions do not persuade me that the length of time was justified. I also do not consider the fact that the Applicant continued working for another employer during this time as particularly relevant to this issue.
[103] While investigations into alleged workplace misconduct should not be rushed and can often be reasonably substantial in time, I find that the length of time was too long in this instance, and I have taken this into account in coming to my overall conclusion at [112] below.
Applicant’s length of service and personal circumstances
[104] I have taken into account the Applicant’s length of service, which was just over three years. 58 Further I have also considered that the Applicant is a mother of two children and is the primary income earner for her family.59 Therefore I have taken into account that the dismissal will have adversely impacted financially on the Applicant.
Alternative reason for dismissal
[105] The Applicant made submissions that the real reason behind her termination was her decision to report a safety incident to her union and making a service request to WorkSafe.
[106] The Respondent denies the allegation and indeed Ms Simpson gives evidence that she found the allegation “insulting.” 60
[107] Having considered the material before me, I am satisfied that the Respondent acted in good faith. In coming to my conclusion, I have also taken into account Ms Robinson’s evidence that RR would not have been treated differentially from the Applicant, that is, it was “likely that [RR] would have been summarily terminated.” 61 Having considered her evidence, I am persuaded that Ms Robinson acted professionally and was not motivated by the Applicant’s decision to report matters to WorkSafe.
Reliance on previous history of counselling
[108] The Respondent submitted that the Applicant’s previous counselling and/or disciplinary history is relevant to a consideration of the harshness of the Respondent’s decision. 62 The Respondent pointed to two instances of counselling in 2015 relevant to the ‘medication error’, meaning the errors in allegations 1 and 2:63
(a) ‘On 15 December 2015, Ms Infante was given performance improvement feedback that there was a lack of care on her part in completing the medication assessment on a resident with swallowing difficulties, in that she did not include thickened fluids or crushed medications. 64
(b) On 26 May 2015, Ms Infante was counselled for failing to safely manage resident medications and for failing to label a resident's insulin.’ 65
No further disciplinary action was taken on either of these occasions.
[109] The Respondent identified two occasions of counselling relevant to the ‘allegations regarding the resident with bruising’, meaning allegation 4:
(a) On 12 April 2016, Ms Infante was counselled for failing to undertake vital signs observations on a resident; 66 and
(b) On 19 February 2016, Ms Infante was given performance improvement feedback that unwitnessed falls need to be reviewed by a GP/Locum doctor within 12 hours not 24 hours. 67
No further disciplinary action was taken on either of these occasions.
[110] The parties are in dispute as to whether the counselling sessions above can be taken into account. Contrary to the Applicant’s submissions, I am satisfied that, pursuant to clauses 61.8 and 8.1 of the Agreement, I can consider the counselling sessions.
[111] In considering the weight to attach to the counselling instances, I am persuaded by the fact that no further disciplinary action was taken in relation to any of the instances.
Conclusion as to whether the dismissal was harsh, unjust and/or unreasonable
[112] Having considered each of the matters specified in s.387 of the Act, I find that the Applicant’s dismissal was harsh and unreasonable. In making that determination, I have weighed and considered all the matters in paragraphs [42] - [45] above including the seriousness of the Applicant’s conduct, which I have found constituted a valid reason for her dismissal. While the existence of a valid reason is significant, the matters discussed in relation to (s.387(h)), including the harshness of her summary dismissal are principle factors that have contributed to my decision that the dismissal was harsh.
[113] Therefore I am satisfied that the Applicant was unfairly dismissed. Directions will be issued in due course relating to further submissions regarding the Applicant’s remedy.
COMMISSIONER
Appearances:
Mr J McKenna of Counsel instructed by Gordon Legal for the Applicant.
Ms S Fitzgerald of Counsel instructed by Colin Biggers & Paisley for the Respondent.
Hearing details:
2018
Melbourne:
18 June, 19 June, 20 July, 6 December (by telephone).
Final written submissions:
Applicant’s Further Submissions dated 13 December 2018
Respondent’s Final Submissions dated 7 December 2018
Printed by authority of the Commonwealth Government Printer
<PR703920>
1 Statement of Agreed Facts, [2].
2 Ibid, [4].
3 Respondent’s Submissions: Unfair Dismissal filed 4 June 2018, [11].
4 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.
5 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.
6 Ibid.
7 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
8 Ibid.
9 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213, [24].
10 Ibid.
11 [2013] FWCFB 6191.
12 Respondent’s Response to Directions filed 4 December 2018.
13 Statement of Agreed Facts.
14 Applicant’s note in response to request for further information, filed 16 November 2018 [3]; Applicant’s Further Submissions dated 13 December 2018 [7].
15 Respondent’s Closing Written Submissions filed 3 September 2018 [20] (a)-(d).
16 Transcript PN698 & PN700.
17 Ibid PN660.
18 Ibid PN668.
19 Mention of proceedings, 6 December 2018.
20 Exhibit A5.
21 Applicant’s Reply Submissions, filed 7 September 2018, [2](b).
22 Respondent’s Closing Submissions, filed 3 September 2018, [8].
23 Transcript PN1551.
24 Exhibit R1, [12].
25 Applicant’s Closing Submissions filed 15 August 2018.
26 Exhibit R3, SR-19.
27 Ibid, SR-27.
28 Ibid, SR-29.
29 Ibid, SR-28.
30 Ibid, SR-28.
31 Ibid, SR 29.
32 Transcript PN1254; Exhibit R3, SR-29.
33 Transcript PN 1260.
34 Ibid PN558.
35 Exhibit R3, SR-19.
36 Ibid, SR-27.
37 Applicant’s Closing Submissions filed 15 August 2018, [52]-[53].
38 Transcript PN 1211-1229.
39 Applicant’s Outline of Submissions dated 7 May 2018, [43].
40 Exhibit R2, [19].
41 Transcript PN 828 – PN 829.
42 Ibid PN 845.
43 Ibid PN 832 – PN 833.
44 Ibid PN 835 – PN 836.
45 Ibid PN 837 – PN 839.
46 Ibid PN 841 – PN 842.
47 Ibid PN 844.
48 Applicant’s Outline of Submissions dated 7 May 2018, [43]; Exhibit A1, [66]; see also Exhibit A1, [64].
49 Respondent’s Submissions: Unfair Dismissal filed 4 June 2018, [24].
50 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
51 Respondent’s Submissions: Unfair Dismissals, 4 June 2018, [31].
52 Ibid, [33].
53 B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191at 41.
54 Walsh v Ambulance Victoria (2013) 233 IR 15 at 24-25; Johnson v Northwest Supermarkets Pty Ltd [2017] FWCFB 3897, [11].
55 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033, [34], applying Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 per Gillard J.
56 Applicant’s Outline of Submissions, 7 May 2018, [65]-[67].
57 Respondent’s Submissions: Unfair Dismissals, 4 June 2018, [34].
58 Applicant’s Outline of Submissions, 7 May 2018, [59].
59 Ibid, [68].
60 Exhibit A1, MI-9
61 Exhibit R3, [38].
62 Respondent’s Submissions dated 7 December 2018, [18].
63 Ibid, [19].
64 Exhibit A1, MI-9, cited at Respondent’s Submissions dated 7 December 2018 [19] .
65 Ibid.
66 Ibid, cited at Respondent’s Submissions dated 7 December 2018 [20].
67 Ibid.
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