Mini Joseph v Plenty Valley Community Health Ltd

[2015] FWC 5327

[2015] FWC 5327 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mini Joseph
v
Plenty Valley Community Health Ltd
(U2014/10943)

COMMISSIONER WILSON MELBOURNE, 6 AUGUST 2015

Application for relief from unfair dismissal.

[1] Mini Joseph was employed by Plenty Valley Community Health Ltd (PVCH) until 27 June 2014. In an application to the Fair Work Commission dated 17 July 2014, Ms Joseph seeks remedy for what she claims to be an unfair dismissal on the part of PVCH.

[2] At the time of her dismissal, Ms Joseph was employed as a Disability Instructor at the Respondent’s Mill Park site in a permanent part-time capacity. Ms Joseph’s employment with PVCH had been since 24 January 2011 when she had been employed as a Residential Support Worker on a casual basis. 1 Her employment moved to that of a permanent part-time Disability Instructor on 17 February 2014 with the contract of employment being 45 hours per fortnight.2 In addition to the part-time work, Ms Joseph also worked casually, as required, under a separate contract of employment.3

[3] Ms Joseph was dismissed by PVCH with effect from Friday, 27 June 2014 as a result of a single incident of misconduct that allegedly took place a week earlier on 20 June 2014.

[4] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters to be considered before considering the merits of the application. In relation to the elements within s.396, I find that Ms Joseph’s application was made within the 21 day period for the making of such applications. I also find that Ms Joseph was a person protected from unfair dismissal, noting that PVCH has conceded that such was the case, 4 and it being consistent with the evidence. I also find that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[5] For the reasons set out in this decision, I find that Ms Joseph was not unfairly dismissed within the meaning of the Act and that accordingly her application must be dismissed.

FACTUAL BACKGROUND

[6] PVCH provides a variety of health-related services to the community across the municipality of Whittlesea in metropolitan Melbourne. 5 Amongst those services is the provision of day-care services stated in the following way in the position description applicable from February 2014;

“… support and assistance to adults with disabilities who access day service activities to enhance their lives and build on current skills. Day services operate as a facility based and outreach individualised service within the scope of the Disability Act 2006 and other relevant legislation and guidelines.” 6

[7] PVCH’s services are provided in several locations including at its Mill Park site where Ms Joseph’s part-time employment was based. The Mill Park day-care services are provided to a relatively small number of people on a daily basis, with that assistance including helping the clients with their daily and developmental needs; and assisting with behavioural and skills development. The staff arrange various activities for the clients, according to a PVCH roster, including stories and drama, cooking, and excursions. 7

[8] One such client, referred to in significant detail in the evidence before the Commission, is a middle-aged woman with a moderate intellectual disability, 8 identified as JJ. Ms Joseph’s dismissal relates to alleged misconduct arising from her interaction with Ms JJ. The evidence about Ms JJ’s condition includes the following;

“[h]er communication method - she's non-verbal, so her communication is by guttural vocalisations, and she does that when she's happy, sad, angry, contested. So it is part of her communication. So it's an everyday occurrence because that, and coupled with her behaviour, is how she communicates”. 9

[9] Because of her disability, the determinative conference conducted in this matter proceeded without direct evidence from Ms JJ or from her family about the events which are essentially connected with her.

[10] This application is the subject of a confidentiality order which has been made to protect the privacy of a client of Plenty Valley Community Health. 10 The Order provides relevantly that “that all parts of the evidence in this matter and any documents tabled in the proceedings and the transcript of the proceedings are confidential and may not be published or provided to any person who is not a party to these proceedings, or their lawyer or representative”. The Order was subsequently corrected by inserting an additional paragraph, upon application from the Applicant, providing that “for the avoidance of doubt, no part of this Order prevents a party from providing any document referred to in paragraph [3] to their lawyer or representative”.11 The Order is maintained, for reason of Ms JJ’s privacy, however for the avoidance of doubt, the publication of this decision is exempt from the confidentiality order made.

[11] The evidence records that Ms JJ has a significant obsession about fluids. Fluids are something which she actively seeks out and she can easily become distracted when she sees a fluid or in her search for fluids.

[12] On Friday, 20 June 2014, Ms JJ was one of a small number of clients being attended to in PVCH’s Mill Park site by Ms Joseph.

[13] At around 10:00 AM, Ms Joseph was working with Ms JJ in a program room at the foot of an L-shaped corridor where a right angle is formed. At the same time as Ms Joseph was working with Ms JJ she was also responsible for a number of other clients within the room. Although there was another staff member in the room, that person was assisting a client in the toilet. There were seven clients between the two staff members. Ms Joseph was distracted momentarily and Ms JJ left the room proceeding out into the corridor. Ms Joseph noticed that Ms JJ had left and followed after her.

[14] The descriptions given to the Commission about the corridor is that it appears to be neither particularly wide or long, however there are several rooms between where Ms JJ had been and the front part of the building which contained variously management offices; a reception area; and an exit to the street in front of the Mill Park site, being Morang Drive.

[15] Near to the front of the building at the time Ms JJ left the program room in which she and Ms Joseph had been, were three people; Jacqueline Gravatt, PVCH’s Manager Disability Services; Susan Gray, House Supervisor at another PVCH location, Newton Street; and Oldridge Berger, a maintenance employee.

[16] On Ms Joseph’s construct, after she realised that Ms JJ had left the program room in which they had both been, Ms Joseph feared for the clients’ safety, which motivated her to follow after Ms JJ. The safety motivation went to two factors; firstly that because of Ms JJ’s fixation on fluids she might access something which could poison her; secondly that because of the direction she was headed and because of her lack of traffic awareness she may well injure herself, or worse, if she went out onto the road that was in front of the Mill Park building.

[17] Ms Joseph followed Ms JJ into an office close to the front of the building and saw that Ms JJ was about to pick up a cup. It was in that room that Ms Joseph is alleged to have taken the actions that brought about her dismissal.

[18] The allegations that are made about Ms Joseph’s conduct are set out in the termination letter from PVCH’s Interim Chief Executive Officer, who advised Ms Joseph that the reasoning for her dismissal was the following;

“A meeting was held with you following an incident which occurred on 20 June 2014. It was noted at that meeting that earlier in the day you were observed restraining a client by your Manager, Jackie Gravatt. You were observed grabbing a client around the shoulders and eventually around the neck as you tried to move the client away from a desk. You were advised at the meeting that such conduct towards clients is unacceptable and contravenes the Disability Act.

Restraint of clients has been addressed at team meetings on a number of occasions and has been further documented in minutes of meetings which are made available to staff on notice boards.

In view of this incident, we regret to advise that we are unable to continue your employment with Plenty Valley Community Health. Your employment will terminate effective Friday 27 June 2014.” 12

[19] Oral evidence was received from the following five witnesses, with numerous documents, including their written witness statements, introduced in the course of their evidence;

• Mini Joseph, the Applicant, and the only witness on her behalf;



• Jacqueline Gravatt, PVCH Manager, Disability Services;



• Susan Gray, PVCH House Supervisor, Newton Street site;



• Kathleen Hall, PVCH Team Leader, Mill Park and Farm Vigano sites;



• Cynthia Fois, PVCH Human Resources Manager.

[20] Along with Ms Joseph, Ms Gravatt and Ms Gray were present in the Mill Park building at the time of the events on 20 June 2014.

[21] Ms Hall, the Mill Park Team Leader, was not present at the time of the event on 20 June and was called to give evidence in respect of Ms Joseph’s work generally, as well as the report that she gave to Ms Fois in PVCH’s consideration of whether disciplinary action was required against Ms Joseph because of what occurred.

[22] Ms Fois, the PVCH Human Resources Manager, was also not present at the time of the events of 20 June and her evidence principally went to the decision-making of PVCH in respect of the complaint made about Ms Joseph’s conduct, as well as to the generality of PVCH’s operations and human resource management decision making.

[23] Mr Berger, who was present in the corridor at the time of the events, did not give evidence in these proceedings.

[24] The factual matters that require resolution in this matter largely relate to the events on the morning of 20 June 2014 and the decision making by PVCH between the time of those events and its decision to dismiss Ms Joseph.

[25] I turn to consideration of these matters in detail.

[26] The evidence shows that, immediately before Ms JJ left the program room shortly after 10:00 AM, Ms Joseph was the only staff member actually in the room with up to seven clients, including Ms JJ, with the other staff member leaving the room to take another client to the toilet (who appears to be numbered within the seven clients). 13 Without the other staff member’s absence, Ms Joseph would have been responsible for four clients.14

[27] While Ms Joseph was initially distracted, she noticed that Ms JJ had left the program room and gone out into the corridor. Ms Joseph followed after her.

[28] The circumstances of Ms JJ leaving the program room are such that, all things being considered, it was not unreasonable for Ms Joseph to follow her, albeit that questions arise about how she conducted herself when she followed Ms JJ. The evidence shows that Ms JJ is a person with extremely limited social and other skills. The evidence does not show that Ms JJ would regularly leave the room without a staff member, or that PVCH was comfortable with her doing so. It is foreseeable that had Ms Joseph not followed after Ms JJ when she realised that she had left the program room that she would have been subjected to criticism and possibly disciplinary action.

[29] Ms Joseph repeatedly put forward the proposition that Ms JJ was running along the corridor to the front of the building. 15 However Ms Gravatt and Ms Gray’s evidence on this subject is to the contrary. Their evidence is that she was not running, but rather that she was moving at a fast walking pace.16 Ms Gravatt’s evidence was that notwithstanding Ms JJ was not running, she saw Ms Joseph running behind Ms JJ.17

[30] While it may be the case that Ms JJ was not running, she was, at the least, moving quickly. Ms Gray’s evidence is that she saw Ms JJ rush past her as did Ms Joseph; 18 and she saw Ms JJ to be in a hurry but not running.19

[31] Irrespective of the speed of movement of the two, there is nothing within Ms Gravatt and Ms Gray’s evidence which would suggest that the circumstances that they witnessed were such as to alarm them or cause an immediate reaction on their part. Ms Gravatt’s evidence was that at the time she saw these things happen she was having a conversation in the corridor with Ms Gray and Mr Berger and that they were leaning up against the wall and that it was normal for her to see Ms JJ move in the direction she was going, at the speed she was moving. 20

[32] The contention that Ms JJ was in a search for fluids, which could be contrary to her care plan or what might be desirable is not the subject of contest in the evidence. That a staff member, such as Ms Joseph, would be required to divert Ms JJ from what she was doing is also not the subject of debate. Ms Joseph’s evidence includes that Ms JJ frequently left the program room and that other staff members would redirect her back to the program room. 21

[33] Ms Joseph’s evidence is that Ms JJ first went to Ms Gravatt’s office 22 and then into the office next door, sometimes referred to in the evidence as the counsellors’ room.

[34] Ms Gravatt and Ms Gray’s evidence includes that the two had been in the hallway talking to Mr Oldridge. They saw Ms JJ rush past and enter an office. At the time, Ms JJ was in a “heightened state”, being agitated and stressed. 23

[35] Ms Joseph’s evidence is that when Ms JJ was in the counsellors’ room, Ms Joseph saw her about to pick up a cup. Ms Joseph apprehended that the cup may have something dangerous within it, or at least something which would be contrary to the fluids policy that applied to Ms JJ. Ms Joseph went into the room, where Ms JJ was standing at a desk against the wall with her back to Ms Joseph.

[36] While standing either alongside of or slightly to the rear of Ms JJ, Ms Joseph reached around her with her right hand, intending for her arm to be a barrier to Ms JJ accessing the cup or the fluids within it. Ms Joseph’s witness statement records, in relation to this situation, that “I stopped J with my right hand in front of her and touched her left shoulder and guided her to get out of the office room”. 24

[37] Ms Gravatt’s witness statement on this includes;

“I was speaking with Mr Berger when I heard Ms Gray shout: 'don't grab her like that'. I turned to see Ms Joseph with her arm around the Client's shoulder attempting to pull her away from the desk quite forcefully. The Client tried to get out of Ms Joseph's grasp, and moved against the direction Ms Joseph was pulling her. Ms Joseph's arm slid up and around the Client's neck.” 25

[38] Ms Gray was asked by Ms Gravatt to go to her office and get a spoon, which she did. 26 Getting a spoon is considered to be a diversionary tactic, with Ms Gravatt and Ms Gray explaining the purpose was to give the spoon to Ms JJ and ask her to take it to the kitchen to wash it, an activity Ms Gray said she knew Ms JJ liked to wash objects.27

[39] Ms Gray’s evidence is that she took the spoon into the counsellors’ room in which were both Ms Joseph and Ms JJ. Ms Gray’s evidence about the situation is that in the room she saw Ms Joseph who was trying to stop Ms JJ from drinking from a coffee cup. 28

[40] Ms Joseph denies this construct of events. Instead her evidence is that as she progressed along the corridor after Ms JJ that she first saw Ms JJ run into Ms Gravatt’s office, after which she heard Ms Gravatt say “go and get my cup and spoon and wash it”. Ms Joseph’s evidence is that when she heard those words, she was still in the corridor. 29

[41] Ms Gray’s evidence is that when she entered the counsellors room she saw Ms JJ grabbing a coffee cup on the desk and Ms Joseph trying to prevent her from getting to the cup “by physically grabbing her and pulling her back by wrapping her arm around the clients shoulders”. 30 Ms Gray’s evidence is also that Ms Joseph tried to prevent Ms JJ from getting the coffee cup to her mouth. These things are denied by Ms Joseph.31

[42] Ms Joseph’s evidence is that the following occurred as Ms JJ was holding the cup;

“So your hand was between the cup and the client?---Cup.

And it was - - -?---Yes - - -

Just let me speak for a second, please. It was horizontal to the bench?---Yes.

With your palm outward and your thumb raised?---Yes, and but the client’s hands was there. The client’s hand is there.

The client’s hand where in proximity to your hand?---No, she is holding the cup. She was holding it up – holding it up and I was trying to – I put my hands there and she was trying to get the cup and - - -

So does that mean that your hand was over her arm?---I’m not quite sure. No, I can’t remember from memory. I was – I put my hands there and she was holding the cup, I know for sure. And my left hand in her back shoulder and I tapped her and I told her – the door is like that and I told her to get out.” 32

[43] The actions given by Ms Joseph in the course of her giving her initial evidence would suggest that her arm was placed in front of Ms JJ at about desk height with the palm facing towards Ms JJ but not touching her.

[44] Those words and actions suggest an intention to divert the client without any inappropriate contact.

[45] Ms Gravatt’s evidence is that because of Ms JJ’s resistance to the situation, Ms Joseph’s arm slid up and around Ms JJ’s neck. 33 She saw Ms Joseph attempting to pull Ms JJ away from the desk quite forcefully.34 However, Ms Joseph was not choking Ms JJ.35 Ms Gravatt demurred from the proposition that what had occurred may have been an unfortunate accident, with the following evidence;

“So what I'm putting to you is that to what extent was what you recorded Ms Joseph's arm slipping up and around the client's neck, to what extent could that be said to be an unfortunate accident?---Commissioner, I wouldn't go so far as suggesting it was an accident. The intention of the move, I believe, was to pull the client away. So there had to be, in my opinion, some forethought. The intention wasn't malicious, I accept that. However, the restraint was a restraint.” 36

…

“Could it be the case that this was a matter of inadvertence, that Ms Joseph's arm slipped and went higher?---Yes, Ms Joseph's arm could have slipped and gone higher. However, there was - in my opinion there was no need to put your arm around a client, we just don't promote that kind of support.” 37

…

“[Ms Joseph’s] arm was between Ms [JJ] and the desk. That could be anywhere between the coffee cup and Ms [JJ]'s belly button?---Okay. So I saw Ms Joseph's arm on Ms [JJ], so connecting with this area (witness indicated) pulling Ms [JJ]towards herself.

You're confident that you saw the arm touching Ms [JJ]?---Yes.

When you say "pulling" could you be mistaken in that, that it was not pulling at all, it was merely obstructing Ms [JJ] from wherever she was and the desk?---From my clear view, which was side-on to what was happening, I clearly saw Ms Joseph pulling in this direction, Ms [JJ] being moved in this direction, and then Ms [JJ] screaming out and manoeuvring herself back to where she wanted herself to be, and that's when Ms Joseph's arm was dislodged from being across here and was across here.” 38

[46] Ms Gravatt clarified that by saying she heard Ms JJ “screaming out”, she meant that she was loudly vocalising her protest. 39

[47] Ms Gray prepared a file note on the subject, part of which is the following;

“What I saw: was talking with Jackie and Oldrich in the hallway when JJ came past in a heighten state with Mini following after going into the case managers office, Jackie said to go to her office and grab the spoon off the desk to give to JJ and ask her to take I to the kitchen for washing.

Grabbed the spoon and walked into case manager's office where JJ was with Mini directly behind her. Mini was trying to stop and restrain JJ from grabbing a coffee cup of (sic) case manager’s desk. Mini had her arm up around JJ's neck to try and stop her.” 40

[48] In oral evidence, Ms Gray clarified that Ms Joseph was deliberately preventing Ms JJ from getting to the cup;

“…the client still had the cup in her arm so she was trying to stop her from bringing it to her mouth. She had her arm around her neck, trying to stop her from bringing it to her mouth” 41

[49] Ms Gray’s evidence, corroborated by Ms Gravatt, is that Ms Gray yelled out to Ms Joseph, with Ms Gray saying that the words she used were “stop, don’t grab her like that. Just let her go”. 42 Ms Joseph’s evidence is that the words used were “Mini don’t do that”.43 Ms Joseph’s evidence is that when that was said to her, Ms Gray was not in the same room as Ms Joseph; she could only hear and not see her.44 Further, her evidence is that Ms Gravatt was further down the hallway.45

[50] Ms Joseph states that when Ms Gray came into the counsellors’ room Ms Gray held Ms JJ with one hand, got the cup and moved away and took Ms JJ out of the room. 46

[51] Ms Gravatt’s evidence is that after she witnessed these events she heard Ms Gray say to Ms Joseph that she could not believe she had just done that and that she should not grab clients in that way. 47

[52] Following these morning events, Ms Gravatt was angry at the situation that a restraint had occurred. Her evidence is that before speaking with Ms Joseph about the subject she took the time to “reflect, calm down, think about the situation and have some conversations with the appropriate people”. 48 As a result Ms Joseph and Ms JJ were allowed to go back to the program room.

[53] Shortly after 11:00 AM, Ms Gravatt sent an email to others in the organisation notifying them about what had occurred that morning. Amongst the recipients of the email were Ms Gray, Ms Hall and Ms Fois. The terms of that email included the following;

“Good morning all,

This am Mini Joseph and [staff member name] are in the program room at the end of the hall today.

Apparently there was a staff sick which was not replaced.

For some time now, I have had concerns with the way Mini has handled/supported JJ and Kathleen I have asked you to bring these up with her in Supervision.

This am whilst supporting JJ who was in a calm manner scouting the area for coffee and or tea or cups as she very often does, Mini was manhandling her.

Not only was mini using inappropriate language at one point she placed her arm around JJ neck and shoulder to 'drag' her away from a desk.

Susan Gray and I were in the hallway and where she witnessed this action and promptly intervened and asked Mini not to grab JJ like that.

I then said, once again, please do not grab or touch a client, please let her go and support her without holding on to her.

I will be completing a VHIMS on this issue and I need this documented in her sup notes. If we continue to have this issue after the BS training this will become a disciplinary issue as it is illegal to restrain a client and I will not tolerate this kind if staff support unless it is life or death of a client.

Cheers and happy to discuss if needed.

Jackie Gravatt
Plenty Valley Community Health Ltd
Manager Disability Services” 49

[54] The reference in the above to a “VHIMS” is to making a report in the Victorian Health Incident Management System, being an online report system operated by the Victorian Department of Health of certain incidents within all Victorian publicly funded health services and agencies. 50

[55] Not long after sending the email referred to above, Ms Gravatt went to speak with Ms Joseph about the incident, and they discussed the matter at some length. Ms Gravatt’s evidence is that she asked Ms Joseph as to why she had grabbed Ms JJ and that Ms Joseph’s response was that she “simply asked for another chance and said it would never happen again”. 51 Ms Gravatt pointedly noted that there had been no denial by Ms Joseph of the conduct that she discussed with her.52 Ms Gravatt informed Ms Joseph that she had spoken with the PVCH human resources staff about the matter.

[56] Ms Gravatt recorded the conversation in an email sent to a number of people, including Ms Fois and Ms Hall, shortly after 12:00 PM on 20 June. The email records that she explained her concerns about the situation to Ms Joseph and then records a discussion about acceptable behaviour;

“I told Mimi (sic) that unless it was life or death a client should never be grabbed or restrained in any way. Mini said that she did not know.

I reminded Mini that I have mentioned it many times and have even stood in the hall way shouting out to staff not to grab this particular client and to support her without touching her and being rude to her. It was on the agenda and discussed at both the last two team meetings where staff are expected to be respectful to each and every client and to not be derogatory in any way shape or form and that restraining a client was not on. It is documented and there is an expectation that staff who were not present are to read the meeting minutes and sign.

I told Mini that the last two meeting minutes are in a folder on the staff table and I just, today rubbed off the white board a reminder to all staff to read the minutes and sign.

I told Mini that it was not my responsibility to ensure that she had read the minutes it is her responsibility.

Mini said she had not read the minutes and did not know that this was not acceptable.

I explained to Mini that it is expected that as a disability instructor that she should be aware of parts of the act which have been part of the hands on work ethic for many years.

I explained to Mini that I would be documenting this conversation and sending it to HR for inclusion to her staff file. I also stated that Kathleen would also address this again during supervision.

Mini asked me for 1 chance and I explained that her behavior was totally unacceptable and will not be tolerated. I also said that I cannot ignore what happened this morning as it was unacceptable and I witnessed. I also said I would be reporting it on VHIMS.

Mini again asked me to give her a chance. I let her know that I expected her to take responsibility for her actions and also explained that if I see it again, she will be stood down with a quality of care investigation initiated.” 53

[57] In addition, Ms Gravatt’s statement notes the following about Ms Joseph’s response in that meeting;

“At no point during the conversation did Ms Joseph deny that what I had seen had occurred or provide a different version of events. Instead, Ms Joseph said that she was sorry and that it would never happen again. She said that she thought she was helping the Client. She said she did not do anything wrong. She also said that I had often role-modelled for her but that there could have been poison in the cup. However, I pointed out to Ms Joseph that she knew that there was no poison in the cup on this occasion and that all poisons are locked away as we are required to do.” 54

[58] The reference to “poison” is a matter that was also the subject of some evidence on the part of Ms Joseph who maintained, even in the determinative conference that was conducted, that it was possible that the cup may have contained poison of some kind. 55 This question is discussed in greater detail at a later stage of this decision.

[59] The matter having been reported by Ms Gravatt to Ms Fois, the latter undertook her own investigations into the circumstances of what had occurred on 20 June 2014. In particular, Ms Fois spoke to Mr Berger, the maintenance man, as well as to Ms Gray. She asked both for their views as to what had occurred. Ms Fois’ written witness statement on this subject includes the following evidence;

“Around this time, I also had a number of informal conversations with the interim Chief Executive Officer at PVCH, Ms Cox, regarding the incident on 20 June 2014. We also spoke about Ms Joseph's employment. Ms Cox's office was located very near mine and so there was no need for us to schedule formal meetings or telephone calls. We discussed the fact that the observations/accounts outlined by Ms Gravatt and Ms Gray appeared consistent. We both agreed that PVCH would not tolerate this type of behaviour - improper physical handling of clients.

I also had a number of informal conversations with Ms Gravatt regarding the incident and generally regarding Ms Joseph's employment. We discussed that Ms Joseph was still within her probationary period, given that she had only commenced in her part time position on 17 February 2014.” 56

[60] The incident that took place with Ms JJ occurred on Friday, 20 June. Ms Joseph’s employment arrangements were for her to work on Wednesdays, Thursdays and Fridays, 57 which meant that she was next due to work on Wednesday, 25 June 2014. Ms Gravatt was informed by Ms Hall that the next supervision meeting with Ms Joseph, which was a periodic meeting held for the purposes of performance appraisal, was due to be held on Wednesday, 25 June. Ms Gravatt was also informed by Ms Hall that Ms Joseph was still within her six-month probationary period.58 Notwithstanding being told this by Ms Hall, such information appears to be a mistake. The information is with reference to the most recent appointment held by Ms Joseph with PVCH which was to the position of a part-time disability instructor and which commenced on 17 February 2014. The terms of appointment to that position include a six-month probationary period, which would have been due to end in August 2014.59

[61] At the time the PVCH managers had a view that Ms Joseph was within a probationary period and could therefore be easily dismissed, perhaps without access to unfair dismissal rights. However in light of Counsel’s concession that Ms Joseph was at the time of her dismissal a person protected from unfair dismissal, for reason of her having served at least the minimum employment period because of the totality of her employment, it is not necessary for me to deal further with the probationary question. PVCH may have thought at the time that she was under a probationary period, that is being within the minimum employment period, and might have been more cautious in the processes associated with their decision to dismiss and even the decision itself if they had thought otherwise; however there was, of course, a dismissal and it is the terms of that dismissal that must now be resolved in this decision.

[62] Prior to the scheduled supervision meeting on 25 June 2014, however, Ms Gravatt recommended the dismissal of Ms Joseph because of her interactions with clients including the incident with Ms JJ. The recommendation was accepted and Ms Gravatt and Ms Hall decided to use the time otherwise that was set aside for the performance management plan meeting to discuss Ms Joseph’s employment. Ms Hall records the following about the discussion;

“During the meeting, Ms Gravatt outlined what she had witnessed in relation to the incident on 20 June 2014. She said she saw Ms Joseph grab the Client and grab her around the shoulder/neck area. I said that Ms Joseph's behaviour had been unacceptable and that it was not in keeping with the Act. Ms Joseph denied grabbing the Client around the throat and said that she had touched her on the shoulder instead.

Ms Joseph also said to Ms Gravatt several times during the meeting that she is the boss and can do as she likes. She said that the lord up above knows who is right and asked Ms Gravatt to let her speak. Ms Gravatt allowed her this opportunity.

Ms Joseph said that Ms Gravatt had not gone to speak with her immediately after the incident on 20 June 2014. She seemed annoyed that Ms Gravatt had taken about an hour to approach her to discuss it. I told Ms Joseph that Ms Gravatt had needed some time to calm herself, collect her thoughts and to consider what she was going to talk about with Ms Joseph.

Ms Gravatt then said that Ms Joseph was still on probation. She told Ms Joseph that she had sought advice from Human Resources and from the interim Chief Executive Officer. She said that a decision had been made not to continue with her employment.

Ms Joseph pleaded with Ms Gravatt to rethink this position. However, Ms Gravatt said that a decision had been made and it was final.

Ms Joseph and Ms Gravatt had some further discussion about the incident and about the decision to terminate Ms Joseph's employment. In total, I estimate that the meeting lasted around 40 minutes.” 60

[63] On Friday, 27 June 2015, Ms Joseph went to see Ms Fois, who works at another site, and the two spoke. Ms Fois recalls the main topic of conversation being a concern on the part of Ms Joseph about whether PVCH would make a VHIMS report about the incident and her involvement in it. Ms Joseph argues against that, saying it was about her concerns about the termination of employment. 61 Ms Fois’ witness statement on the subject records the following, contained within a file note she prepared (MJ denoting Mini Joseph, CF denoting Cynthia Fois);

“MJ explained incident on 20 June where she was trying to move a client and was observed by her Manager, Jackie Gravatt. MJ indicated that she did not restrain the client even though this is what has been reported by the Manager. MJ asked to be given another chance and that other staff are also handling clients this way.

MJ advised that she was being "pick on" by Susan Gray who had also witnessed this incident. CF advised that the decision to terminate employment was based on Jackie's observations of the incident. CF explained to MJ that the incident could not be ignored and is considered to be serious and in breach of the Disability Act.

MJ was concerned that the incident would be reported in VHIMS and indicated would be problematic if she was to seek employment elsewhere. CF advised that it is standard practice to record incidents in VHIMS as they occur and other disability services would not be privy to the information recorded on VHIMS.

CF advised MJ that termination of employment would be documented and a letter would be send to her.” 62

[64] A termination letter, dated 27 June 2014, was sent to Ms Joseph, advising her dismissal with effect from the same date.

[65] On 7 July 2014 Ms Gravatt completed a VHIMS report of the 20 June 2014 incident. 63

Consideration of the evidence

[66] My consideration of the evidence as a totality leads to a conclusion that the evidence of Ms Joseph contains significant weaknesses which causes me to prefer that of the Respondent’s witnesses. Much of Ms Joseph’s evidence was self-serving and featured by selective recall together with an inability to acknowledge any circumstances which might be unfavourable to her. There were also inconsistencies in her evidence, both as between her written and oral evidence and within her oral evidence. These inconsistencies include the following, which I consider in turn;

• Whether she touched Ms JJ;



• Whether it was her signature on a PVCH induction form;

[67] It is also appropriate to consider and take into account Ms Joseph’s evidence regarding the prospect of the cup in the counsellors’ room containing poison.

Whether she touched Ms JJ

[68] The argument has been put forward by Ms Joseph both that there was no contact between her, as well as her later evidence that any touch that occurred was a “helping touch” and nothing more.

[69] In Ms Joseph’s witness statement, on the subject of her contact with Ms JJ, the prospect of there being contact between the two was the subject of contradictory statements, with Ms Joseph recording the following in a first statement;

“The main allegation raised against me is that I restraint (sic) the resident named 'J' preventing her drinking waste substance from a left out cup found in an unattended table, by touching her body.

(i) I swear that I did not touch J's body as alleged by the respondent. The manager who claims that she witnessed this incident was not present even in the vicinity of the room from where 'J' tried to drink the waste substance.” 64 (emphasis added)

[70] And further;

“(x) I swear that I did not touch J's body. It might be a misunderstanding by Susan Gray when she was passing through the corridor towards the manager's room. At any circumstances, it is impossible to keep my hands around J's neck when I was restricting 'J' by keeping my hand on the table.” 65 (emphasis added)

[71] That statement was filed in the Fair Work Commission on 17 October 2014, along with a number of other documents, including a further statement of Ms Joseph which refers to her touching Ms JJ for the purposes of guiding her out of the room;

“I have been working with J for more than two years, she has a tendency to drink anything she can find even from the rubbish bin. Sometimes J finds tea bags from rubbish bin squash it and drink it (please refer supporting staff members). So I stopped J with my right hand in front of her and touched her left shoulder and guided her to get out of the office room.” 66 (emphasis added)

[72] Ms Hall’s evidence is that in the meeting of 25 June 2014, “Ms Joseph denied grabbing the Client around the throat and said that she had touched her on the shoulder instead”. 67 Ms Joseph denies having said this on that occasion.68

[73] Ms Joseph’s oral evidence also conceded she had “guided” Ms JJ;

“MS FORSYTH: Yes. But you had your left arm around the back of the client, did you not?---A part like this and I guided. That’s all. I didn’t put my hands any force on my client.

And when you say “guided”, what do you mean by guided?---The door was on that corner and the client is standing like here.

Yes?---And my hands was here, like here on the table. And I pat her back and I (indistinct) her like that.

And she didn’t leave the room, did she?---No.” 69

[74] Ms Joseph’s oral evidence included that her contact with Ms JJ was a “helping touch” 70, a term used in a Department of Human Services policy document, and thereby permissible.71 Her use of a “helping touch” was for the exercise of a duty of care to her client.72

[75] The differentiation between a restraint, or touch of any kind, and a “helping touch” was put to the Applicant in the following questions about what Ms Gravatt said and saw;

“Well, I put it to you that she specifically said, “Don’t touch the client”?---Yes.

Because that is what she saw, wasn't it, Ms Joseph?---No.

Because she saw you touch the client?---No, she was assuming and something because of Ms Susan said, “Don’t do that”, she was assuming and she is yelling and to me, “Don’t touch the client”. I didn’t touch the client after she said I stepped back and Ms Susan- - -

You didn’t touch the client after you stepped back, is that your evidence?---No, I didn’t touch the client. Before I trying to help her, it’s a helping touch. It’s a duty of care of mine and duty of care of the organisation.

Well, Ms Gravatt will also say that she asked you to let her go. This is at paragraph 39?---That was not true.

To support the client without holding on to her?---No.

You don’t accept that?---No.

She’ll also say that, “Ms Gray then pulled Ms Joseph away from the client”?---No. No such things happened.” 73

[76] The fact that Ms Joseph’s evidence was subject to change, ranging from initial denial to an argument about “helping touch” or having “guided” Ms JJ, together with her justification for the touch of the prevention of imminent danger, reinforces my views on the uncritical acceptance of her evidence.

[77] As a whole, the evidence leads to the view on the balance of probabilities that what Ms Gray and Ms Gravatt reported is what happened – they observed Ms Joseph trying to stop and restrain Ms JJ from grabbing a coffee cup off a case manager’s desk. Ms Joseph had her arm up around JJ's neck to try and stop her.

Whether it was Ms Joseph’s signature on a PVCH induction form

[78] In cross-examination, Ms Joseph at first agreed that a PVCH induction form had been signed by her, then sought a break from giving evidence and returned to retract her earlier statement denying categorically the signature was hers. The following evidence was given on the subject;

“I'm now going to finalise this part of your evidence before taking you to the incident on 20 June by providing you with a copy of your employee induction checklist. Is this the employee induction checklist that you signed at the time of your induction to Plenty Valley Community Health? ---Yes.” 74

[79] Shortly after the tendering of the exhibit, there was a break in proceedings after which cross-examination of the Applicant resumed. Immediately upon return from the adjournment, Ms Joseph returned to the document to contradict her earlier evidence;

“MS FORSYTH: Certainly. Ms Joseph, I may try one more time with that line of questioning and then leave it. I understand your earlier evidence was that you signed this document on 24 January 2011 or thereabouts when you commenced employment as a casual employee at the Newton House facility back in 2011? ---No, this is not.

And on what basis do you say this was not now the document that you earlier said you'd signed? What do you say is not – this is your signature, is it not, on the document? ---No, it is not my signature.” 75

[80] Ms Joseph gave no satisfactory explanation for her change in evidence.

[81] Overall, I regard Ms Joseph’s change in evidence on this matter as implausible, and likely arising from a concern that being seen to agree to having had the induction that is recorded may somehow have adverse consequences for her unfair dismissal application.

Contentions the cup contained poison

[82] A further matter that I take into account in assessing the weight to be given to the evidence of the respective witnesses is the claim from Ms Joseph that she apprehended danger for Ms JJ for reason that she may be poisoned by the liquid she found in the counsellors’ room. In particular, Ms Joseph’s evidence included the possibility of there being poison in the cup in the counsellors’ room, or that its contents were poisonous. In proper context, this evidence is implausible. The room was an office used by counsellors; the cup was likely the remains of a cup of tea or coffee that may or may not have had any remaining liquid within it. There is no evidence that this was a room in which toxic substances might be found within cups on desks, with Ms Gravatt giving evidence instead that “… all poisons and chemicals are locked away, so the only thing that she has access to within the building is either glasses of water or left over tea and coffee”. 76

[83] There is also no evidence that Ms JJ is a person who might seek out poisons, instead Ms Gravatt’s evidence is to the contrary; that “it’s never been recorded that the client will attempt to drink a poison of any sort”. 77

[84] In addition, Ms Gravatt gave this evidence about the cup and contents;

“There has been some evidence led by the applicant regarding the substances in the two cups on the counsellor's desk on the day of 20 June 2013. The evidence has been that there were two cups on the relevant table. Did you see what was in either or both of those cups?---Yes, I did.

Can you please take us through what you saw?---In the cup on the right was water. In the cup on the left was what I assumed to be tea, because the tea bag was on a piece of paper beside the cup.

Which cup did JJ in your direct knowledge reach for?---The cup on the left.

And for the sake of clarity, that was the cup, based on your evidence, with the tea bag?---Correct.

Has JJ, to the best of your knowledge, ever been poisoned during her time at Plenty Valley Community Health Service?---No.” 78

[85] Such evidence is to be preferred to that of Ms Joseph’s which included this description of what was on the desk in the counsellors’ room;

“There’s two things here and one got tea bag. I know there’s a tea bag there. I don’t know how long it was there and the other one I don’t know what is in there. It can be anything; medicine. It can be poison; anything.” 79

[86] The proposition that the articles contained on the desk in the counsellors might have been a danger to Ms JJ was first raised by Ms Joseph in the meeting Ms Gravatt conducted on 20 June 2014 and has been maintained since that time, along with the denials of Ms Joseph about her contact with Ms JJ.

[87] Ms Joseph’s evidence on these matters is implausible and self-serving, which affects how I view the totality of her evidence.

The Respondent’s witnesses

[88] In contrast to Ms Joseph’s evidence, I accept and prefer the evidence of both Ms Gravatt and Ms Gray, who gave evidence clearly and to the best of their recollection, without embellishment. Both witnesses were present at the time of the events on the morning of 20 June 2014.

[89] I also accept the evidence of Ms Hall and Ms Fois about their respective involvement in the consideration of reports to them about the events of 20 June 2014 and, in Ms Hall’s case, her knowledge of Ms Joseph’s employment with PVCH generally. To the extent of inconsistencies between their evidence and Ms Joseph, I accept the evidence of Ms Hall and Ms Fois.

[90] I take into account that there are some differences between the written witness statements of Ms Gray and Ms Gravatt. For example, Ms Gravatt’s witness statement refers to Ms Gray not being in the same room as Ms Joseph at the time that Ms Gray yelled out to her to not restrain Ms JJ, while Ms Gray’s indicates she was in fact in the room. In addition, Ms Gravatt and Ms Hall differ on the time of the termination meeting and its length. 80 I do not regard these difference as sufficient to cause me to disregard their evidence, and especially in the light of the totality of Ms Joseph’s evidence. In some respects the differences in evidence are explained by normal variations in memory; in other respects it is explained by the evidence given by Ms Gravatt that she was shocked and angry at what had occurred.81

[91] To the extent that there are differences between Ms Gravatt and Ms Gray’s evidence on subject of the events in and around the corridor, I adopt Ms Gray’s evidence as the preferred version, for the reason that she has a clearer recollection of the events. In any event I do not consider that the differences that arise should call into question the overall evidence, particularly in light of the adverse findings I found about Ms Joseph evidence.

Conclusions on the evidence

[92] As a result, the evidence leads to the following findings;

• Ms JJ left the program room shortly after 10:00 AM, without anyone knowing that fact, or to escort her;



• When Ms Joseph realised Ms JJ had left the program room she followed after her;



• As Ms JJ left the room she was in a “heightened state”, being agitated and stressed; she moved quickly along the corridor;



• As Ms Joseph followed Ms JJ both were perceived by Ms Gray to be rushing. As Ms Joseph followed Ms JJ she was speaking loudly to Ms JJ to “come back to the program room now” and “come back here” and calling out to Ms JJ by both her first and last names;



• When Ms Joseph saw Ms JJ in the counsellors’ room, she saw Ms JJ endeavour to pick up a cup. Ms Joseph tried to prevent her from doing that, including by putting her arm in front of Ms JJ which, because of the combination of Ms Joseph and Ms JJ’s movements, lead to Ms Joseph’s arm being wrapped around Ms JJ’s shoulders and neck. Such action was seen by Ms Gray, who by that time was in the same room as Ms Joseph;



• Ms Gray said words to Ms Joseph to the effect of “stop, don’t grab her like that just let her go”. Those words were also heard by Ms Gravatt who was still in the corridor but had an unimpeded view of what was happening in the counsellors room through a glass window;



• Ms Gravatt was shocked about what occurred and reported it within her management chain, initially being of the view that disciplinary action short of dismissal might be required;



• Ms Gravatt’s consultation with Ms Fois led in turn for Ms Fois to investigate what had happened by speaking with Ms Hall and Mr Berger;



• She relayed the product of the investigations, as well as further conversation with Ms Gravatt and emails provided by her, to Ms Cox the interim Chief Executive Officer. Between the two they decided that they could not support the continued employment of Ms Joseph;



• Ms Fois identified to Ms Gravatt that Ms Joseph was still within her probationary period, at least as it is set out within the most recent contract of employment;



• Ms Gravatt and Ms Hall went into the meeting on 25 June 2014 with the authority and intention to dismiss Ms Joseph. In that meeting, Ms Gravatt told Ms Joseph she would be dismissed. While Ms Joseph did not deny or put forward an alternative version of events, she did say she should be given another chance;



• After being dismissed, on 27 June 2014, Ms Joseph went to see Ms Fois, and the two had a discussion, in which Ms Joseph said to Ms Fois she had not restrained Ms JJ, even though that is what had been reported, and that she should be given another chance;



• A letter of termination, dated 27 June 2014, was prepared by Ms Fois and signed on behalf of the Acting CEO and sent to Ms Joseph.

LEGISLATION

[93] The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009 (the Act), which is as follows;

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

CONSIDERATION

[94] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account the above legislation.

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[95] Having been dismissed for misconduct, the Commission is first required to find whether on the balance of probabilities the alleged misconduct actually occurred. 82 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.83 The Commission will also take into account the need for honesty on the part of the Applicant during the course of an investigation.84

[96] The Commission is obliged under the criterion in s.387(a) to consider whether there was a valid reason for the dismissal, with consideration being given to the phrase “valid reason” on many occasions. It is not the Commission’s role to substitute its view for that of the employer, but rather to assess whether the employer had a valid reason for termination. 85

[97] As referred to above, the matter of cooperation and honesty by an employee in the course of an investigation into their conduct will be taken into account by the Commission. This subject is important for the reason that such honesty enables their employer to determine what should be done about any established conduct, with the Full Bench, in majority, making the following observations in the matter of Streeter v Telstra;

“14 Ms Streeter was unco-operative and dishonest with Telstra during the investigation. In response to questions asked of her, she denied activities she knew had occurred or stated that she had “no comment”. She also claimed a lack of memory with respect to certain activities. As Senior Deputy President Hamberger points out, Ms Streeter concedes she lied to Telstra during the investigation.

15 Ms Streeter’s dishonesty would have been of little relevance to Telstra if her activities had had no effect at her work and were not likely to have any effect at her work. However, it appeared her activities had caused difficulties at her work and were likely to cause difficulties at her work in the future. In the circumstances, we think Telstra’s questions of Ms Streeter during its investigation were reasonable. Ms Streeter needed to be honest with Telstra about her activities, notwithstanding their inherently personal nature, so that Telstra could determine and take appropriate action to deal with the difficulties.” 86

[98] The particular conduct that led to Ms Joseph’s dismissal is set out in the termination letter of 27 June 2014 as follows;

“…you were observed restraining a client by your Manager, Jackie Gravatt. You were observed grabbing a client around the shoulders and eventually around the neck as you tried to move the client away from a desk.” 87

[99] The findings that I have made about this are set out above and include the event in the counsellors’ room in which the action of putting her arm in front of Ms JJ coupled with the combination of Ms Joseph and Ms JJ’s movements, led to Ms Joseph’s arm being wrapped around Ms JJ’s shoulders and neck.

[100] PVCH submit that this is a restraint that which justified disciplinary action, since it was contrary to the organisation’s policies; the laws under which it operated and that it potentially put Ms JJ at risk.

[101] On the basis of the foregoing, I am satisfied that, upon the balance of probabilities, the misconduct as alleged by PVCH took place. The evidence supports first that the actions took place, as I have found in the analysis above, and second that within the context of PVCH’s policies and obligations Ms Joseph’s conduct amounted to misconduct.

[102] I am satisfied also that Ms Joseph was terminated for the reasons advanced by Ms Gravatt, namely that Ms Joseph was terminated for restraining a client and that her dismissal was not for some collateral purpose, such as bringing to an end what PVCH thought was her probationary period.

[103] The evidence also supports that at the least, Ms Joseph was unhelpful with the discussion initiated with her on 20 June 2014.

[104] The impression I have taken of her overall evidence is that she has little insight as to her actions, or preparedness to accept what occurred. Further, when questioned or challenged about her actions, Ms Joseph has repeatedly sought to deflect the subject, endeavouring to have her actions explained by other matters, or to deny outright what is being put to her about her actions. These features arose in the evidence that was led in this matter, in which there has been a disproportionate amount of evidence given about Ms JJ’s obsession for fluids; her drinking plan and what was the currently applicable version; whether she is or is not likely to endeavour to try to get to an unsafe road; whether the program room was understaffed on the day; the possibility that the cup in the counsellors’ room may have had a poison within it and that the organisation was not exercising its duties of care by allowing cups and the like to be left on desks. To an extent, but only to an extent, is such evidence relevant to the matters that need to be decided by the Commission. The amount of evidence drawn, or endeavoured to be drawn, on such matters suggests a desire to avoid in the determinative conference, as in the meeting on 20 June 2014, the question of Ms Joseph’s actions.

[105] In contrast, and after suggestions to Ms Joseph and Mr George, her representative, that her version of events should be put to the Respondent’s witnesses about what they saw, this was not done to any great extent.

[106] The whole of the evidence leads, on the balance of probabilities, to the findings of fact I have made above.

[107] Further, when it comes to the discussion between Ms Gravatt and Ms Joseph on 20 June 2014 about what had happened, Ms Gravatt’s recollection of what was discussed is, more likely than not, an accurate recollection. In that discussion, as Ms Gravatt recalls it, she asked Ms Joseph to tell her what had occurred that morning and in particular asked why she was restraining a client; she reminded Ms Joseph of the support role modelling that she had provided; told Ms Joseph that clients are not to be manhandled and that she would need to make a VHIMS report about the incident. 88 Ms Gravatt recollects Ms Joseph as providing the following responses;

“I asked her why she grabbed the Client. She simply asked for another chance and said it would never happen again. There was no denial of the conduct”; 89 and

“At no point during the conversation did Ms Joseph deny that what I had seen had occurred or provide a different version of events. Instead, Ms Joseph said that she was sorry and that it would never happen again. She said that she thought she was helping the Client. She said she did not do anything wrong. She also said that I had often role-modelled for her but that there could have been poison in the cup. However, I pointed out to Ms Joseph that she knew that there was no poison in the cup on this occasion and that all poisons are locked away as we are required to do.” 90

[108] The totality of Ms Gravatt’s evidence on this subject indicates that in this meeting Ms Joseph was firstly unwilling to accept that the behaviour had even occurred; and secondly desiring to build and maintain the argument that she was helping Ms JJ by keeping her from imminent danger.

[109] Ms Gravatt’s evidence about the meeting of 20 June 2014, which I accept, indicates questioning to Ms Joseph about what had happened that morning. Ms Gravatt put to her that “unless it was life or death a client should never be grabbed or restrained in any way”, with Ms Joseph dissembling – she didn’t know that was the case or that it was not acceptable; she hadn’t read relevant meeting minutes.

[110] I find that there was no preparedness on the part of Ms Joseph to concede at that time that there had been any contact between her and Ms JJ and that the things she said were merely designed to deflect attention from what had happened. I find in that regard that Ms Joseph intended to be uncooperative and dishonest with PVCH so that they would not think the worst of her, and that she maintained that lack of cooperation and preparedness to concede what had happened well after the time of her dismissal. In that regard, PVCH was entitled to draw the conclusion that Ms Joseph sought to mislead it, and was entitled to take that into account in determining the action it ought to take over the incident.

[111] The task to be undertaken by the Commission in an analysis of this criterion of s.387 of the Act, that is whether at the time of dismissal the former employer had a valid reason for the termination of the employee, is to ascertain whether having found on the balance of probabilities that the alleged misconduct occurred, such misconduct amounted to a valid reason for termination. I take into account that in determining whether serious misconduct has occurred, in the context of a disability care environment, the nature of the employment is a factor that must be taken into account. 91

[112] In considering whether the reason advanced by the Respondent is a valid reason, the Commission considers whether it is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced”. 92

[113] The operating context of PVCH, including its legislative context, allows that the misconduct I have found is to be viewed seriously, and this is supported through the evidence of the Respondent’s witnesses and Ms Gravatt in particular.

[114] On the one hand, Ms Gravatt conceded, and quite properly so, that the conduct she had witnessed was not a malicious act but instead an unsolicited restraint, and that she would treat the two differently;

“So you mean for manhandling there is no need for any complaint or anything before police? That is your impression?---Sorry yesterday, Mr George, I made note that the manhandling - the - what I witnessed was not a malicious act. Ms Joseph wasn't strangling Ms Joseph - the client. If she in fact was I would have reported it to the police. What I witnessed was an unsolicited restraint.” 93

[115] Ms Gravatt’s evidence about physical restraint is that such would be permitted within an approval context;

“Coupled with that, this physical restraint is allowed in disabilities, and the Act says that. Is true? Physical restraint is allowed as per this Act in disability centres. Is it true?---There are conditions that physical restraint is allowed. There are many conditions. It has to be discussed, it has to be approved by the senior practitioner, there has to be evidence from allied health and psychiatrists, and so there has to be quite a lot of evidence to support physical restraint, yes.” 94

[116] In respect of what she actually saw, Ms Gravatt gave this evidence;

“Could it be that it was Ms [JJ] who was resisting and what you saw was a product of that resistance?---Ms [JJ] was resisting, that's how Ms Joseph's arm ended up further up.

Yes, but you described a second ago that the product of that was at Ms Joseph's instigation?---Correct.

Which is different to what I'm putting to you, which is could it be that Ms [JJ], in struggling, caused it to be a circumstance where you saw a firmer grab than Ms Joseph ever intended?---In my opinion what I saw was a restraint right from the beginning. So there was a firm restraint right from the beginning because, in my opinion, the intention was to remove Ms [JJ] from the desk by pulling against her.” 95

[117] Taken collectively, these concerns on the part of Ms Gravatt plainly indicate circumstances that are, from the perspective of PVCH, not tolerable. At the very least, PVCH is entitled to say that disciplinary consequences must be considered in respect of behaviour of this type, once it is established that it has taken place. Such is apparently consistent with the organisation’s operating context.

[118] Treatment by an employee of a disabled client that was disrespectful, cruel and degrading, has been considered sufficient to justify summary dismissal, even though it may be an isolated act of misconduct or negligence. 96 Further, it has been observed that an employer cannot take the risk of leaving an employee in charge of vulnerable client where there is a reasonable concern that the employee may not react appropriately in all situations.97 It has also been accepted that a valid reason for termination of employment could arise in relation to an employee of an aged care facility who had used the incorrect manual handling equipment, with a consequential risk to residents, even though the evidence did not establish that the applicant was responsible for causing certain injuries.98

[119] Ms Gravatt’s evidence about restraint indicates both that she considers it unacceptable, as well as that she is endeavouring to change behaviour. Her email about the meeting with Ms Joseph on 20 June 2014 includes this reminder to Ms Joseph of what she had been doing to correct behaviour;

“I told Mini that unless it was life or death a client should never be grabbed or restrained in any way. Mini said that she did not know.

I reminded Mini that I have mentioned it many times and have even stood in the hall way shouting out to staff not to grab this particular client and to support her without touching her and being rude to her.” 99

[120] These matters were the subject of inquiry by the PVCH Human Resources Manager, Ms Fois, and I am satisfied that the reports given to her were factual and their content taken into account by the organisation in its ultimate decision. I am satisfied that Ms Fois’ inquiries also took into account Ms Joseph’s responses, such as they were, to Ms Gravatt and that she was entitled to rely on what had been relayed to her. As someone who had no previous context for Ms Joseph, she was also entitled to rely upon the opinions of those who did know Ms Joseph both about what likely occurred, and how that was placed in the overall context of Ms Joseph’s employment. I have referred to a mistaken belief on the part of PVCH that Ms Joseph was a probationary employee at the time, however I am satisfied that, in overall context, such mistake does not create a situation where Ms Joseph’s dismissal might be regarded as capricious or lacking in objectivity.

[121] It might be that as a consequence of the matters reported to and established by Ms Fois, that an employee with a single instance of poor behaviour and an otherwise unblemished employment history could expect to be counselled about a circumstance such as that which occurred on 20 June 2014. Such an employee, who cooperated with the employer and its investigation and indicated a preparedness to both recognise their behaviour and to correct for the future might reasonably expect that they not be dismissed as a result.

[122] At the time it made its decision to dismiss her, PVCH had established misconduct on the part of Ms Joseph. Further, it saw a complete unpreparedness on Ms Joseph’s part to accept her actions; an unwillingness to rationally discuss what might have been done by her. It also held background concerns about Ms Joseph’s abilities and skills.

[123] When combined, these matters are sufficient to be a valid reason for dismissal.

(b) whether the person was notified of that reason

[124] The evidence discloses that Ms Joseph was informed of the reasons for her termination.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[125] It has been held that consideration of the criterion of whether an employee has been given an opportunity to respond to the reason for dismissal, is one that is consequential to a finding there is a valid reason for dismissal. In Wadey v YMCA Canberra 100 Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:;

"[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend. 101

[126] In Ms Joseph’s case, she was told of the allegations against her in the meeting with Ms Gravatt on 20 June 2014. I am satisfied that Ms Gravatt told her what she saw and sought a response from Ms Joseph on the subject. I am also satisfied, on the basis of the responses given by Ms Joseph in giving evidence, and her demeanour and communication style generally, that she both understood what was being put to her and had an opportunity to put back to Ms Gravatt such response as she reasonably wanted to. That she did not do so, I consider to be the product of a deliberate choice on her part. Her deflections and denials were because that is how she chose to respond.

[127] I am satisfied that, in the meeting on 20 June 2014 with Ms Gravatt, PVCH had not, at that time, made a decision to dismiss Ms Joseph and that it not only took into account the responses she did make, but that it would have reasonably taken into account any further things she had to say. I am satisfied that Ms Joseph had an opportunity to defend herself against dismissal in this meeting.

[128] At the time of the meeting held on 25 June 2014 between Ms Joseph, Ms Gravatt and Ms Gray, the evidence leads to a finding that while Ms Joseph did not put forward an alternative account at that time, PVCH informed her in the meeting, and likely at an early stage of the meeting, that her services were no longer required.

[129] I take into account in relation to the criteria in s.387(c) and (d) that it has been held that notwithstanding concerns about adherence to the procedural criteria of the Act, such may not be sufficient to negate a finding of a valid reason for termination. 102

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;

[130] The evidence records that Ms Joseph was dismissed in the meeting held with her on 25 June 2014. She was not forewarned of the meeting’s changed purpose, or that she may care to have a support person with her. There is no evidence, however, that PVCH unreasonably refused Ms Joseph a support person, or indeed that Ms Joseph sought to have one in attendance.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[131] The evidence records that Ms Joseph was dismissed for reason of misconduct and not unsatisfactory performance.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal;

[132] The evidence records that PVCH is an employer of more than 200 employees and that it has access to dedicated human resource management specialists and expertise that can and did assist in the decision to dismiss Ms Joseph. Accordingly no further consideration is required to be given to these criteria.

(h) any other matters that the FWC considers relevant.

[133] I do not find any other matters that are relevant and which require being taken into account.

[134] Having considered in detail all of the criteria within s.387 of the Act, it is desirable to consider whether, having found there was a valid reason for the dismissal of Ms Joseph, her dismissal was otherwise harsh, unjust or unreasonable.

[135] Although it could be said that PVCH’s processes of investigation and decision leading to dismissal could well have been more sophisticated, the processes it employed were fair and accorded Ms Joseph an opportunity to put to PVCH such views as she wanted them to consider. Had she conceded her behaviour to PVCH at the time and explained the circumstances that led her to act as she did, a consequential dismissal may well have been a harsh outcome; however she did not do so, and PVCH was left with a denial of circumstances about which its witnesses were unequivocal. The investigation and decision making processes used by PVCH were both proportionate to the allegations in question; its size as an employer; and the duties it owes to its clients. In context then, such criticisms of PVCH’s process as may be made do not negate a finding that Ms Joseph was not unfairly dismissed.

[136] I have also given consideration to the cases referred to by Ms Joseph in her closing submissions, but find they do not lead me to an alternate view to that already expressed;

• In Agius v Allstates Automotive Transmissions Pty Ltd 103 the Commission found in favour of an applicant, having found there was no valid reason for his dismissal, in which misconduct was alleged.104 There was no appearance by the respondent. The case is distinguishable from Ms Joseph’s for reason of my findings on the matters of evidence, and that, in her case the alleged conduct occurred, which satisfies the obligation cast on the Commission.105



• In the matter of Anderson v Thiess Pty Ltd, 106 the Commission at first instance analysed the tests for misconduct,107 with which I respectfully concur, and was satisfied there was a valid reason for the dismissal of the applicant108 with him sending an offensive email through the respondent’s email system and contrary to policy. However, the Commission found that a more thorough investigation of the matter would have been expected together with better discussion with the applicant, perhaps for the purpose of allowing him to express his regret for his behaviour.109

The Commission also found that the prospects of further employment of the applicant were extremely limited because of his age. 110 In finality, the Commission at first instance found the applicant’s dismissal was unfair on the grounds it was harsh and unreasonable,111 and awarded compensation to him. The matter was appealed by the applicant, with permission for appeal not being granted by the Full Bench.112

The matter is distinguishable from Ms Joseph’s for the reason of the findings made by the Deputy President at first instance about the totality of the evidence before her, and especially, in my view, about the extent to which it had established the facts of the misconduct alleged in the applicant’s case, together with her expectations of what a different investigation process may have achieved;

“[73] Thiess is a large employer with significant human resource management expertise. In the circumstances, I would have expected a more thorough investigation. There was a failure to identify the exact contents of the email. A view was formed that Mr Anderson had been warned about such conduct in the past, in circumstances where a proper investigation would have revealed that this conclusion was questionable.

[74] I am also of the view that had more time been taken to discuss the matter with Mr Anderson, an outcome might have been achieved where he accepted that the contents of the email were inappropriate in the Thiess work environment and apologised for any offence he may have caused. This conclusion is reached with some difficulty given Mr Anderson’s belligerent and intransigent attitude about the contents of the email in the hearing of this case. However, I cannot rule out that with a proper discussion about the matter, a position could have been reached where Mr Anderson indicated his regret for sending the email and its potential impact to the extent where he would not have been dismissed.

[75] Further, I note that there does not appear to have been any consideration of a penalty less than dismissal, in circumstances where the APC process also provides for suspension. It is also the case that Mr Anderson was summarily dismissed and did not receive any payment in lieu of notice. As previously stated, Mr Anderson is 65 years of age and the prospect that he will obtain other employment commensurate to that he had with Thiess is extremely limited.”

In Ms Joseph’s case I consider the evidence leads to PVCH reasonably establishing what the alleged misconduct consisted of and that it had taken place. Further, Ms Joseph was given an opportunity to acknowledge the behaviour she was alleged to have committed and to express regret for what she had done, and yet she did not do so.

• The matter of Camilleri v IBM Australia Limited 113 relates to misconduct in the form of various expense related claims in breach of the company’s policies.114 The Commission found that the respondent’s decision-making processes leading to dismissal were “profoundly affected” by presumptions it made, and considered that, in proper context, such was inconsistent with allowing him to continue to work without suspension, despite its later contentions about no longer trusting him as an employee.115 In that matter, the Commission found that despite there being a valid reason for his dismissal116 the applicant’s termination was harsh, given his substantial service and employment history, of 17 years employment; unjust because of the long delay in the investigation process.117 The Commission ordered reinstatement with payment of lost monies.

Camilleri is distinguishable from Ms Joseph’s case for the reason that the delay in investigating her conduct and then terminating her employment was minor, and explained by Ms Gravatt’s evidence that she was angry and needed to reflect on what had occurred, as well as to discuss it with her management.

• In the matter of Dent v Halliburton Australia Pty Ltd, 118 misconduct was alleged in the form of breaches of the company’s driving safety standard and policy on use of mobile phones. The Commissioner found that the evidence about use of the mobile phone was inconclusive,119 and that the applicant was exceeding the speed limit set by the respondent.120 Given that he had been subject to a final warning for his earlier driving-related misconduct, there was a valid reason to dismiss him.121 The Commissioner found that on balance the applicant’s dismissal was harsh, unjust or unreasonable because he was not given adequate notice or an adequate opportunity to respond to his possible dismissal until after the decision had already been taken.122 Compensation was ordered.

I consider the matter of Dent to be distinguishable from Ms Joseph’s case, for the findings I have made on the evidence, as set out above; principally that I have found that, on an objective basis, the alleged misconduct took place; and that there has been an unwillingness on Ms Joseph’s behalf to explain what had occurred, or why. The reasoning in Dent also appears to have been heavily influenced by the state of the evidence before the Commissioner and her preparedness to rely upon it. The evidence she saw was obviously inconclusive on critical points. I do not consider those same problems to arise in the evidence before me.

[137] Having considered in detail all of the criteria within s.387 of the Act I find that there are no matters that would cause me to find that even though there being a valid reason for the dismissal of Ms Joseph her dismissal was otherwise harsh, unjust or unreasonable.

CONCLUSION AND ORDER

[138] After consideration of the foregoing issues, I find that Ms Joseph was not unfairly dismissed within the meaning of the Act.

[139] As a result, I must now dismiss her application and an order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

Mr B George and Mrs M Joseph for the Applicant

Ms A Forsyth (of counsel), Ms J Gravatt, Ms S Gray, Ms K Hall and Ms C Fois for the Respondent

Determinative conference details:

2015:

Melbourne

10, 11, 17, 18 March; 22, 27 May

 1   Exhibit A5, part 1

 2   Ibid, part 3

 3   Transcript, PN 7943 - 7948

 4   Transcript, PN 7

 5   Exhibit R4, p.2

 6   Exhibit A6, part 3

 7   Exhibit R10

 8   Exhibit R13, attachment JCG-4

 9   Transcript, PN 7033

 10   PR561846

 11   PR567347

 12   Exhibit A8

 13   Transcript, PN 548, 2583 – 2586; see also Exhibit A2, p.2

 14   Transcript, PN 551, 2583

 15   Transcript, PN 561, 568, 571, 644 - 646

 16   Transcript, PN 4131; PN 5428 – 5432; PN 7366 – 7377

 17   Transcript, PN 5446

 18   Exhibit R14, para 17

 19   Transcript, PN 7393

 20   Transcript, PN 4132 – 4138

 21   Transcript, PN 3571

 22   Transcript, PN 2322 – 2327

 23   Exhibit R14, paras 16 - 17

 24   Exhibit A2, p.2

 25   Exhibit R13, para 38

 26   Exhibit R14, paras 18 – 19; Transcript PN 7378

 27   Transcript, PN 4141, 7391

 28   Transcript, PN 7404

 29   Transcript, PN 571 – 575

 30   Exhibit R14, para 19

 31   Transcript, PN 2358

 32   Transcript, PN 586 - 591

 33   Transcript, PN 4179

 34   Transcript, PN 4174

 35   Transcript, PN 4184

 36   Transcript, PN 4186

 37   Transcript, PN 7018

 38   Transcript, PN 7021 - 7023

 39   Transcript, PN 7026

 40   Exhibit R17, attachment CF-3

 41   Transcript, PN 7450

 42   Exhibit R14, para 21

 43   Exhibit A2, p.2; Transcript PN 2689

 44   Transcript, PN 2823

 45   Transcript, PN 2686 - 2690

 46   Transcript, PN 2364

 47   Transcript, PN 4208

 48   Transcript, PN 4216

 49   Exhibit R13, attachment JCG-5

 50   Exhibit R12

 51   Exhibit R13, para 47

 52   Ibid

 53   Exhibit R13, attachment JCG-6

 54   Exhibit R13, para 49

 55   See for example Transcript, PN 585, 2176 - 2181

 56   Exhibit R17, paras 17 – 18

 57   Exhibit R13, para 54

 58   Ibid, para 53

 59   Exhibit A5, part 3

 60   Exhibit R16, paras 21-26

 61   Transcript, PN 3336

 62   Exhibit R17, attachment CF-5

 63   Exhibit R13, para 64, attachment JCG-9

 64   Exhibit A1, para 6 (i)

 65   Ibid, para 6 (x)

 66   Exhibit A2, p.2

 67  

 68  

 69   Transcript, PN 2717 - 2720

 70   Transcript, PN 619

 71   Exhibit A11, p.3

 72   Transcript, PN 619, 2827

 73   Transcript, PN 2824 - 2831

 74   Transcript, PN 1652

 75   Transcript, PN 1703 - 1704

 76   Transcript, PN 6561

 77   Transcript, PN 5476

 78   Transcript, PN 4062 - 4066

 79   Transcript, PN 585

 80   Exhibit R13, paras 57, 61; Exhibit R16 paras 20, 26

 81   Exhibit R13, para 41; Transcript, PN 4216

 82   Edwards v Giudice (1999) 94 FCR 561 [6]‒[7]

 83   Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171

 84   Streeter v TelstraCorp Ltd (2008) 170 IR 1

 85   Miller v University of New South Wales (2003) 132 FCR 147 at 64; Walton v Mermaid Drycleaners Pty Ltd (1996) 142 ALR 681 at 685

 86   Ibid, at [14] – [15]

 87   Exhibit A8

 88   Exhibit R13, paras 45 – 50

 89   Ibid, para 47

 90   Ibid, para 49

 91   Davies v State of Victoria [2012] VSC 343, at [15], with reference to Sangwin v Imogen Pty Ltd [1996] IRCA 100

 92   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, p.373.

 93   Transcript, PN 4927

 94   Transcript, PN 6677

 95   Transcript, PN 7050 – 7052

 96   Davies v State of Victoria [2012] VSC 343, at [56] – [57]

 97   Dolva v Sylvandale Foundation Ltd[2011] FWA 8340, at [80]

 98   Matyashenko v Russian Relief Association of St Sergius of Radonezh[2011] FWA 6921, at [54]

 99   Exhibit R13, attachment JCG-6

 100 [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty (2010) 204 IR 399 [85]

 101   Ibid

 102   see for example Adewumi v Helping Hand Aged Care Inc[2012] FWA 9080, at [112]

 103   [2011] FWA 26

 104   Ibid, at [19]

 105   Ibid, at [14], with reference to the findings of the Full Bench in King v Freshmore (Vic) Pty Ltd, Print S4213, 17 March 2000

 106   [2014] FWC 6568

 107   Ibid, at [14] – [16]

 108   Ibid, at [54]

 109   Ibid, at [73] – [74]

 110   Ibid, at [75]

 111   Ibid, at [76]

 112   [2015] FWCFB 478

 113   [2014] FWC 5894

 114   Ibid, at [4]

 115   Ibid, at [38]

 116   Ibid, at [42]

 117   Ibid, at [58]

 118   [2014] FWC 5692

 119   Ibid, at [26] – [27]

 120   Ibid, at [33]

 121   Ibid, at [36]

 122   Ibid, at [42]

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