Mr George Camille v Berala on the Park HR Pty Ltd

[2015] FWC 2264

[2015] FWC 2264

FAIR WORK COMMISSION

DECISION

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

Mr George Camille
v
Berala on the Park HR Pty Ltd
(U2014/12770)

COMMISSIONER CARGILL SYDNEY, 7 APRIL 2015

Application for relief from unfair dismissal.

[1] This decision arises from an application by Mr G Camille (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by Berala on the Park HR Pty Ltd trading as Berala on the Park (Berala or the respondent). The applicant was dismissed on 3 September 2014 and lodged his claim for relief on 22 September 2014.

[2] Following two aborted attempts, the matter was dealt with by a Conciliator on 25 November 2014 but did not settle. It was heard by me in Sydney on 10 February and 19 March 2015. The matter proceeded by way of a hearing as I considered that it was appropriate to do so having taken account of the factors set out in section 399.

[3] The applicant was represented by Mr Vuong, solicitor and the respondent by Mr Boyce of counsel. Both representatives appeared by way of permission pursuant to section 596.

[4] The applicant gave evidence. His witness statement dated 12 December 2014 became Exhibit Applicant 4. The applicant’s oral testimony is at PN 1276-1535 of Transcript. The following witnesses gave evidence in response to notices to attend issued at the applicant’s request:

Ms S. Ali Former employee of the respondent. Her oral testimony is at PN 1015-1153 of Transcript;

Ms D. Letekristos Former employee of the respondent. Her oral testimony is at PN 1163-1271 of Transcript.

[5] A third person was also summonsed to attend the hearing on 19 March to give evidence in the applicant’s case however she failed to appear. There seems to be an issue as to whether she was actually served with the notice to attend, Exhibit Respondent 24.

[6] Two witnesses gave evidence on behalf of the respondent. They each attended in answer to notices to attend. They are:

Ms E. Espinosa Daughter of Ms Sarkany, a resident at Berala, and a retired registered nurse with more than 30 years experience. Her oral testimony is at PN 72-318 of Transcript;

Ms L. Thomson At the relevant time she was the CEO of Berala. Her oral testimony is at PN 323-924 of Transcript.

FACTS AND EVIDENCE

[7] At the relevant time the respondent owned and operated an aged care facility at which the applicant was employed as an Enrolled Nurse. He commenced employment there in 1989 and was engaged on a part time basis working 78 hours per fortnight. I note that this appears to be more than the ordinary hours of a full time employee. The applicant also worked, and continues to work, part time at another aged care facility.

[8] The respondent had in place a Mandatory Reporting Policy, Exhibit Respondent 5, a Staff Handbook, Exhibit Respondent 6 and a Code of Conduct and Ethics, Exhibit Respondent 7. The applicant’s evidence is that he was aware of these three documents.

[9] In 2011 the applicant, and several other nurses employed by Berala including Ms Ali, received community awards recognising their dedication and commitment, Attachment C to Exhibit Applicant 4 and Exhibit Applicant 1.

[10] The applicant suffered a heart attack in November 2013 and was absent from the workplace on sick, then annual, leave. He returned in April 2014 and his evidence is that he felt pressured and unwelcome at that time.

[11] It is Ms Thomson’s evidence that, during a conference with the family of a resident, Ms Ibrahim, in early July 2014, members of the family identified issues about the applicant’s treatment of the resident during the previous August. Ms Thomson’s evidence is that, because of the Mandatory Reporting Policy and the Compulsory Reporting Guidelines of the Department of Social Services, the matter had to be reported to the appropriate authorities and the applicant suspended.

[12] On 9 July 2014 the applicant was informed of his suspension on full pay. He was not told the nature of the complaint at that time. A letter confirming the suspension is at Exhibit Respondent 8.

[13] In a letter dated 24 July 2014 the applicant was directed to attend an interview on 25 July to address the allegations which had been made against him, Attachment F to Exhibit Applicant 4. The letter appears to have been based on a template and, although it contained some relevant details of the allegations, was clearly deficient in several respects.

[14] A replacement letter dated 28 July 2014 was then issued to the applicant, Exhibit Respondent 9. This informed the applicant that he should disregard the earlier letter, directed him to attend a “fact finding” interview on 30 July and set out the allegations against him. These were identified as involving two issues: alleged sexually inappropriate behaviour towards a resident on two occasions; and alleged engagement in inappropriate and unprofessional conduct during work hours.

[15] Particulars of the allegations were provided although the complainants were not identified. The first allegation was that the applicant had inappropriately touched the resident in her pubic region. The second allegation concerned comments of a sexual nature said to have been made by the applicant to fellow employees.

[16] The letter also informed the applicant that he was entitled to bring a support person to the interview.

[17] At the interview on 30 July the applicant provided a hand-written response to the allegations, Attachment G to Exhibit Applicant 4. The typed version is also at the attachment. He provided verbal responses to questions put by Ms Thomson and the other Berala representative. This second representative is the “missing” witness referred to earlier. The applicant’s evidence is that these questions were oppressive and his answers were deliberately misinterpreted by Ms Thomson to suit her predetermined view of the outcome. His evidence is that there was no genuine consideration of his responses.

[18] The applicant denied the allegations. He stated that he had had very limited dealings with Ms Ibrahim as she was usually attended to by female nurses only. The applicant said that he didn’t attend female residents from Middle Eastern or Muslin cultures who did not want male staff touching them. The applicant denied making the alleged inappropriate comments to other employees. He said that, on the contrary, some of his colleagues had made suggestive remarks to him.

[19] Ms Thomson’s file note made after the interview is Attachment H to Applicant 4 and also Exhibit Respondent 10. In her evidence Ms Thomson says that the interview caused her to have concerns that the applicant did not provide proper care to Muslim women, had been negligent towards Ms Ibrahim and had made inappropriate comments to other staff. She felt concerned for the safety of those staff because of statements made by the applicant during the interview.

[20] The applicant denied that he made threats towards the other staff during the interview. His evidence is that he only wanted to know who had made the complaints against him so that he could “take them to court for defamation”.

[21] The applicant’s evidence is that he was notified by mobile phone that he should attend a disciplinary meeting on 7 August. His evidence is that he and his solicitor attended the Berala premises but after waiting for an hour were informed that the meeting was to be rescheduled. A letter dated 7 August provided the applicant with notice to attend a disciplinary meeting on 12 August, Exhibit Respondent 11. The letter set out the allegations previously put to the applicant together with his responses. The letter informed the applicant that the purpose of the meeting was to further discuss the issues as well as concerns about comments he had made during the fact finding interview.

[22] At the meeting on 12 August the applicant attended with his solicitor and provided Ms Thomson with a hand-written response to explain the comments he had made during the previous interview which were identified as being of concern to management. This response is Attachment I to Exhibit Applicant 4. The response consists of two hand-written pages, each of which addresses one of the separate concerns. A typed version of one of the pages is also included. This is also at Exhibit Respondent 12.

[23] The applicant denied previously stating that he didn’t attend to female residents of certain cultures or Ms Ibrahim in particular. He said that he always asked such residents if they required a female nurse. The applicant explained that one of the nursing sisters had informed the staff that Ms Ibrahim was to be attended to by female nurses only. Nevertheless, he had answered the buzzer for Ms Ibrahim and told her he would call a female nurse. The applicant also denied having made any threats against fellow employees who had made complaints against him and explained his comments meant that he would confront them in court.

[24] The applicant was advised that he was to resume work in the week commencing 21 August under strict supervision for three months and would be on morning shift. I gather this advice was provided verbally at the meeting on 12 August although this is not entirely clear from the evidence.

[25] It is Ms Thomson’s evidence that she issued a “final formal warning” to the applicant in correspondence which is dated 22 August 2014, Exhibit Respondent13. She acknowledged that date was incorrect and, in fact, that it had been sent earlier. The letter states that the warning was being issued because of the applicant’s “admission in not attending to the care needs of residents of certain cultures and repeated threat of reprisal against the complainants who have raised the allegations”.

[26] The letter informed the applicant that he was to attend further training and was to be under supervision for three months from 21 August. It is Ms Thomson’s evidence that the reason for changing the applicant’s hours for that period was to accommodate these supervision requirements. The applicant was also advised that any further disciplinary action could result in his dismissal.

[27] The applicant’s evidence is that he did not receive this letter.

[28] The applicant’s evidence is that he agreed to work morning shifts three days a week but had to work afternoon shifts on the other days in order to accommodate his family responsibilities. The applicant returned to work on 21 August on the afternoon shift. His evidence is that he was unable to log into the computer system to record progress notes for residents he cared for on that day.

[29] The applicant was “partnered” by Ms Letekristos on that shift. Ms Ali was one of the Registered Nurses on duty. At some point in the early evening the applicant and Ms Letekristos attended to a, then 94 year old, resident, Maria Sarkany. Ms Sarkany has dementia and requires complete care for all her needs. There is a difference in the evidence of Ms Espinosa, on the one hand, and the applicant and Ms Letekristos on the other, as to whether the applicant initially brought a blue lifter into the resident’s room. Nothing however turns on this.

[30] After receiving assistance in the bathroom, Ms Sarkany was returned to a full hoist lifter, of the type shown in Exhibit Respondent 1, and returned to her bedroom. The applicant was on the right side of the bed, Ms Letekristos was on the left side, Ms Espinosa, who is Ms Sarkany’s daughter, was at the base of the bed and Ms Sarkany was suspended in the lifter above the bed. It was necessary for a vitamin cream to be applied to Ms Sarkany’s anal region at the base of her coccyx.

[31] It is Ms Espinosa’s evidence that the proper way for cream to be applied to that area of the body, and the way in which it was usually applied to her mother, was for the patient to be placed on the bed, on their side with knees drawn up as shown in Exhibit Respondent 2. Ms Letekristos's evidence is to the same effect. Ms Ali’s evidence is that the correct procedure could be with the patient lying on the bed, but if there were additional tasks to be done to the patient some staff left the patient in the hoist while they applied the cream.

[32] Ms Espinosa put the cream onto the palm of the applicant’s hand. It is her evidence that the applicant then reached underneath her mother from the front to apply the cream. Ms Espinosa’s evidence is that the applicant wouldn’t have been able to reach the relevant area because of the belt and other material on the lifter. Her evidence is that the applicant was not wearing gloves. Ms Espinosa’s evidence is that she yelled “Not there, George” but that the applicant took a while to stop.

[33] It is Ms Espinosa’s evidence that Ms Letekristos was not paying attention at the time as she was looking towards the T.V. on the wall. Ms Letekristos denies that she was watching T.V. but, in any event, her evidence is that she couldn’t see what the applicant was doing. Ms Letekristos says that she didn’t hear Ms Espinosa yell at the applicant. She also testified that Ms Espinosa was trying to rush them.

[34] In the file note of the interview with Ms Letekristos on 25 August, Exhibit Applicant 2, Ms Thomson records that Ms Letekristos said that when the applicant applied the cream to Ms Sarkany he was at the side and he put it on from behind. She denied the applicant applied the cream to Ms Sarkany’s vaginal area.

[35] The applicant’s evidence is that it was at Ms Espinosa’s request that the cream was applied to Ms Sarkany while she was in the lifter. His evidence is that Ms Espinosa always asked for it to be applied in this fashion. The applicant’s evidence is that he was wearing gloves at the time. He says that he didn’t apply the cream from the front rather from the back of Ms Sarkany.

[36] It was not put to Ms Espinosa that she had asked for the cream to be applied while her mother was hanging in the lifter either that day or “always” as suggested by the applicant.

[37] Ms Espinosa’s evidence is that she didn’t report the incident at the time as there were no managers on site at that hour. She says that she was shocked at the applicant’s actions as she had known him for some years in attending to her mother and trusted him. She wanted to think about what had happened. She made some notes about the incident, Exhibit Respondent 3. Those notes include Ms Espinosa’s observation that the applicant had actually massaged the cream into her mother’s pubic area rather than on her buttocks.

[38] Ms Espinosa’s evidence is that she didn’t report the matter the following day as again there were no managers on site at the time she was there. However, she told the applicant not to attend to her mother. The following two days were the weekend. On Monday 25 August she reported her concerns to the Facility Manager. It is this Manager who is the missing witness referred to earlier. The Manager and Ms Espinosa then met with Ms Thomson.

[39] Ms Thomson’s notes of the meeting with Ms Espinosa are Exhibit Respondent 14. The same notes but with the addition of details about later interactions with the police and a later meeting with Ms Letekristos are Exhibit Applicant 2.

[40] It is Ms Thomson’s evidence that she and the Facility Manager formed the view that what Ms Espinosa had reported constituted elder abuse and that, under the Mandatory Reporting Policy, the incident had to be reported to the police and the relevant government agency, now the Department of Social Services (the Department). Ms Thomson’s evidence is that the police attended the premises and interviewed her, Ms Espinosa, the Facility Manager and the applicant.

[41] The applicant was arrested and taken to Auburn Police Station for further questioning. Later that evening the relevant police officer, Detective Leite, took out Provisional Apprehended Violence Orders against the applicant which among other things prevented him from entering the premises of the Berala facility. The protected persons named in the Provisional Orders were Ms Sarkany and Ms Espinosa. The matters were listed before the Burwood Local Court on 29 August at 9am. The Provisional Orders are Exhibit Respondent 17. The applicant was not charged with any offence at that time.

[42] On 27 August the applicant was sent a letter requiring him to attend a disciplinary meeting at 11am on 29 August, Exhibit Respondent 18. The letter confirmed the earlier advice to the applicant that he had been suspended on full pay from 25 August. The letter set out the allegations against the applicant as being alleged sexual abuse towards a resident and breach of the code of ethics and conduct. Particulars of Ms Espinosa’s complaint were provided. The applicant was informed that, if the alleged conduct was found to have occurred, it would warrant his immediate dismissal. The applicant was reminded that he was on a final warning.

[43] Also on 27 August Ms Thomson notified the Nursing and Midwifery Council of New South Wales (NMC) of the complaint against the applicant. Also on that date she notified the Australian Health Practitioner Regulation Agency (AHPRA) of the complaint, Attachment L to Exhibit Applicant 4. It appears that this was then referred to the New South Wales Health Care Complaints Commission (HCCC) which is conducting an ongoing investigation into the complaint.

[44] The applicant contacted Ms Thomson to advise her that he would not be able to attend the interview on 29 August as he had to be at Burwood Local Court. After some difficulties rescheduling the disciplinary interview the applicant provided a written response to the allegations, Attachment J to Exhibit Applicant 4.

[45] In his response, dated 28 August but faxed to Ms Thomson on 2 September, the applicant states that he applied the cream to Ms Sarkany’s bottom while he was standing on her right side. He made no comment about the allegation that he had applied it to her vaginal area and rubbed it back and forth.

[46] The proceedings before the Local Court on 29 August were adjourned to allow the police further time to investigate the issue. The applicant was still not charged.

[47] On 2 September Detective Leite sent an email to Ms Thomson informing her that the Apprehended Violence Order between the applicant and Ms Sarkany was enforceable and that the applicant was unable to attend Berala for two years. The email is Exhibit Respondent 21.

[48] On 3 September the applicant was sent a letter which informed him that his employment was being terminated with immediate effect, Exhibit Respondent 22. After referring to the earlier correspondence and the applicant’s response, Ms Thomson provided the following reasons for the dismissal:

“In addition to the above matter, and of significance to your ongoing employment with Berala on the Park, I understand that as of Friday 29 August 2014 the AVOs against you have now been enforced and will be effective for a period of two years. As advised by you these AVOs prevent you from entering the premises of Berala on the Park.

In determining the outcome to our investigation of alleged sexual abuse I write to advise that I am of the view that you inappropriately applied cream to a resident that resulted in our resident feeling distressed and embarrassed.

In making this determination, I have relied on the complainant’s statement and the witness statement provided by the staff member who was present during the incident.

Management is of the view that your conduct is unacceptable and demonstrates your failure to adhere to your basic professional responsibilities as an Endorsed Enrolled Nurse. At all times you are required to ensure you manage and care for our residents in a considerate and respectful manner

Given our above determination and our view that you have breached your professional code of conduct and ethics as an Endorsed Enrolled Nurse we are of the view that your conduct warrants the termination of your employment. In addition to our view regarding your conduct we are of the view that the conditions of your AVO, which prevent you fulfilling the inherent requirements of your employment contract, has resulted in the frustration of your employment contract.”

.

[49] Ms Thomson testified that the decision to dismiss the applicant was a group decision. She denied that the applicant had been sacked for sexual assault but rather stated that he had behaved inappropriately both in relation to Ms Sarkany and the earlier events concerning Ms Ibrahim and his fellow employees. The existence of the AVO was also relevant. It is Ms Thomson’s evidence that the respondent only operated one aged care facility, being the facility where the applicant was employed.

[50] On 8 September the respondent provided a report on the complaint by Ms Espinosa to the Department, Exhibit Respondent 19.

[51] On 15 September the NMC conducted a hearing concerning the applicant’s alleged professional misconduct. Shortly thereafter the Council ordered that five conditions be imposed on the applicant’s registration. I note that the NMC letter dated 27 September, Exhibit Respondent 20, indicates that this happened on 18 August. Clearly that could not be the case and it is probable that the actual date was 18 September. As a result of further proceedings on 8 December the NMC “eased” one of the conditions it had earlier imposed however, the other four remained unchanged. A letter notifying the applicant of this outcome is also at Exhibit Respondent 20.

[52] The applicant was never charged with any offence in relation to the complaint made by Ms Espinosa. On 31 October the police withdrew the application for final Apprehended Violence Orders and the case was dismissed.

[53] On 30 October the respondent entered into contracts for the sale of the Berala facility to IRT, an organisation which operates several aged care facilities. It is Ms Thomson’s evidence that there is no corporate relationship between the respondent and IRT. Ms Thomson is currently the Chief Executive Officer for IRT. Ms Letekristos is also employed by IRT.

[54] On 5 December 2014 IRT’s legal counsel sent correspondence to the applicant’s solicitor, apparently in response to his letters informing them of the circumstances of the dismissal and following events. IRT notes that its staffing requirements for the Berala facility had been satisfied and they would be unable to offer employment to the applicant, Attachment M to Exhibit Applicant 4. The sale of the business took effect on 10 December 2014.

[55] Ms Thomson denied that she had been given any directive to dismiss staff.

SUBMISSIONS ON BEHALF OF THE APPLICANT

[56] A written outline of submissions on behalf of the applicant was provided prior to the proceedings. Mr Vuong also made oral submissions.

[57] Mr Vuong noted that the Fair Work Commission (FWC) is not bound by the rules of evidence. However he submitted that the applicant was taken by surprise at the manner in which the respondent complied with the directions to file its material prior to the proceedings. In particular, the respondent’s failure to provide statements from its two witnesses, its failure to call Ms Letekristos and the Facility Manager to give evidence, the nature of its written outline of submissions and the fact that its documents were provided only on the first day of the hearing were all cause for concern about the fairness of the applicant’s dismissal.

[58] Mr Vuong referred to the applicant’s nursing and legal qualifications. He noted that the applicant had received an award for his nursing and that he had not been the subject of any misconduct allegations in his other job.

[59] Mr Vuong submitted that the allegations put to the applicant in July 2014 were uncertain, far-fetched and fictional. He noted that the applicant had not been provided with any details about the names of the complainants, in relation to both the Ibrahim allegations and those supposedly made by the applicant’s colleagues. Mr Vuong further noted that the Ibrahim allegations were almost 12 months old and were made by a resident with dementia. He submitted that the absence of any documentary material such as file notes or police reports indicated that there was no basis to those allegations.

[60] Mr Vuong submitted that the allegations concerning the applicant’s treatment of Ms Sarkany on 21 August were the result of a “concoction” between Ms Thomson, Ms Espinosa and the Facility Manager. He submitted that it was suspicious that it had taken Ms Espinosa four days to report the alleged assault and that she reported it to Berala’s managers rather than to the police.

[61] Mr Vuong submitted that Ms Espinosa’s evidence was contradicted by that of Ms Letekristos both in relation to whether the applicant had brought another lifter into Ms Sarkany’s room and, more importantly, in relation to where the applicant was standing when he applied the cream.

[62] Mr Vuong submitted that Ms Espinosa’s accusations against the applicant were false and have caused ongoing damage to his client’s professional standing. He noted that the applicant is still under investigation by both the NMC and HCCC to ascertain if he is fit to keep his licence to practise as an enrolled nurse. Mr Vuong submitted that Ms Espinosa’s false accusation amounted to a criminal offence under section 314 of the New South Wales Crimes Act 1900 (the Crimes Act). He submitted that it is also an offence under section 678 of the Act.

[63] Mr Vuong submitted that the respondent had deliberately suppressed evidence as to the notes of the meeting with Ms Letekristos on 25 August, Exhibit Applicant 2 and a file note of 5 September made by a representative of the NMC. Mr Vuong submitted that it was only after the applicant’s receipt of this document and the event report from the police that his client knew about the existence of Ms Espinosa’s notes, Exhibit Respondent 3 or the full extent of the file note, Exhibit Applicant 2. Mr Vuong submitted that the respondent’s actions amounted to offences under section 317 of the Crimes Act and section 678 of the Act. He also submitted that Ms Thomson had misled the Commission by her evidence.

[64] Mr Vuong submitted that the applicant’s dismissal was extremely unfair. There was no basis in fact to the allegations on which the dismissal was based. The assumption that there was an AVO ban in place for two years was false. Mr Vuong submitted that the respondent had an ulterior motive to dismiss the applicant related to the sale of the facility to IRT.

[65] Mr Vuong submitted that the dismissal was also procedurally unfair. The allegations of 9 July had no proper basis; the applicant was not provided with sufficient particulars of any of the allegations against him; he was not given an opportunity to respond; the outcome of the process was predetermined; and, the dismissal was done with recklessness or criminal intent.

[66] Mr Vuong submitted that the applicant’s dismissal was for the improper purpose of facilitating the sale of the business and to save on redundancy payments. He noted that a number of other employees had either resigned or had been dismissed. Mr Vuong submitted that it appeared that Ms Thomson did not consider all relevant factors before deciding to dismiss the applicant. She just wanted to get rid of him. Mr Vuong submitted that IRT would not have wanted to take on the liabilities associated with long term employees.

[67] Mr Vuong submitted that the applicant should be reinstated so that he could serve out 50 years in his profession and retire with honour. He noted however that reinstatement was not possible and submitted that the applicant should receive compensation.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

[68] The respondent’s written outline of submissions relied upon its material filed in response to the applicant’s initial claim for relief. Mr Boyce also made oral submissions.

[69] Mr Boyce noted that the reason for the applicant’s dismissal was not sexual assault but rather that he had not cared for residents in a considerate and respectful manner.

[70] Mr Boyce made submissions about the issue of valid reason and in this regard relied on the decisions in Kenefick v Australian Submarine Corporation Pty Ltd [1995] 131 ALR 197 @ 207, Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 @ 373 (Selvachandran) and Wadeyv YMCA Canberra [1996] IRCA 568 @ pp 17/18.

[71] Mr Boyce submitted that there was resounding evidence that the applicant had behaved inappropriately towards Ms Sarkany during the incident on 21 August. He observed that Ms Espinosa had made contemporaneous notes about the incident. Mr Boyce submitted that Ms Espinosa’s reasons for not raising the issue earlier than 25 August were soundly based.

[72] Mr Boyce submitted that Ms Letekristos’s evidence was not inconsistent with that of Ms Espinosa as she was not able to see what the applicant was doing. Importantly, she agreed that usually residents should be placed on the bed for cream to be applied to the relevant area. Mr Boyce submitted that Ms Ali’s evidence was to similar effect.

[73] Mr Boyce referred to the decision in Blythe Chemicals v Bushnell (1933) 49 CLR 66 @ 81/2 and noted that a ground for dismissal which is related to conduct must involve the destruction of confidence or other impediment to the employment relationship rather than mere unease as to future conduct.

[74] Mr Boyce submitted that the applicant had been notified of the reason for his dismissal and provided with an opportunity to respond. He referred to the notice to attend a disciplinary interview, Exhibit Respondent 18 and the letter of termination, Exhibit Respondent 22. Mr Boyce noted that the letter notifying the applicant of the disciplinary interview informed him that he could bring a support person with him.

[75] Mr Boyce noted that the applicant had previously been issued with a final warning although he also noted that the applicant’s evidence was that he had not received that letter. Mr Boyce submitted that paragraphs (f) and (g) of section 387 were not relevant in this matter.

[76] Mr Boyce submitted that the nature of aged care facilities was a relevant factor to be considered. They provide care to vulnerable residents and high standards are expected both of the facilities and the carers. The mandatory reporting requirements were also relevant. Mr Boyce noted that the applicant had agreed that he was aware of Berala’s policies and procedures.

[77] Mr Boyce submitted that Ms Thomson’s understanding that, at the time of the applicant’s dismissal, there was an AVO in force which banned the applicant attending Berala, was an honest although mistaken belief. He submitted that Ms Thomson could not be blamed for relying upon the email from Detective Leite, Exhibit Respondent 21.

[78] Mr Boyce submitted that the outcome of the police investigation was not relevant to this case. He noted that the standard of proof in such matters was a criminal one. Mr Boyce submitted that the respondent completely rejected the conspiracy theories advanced in the applicant’s case. He also submitted that the restrictions placed on the applicant by the NMC were relevant to be considered.

[79] Mr Boyce submitted that reinstatement was not an appropriate remedy. He noted that the evidence is that the sale of the Berala facility to IRT was an arm’s length sale between unrelated entities. He also noted that IRT is not a party to these proceedings and there would be an issue as to whether an order could be made against that entity.

[80] Mr Boyce submitted that, if compensation was to be awarded, contrary to the respondent’s primary position, it should be at the lower end of the scale. The applicant’s prior conduct and final warning were relevant. Mr Boyce submitted that the applicant’s prospects of remaining in the respondent’s employment for any significant period of time were low.

CONCLUSIONS

[81] Section 396 of the Act sets out four matters which must be decided in applications of this type before the merits of a claim are considered. Those matters are:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[82] As will have been apparent from paragraph 1 of this decision the application was made within the period required in subsection 394(2). There is no dispute that the applicant is a person protected from unfair dismissal. Paragraphs (c) and (d) of section 396 have no relevance in the present matter.

[83] Section 385 provides that a person has been unfairly dismissed if the FWC is satisfied that:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[84] Paragraph (a) is clearly met in relation to the applicant. Paragraphs (c) and (d) have no relevance. Consequently it is to paragraph (b) that my attention must be directed. In considering whether the dismissal of the applicant was harsh, unjust or unreasonable it is relevant to refer to the comments of McHugh and Gummow JJ in Byrne & Frew v Australian Airlines Pty Ltd (1995) 61 IR 32 @ 72:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[85] It is necessary to turn to section 387 which sets out the factors which must be taken into account by the FWC in deciding whether a dismissal is harsh, unjust or unreasonable. Those factors are as follows:

“(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 FWC considers relevant.”

[86] The first matter which must be taken into account is whether there was a valid reason for the dismissal. The meaning of valid reason has been the subject of much consideration by the Courts as well as by this Commission and its predecessors. There seems to be general acceptance of the often quoted words of Northrop J in Selvachandran:

“In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, ...”.

[87] The primary reason relied on for the termination in this matter relates to the applicant’s conduct and in this regard I have to determine for myself whether the alleged misconduct, or any part of it that is contested, took place and, if so, whether it amounted to a valid reason for the dismissal: King v Freshmore (Vic) Pty Ltd [Print S4213].

[88] The alleged misconduct here is that the applicant inappropriately applied the cream to Ms Sarkany in a manner which caused her to feel distressed and embarrassed. This finding by Ms Thomson is said to have been based upon Ms Espinosa’s complaint and Ms Letekristos’s statement, presumably made during the interview with her on 25 August 2014.

[89] The complaint made by Ms Espinosa involved a very serious allegation about the applicant’s conduct which, if made out, would amount to an indecent assault on a very vulnerable member of the community. I consider that it is highly unlikely that the applicant behaved in the manner which is suggested. Even if an individual wished to engage in such behaviour for some perverted reason of their own, and I do not suggest that the applicant did so, it seems improbable to me that they would do this in front of a family member of the victim.

[90] I do not suggest Ms Espinosa invented her accusation. It is likely that she believed that events transpired in the way in which she described them. However, it is probable that she misinterpreted what she saw and the scenario then built up in her mind over the ensuing days. This lead to her complaint which started a chain reaction which had, and continues to have, disastrous results for the applicant.

[91] It should be noted that I do not accept that Ms Espinosa’s accusation came about as part of a conspiracy or “concoction” with Ms Thomson in order to “get rid of” the applicant.

[92] However, despite my rejection of the most damaging aspect of Ms Espinosa’s complaint, I am satisfied that the applicant did not use the correct procedure in applying the cream to Ms Sarkany in that she should have been placed on the bed for this task rather than left hanging in the lifter. This was a failure to treat her with proper consideration. I am unable to reach any conclusion as to whether or not Ms Sarkany was embarrassed or distressed by the manner of the procedure. Clearly Ms Espinosa was distressed but that is a different issue.

[93] The other reason for the applicant’s dismissal which is relied upon by the respondent concerns the AVOs, especially the order relating to Ms Sarkany which purportedly prevented the applicant attending the Berala facility for two years. As it transpired, no final orders were made and the provisional orders were discharged by the Local Court on 31 October 2014.

[94] Nevertheless, as at 2 September 2014, Ms Thomson had before her an email from the detective in charge of the case informing her that the orders were enforceable and the applicant could not attend the facility for two years. In my view it is not unreasonable that Ms Thomson accepted the contents of the email as being accurate.

[95] In the circumstances I consider that the combination of the applicant’s conduct and, more particularly, the applicant’s apparent inability to attend for work for two years amounted to a valid reason for his dismissal. I note in this regard the evidence that the respondent did not operate any other aged care facilities.

[96] I now turn to consider what might be termed the “procedural fairness” factors in section 387, paragraphs (b), (c) and (d). The applicant was informed of the allegations against him in the letter of 27 August 2014. However, although this correspondence notes that an AVO had been issued against him, the applicant was not on notice that the terms of the order might themselves give rise to a reason for dismissal. It was not until his receipt of the letter of termination that the applicant was made aware of this issue in terms of its possible impact on his employment.

[97] The applicant was provided with an opportunity to respond to the allegations and he did so in writing. He was not given the opportunity to respond to the issue of the AVO.

[98] There was no refusal by the respondent to allow the applicant to have a support person present to assist in any discussions relating to the dismissal.

[99] The dismissal did not relate to unsatisfactory performance so the question of previous warnings does not arise in this context.

[100] At the time of the applicant’s dismissal the respondent had 110 employees. Ms Thomson’s role included human resources responsibilities. I note these factors.

[101] There are several matters which I consider are of relevance under paragraph (g). First, the applicant was employed by the respondent for more than 25 years. There was nothing before me to suggest that any issues had been raised against him until July 2014.

[102] The second matter of relevance is the final warning dated 22 August, Exhibit Respondent 13. I note that the applicant’s evidence is that he did not receive this warning. I have very limited evidence before me about the events and circumstances which led to the warning, for example, I have nothing from any of the complainants. Nevertheless it appears to me that a final warning was unnecessarily harsh in the circumstances.

[103] The applicant had provided a reasonable explanation for not attending to residents of a particular cultural background. Although his statements about wanting to see the complainants in court may not have been prudent, in my view, they don’t amount to threats of reprisal as suggested in the warning letter. A first warning was probably warranted but not a final one.

[104] The third matter I consider to be of relevance is the fact that the email of 2 September from the police was an incorrect representation of the actual position concerning the AVO. In the absence of evidence from the author of the email I cannot draw any conclusion as to the cause of the error.

[105] Allied to this matter is the fact that the applicant makes various complaints about the manner in which the police handled his case. Whilst the applicant may have valid grievances in this regard, it needs to be noted again that there was no evidence before me from relevant police officers. In any event, issues concerning the actions of the police cannot be considered to be Berala’s responsibility.

[106] The fourth matter of relevance is the nature of the respondent’s business. Aged care facilities by their very nature care for vulnerable and frail members of the community. There is a high level of regulation such as mandatory reporting policies and high standards are expected of both the facilities themselves and the nursing and other staff who provide caring services to residents.

[107] The respondent submits that the restrictions imposed by the NMC and the ongoing HCCC investigation are also matters of relevance. I note however that these issues did not arise until after the applicant’s dismissal and are more relevant to the question of remedy, in particular, whether reinstatement would be appropriate rather than whether the dismissal was harsh, unjust or unreasonable.

[108] In all of the circumstances of the case and having taken into account of each of the factors in section 387 and my findings thereon I have determined that the dismissal of the applicant was harsh. It was in large part based on a belief about an important issue that, although honestly held, was incorrect. It follows from this determination and the other matters addressed in paragraphs 83 and 84 above that the dismissal was unfair.

[109] Sections 390, 391 and 392 of the Act deal with remedies for unfair dismissals. I am satisfied that the provisions of section 390(1) and (2) have been met in each of these cases. Subsection (3) provides that an order for compensation must not be made unless the FWC is satisfied that reinstatement is inappropriate.

[110] I have considered what has been put on the question of reinstatement. In the particular circumstances of this case I consider that it is inappropriate. The respondent no longer operates any aged care facility and consequently there is no position in the respondent’s enterprise to which the applicant could be reinstated. The present operator of Berala was not a party to these proceedings and I have doubts as to whether an order for reinstatement could be made against them.

[111] Pursuant to section 390(3)(b) I consider that, in all circumstances of this matter, it is appropriate to make an order for the payment of compensation. Section 392(2) requires that, in determining an amount for the purposes of such an order, the FWC must take into account all the circumstances of the case including:

“(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that FWC considers relevant.”

[112] The question of the calculation of compensation has been dealt with in a number of Full Bench decisions such as Tabro Meat Pty Ltd v Heffernan[2011] FWAFB 1080 and Haigh v Bradken Resources Pty Ltd[2014] FWCFB 236 (Haigh). These decisions confirm the approach in Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21 which is summarised as:

“1. Estimate the amount the employee would have received or would have been likely to receive if the employment had not been terminated,
2. Deduct monies earned since termination,
3. Deductions for contingencies,
4. Calculate any impact of taxation,
5. Apply the legislative cap.” (Haigh @ para 10)

[113] There was nothing before me as to the effect of any order for compensation on the viability of the respondent’s business. In such circumstances I am satisfied that the order which I propose to make would not have an adverse effect on such viability.

[114] The applicant was employed by the respondent for a lengthy period, in excess of 25 years. This is a period which supports the making of an order.

[115] There is always a speculative element involved in assessing the remuneration that a person would have or would have been likely to have received had it not been for their dismissal. In this case there was a lengthy period of apparently unblemished service, followed by a final warning which I consider should have been no higher than a first warning.

[116] If the applicant had not been dismissed it would have been likely, and appropriate, that he would have received a second warning for not following the correct procedure in applying the cream. Minds might differ over the question of whether the new owner of the facility would have offered employment to an employee with two recent warnings on their record.

[117] In the circumstances I consider that it is reasonable to assume that the applicant would have remained in the respondent’s employment until the sale of the business was finalised, a period of 14 weeks.

[118] The only material before me on which I am able to calculate the actual amount of remuneration the applicant would have earned in that period is that which is set out in the answer to the question at point 1.5 of the employer’s response to the initial claim. That indicates that the applicant’s salary at the time of dismissal was $1,392.23 per fortnight. It is unclear, but I assume that is a nett figure. On that basis I calculate that for the period of 14 weeks the applicant would have received $9,745.61.

[119] There is no evidence before me of any efforts the applicant made to mitigate his loss whether by looking for another job or seeking additional hours in his other part time job.

[120] There is no evidence of remuneration earned by the applicant since the dismissal other than an unknown amount earned in his other job. It is not appropriate that those earnings are deducted from the relevant amount in paragraph 118 above.

[121] The anticipated period of employment has passed and there is nothing before me which persuades me that there is any sound basis for making any deduction for contingencies.

[122] Section 392(3) requires that, if I am satisfied that the applicant’s misconduct contributed to the decision to dismiss, then I must reduce the amount to be ordered by an appropriate amount. In this matter the applicant’s misconduct did contribute in part to the dismissal. I consider that the appropriate reduction from the amount set out in paragraph 118 is one week, or $696.12. That leaves an amount of $9,049.49.

[123] The amount of $9,049.49 is less than the compensation cap in section 392(5). I leave the question of taxation to the parties to determine as required by law. An order reflective of this decision is issued today in Print PR562673. Of course if the amount on which I based my calculations, $1,392.23 per fortnight, is actually a gross rather than a nett amount, appropriate adjustments will need to be made to allow for taxation.

[124] It should be noted that, in deciding this matter, I have given consideration to the need to ensure that a “fair go all round” has been accorded to each of the parties as provided in section 381(2) of the Act.

COMMISSIONER

Appearances:

Mr L. Vuong, solicitor, for the applicant

Mr G. Boyce of Counsel, with G. Sheargold from Leading Age Services Australia NSW-ACT for the respondent

Hearing details:

2015

Sydney.

February 10

March 19.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR562672>