Mr John Robert Mascarenhas v The Bethanie Group Inc
[2010] FWA 5795
•6 AUGUST 2010
[2010] FWA 5795
The attached document replaces the document previously issued 6 August 2010.
The previous document in the appearances section referred to “Mr P Moss of the Chamber of Commerce & Industry of Western Australia on behalf of The Bethanie Group Inc”. This is incorrect and has been replaced with “Ms J Auerbach of the Chamber of Commerce & Industry of Western Australia on behalf of The Bethanie Group Inc”.
The remainder of the document remains unchanged.
Jessica-Mary Phillips
Associate to Commissioner Williams
9 August 2010
[2010] FWA 5795 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr John Robert Mascarenhas
v
The Bethanie Group Inc
(U2009/14247)
COMMISSIONER WILLIAMS | PERTH, 6 AUGUST 2010 |
s. 394 Termination of Employment
Introduction
[1] This decision arises from an application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act) made by Mr J R Mascarenhas concerning the termination of his employment by The Bethanie Group Inc (the Respondent).
[2] The matter did not settle at conciliation and Mr Mascarenhas chose to proceed to arbitration.
Background
[3] Mr Mascarenhas was employed as a physiotherapist assistant at the Bethanie Group’s Wearne Hostel for the Aged at Cottesloe. He began there in December 2008 and worked on a part-time basis for a minimum of 30 hours per week. During the time he had worked in this position he had been required to and did complete daily records of the therapy sessions he had done with residents. These statistics identified which residents he conducted therapy sessions with and what the nature of the session was.
[4] In early November 2009 the Respondent's management decided to require Mr Mascarenhas to record additional information which was the time he spent conducting these therapy sessions with each resident.
[5] During the course of a number of meetings over a period of a week Mr Mascarenhas repeatedly stated that he would not record this additional information the Respondent required. He was advised that continued refusal to agree to this direction would lead to termination of his employment. Mr Mascarenhas continued to refuse to agree that he would record the required times and was consequently terminated on 18 November 2009 for failing to comply with a reasonable request from his manager.
[6] Mr Mascarenhas gave evidence and for the Respondent evidence was given by Ms Seet, the physiotherapist to whom Mr Mascarenhas directly reported, Ms Lord who was the Site Manager for the Respondent at the time and Ms Christie the General Manager Human Resources for the Respondent.
Mr Mascarenhas’ Evidence
[7] Mr Mascarenhas’ evidence traverses a range of concerns he had regarding his employment leading up to the requests by Ms Lord and Ms Seet for him to record the time of his therapy sessions. I will not detail all the evidence regarding these concerns although I have considered it carefully.
[8] Mr Mascarenhas says that in a meeting on 12 November 2009 Ms Lord advised him that:
“From today I want you to document in each half hour block all the work you do with the residents and the time with each, as it is necessary for the care processes.”
[9] His evidence was that he questioned whether or not they had a problem with his work performance and was advised by both Ms Seet and Ms Lord that they were happy with what he was doing.
[10] Mr Mascarenhas gave evidence that he explained a number of problems with the time recording as proposed by the Respondent including that:
- he was on the floor doing practical work,
- a large proportion of the residents have dementia and physical disabilities,
- as he went about his work he would have a problem documenting what he did between any two residents’ therapy sessions because you cannot force residents to do any therapy activity they did not want to,
- residents have to be coaxed and gently persuaded on the merits of therapy over and over again,
- some residents don't want to do anything and other times have not been showered or dressed or want to rest,
- he would necessarily spend time talking with and joking with the residents and assisting them with small things such as getting a cup of tea or their walking sticks all of which take time,
- so it would be impossible to record all these activities continuously and that if there were then gaps in his time recording documentation he would be pulled up to explain the gaps.
[11] Mr Mascarenhas’ evidence was rather than being understanding towards these difficulties Ms Lords response was that “we can find out why you have this gap and then find ways to reduce them”. He says he was alarmed by this comment.
[12] Mr Mascarenhas’s evidence was that nobody else in the industry does this sort of documentation and he believed he was being singled out to make him more submissive to the manager as punishment for a previous conflict he had with his manager in early November regarding not properly notifying in advance when he was taking a day of annual leave.
[13] Mr Mascarenhas’ evidence is that this meeting took three hours and involved him at times leaving the office so Ms Lord and Ms Seet could discuss what he had said and then reply to that.
[14] Mr Mascarenhas says that if he recorded the time of each therapy session and it did show gaps in his day the Respondent would say that he was incompetent and could terminate him on that basis. He says he was not going to let them have the privilege of doing that and after thinking about it for half an hour he advised them that he would not be completing the new documentation and recording the time of the therapy sessions as requested and if they did not want his services the manager could terminate him.
[15] Mr Mascarenhas says a further meeting was held on 18 November 2009 with Ms Lord and Ms Seet where the issues above were again discussed. Mr Mascarenhas repeated the concerns he had and requested that he be given training in the new documentation. Mr Mascarenhas wanted to know who else was doing it and stated that it was impossible for him to do the documentation without training. He said he wanted to be shown where these new rules for the half-hour time recording were set out or whether it was something new that the manager had “invented”.
[16] Mr Mascarenhas then said that he wanted to speak to somebody from Head Office. Next there was a final meeting with Ms Christie and Ms Lord. In this meeting Mr Mascarenhas says he explained all of the issues he had previously covered with Ms Lord in the previous meetings. Ms Christie asked him if he was aware of the consequences of refusing to do the new documentation and he told her that he was. Ms Christie he says then asked him if he would put in a letter of resignation and he said he would not.
[17] Mr Mascarenhas says he stated that if his manager did not want his services she could terminate him. Mr Mascarenhas says that Ms Christie then conferred with Ms Lord and terminated his services immediately and he was told to go home.
The Respondent’s Evidence
[18] The evidence of the Respondent’s staff was that around October or November 2009 it became apparent that there was a need to justify to the appropriate accreditation bodies and to the families of residents the amount of therapy that was being provided to each resident.
[19] The information that was at that stage being recorded only captured the type of therapy being provided and the frequency but not the length of time involved in each therapy activity for a resident. Ms Seet and Ms Lord agreed that they would introduce a new system whereby the time taken for a therapy activity with each resident would be documented.
[20] Ms Seet initially met with Mr Mascarenhas and told him of the proposed changes in the information he would be required to record. During those discussions Mr Mascarenhas told her that in his view what was being requested was ridiculous.
[21] A meeting was then held on 12 November 2009 with Ms Lord, Ms Seet and Mr Mascarenhas to discuss the concerns Mr Mascarenhas had with the proposed time recording.
[22] The evidence of Ms Lord and Ms Seet is that Ms Lord reassured Mr Mascarenhas that the introduction of the time recording involved no criticism of his work.
[23] Mr Mascarenhas explained that he was already overworked and that he was concerned about how he would account for the gaps between the therapy sessions he conducted with residents. He was told by Ms Lord that if the recording identified breaks in his day then they could review how they could fill this time with something else or help him to restructure his day more effectively and that the recording was an opportunity to demonstrate that he was being overworked so that something could be done about it.
[24] The meeting ended with Ms Lord stating that the new system needed to be implemented and would be reviewed later on. Mr Mascarenhas indicated that he was not prepared to co-operate and would not agree to record the time of each therapy session.
[25] A few days after this meeting Ms Lord spoke to Ms Seet who advised that Mr Mascarenhas was not recording the times as required. A further meeting was then held with Mr Mascarenhas, Ms Lord and Ms Seet although the evidence is somewhat confused as to what date this meeting was this meeting covered the same issues as the previous meeting. As a consequence of that meeting Ms Lord issued Mr Mascarenhas with a first and final formal written warning dated 16 November 2009. 1
[26] This warning letter referred to the discussions that took place on 12 November 2009 and the requirements that Mr Mascarenhas document who he provides therapy to every half hour block per his timetable. The letter explains that the recording of how long residents are receiving therapy for is required to ensure Bethanie Group is maintaining standards and providing the appropriate care. The letter states that the continued failure to complete the documentation may result in the termination of Mr Mascarenhas’ employment.
[27] The Respondent’s evidence is that shortly after this there was another meeting between Ms Lord, Ms Seet and Mr Mascarenhas. Ms Lord says Mr Mascarenhas was angry and upset and was saying “I don't want to do this. Why do I have to do this when no one else does?”
[28] Ms Lord referred to Mr Mascarenhas’ Job Description and told him that this was a fair and reasonable request. Mr Mascarenhas requested evidence that other people did this time recording. Ms Lord repeated that what was expected of him was a reasonable request and failure to comply would mean that he could lose his job.
[29] He again stated that he refused to fill out the time recordings and demanded to speak with somebody from Human Resources.
[30] The meeting ended and another meeting was held later that day with Ms Lord, Ms Christie and Mr Mascarenhas.
[31] The same issues as had been discussed were covered again. Mr Mascarenhas again raised the issue that he feared the gaps between therapy sessions, that would be identifiable if he recorded the times, could be used against him and that he would lose his job as a result. This Ms Christie assured him was not the purpose of the documentation and that he was more likely to lose his job with his continued refusal to complete the required documentation.
[32] Mr Mascarenhas also suggested that some problems he had two or three weeks ago were the reason he was now being “punished” by this new requirement being imposed on him. Ms Christie’s evidence was that when asked however he refused to elaborate to her regarding these problems and even when she offered to allow him to document the concerns so they could be fully considered by her he refused to do so.
[33] Next the evidence is that Ms Christie reinforced that if Mr Mascarenhas failed to comply with the direction to complete the documentation as expected then he would lose his job. He was asked if he understood what she was saying and he replied that he did. He continued to indicate that he would not complete the time recording documentation as directed and he was then advised he would be terminated.
[34] The letter of termination 2 dated 18 November 2009 states that Mr Mascarenhas’ repeated refusal to comply with a reasonable request by his manager to further document his work has made his termination of employment necessary.
[35] Under cross examination the evidence of Ms Lord and Ms Seet was that the Applicant was not being singled out, that a range of quality improvements were occurring in other areas at the same time affecting other employees and some others did record similar time information as he was expected to do.
The Facts
[36] There is little disagreement between the parties about the critical facts of this matter. The evidence of the three witnesses for the Respondent was consistent and differs only from the evidence of Mr Mascarenhas on fine details, matters that are not critical to the determination of this application.
Consideration
[37] Mr Mascarenhas provided a copy of his Position Description. 3
[38] The position description includes the following points,
11. Record relevant information as requested.
...
16. Maintain statistics on all clients/residents attending day centre for physiotherapy and record on master sheet.
...
21. Carry out any other duty as may be requested by the day centre coordinator.
[39] In addition Mr Mascarenhas provided his original Contract of Employment dated 4 December 2008 4 which includes at point 5 the following:
5. Scope of work: the Bethanie group Inc may direct the employee to carry out such duties as is within the limits of the employees skill, competence or training and these may vary from time to time.
[40] I have considered the evidence and I am satisfied that the direction by Ms Seet and then by Ms Lord to Mr Mascarenhas to record the times he spent on the therapy sessions with individual residents was a direction that was in accordance with his Contract of Employment and his Job Description.
[41] In any event I have no doubt at all that the direction to Mr Mascarenhas to record the times he spent on the therapy sessions with individual residents was within the prerogative of the employer as a reasonable and lawful direction.
[42] I accept the evidence of Ms Seet and Ms Lord that the motivations for requiring Mr Mascarenhas to record the time he spent on the therapy sessions with individual residents was to improve the quality of the recorded information to assist in meeting accreditation requirements and to provide accurate information that could then be passed on to residents’ families. I do not accept the assertion of Mr Mascarenhas that Ms Seet and/or Ms Lord were motivated by a desire to punish him because of the previous events surrounding him taking time off to move house, wanting to be paid extra for doing “OTA” work or requesting an earlier start time. Mr Mascarenhas was not willing to detail these previous events to Ms Christie when she asked him to. There is no evidence to support his speculation that there were such ulterior motives.
[43] I have considered all of the evidence of Mr Mascarenhas as to why he was not willing to record the time of therapy sessions as directed and I cannot accept that those reasons are reasons why he was not able to comply with the direction of his employer. What is clear from Mr Mascarenhas’ evidence is that whilst he was able to comply with the direction he was fearful that to do so would provide information to his employer that would show that there were gaps between therapy sessions with residents and that his employer would then use that information to require him to either do more work when in his view he was already overworked or to use the information to be critical of his performance and perhaps as grounds for future termination of his employment.
[44] Whilst I accept that Mr Mascarenhas genuinely held those views, given that he expressed those concerns openly in the various meetings, I do not accept that these concerns were well-founded given the Respondent had expressly at the beginning of this process advised him that there were no concerns with his performance. In any event whatever concerns Mr Mascarenhas had about the future use of the information he was directed to record those fears did not make the direction by his employer either unreasonable or unlawful nor did those fears entitle him to disobey the employer’s simple direction.
[45] Mr Mascarenhas was obliged to comply with the lawful and reasonable direction of his employer. Instead in full knowledge of the consequences Mr Mascarenhas repeatedly refused to comply with the direction of his employer. Having issued a written warning the employer's decision to terminate was in the circumstances unsurprising.
Was the Dismissal Unfair?
[46] Section 387 of the Act specifies the factors the tribunal must take into account when determining whether a dismissal was unfair as follows:
s. 387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.
Was There a Valid Reason for the Dismissal?
[47] There was a valid reason for the dismissal which was the repeated refusal of Mr Mascarenhas to comply with a lawful and reasonable direction of his employer to record the time he spent on therapy sessions with individual residents.
Was the Person Notified of the Reason for the Dismissal?
[48] Mr Mascarenhas was repeatedly advised that if he continued to refuse to comply with the employer's direction he would be dismissed and so was notified prior to the decision to terminate his employment of the reason for the dismissal.
Was There an Opportunity to Respond to the Reason for the Dismissal?
[49] Mr Mascarenhas was provided with a written warning that a continued refusal to comply with the employer's direction may lead to termination and in subsequent meetings was provided with and did take the opportunity to respond to the reasons for which the employer proposed to dismiss him.
Was the Person Allowed a Support Person to be Present During Discussions?
[50] There is no suggestion that Mr Mascarenhas at any stage requested that a support person be present during the multiple discussions leading up to his dismissal. There was no refusal to allow a support person to be present during the discussions.
Whether the Person Had Been Warned About That Unsatisfactory Performance Before the Dismissal?
[51] The dismissal was not as a consequence of unsatisfactory performance so this factor is not relevant.
To What Degree Does the Size of the Respondent's Enterprise Impact on the Procedures Followed?
[52] The Respondent is a large enterprise and the procedures that were followed were consistent with those that would be expected.
To What Degree do the Absence of Human Resource Specialists Impact on the Procedures Followed?
[53] The Respondent does have Human Resource specialists so this factor is not relevant.
Other Relevant Matters
[54] There are no other matters that are relevant to the determination of this application.
Conclusion
[55] In this matter there was a valid reason for termination, the repeated refusal of Mr Mascarenhas to comply with a lawful and reasonable direction of his employer to record the time he spent on therapy sessions with individual residents. The employer made Mr Mascarenhas aware that they considered this reason warranted his dismissal and provided him with an opportunity to respond and considered his response before making the final decision to terminate his employment. Consequently I am satisfied that Mr Mascarenhas was not unfairly dismissed.
[56] This application is dismissed.
COMMISSIONER
Appearances:
Mr J Mascarenhas, the Applicant, on behalf of the Applicant
Ms J Auerbach of the Chamber of Commerce & Industry of Western Australia on behalf of The Bethanie Group Inc
Hearing details:
2009.
Perth:
July 27.
1 Attachment 4 to Witness Statement of Applicant, Exhibit A1
2 Attachment 5 to Applicant’s Witness Statement, Exhibit A1
3 Attachment 1 to Exhibit A1 the Witness Statement of Mr Mascarenhas.
4 Attachment 2 to Exhibit A1 the Witness Statement of Mr Mascarenhas.
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