Moses Olufunminiyi Olufokunbi v Greenleaf Care Group Pty Ltd
[2024] FWC 1063
•23 APRIL 2024
| [2024] FWC 1063 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Moses Olufunminiyi Olufokunbi
v
Greenleaf Care Group Pty Ltd
(U2023/11858)
| COMMISSIONER MCKENNA | SYDNEY, 23 APRIL 2024 |
Application for an unfair dismissal remedy.
Moses Olufokunbi (“applicant”) has made an application, pursuant to s.394 of the Fair Work Act 2009 (“Act”), in which he seeks an unfair dismissal remedy in relation to his dismissal by Greenleaf Care Group Pty Ltd (“respondent”).
Preliminary matters
As to the initial matters to be considered, as set out in s.396 of the Act, there was no issue, and I otherwise find: the application was made within time; the applicant is a person who was protected from unfair dismissal; the respondent is not a small business, with the result that consideration of the Small Business Fair Dismissal Code does not arise; and the termination of employment was not a case of genuine redundancy.
Background
The respondent is a registered provider of services under the National Disability Insurance Scheme (“NDIS”). The applicant was initially employed by the respondent in May 2022. In the time immediately preceding the dismissal, the applicant was employed as a House Coordinator at a residential house in the suburb of Kaleen, in the Australian Capital Territory. The NDIS participant who resides at the house, as the sole occupant, was generally referred to in the proceedings as the “Kaleen Participant” and the house was referred to as “Kaleen 2”. I will use these terms in the decision, so as to anonymise the individual concerned. The support plan (otherwise interchangeably named a care plan) for the Kaleen Participant included, consistently with her NDIS funding arrangements and specific health needs, requirements for 24/7 support, a care ratio on a 2:1 basis and constant supervision.
As House Coordinator, the applicant had responsibilities for personally providing care for the Kaleen Participant as well as having oversight-type responsibilities for the junior support employees who also worked at Kaleen 2; and generally overseeing arrangements at Kaleen 2.
The applicant was a well-regarded employee; it is common ground that the respondent had not counselled or warned the applicant about any performance or conduct issues prior to the dismissal. The applicant was, in fact, promoted by the respondent over the course of his employment. In early-November 2023, and in quick succession, certain matters came to the attention of managers of the respondent which led to the view that dismissal of the applicant was appropriate. The respondent dismissed the applicant for misconduct on 15 November 2023, with a payment in lieu of notice - with the respondent’s reasons set out in a letter of the same date (“Dismissal Letter”).
The Dismissal Letter set out matters concerning the “Background”, as follows:
“You are currently employed as House Coordinator, at Kaleen House 2. The participant located at this House requires, and is funded for, two support staff. This means that there must be two staff at the House at all times, except for brief periods when one staff member is shopping for groceries or household items. Any change to this must be approved by a manager (currently Anson Martin). Making changes to the set arrangements without approval potentially puts the participant at risk, is inconsistent with the participant’s support plan and is in breach of the NDIS and funding requirements.
On 9 November 2023 we brought to your attention matters of serious concern about your conduct at work, being the following:
1. On Monday 9/10/23 you left a shift early (at around 3pm) as the [Kaleen Participant] had refused to go to an appointment and you did not want to stay. The rostered support worker stayed an extra hour to cover your early departure until the next shift staff arrived.
2. On Monday 23/10/23 you advised you were going to the <Head> [sic] office and left a shift early, at about 9/9:30am, then returned at about 1pm wearing different clothes.
3. On Monday 30/10/23 you arrived at about 9:30am and left within the hour (several hours before the shift ended), saying you were going to the <Head>office and the staff could contact you if needed. When you left, the behavioural therapist [name] was present at the house, but she left within two hours, so the Support Worker was on her own with the participant for the rest of the day.
4. On Thursday 2/11/23 you arrived around 9:15am and left around 10:30am (several hours before your shift ended), saying you were going to the <Head> office and staff could contact you in an emergency. When the staff queried why two staff were not required at the house you said something along the lines of ‘we are trying a new system with just one staff’.
These matters were in addition to the serious issues we raised with you earlier on 9 November 2023 about leaving the House for an extended period on 3 November 2023. These matters are set out in our 9 November 2023 letter to you.
Further, in a subsequent telephone discussion with you on 9 November 2023, you advised you could not provide a receipt for the printing on 3 November as you had paid cash. You also advised the printing is still with you as you did not leave it in the house on Friday, although you also said you had taken it to printers on 3 November because it was urgently needed by Monday 6 November.”
As may be seen from the preceding extract from the Dismissal Letter, reference was made to an earlier letter dated 9 November 2023. The “Allegations and breaches” set out in the respondent’s earlier letter of 9 November 2023 to the applicant read:
“1. You arrived late and left shifts early without approved leave or seeking permission from your manager. This is a breach of your employment conditions as specified in the Employee Handbook.
2. On multiple occasions you left the [Kaleen Participant] with only one staff member present for several hours at a time. This is not following the participant’s care plan and agreed funding regime.
3. You lied to support workers regarding Greenleaf’s endorsement of leaving the participant with only one staff member. This is a breach of your employment conditions as specified in the Employee Handbook.
4. In my phone conversation with you this afternoon to briefly advise of the new allegations, you advised you could not provide a receipt for the printing as you paid cash. You also advised the printing is still with you as you did not leave it in the house on Friday, although you had taken it to printers on the Friday 3/11 because it was urgently needed by Monday 6/11. I am therefore alleging you have also made false claims relating to the printing, which is a breach of your employment conditions as above.”
The Dismissal Letter identified that the applicant’s conduct amounted to misconduct. That is, the letter read in such respects:
“We determined that your above actions were misconduct as set out below.
1. On a number of occasions, you arrived late and left shifts early without approved leave or seeking permission from your manager. This is a breach of your employment conditions as specified in the Employee Handbook.
2. On multiple occasions you left the [Kaleen Participant] with only one staff member present for several hours at a time. This is not following the participant’s care plan and agreed funding regime, of which you were well aware as House Coordinator.
3. You misrepresented to support workers regarding Greenleaf’s endorsement of leaving the participant with only one staff member. This is a breach of your employment conditions as specified in the Employee Handbook.
4. You were dishonest when you said that you were out of the House on 3 November for an extended period because you were printing (as well as shopping). This is a breach of your employment conditions as specified in the Employee Handbook.
You were advised that as a result of your above conduct, Greenleaf was considering terminating your employment for serious misconduct. Before a decision was made, we invited you to respond to the matters raised in this letter, and to give any reasons (ie show cause) as to why your employment should not be terminated.”
The Dismissal Letter described the applicant’s responses to the alleged misconduct as including:
“In your written response dated 13 November you advised that:
- You sent the communication regarding one-on-one support for [the Kaleen Participant], to four staff members who work with you and to the House phone, to ensure all the staff received the message.
- You felt it necessary to step up and take charge as House Coordinator due to lack of communication from other sources.
- You advised staff to approach [the Kaleen Participant] one at a time because she becomes agitated if two staff members show up simultaneously when she calls for help.
- You have been trialing [sic] a strategy of remaining in the <house> [sic] office to handle administrative duties while the support worker attends to [the Kaleen Participant].
- You have never left [the Kaleen Participant] with just one staff member unless it was for an official purpose and deemed safe.
- The claims that you left shifts early on the four occasions mentioned are fabricated and unfounded.
- Your departures from the House have always been communicated to the staff and were solely for official purposes.
- It is well known that there should always be two staff members in the house, except during times allocated for shopping.”
The Dismissal Letter read, as the conclusions and outcome of dismissal, as follows:
“We have now considered your 13 November response to these issues, as well as all other information available to us. We have come to the following conclusions:
1. You left a number of shifts early, or arrived late without approved leave or seeking permission from your manager, without reasonable excuse.
2. You breached the [Kaleen Participant’s] care plan and did not seek appropriate approval before ‘trialling a new system’, which potentially put the participant and other staff at risk, and is in breach of NDIS requirements.
3. You misled staff about the one-on-one staff trial being an approved process, and were dishonest about printing on 3 November 2023. This dishonesty is a breach of your employment conditions.
4. Your claim that you believed by sending the message to the House phone, all staff were aware of the ‘trial system’ is false, as you would be well aware messaging the house phone is not the accepted means of communicating to all house staff. This dishonesty is a breach of your employment conditions.
We consider the conduct outlined above to be misconduct. It is a breach of instructions given to you by your employer, a breach of the NDIS Code of Conduct and a breach of the expectations outlined in the Employee Handbook. It is also a fundamental breach of your employment contract.”
Statutory considerations
In considering whether satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account certain cumulative matters specified in s.387(a)-(h) of the Act. I now turn to those matters.
(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)
Some of the matters relied on in the Dismissal Letter are denied by the applicant (i.e., extended absences from Kaleen 2 on certain dates, namely, 9, 23 and 30 October; and 2 November 2023). The applicant otherwise gave different characterisations of various other matters relied on in the respondent’s case, or explanations for them, in the Commission proceedings.
It is unnecessary for me to examine each of the matters addressed in the Dismissal Letter, because there are two matters which, in and of themselves, ground valid conduct-related reasons for the dismissal – including the effect on the safety and welfare of other employees. While there were differences in detail and emphasis in the parties’ respective cases, those two particular matters are not really in any substantial evidentiary contest.
Extended and unauthorised absence from Kaleen 2 on 3 November 2023: It is common ground that employees with carer responsibilities for the Kaleen Participant may leave Kaleen 2 for a short period while the Kaleen Participant is sleeping. In that regard, the evidence indicated that the sleeping patterns of the Kaleen Participant are such that she has problems sleeping at night, meaning she sleeps a lot during the day. That is, employees may leave Kaleen 2 to go to the local Kaleen shops (approximately seven minutes away from Kaleen 2) to make purchases while the Kaleen Participant is sleeping “and return within half an hour”.
While employees are permitted to go to the shops while the Kaleen Participant is sleeping, the applicant absented himself from Kaleen 2 for many hours on 3 November 2023 – on the respondent’s case for around five hours. That is, based on reports from the co-worker who was rostered to work at Kaleen 2 on 3 November 2023, the applicant left the house at approximately 7.45am and did not return until between approximately 1.15pm and 1.26pm (when a co-worker sent a text message confirming the applicant had returned). However, even on the applicant’s own explanation to the respondent in a written account dated 13 November 2023 his version was that he left Kaleen 2 “around 9.00am” and did not return until 1.45pm. In this regard, it may be noted that when the applicant had been contacted by his supervisor/manager at about 11.40am, the applicant had said/asserted to Mr Anson Martin: “I am at the shops and will be back at the house soon. I need to collect some printouts … I left the house around 30 minutes ago”. The applicant did not return to the house “soon”. The co-worker telephoned Mr Martin at around 1.15pm and informed him that the applicant still had not returned.
The applicant was rostered to work at Kaleen 2 on 3 November 2023 from 7.30am to 2.30pm. Specifically, in the applicant’s written response dated 13 November 2023 to the respondent’s show cause letter dated 9 November 2023, the applicant advised that he had left Kaleen 2 around 9.00am to conduct house shopping and to print a dietician plan for the Kaleen Participant for distribution among the staff and signing. As to the extended absence (on the applicant’s account from 9.00am to 1.45pm, or four hours and 45 minutes), the applicant explained in his written response:
“… The shopping took longer than expected because of the extensive list of items to be purchased. I had to travel further than usual, to Kippax, in search of specific items like a mop that were not available in our usual shopping area, Kaleen. During this time, I lost the Budgetly card, which contributed to the extended duration of over 4 hours. Throughout this period, I stayed in touch with the second staff member on duty and assisted remotely in managing [the Kaleen Participant].”
In the meantime, the rostered co-worker had, among other matters, messaged Mr Martin at 11.56am in a text which relevantly read: “… I’m really scared … She getting really mad” and “Could I [stay] outside”. Mr Martin stated to the co-worker that the applicant had informed him that he would be back shortly (i.e., shortly after 11.40am) and that, for duty of care reasons, the Kaleen Participant could not be left alone inside the house. The co-worker telephoned Mr Martin at around 1.15pm and informed him that the applicant still had not returned. In subsequent email concerning events on 3 November 2023, the co-worker advised, among other matters, that the Kaleen Participant had tried to hit her at a time when the applicant was not at Kaleen 2.
Matters were described in the respondent’s submissions in the following way:
“5.7 On 3 November 2023, the Applicant and his colleague, Ms Aneesha Civi, were rostered to work at Kaleen 2. At around 11.40am, Ms Civi informed Mr Martin that the Applicant had been absent from Kaleen 2, purportedly shopping, since around 7.45am. When confronted about his absence by Mr Martin, the Applicant claimed to have only been absent for 30 minutes and that he needed to collect some printing.
5.8 With the Applicant absent, Ms Civi had severe difficulty caring and managing the Kaleen Participant
5.9 The Applicant only returned to Kaleen 2 sometime between 1.15pm and 1.25pm. When Mr Martin enquired about his extended absence, the Applicant was hostile in his response. During the course of this discussion, the Applicant contended that he had attended various shops and also Officeworks to obtain “some printouts”. Whilst conversing with Mr Martin, the Applicant was simultaneously speaking to the Kaleen Participant and asserting that Mr Martin “is not allowing me to support you”. Mr Martin then directed the Applicant to attend the head office upon the completion of his shift or when the next staff member arrived for handover, however the Applicant refused and proceeded to hang up on Mr Martin.” (Italics in original; references not reproduced)
In the Commission proceedings, the applicant acknowledged he had been absent from Kaleen 2 for an extended period on 3 November 2023; he advanced various reasons for the extended absence that day. Mr Martin’s evidence concerning the applicant’s explanation about the reasons for the extended absence being related to the purchase of a mop and to attend an Officeworks outlet in connection with printing was as follows:
“45. There was no reason or legitimate basis why Mr Olufokunbi should have been away from the house when he was rostered to work unless it was for a short period to undertake the shopping or other approved tasks. The shopping for Kaleen 2 should be done at the Kaleen shops, which is about 7 minutes away from the house. This means that if the Kaleen Participant wakes up the person shopping can return to the house as soon as possible.
46. Mr Olufokunbi said that on 3 November 2023 he was away for a longer period of time as he was doing printing at Officeworks and had to go to another location to purchase a mop.
47. If Mr Olufokunbi required something to be printed for the house, he should have requested it from the head office, and it would have been printed there and provided to the house. If it was an urgent document, we can ask the afternoon staff to start early and pick it up from the office to take to the house, or he could have arranged to come to the office after his shift at the house finished. We would never ask a staff member at the house to go to the office to do or collect printing and leave the participant with reduced care. It does not make sense for Mr Olufokunbi to get the printing done at Officeworks as the head office has a big commercial printer to do any printing.
48. Also, Mr Olufokunbi should not have been purchasing a mop as it should have been ordered through the stock request process, and would require approval as it should not be purchased with the Kaleen Participant money. Mr Olufokunbi would know this as it was the process that has been in place for a long time, and he has worked at Greenleaf since May 2022. I have looked for, but not located any receipt or approval for the printing or the mop from 3 November 2023. When I spoke with him on 3 November 2023, Mr Olufokunbi did not provide any explanation why he needed the printing or mop urgently.”
Following the direction from Mr Anson to attend the head office, the applicant thereafter left his shift at Kaleen 2 early and prior to any handover. The applicant’s case was that he left for medical reasons brought about, in effect, by his distressed reaction in response to Mr Martin’s conduct in contacting him about the absence on 3 November 2023. However, the evidence indicated that the respondent has no record of the applicant applying for personal leave for the remainder of his shift on 3 November 2023.
This absence on 3 November 2023 was not authorised and there are supposed to be two support workers for the Kaleen Participant under her support plan – save for permitted short absences to go to the local Kaleen shops about seven minutes away, while the Kaleen Participant was sleeping. The extended unauthorised absence by the applicant left the other employee who was rostered-on at Kaleen 2 in a difficult situation as she attempted to deal single-handedly with the Kaleen Participant. Among other matters, the other employee made various attempts to obtain assistance/the return of the applicant given the circumstances she was single-handedly encountering with the Kaleen Participant. It was in those circumstances that the co-worker contacted her line manager, Mr Martin, who did not work at Kaleen 2. In turn, Mr Martin also attempted to contact the applicant on a number of occasions.
When the applicant eventually arrived at Kaleen 2, having been absent from the workplace for a number of hours, he offered an explanation to Mr Martin about having been attending to purchasing items for Kaleen 2 and attending to some printing. I accept the respondent’s description in its submissions as to what occurred on 3 November 2023:
“9. … Further, the Applicant repeatedly asserted that on 3 November 2023, he was absent from Kaleen 2 for an extended period as he was undertaking printing at Officeworks. Despite this assertion, the Applicant has failed to provide sufficient proof that he did, in fact, undertake printing or otherwise duly explain why he needed to do this task. The Applicant’s conduct is particularly concerning in circumstances whereby he knew that if he required something to be printed for Kaleen 2, he should have requested it from head office rather than leave the Kaleen Participant with reduced care. …” (References not reproduced)
It is unnecessary to determine whether the applicant was present at the workplace or absent on all the contested dates, because of the applicant’s unauthorised absence, without reasonable cause, from Kaleen 2 for an extended period on 3 November 2023. The respondent did not consider that the applicant’s explanations concerning absence on 3 November 2023 were satisfactory, and I accept that is the case. The applicant’s extended absence was a dereliction of his responsibilities to the Kaleen Participant, being a dereliction which is not acceptably explained by the applicant’s contentions about purchasing a mop and going to Officeworks in connection with printing. Added to that, it is clear that the applicant failed to return to Kaleen 2 immediately upon being contacted by Mr Martin, notwithstanding the fact that he was being contacted from approximately 11.40am by Mr Martin over the course of his absence, about being absent.
Ms Jenny Harper, the respondent’s Human Resources Manager, was satisfied, based on reports from co-workers at Kaleen 2 that the applicant had various unauthorised absences other than 3 November 2023, but there was no direct evidence from any of the co-workers in the proceedings – only Ms Harper’s evidence about these matters having, in effect, been advised to her as she further investigated matters. The respondent submitted that in circumstances where the applicant admits he was absent on 3 November 2023 that the “available and compelling inference” is that he was also absent on 9, 23 and 30 October, and 2 November 2023. While there was insufficient direct evidence to find that the applicant was absent from Kaleen 2 on three of those dates, the evidence does support a conclusion that the applicant was absent from work on 30 October 2023. Mr Anson’s evidence addressed the matter in the following way:
“59. I was informed by Ms Harper that staff at the Kaleen 2 house had reported that Mr Olufokunbi had left early or arrived late for his shift on numerous occasions since 30 October 2023, and on at least one occasion said he was going to the office. I do not recall Mr Olufokunbi coming into the office after 30 October 2023, so I do not know where he went on when he left the house. Mr Olufokunbi had no reason to leave the house, and if he was leaving other than for routine shopping or appointments with the Kaleen Participant, he should have informed me, which he didn’t.
60. On 4 November 2024, Ms Civi sent me a copy of a text message that she received from Mr Olufokunbi at 6.23am on 30 October 2023, in which Mr Olufokunbi stated:
[Morning Aneesha] Am going to the office to get the house stock, will you be okay by yourself to let the Morning staff go and I’ll see you once I get the stock
A copy of that text message is attached and marked AM10.
61. The Greenleaf office only opens at 9am, and Mr Olufokunbi did not have a key so it was not possible for him to go into the office until it opened. Mr Olufokunbi’s shift started at 7am on 30 October 2023. He did not seek any approval or notify me that he intended to attend the house late.” (italics in original; bold not reproduced)
The applicant denied any knowledge of this text message in the proceedings, but there was nothing to suggest it was somehow fabricated by Ms Civi to send to Mr Martin. It tends strongly to suggest that the applicant was absent from Kaleen 2 without authorisation on the morning of 30 October 2023 and for reasons which were not work-related - given that the message was sent at 6.23am, the applicant’s shift started at 7.00am and the office did not open until 9.00am.
The evidence of Mr Anson around the text message, I find, strongly suggests that the applicant had an unauthorised absence on 30 October 2023. In any event, the extended absence on 3 November 2023 is of itself of sufficient seriousness to, I find, ground a valid reason for the dismissal.
Unauthorised/unilateral written advice to subordinate employees about altering the staff ratio for the Kaleen Participant: In his role as the House Coordinator for Kaleen 2, the applicant was the most senior on-site employee in that house. That is, various lower-graded employees were under the applicant’s coordination at Kaleen 2 in relation to the care of the Kaleen Participant. The Kaleen Participant’s support plan identified that she was to have two carers. This ratio was also part of the NDIS arrangements more generally under which the respondent was engaged to provide care for the Kaleen Participant.
For his own reasons, which were not satisfactorily explained either to the respondent or in his evidence and submissions before the Commission, the applicant self-determined to send a written communication to some co-workers at Kaleen 2 purporting to alter the care ratio for the Kaleen Participant. Matters were described in the respondent’s submissions in the following way:
“5.12 It soon came to the Respondent’s knowledge that, in addition to his above-described conduct, sometime on 1 November 2023, the Applicant had, unilaterally and without authorisation, informed certain staff of a purportedly new procedure relating to the Kaleen Participant as follows:
“The house coordinator will primarily be available to assist [the Kaleen Participant] during appointments and in the event of emergencies. During other times when the house coordinator is on shift, [the Kaleen Participant] will be managed on a one-on-one basis, ensuring focused and personalized support” (Unauthorised Alteration).
5.13 The Unauthorised Alteration was not made in consultation with Mr Martin or otherwise endorsed by the Respondent. By drastically and suddenly changing the established care-ratio, the Applicant’s Unauthorised Alteration had the capacity to, among other things, jeopardise the safety of the Kaleen Participant and her carers.” (Italics in original; references and bold not reproduced)
The applicant’s communication to the (more junior) employees who worked at Kaleen 2 purportedly altering the staff ratio for the Kaleen Participant was, as the respondent’s case contended, both unauthorised and “completely wrong”. The applicant himself acknowledged in the Commission proceedings that he would not have had any proper basis or authority to make this alteration to the staff ratio for the Kaleen Participant (and it was not suggested that an alteration would be unilaterally within the scope of, for example, the applicant’s ostensible authority in his role of House Coordinator). In effect, the applicant contended that his communication to the subordinate employees had other purposes and did not amount to an alteration to the care plan. The respondent’s closing submissions put matters in the following way as to its perspective:
“5.2 secondly, during cross-examination, the Applicant was taken to the flowlogic message he circulated to colleagues on 1 November 2023 … . There was a contest during cross-examination as to the appropriate characterisation of this message. The Applicant contended that this “unofficial” message solely sought to inform colleagues that they should refrain from contacting him unnecessarily and that the message did not seek to change (or purport to change) the Kaleen Participant’s care plan. The Respondent respectfully submits that the FWC ought to reject this contention outright as it does not accord with the plain words of the message itself and with the fact that the Applicant knew (as he admitted) that the message would be received by colleagues. Rather, the message clearly indicated that the Applicant would only be available to assist the Kaleen Participant “during appointments and in the event of emergencies” and that otherwise she “will be managed on a one-on-one basis”. The message explicitly states that the reason for this alteration to the care plan was to ensure the efficient use of the Applicant’s time. The Respondent submits, therefore, that it is readily apparent that the Applicant knowingly and intentionally implemented the Unauthorised Alteration. Such conduct had the capability to impugn the quality and scope of care provided to the Kaleen Participant, and illustrated a brazen disregard for the safety and welfare of his colleagues. As noted in the Martin Statement, this risk indeed manifested on 3 November 2023 when Ms Civi (who was looking after the Kaleen Participant alone) contacted Mr Martin claiming “I’m really scared… she getting really mad” and “Could I say (sic) outside”;
5.3 thirdly, the Applicant appeared (at least on occasion) to contend that even if he did engage in the Unauthorised Alteration, he did not mean to jeopardise the safety of stakeholders but rather was trying to make his role more efficient. The Respondent respectfully asserts that this explanation ought not be given any weight by the FWC and that, in any event, it does not excuse the Applicant’s conduct. As noted by Ms Harper, upon his appointment to the role of House Co-ordinator, the Applicant was explicitly informed that if he had any concerns about his role or workload, he was to contact her or other senior leaders within the Respondent’s enterprise. There is no evidence that the Applicant did this but rather he proceeded to, without permission and without consulting the Respondent, pursue the Unauthorised Alteration to the Kaleen Participant’s care plan; and ...”. (Bold and italics in original)
It may be noted that Mr Anson asked the co-worker who was rostered to work on 3 November 2023 why she had waited until 11.40am to let him know that the applicant had not returned from shopping, she informed him about the communication that the applicant had sent purporting to alter the care ratio. The respondent submitted that it had a valid reason for dismissal because “such conduct seriously failed to meet the Respondent’s expectations of a senior leader in its enterprise and, vitally, had the capacity to (and, in fact, did) jeopardise the safety of the Kaleen Participant and the Respondent’s employees.” In such respects, Mr Martin’s evidence read:
“52. Mr Olufokunbi essentially varied the Participant’s Support Plan by reducing her care ratio from 2:1 to 1:1 when he was rostered on to work at Kaleen 2. Mr Olufokunbi did not have permission to vary the Participant’s Support Plan without authority. Leaving the Kaleen Participant with a care ratio that is less than what is required in her support plan put the Kaleen Participant’s care and health and safety at risk, as well as the health and safety of other staff. This is particularly as the Kaleen Participant has self-harm tendencies, verbal and physical aggression towards others, and tendency to leave the house without notice. These risks are identified in the Participant Support Plan, which is attached and marked AM2.
53. Mr Olufokunbi did not discuss the change with me or inform me that he had sent the 1 November 2023 message to some staff changing the support arrangements for the Kaleen Participant. At no time did Mr Olufokunbi indicate to me that he wanted to decrease the Kaleen Participant’s care ratio.
54. The care ratio of a participant’s support plan can only be varied following an assessment by the participant’s support coordinator (as named on the support plan), and then approval by the CEO, Mr George. Mr George approves any changes to a support plan because of the impact it has on rostering and staffing needs.”
The applicant’s communication to employees about the care level for the Kaleen Participant was considered by the respondent to constitute misconduct. I was not persuaded by the applicant’s explanations in his evidence and cross-examination around this matter. I accept that the applicant’s unauthorised communication to his subordinate employees at Kaleen 2 did purport to alter the care ratio for the Kaleen Participant and this constituted a valid reason for dismissal.
In conclusion as to valid reason, the applicant’s conduct concerning (a) his extended absence from Kaleen 2 on 3 November 2023 and (b) his advice to employees purporting to alter the care ratio of the Kaleen Participant to a “one-on-one basis”, at its core undermined the safety and welfare of the Kaleen Participant as well as other employees.
(b) Whether the person was notified of that reason
I am satisfied, for the purposes of the s.387(b) of the Act, that the applicant was notified of the reason for his dismissal in the sense considered in Crozier v Pallazzo Corporation Pty Ltd (200) 98 IR 137, as affirmed in cases including Mark Bartlett v Ingleburn Bus Services Pty Ltd t/a Interline Bus Services[2020] FWCFB 6429. Specifically, allegations were put to the applicant about the initial concerns held by the respondent and matters that subsequently also came to light.
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
I am satisfied that the applicant was given an opportunity to respond to matters related to his conduct concerning the unauthorised extended absence from Kaleen 2 and the unauthorised communication to subordinate employees concerning the care ratio for the Kaleen Participant. While the applicant was also given the opportunity to respond to the other matters (and denied them), it is unnecessary for the purposes of this decision to further consider them because of my conclusions concerning the two specific matters that I have addressed in my consideration of s.389(a) of the Act.
(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
There was no evidence of any unreasonable refusal by the respondent to allow the applicant to have a support person present to assist at any discussions relating to dismissal. The evidence indicated that the respondent declined the opportunity to have a support person.
(e) If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal
The dismissal in this case did not relate unsatisfactory performance, with the result that the question of prior warnings does not relevantly arise for consideration. The dismissal was for conduct-specific reasons.
(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
The respondent submitted that the matters addressed in s.389(f) and s.389(g) are not applicable in this matter. I accept that the provisions are not relevant. The procedures adopted by the respondent otherwise were conformable with what might be expected of an employer with around 180-200 employees and which has in-house human resources personnel.
(h) Any other matters that the Commission considers relevant
Among other matters, it emerged in cross-examination that, around the time of the dismissal, the applicant had been in the process, together with his wife, of establishing a new business. The applicant’s closing submissions seemed to suggest that the decision to dismiss him was connected to that development, in as much as his submission read:
“My journey began not out of rivalry but from a genuine passion shared with my wife to enhance the lives of those living with disabilities. My role as a director in the business was not a declaration of competition but a commitment to service. However, Greenleaf’s reaction to this venture was not of inquiry or dialogue but of swift retribution, aimed not at understanding but at eliminating what they perceived as a threat. This case sheds light on a practice all too common in the disability sector and beyond: the intimidation and mistreatment of staff who dare to challenge or even inadvertently appear to threaten the status quo.
Greenleaf’s decision to terminate my employment was precipitated not by any professional failing on my part but by a culture of fear and control. This action was not an isolated incident but part of a broader pattern of behavior where employees are seen as disposable, their dedication and hard work rendered invisible in the face of corporate paranoia. …
…The evidence and circumstances presented in this case call into question not only the specifics of my dismissal, but the very integrity of the processes used to justify it. The alleged misconduct, the purported reasons for my termination, bear the hallmarks of fabrication and manipulation, aimed more at silencing dissent and safeguarding Greenleaf’s interests than addressing any genuine concern.”
As to the applicant’s closing submission suggesting that the dismissal arose against the background of the establishment of his business venture, there was nothing to suggest that the decision to dismiss the applicant was related to that matter. Rather, the dismissal arose against the background of the respondent’s work-specific concerns about the applicant already addressed in this decision, and the associated loss of trust and confidence arising from the applicant’s conduct concerning the Kaleen Participant. On the topic of loss of trust and confidence, the Dismissal Letter included text which read: “You … were dishonest about printing on 3 November 2023. This dishonesty is a breach of your employment conditions.” As to that, there was no evidence indicating that the applicant provided to the respondent the printing he said he had been undertaking at Officeworks. Moreover, there was no evidence of any receipt/s or records for either the Officeworks printing or the mop the applicant said he purchased. The applicant did not adduce any evidence in such respects. Moreover, Mr Martin’s evidence in such respects is again reproduced: “Mr Olufokunbi should not have been purchasing a mop as it should have been ordered through the stock request process, and would require approval as it should not be purchased with the Kaleen Participant money. … I have looked for, but not located any receipt or approval for the printing or the mop from 3 November 2023.”
Conclusion
On a weighing of the various matters, I have not been satisfied that the dismissal was harsh, unjust or unreasonable/an unfair dismissal. As such, an order will issue in conjunction with these reasons dismissing the application.
The proceedings are concluded.
COMMISSIONER
Appearances:
M Olufokunbi on his own behalf.
H Pararajasingham of counsel for Greenleaf Care Group Pty Ltd.
Hearing details:
2024.
Sydney/Canberra by videolink:
5 March 2024.
Final written submissions:
2 April 2024.
Printed by authority of the Commonwealth Government Printer
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