Mr Sebastian Sajish Kanamkombil v St John of God Health Care Inc
[2017] FWC 4795
•20 OCTOBER 2017
| [2017] FWC 4795 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Sebastian Sajish Kanamkombil
v
St John of God Health Care Inc
(U2017/5341)
DEPUTY PRESIDENT BEAUMONT | PERTH, 20 OCTOBER 2017 |
Application for an unfair dismissal remedy – dismissal was fair – application dismissed.
[1] On 19 May 2017 Mr Sebastian Sajish Kanamkombil (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of his dismissal (the Application).
[2] The Applicant was employed by St John of God Health Care Inc (the Respondent) as a Registered Nurse from 13 October 2014 until he was dismissed on 28 April 2017.
Background
[3] The Applicant started his employment with the Respondent in a full-time capacity on 1 February 2010 and resigned from the full-time position in September 2012. From September 2012 up until October 2014 the Applicant worked on a casual basis reverting back to a full-time position on 13 October 2014.
[4] It was accepted by the parties that the St John of God Health Care – ANMF – Registered Nurses’ and Midwives’ Agreement 2016 applied to the Applicant and that the Applicant had earnt $91,749.31 over the previous 12 months with an annual income of $86,064 (plus any applicable shift penalties).
[5] In or around March 2016, the Respondent advertised a Clinical Nurse position. Several of the Respondent’s Theatre Nurses applied for the position. The Applicant was one such Nurse, as were Mr Nitin Londhe (Mr Londhe), Ms Allie Saju (Ms Saju) and Mr Joji John (Mr John).
[6] The Applicant and Mr John had been acquaintances for approximately 20 years having worked in India, London and Australia together.
[7] Mr John was the successful candidate and assumed the position of Clinical Nurse (CN). As CN, Mr John was now at times the supervisor of the Applicant and was responsible for rostering and providing direction in the area in which the Applicant worked.
[8] The Applicant was aggrieved by the recruitment process for the CN position and lodged a grievance with the Respondent as did Ms Saju and Mr Londhe. Mr Darren Jones, Manager Corporate Services (Mr Jones), assisted Ms Jane Tucky, Deputy Director of Nursing (Ms Tuckey), to investigate the matter. The finding of the investigation was that the recruitment process could be improved but there were no substantial deficiencies. This was communicated to the Applicant by letter of 25 August 2016.
[9] On or around 14 June 2016, the Applicant received a letter from Ms Sarah Crawford, Clinical Nurse Manager (Ms Crawford), to attend a meeting on 16 June 2016 with her and Ms Evita Ferguson, HR Partner (Ms Ferguson). The purpose of the meeting was to discuss the Applicant’s conduct and behaviour and the resulting impact this was having on his colleagues, and broader concerns regarding his general health and wellbeing.
[10] From the account of the Applicant and the Respondent the meeting on 16 June 2016 did not go well. The Applicant formed the view that unsubstantiated observations were made about his conduct and behaviour, and the purpose of the meeting was not adhered to. In a letter of 27 June 2016 (Letter One) 1, Ms Crawford explained to the Applicant:
…I note that during our meeting you demonstrated the behaviours that are of concern where you became frustrated, raised your voice, and commenced asking a series of questions without affording me an opportunity to fully explain my perspective. I pointed out during the meeting that it was this type of behaviour that makes it difficult to communicate with you effectively and can also make me feel quite uncomfortable when speaking to you…
[11] Attached to Letter One was a St John of God Health Care document titled ‘Resolving a problem at work’. This document set out a three step process on how to resolve a problem with another person in the workplace. In summary the process consisted of: (1) raise the issue directly with the other person… choose a time that is convenient to both parties, avoid confronting the person when you are angry or unprepared and choose a quiet private space to have the discussion; (2) seek the assistance of your manager; and (3) formalise your complaint. With regards to possible outcomes the document contemplates termination of employment in circumstances of ‘last resort’ and will ‘only occur after previous attempts have failed to bring about the desired change’.
[12] Letter One acknowledged that the Applicant remained upset and aggrieved regarding the recruitment process for the CN position in Anaesthetics.
[13] By email dated 1 July 2016 time stamped 2:14pm the Applicant replied to Letter One noting among other matters:
…At no point you discussed or given me an opportunity to discuss about my health and well being, as mentioned the letter. And you took no notice when I answered about my attitude and behaviour change was a direct reflection of your hostile and unapproachable attitude following the CN interview process. 2
[14] On 30 June 2016, the Applicant received a request to respond to allegations from Ms Evelyn Quinn, Manager Perioperative Services (Ms Quinn), regarding a breach of the SJGHC Code of Conduct. It was alleged the Applicant distributed documents to Caregivers that contained sensitive and confidential Caregiver information without any prior authorisation to do so.
[15] In providing her evidence Ms Quinn explained that the Applicant had obtained three case file notes from a printer. One of the case file notes had the Applicant’s name on and the other two, the names of two other Nurses (Caregivers). All three case file notes contained confidential and sensitive information about the performance of each Nurse. Ms Quinn was alerted to the situation when two of the Nurses who were the subject matter of the file notes presented to Ms Quinn crying, upset, and reporting that they had been given the case file notes.
[16] When investigating the matter, the Applicant informed Ms Quinn that he had distributed the documents to the Nurses as that was the only way he and the other Nurses could rightfully identify and verify the documents. The Applicant noted that had the documents had ‘private and confidential’ written on them he would not have handed them to anyone except the Department Manager.
[17] Ms Quinn met with the Applicant on 28 July 2016 to deliver her findings and outcome. The outcomes of Ms Quinn’s investigation were set out in a letter of that same date (Letter Two). 3
[18] The conduct concerning the distribution of documents by the Applicant was substantiated and as a consequence Letter Two included a formal warning (Warning). 4 Ms Quinn had explained in Letter Two that a review of the documents readily identified them as case file notes about the Nurses and reflected incidents that were confidential and sensitive. Further, the Applicant had noted he had read the case file notes pertaining to him and therefore could reasonably conclude that the case file notes did not belong to the two Nurses but rather were written about them.
[19] There was a meeting to discuss the outcomes of Ms Quinn’s investigation. Concerning that meeting Ms Quinn set out the following (abridged format) in a letter of 24 August 2016:
I write further to our meeting on Thursday 28 July 2016.
I am disappointed that the meeting had to be terminated by myself as a result of you and your support person becoming disruptive during the proceedings. Further to this I note that when you were preparing to leave the room after the meeting was declared closed, you chose to commence insulting Evita Ferguson and the way in which ‘HR type’ meetings are conducted. As stated to you at the time, your comments were totally inappropriate and disrespectful to Evita and her position and were completely unprovoked considering I was the one conducting the meeting.
Sebastian I am very disappointed by the way in which you conducted yourself during this meeting. I appreciate that you may not agree with the outcome of the investigation regarding your conduct and behaviour, however I am satisfied that a thorough analysis has been undertaken and the test of balance of probabilities had been applied to each matter….. I am concerned about your ability to be in control of your emotions and make reference to a letter from your manager Sarah Crawford dated 27 June 2016 where you displayed similar behaviours during a meeting held on 16 June.
I am concerned about the pattern of behaviour that is developing when management seeks to meet with you formally to discuss matters relating to your conduct and behaviour…
Sebastian, whilst there might be times where a frustrating situation presents itself, it is expected that you will be able to be in control of your emotions and conduct yourself in a professional manner which reflects the Values of SJGHC. Specifically I would like to remind you of the Value of Respect which requires all caregivers to take care to use language that does not offend or demean a person’s dignity and the Valueof Justice which requires all caregivers to address issues in a respectful manner. 5
[20] By letter of 5 September 2016, the Applicant wrote to Ms Laura Colvin, Director of Nursing (Ms Colvin), setting out a formal grievance against Ms Crawford, Ms Quinn and Ms Ferguson alleging that they had engaged in victimisation which occurred at the Operating Theatres at St John of God Hospital Subiaco (the Formal Grievance). 6 The Applicant wrote ‘I strongly believe that I had been subjected to detriment before when I invoked a grievance earlier for the recruitment process.’
[21] While the investigation into the Formal Grievance was on foot the Respondent arranged for the Applicant to work temporarily within another department at Subiaco and for a short time at Midland. When providing his evidence to the Commission it was apparent that the Applicant was aggrieved to have been moved to other work locations while the investigation was being conducted.
[22] The Respondent provided a response to the Formal Grievance by letter of 16 November 2016. The letter set out:
Following a review of all available information I can confirm that there was insufficient evidence to substantiate the allegations of inappropriate conduct against Sarah Crawford, Evelyn Quinn and Evita Ferguson. There is a clear difference in the recollection of the issues identified in that these caregivers have reflected a different perspective on the events and issues discussed. 7
[23] On 6 February 2017, Mr John sent an email to Ms Crawford expressing concerns about the Applicant’s alleged behaviour toward him on 3 February 2017 (Mr John’s Complaint). 8 Mr Jones subsequently became aware of Mr John’s Complaint and met with Ms Crawford and Ms Quinn to discuss it. As the alleged behaviours were considered potentially quite serious it was decided that an investigation was required. Mr Jones conducted the investigation into the two incidents that are referred to in subsequent paragraphs as Incident One and Incident Two.
[24] On 15 February 2017, there was a further incident involving the Applicant that Mr Jones included in the investigation. That incident is referred to in this decision as Incident Three.
Incident One
[25] At approximately 1615hrs-1630hrs on 3 February 2017, Mr John reported that he saw the Applicant coming toward the anaesthetic workroom. Ms Saju and Ms Rosamma Joice, Registered Nurse (Ms Joice), were in the anaesthetic workroom with Mr John. Mr John reported that the Applicant entered the anaesthetic workroom and started swearing at him in Indian. Ms Saju and Ms Joice witnessed this incident. The Applicant denies swearing at Mr John.
[26] At the hearing CCTV footage was played several times of what was purported to be Incident One. It showed, within a very short time-frame, Ms Joice and Ms Saju walking out of the anaesthetic workroom with their trolleys and they proceed to stand close to the doorway of the anaesthetic workroom. Very soon after, Mr John exits the anaesthetic workroom and soon after the Applicant exits. As the Applicant exited he walked past Ms Joice, Ms Saju and Mr John and as he did he raised both of his arms into the air.
[27] Ms Saju gave evidence that at no time during her shift did she hear the Applicant shouting at Mr John in Indian language or in any other language. She recalled a conversation between Mr John and the Applicant in the anaesthetic workroom but attests to it being a normal conversation and makes no mention of Ms Joice being present.
[28] Ms Saju gave evidence that the Applicant’s arm raising was the Applicant responding to Mr John’s information that he was going to be soon relieved from shift. Ms Saju states that the Applicant responded by walking past Mr John and with hands in the air and said ‘hooray’. Ms Saju’s evidence was that this was a ‘joyous expression’ as the Applicant was informed he was to be relieved to go home.
[29] Ms Joice provided evidence that both her and Ms Saju were in the anaesthetic workroom and Mr John was present. She identified that the scene was part of Incident One shown on the CCTV footage. The Applicant entered the anaesthetic workroom and proceeded to swear at Mr John in Indian using the words ‘poori mone’ and ‘koothi’. Ms Joice gave evidence that she could not understand how Ms Saju had not heard the Applicant as they were both in the anaesthetic workroom at the same time. Evidence from both the Applicant and Ms Joice was that when translated to English the best approximation of the Indian words was ‘bastard’ and ‘rectum’.
[30] Ms Saju said Ms Joice approached her a week or two after Incident One and questioned why Ms Saju had provided information to the investigation team that she had not heard shouting. Ms Saju said that Ms Joice added that the two of them could get in trouble if they did not give the same statement as she knew what Ms Quinn and Mr John were like and asked her to respond in the affirmative if asked again by Mr Jones. Ms Joice denies the discussion with Ms Saju occurred.
Incident Two
[31] At about 1635hrs on 3 February 2017, the Applicant contacted Mr John and requested to go home, he clarified he was sick. Mr John informed the Applicant that he could go home but asked him to wait for approximately 5 minutes.
[32] Mr John, having spoken to Ms Quinn about the Applicant’s request to leave, returned to the anaesthetic workroom where the Applicant and Mr Londhe were sitting. Mr John started to check the work allocation for Monday and reported that the Applicant was swearing and whispering at him from behind.
[33] At approximately 1720hrs Ms Sally Buktenica, Registered Nurse (Ms Buktenica), entered the anaesthetic workroom. Ms Buktenica informed Mr John that the Applicant wanted to do hearts as he had not done them for a few weeks. Mr John reportedly informed the Applicant that he was not allocating him to the heart (cardiac) theatre. It remained unclear why the Applicant was still at work at this time having asked to leave early.
[34] The Applicant is then reported to have got up from his chair and shouted at Mr John saying ‘why can’t I?’ The Applicant is further said to have continued shouting and had stated ‘why is Binoy doing Monday again’. Mr John is said to have reaffirmed that he would not be allocating the Applicant to the heart theatre and that if the Applicant had any questions he should ask Ms Quinn. Mr John is reported to having asked the Applicant to stop shouting and to be professional.
[35] Ms Buktenica queried why the Applicant could not do hearts. Mr John reportedly explained that the Applicant had notified he was sick and that he couldn’t expect him to do cardiac on Monday morning. Further, Binoy had been confirmed.
[36] Ms Buktenica recalls that the Applicant had asked her to enquire with Mr John about him doing hearts. Further, she also recalls informing the Applicant that ‘Joji is the boss and he will have very good reasons to allocate Binoy to theatre, not you’. Ms Buktenica reports that the Applicant proceeded to challenge Mr John’s decision over many minutes making the situation awkward, confronting and stressful for anyone in the room. She continued that the Applicant raised his voice and never backed down.
[37] Mr John reported that as he departed the anaesthetic workroom the Applicant kicked the chair. The Applicant disagrees with this account. Ms Buktenica reports hearing something that sounded like a chair moving and assuming that the Applicant had kicked it.
[38] Not long after Incident Two, within a short time, Ms Buktenica felt compelled to contact Ms Quinn as she considered the incident confronting and serious enough to do so. In addition, within a couple of days, Ms Buktenica had drafted an email which she sent to Mr John, Ms Crawford and provided a hard copy to the Applicant detailing her account of Incident Two and expressing sentiment that she hoped that both the Applicant and Mr John could sort the situation out. 9
[39] When giving evidence Ms Buktenica recalled that the Applicant had been banging the desk while questioning Mr John and had a pair of scissors in his hands.
[40] Mr Nitin Londhe was reportedly present during Incident Two and reports that Ms Buktenica departed half way through the conversation between Mr John and the Applicant. Ms Buktenica’s account was that had Mr John not departed the room within seconds of her leaving she would have returned to the room as she was fearful that the situation may have become physical.
[41] Mr Londhe’s account supports the Applicant’s version of events. It was the view of Mr Londhe that having had 35 years of nursing experience he considered the conversation to be just a normal work conversation regarding staff allocation.
[42] In response to the allegation ‘It is alleged that during your shift on Friday, 3 February 2017 you breached the SJGHC Code of Conduct by engaging in conduct and behaviour that was considered to be unprofessional, argumentative, disparaging and rude toward another caregiver’, the Applicant provided the following account:
Sally questioned this decision and the conversation thereafter was as follows:
Sally: Can Sebastian please do Cardiac on Monday as he hasn’t done a cardiac case for many months? Yet he is doing oncalls.
Joji: No he can’t! (with a very firm voice.)
(At this stage I joined in the conversation as I was listening to this happening right in front of me, Joji saying “I can’t do Cardiac.”)
Myself: Joji, why can’t I do the Cardiac on Monday? Isn’t it a reasonable request? And you know that I had been requesting to do it many times.
Joji: I am not putting you in Cardiac, Binoy is doing it!
Myself: Binoy has already done many cases in the past few weeks, it is very unfair that you are not allocating me there, please tell me a reason why you are not not allocating me?
Joji: Go ask Evelyn!! (with a very frustrated and angry tone)
Myself: Joji, this is a simple staff allocation matter I don’t think I should be going to Evelyn with this.
Joji: well…. I am not allocating you!!!
Myself: If you can’t allocate me, can you please tell me a reason why you can’t do it. You are the cardiac CN.
Joji: OK! The reason is… you are sick and while you are sick I cannot allocate you to do cardiac on Monday.
Myself: Joji, you did this allocation earlier in the day and already allocated Binoy to do the Cardiac list. I’d just now called in sick and I confirmed to you that I will be resuming to work on Monday and you allocated me in Th-8 on Monday. So you are saying I can work in th-8 on Monday but I can’t work in Th-1 because I am sick now, for just 1 hour I am sick.
Binoy is sick all day today Joji… yet he is allowed to do Cardiac on Monday but I am sick for one hour today and I can’t do cardiac … so unreasonable!!...
After the conversation with Joji regarding the cardiac allocation, on 3rd Feb 2017, the way Joji left the room clearly demonstrated to me that he was very frustrated that he couldn’t give me a valid reason for not allocating me in cardiac theatre. In my opinion, it is not uncommon that caregivers have disagreements and have a frustrated conversation about different work related matters. But it is important to me how we deal with such issues and how we resolve those issues I believe that both caregivers should talk to each other and reflect on the incident and apologise and move on. As a responsible caregiver, this is the approach I chose on this occasion. I went to Joji on the following Monday and apologised to him about what had happened on Friday. I felt that as I had spoken to Joji in a frustrated tone it would be best to clear the air. He accepted my apology and we both established our working relationship and moved on from this issue. 10
Incident Three
[43] Ms Gillian McCallum, Clinical Nurse Manager Main Theatre (Ms McCallum), gave evidence that on 15 February 2017 she observed the Applicant exiting a workroom with his surgical mask hanging around his neck. She instructed the Applicant to please remove his mask at which point he refused and stated that he was going back to theatre. Ms McCallum said that she said to the Applicant ‘yes I know but it needs to be either on or off love’ or words to that affect.
[44] The Applicant walked away from Ms McCallum and Ms McCallum says he was speaking to her with a raised voice in front of others and in a public corridor. The Applicant is said to have not removed his mask, which caused Ms McCallum to repeat the request noting that it was an infection control issue and an ACORN Standard. Ms McCallum says she again reiterated to the Applicant to remove his mask and he refused and walked away.
[45] The Applicant denied that he spoke with a raised voice or said ‘I don’t have to take it off I’m going back to theatre’. He said that Ms McCallum had informed him that the surgical mask needed to be on or off. The Applicant said that he pulled the mask on covering his face and nose and said to Ms McCallum, ‘I am already here and the mask is on now…’, and he then went into the theatre with the mask on. The Applicant could not recall reference being made to infection control or ACORN Standards.
[46] Tendered into evidence was information that Ms Tracy Rho had provided to Mr Jones when interviewed concerning Incident Three. 11 It had been the Applicant who had identified her as a witness. Ms Rho in correspondence to Mr Jones wrote she had not heard Ms McCallum say ‘mask off or on’, could not recall the Applicant saying he would not comply with the instruction, and while the Applicant exhibited perhaps frustration there was no arguing or raised voices from what she observed.12 Ms Rho was not a witness in the matter before the Commission.
[47] In addition, Mr Jones gave evidence of his communication with Ms Anila Benz another witness that the Applicant had suggested should be interviewed. Ms Benz was noted to have not witnessed the discussion. 13
[48] Mr Jones gave evidence that he received a witness statement from Ms Yvonne Buller, Research Nurse (Ms Buller), who had been present with Ms McCallum at the time of Incident Three. 14 Ms Buller had emailed Ms McCallum providing her recollection of the event. Her recollection aligned with that provided by Ms McCallum. Mr Jones had been copied to the email. Ms Buller was not a witness in the matter before the Commission.
Procedure
[49] On 3 April 2017, the Respondent having substantiated Incidents One, Two and Three, invited the Applicant to show cause why his employment should not be terminated. Present at the meeting was Ms Tuckey, Mr Jones and a representative from the ANF.
[50] The Applicant provided a written response dated 6 April 2017 to the show cause letter and requested a meeting with Ms Colvin. A meeting was held on 10 April 2017 with Ms Colvin and Mr Jones (Meeting on 10 April). The Applicant was able to provide any mitigating factors that should be considered before a final decision was made regarding dismissal. The Applicant did not make a request regarding a support person.
[51] At the Meeting on 10 April, Mr Jones spoke to the Applicant about issues the Applicant raised including:
a) Ms Quinn had actively sought from Caregivers statements against him before she went on a secondment;
b) inducement/coercion of Ms Joice concerning her witness statement; and
c) OHS matter written in the Anaesthetic Diary and subsequently removed.
[52] Mr Jones subsequently found that the issues raised by the Applicant were not substantiated.
[53] On 27 April 2017, Mr Jones contacted the Applicant to arrange a meeting on 28 April 2017 to communicate the final outcome and offered him the opportunity to bring a support person. The Applicant indicated that he was unable to attend at that time as he was flying overseas that morning. Mr Jones offered to hold the meeting on the afternoon of 27 April 2017 but the Applicant responded that this was unsuitable.
[54] The Applicant proposed to have the meeting the following week (approximately a week later) when he returned from overseas. Mr Jones advised the Applicant that this was too long away and suggested that he would inform the Applicant over the phone, at which point he did and said to the Applicant that his employment was terminated.
[55] When terminating the Applicant’s employment the Respondent outlined that it had considered a broad range of issues including the Applicant’s employment history, formal warning, performance counselling/expectation issues and the substantiated Incidents One, Two and Three. 15
[56] The Respondent arrived at a conclusion it had lost trust and confidence in the Applicant to faithfully and diligently adhere to the SJCGHC Code of Conduct and meet the inherent requirements of his position as a Registered Nurse. 16 Further, it considered the Respondent’s actions to be argumentative, disparaging and rude.17 It noted that it had considered that the Applicant had failed to comply with a reasonable direction from a Manager.18
Issues in dispute
[57] The Applicant is of the view that the Warning issued by Ms Quinn on 28 July 2016 should not have been issued as there was no investigation into the matter and witnesses were not interviewed.
[58] With regard to Incident One, the Applicant denied it occurred and submitted that the evidence of Ms Joice should not be believed as she had been promised work for her husband with the Respondent if she gave evidence that supported the Respondent’s allegations regarding Incident One.
[59] The Applicant’s account regarding Incident Two is that it occurred albeit it there was no use of scissors, shouting, kicking a chair, or standing over Mr John. The Applicant submits that the conversation was best characterized as a simple disagreement, which could have been avoided if management had listened to his past requests to be allocated to cardiac and resolved the matter.
[60] The Applicant further submits that Ms Buktenica exaggerated events to get the maximum effect regarding this matter, and that the investigation team was asking witnesses to exaggerate statements to enable the allegation to be substantiated.
[61] While the Applicant concedes there was an interaction with Ms McCallum he denies failing to follow a reasonable and lawful request as he complied with the instruction by placing his mask over his face and nose before entering theatre. Further, he submits that witnesses misled the investigation team to prove him wrong and that the hospital policies had been misinterpreted.
[62] The Applicant is of the view that the Respondent had not provided performance counselling.
Witnesses
[63] Witnesses for the Applicant were:
a) Sebastian Sajish Kanamkombil, Registered Nurse;
b) Paul Foster, Clinical Nurse;
c) Nitin Peter Londhe, Registered Nurse; and
d) Allie Saju, Registered Nurse – Anaesthetics.
[64] Witnesses for the Respondent were:
a) Darren Jones, Manager Corporate Services;
b) Joji John, Clinical Nurse;
c) Rosamma Joice, Registered Nurse;
d) Sally Buktenica, Registered Nurse;
e) Gillian McCallum, Acting Manager Perioperative Services; and
f) Evelyn Quinn, Manager Perioperative Services.
Findings of Fact
Incident One – swearing
[65] During the course of the hearing CCTV footage was played several times of the purported Incident One. Where there is a difference between accounts of the Applicant and Ms Saju and Mr John and Ms Joice, I prefer the accounts of Mr John and Ms Joice for the reasons set out in the subsequent paragraphs.
[66] It should be noted from the outset that the Applicant raised issue about Ms Joice’s credibility and the Respondent the credibility of Ms Saju.
[67] In short, Ms Joice was said to have provided a version of events that would win favours with Management for her husband and she was worried about the impact her evidence would have on her daily work matters. Ms Saju was said to be a disgruntled employee following her lack of success to secure the promotion to CN.
[68] The Applicant’s reference to ‘favours’ referred to Ms Joice’s attempt to obtain work for her husband with the Respondent. 19 Ms Joice denied that the Respondent had offered work for her husband20 but she had enquired whether there was work in a volunteer capacity. In an email from Ms Crawford to Mr Jones dated 19 April 2017,21 Ms Crawford writes:
I have never promised that I would later help her with her husband’s anaesthetic job. Rosamma asked me one day in Gillian’s (CNM scrub scout) office about volunteering in the anaesthetic department and I explained that was not an option, that it is not something we offer.
[69] Ms Joice provided evidence that her husband was working elsewhere.
[70] Ms Saju gave evidence that subsequent to the workplace investigation interview Ms Joice approached her and said ‘Because being Joji, my coordinator or my senior that would affect my allocation or duty from there onwards why did I say so’. 22 Ms Joice denied the conversation occurred.
[71] The Respondent submitted its concern about Ms Saju’s evidence submitting Ms Saju had been disappointed by the appointment of Mr John and had escalated a grievance regarding the recruitment process for the CN position.
[72] Ms Joice’s account concerning the movements of Ms Saju, Mr John and the Applicant aligned with what I observed with the CCTV footage:
Event | Time on CCTV footage |
Ms Joice & Ms Saju exit anaesthetic workroom with trolleys | 09:22 |
Mr Joji John exits anaesthetic workroom | 09:30 |
The Applicant exits anaesthetic workroom and looks towards Mr John | 09:35 |
The Applicant raises arms in the arm | 09:38 |
[73] Ms Saju and Ms Joice exited the anaesthetic workroom with their trolleys and proceeded to stand in the corridor near the anaesthetic workroom doorway. After these two Nurses exited Mr John followed soon after. The Applicant shortly followed but walked past the three Nurses and in doing so raised his arms in the air.
[74] Ms Joice provided the following evidence when cross examined by the Applicant:
It's all happening inside, yes?---I just heard you saying to Joji, then immediately - - -
It's bad word?--- - - -immediately I came out. It's an inappropriate word, that's all I know, and - - -
So you were present inside the work room when I said this swearing word?---Yes
Swearing word which you clearly confirms - you don't need to say, but it is the word that is written in these multiple sentence here?---Yes
Extremely bad, angry, Indian language name-calling word. Is that correct?---Yes.
…So these two words - bad words - you did hear, but you don't recall what the conversation was; nothing else, but just the word - words?---Because I was in there. I was in there. We just entered the work room from pharmacy, just saying - - -
I will take you back there again, Ms Joice. I will stop you if I may. You said you were there inside the work room when you heard the word, these two bad words?---Yes.
But it is just the two bad words, but no conversation, you don't recollect because - - - ?---Because as we entered in the work room you also entered in the work room from - we came from the - from theatre 2 over that side, from (indistinct) you came - you entered the work room. You said to Joji in anger, so then I heard it, I just didn't want to stay there because I knew something is going to happen, so I didn't want to stay there. I just pushed the trolley outside. I left the trolley in the corridor, came back, and said to Joji, "I'm going for dinner." So I don't know what happened before or after - - -
…Can you confirm to the Deputy President, that may not be very familiar with this sort of Indian language, or any Indian language, these are the words that is probably used in angry exchanges in our tradition - in our language. Could you explain, is this correct?---These languages?
…
Usually?---As far as I know, it's an inappropriate word.
Word?---Yes.
And used in angry exchanges, very bad situation?---I don't use it.
…
Do you recall whether the Indian swear words used included poori mone and koothi.
Those are the two words in question.
…The second word in Indian language, as far as I remember, it means rectum. But I can ask the witness here, who is also from India - - -
MR KANAMKOMBIL: Do you agree with that interpretation of that Malayalam word koothi means rectum?---It is so.
Thank you. The first word, it's hard to interpret to English, but it's something along the lines of - it's nowhere in the same meaning, but in English I would say bastard or - it doesn't mean it, but it could be that sort of similar effect to you, but the meaning is totally different, I think. Is that - I don't understand this word either?---I don't know how to explain it. 23
[75] Ms Joice’s account accords with that of Mr John and fits within the time-frame of the CCTV footage.
[76] In an email sent to Ms Crawford, dated 6 February 2017, 9:55AM, Mr John stated:
Approximately between 16:15 and 16:30hrs I saw Sebastian coming towards the anaesthetic workroom while I was talking to Allie Saju and Rosamma Joice. He then started very badly swearing at me in Indian language and this is all witnessed by Allie Saju and Rosamma Joice. 24
[77] In providing his evidence at the hearing Mr John stated in examination in chief:
MS FRANCIS: Do you recognise that gentleman?---Yes.
Who is that?---Sajish.
Do you recall who that is, or those are?---It's Allie Saju and Rosamma Joice.
And who is that?---I think it's me.
In relation to that interaction, can you recall what's being discussed?---Sajish was swearing at me at this time in Indian language, which is mentioned on my statement.
When Mr Sajish is walking away he's seen putting his arms up in the air. Can you recall what that may have been about?---I'm not sure. All I know, he was swearing at me in Indian language, and in between he used other swearing words as well. 25
[78] Ms Saju gave evidence on behalf of the Applicant. During the Respondent’s workplace investigation Ms Saju was asked whether she had witnessed a discussion between Mr John and the Applicant in the corridor outside of the anesthetic workroom at approximately 1630hrs she noted that she was doing trolleys with Ms Joice at that time and had done tea relief at around 5pm. She stated that she did not recall any conversation.
[79] In Ms Saju’s witness statement she states:
During the time I was present on that corridor, later that day, I did see Sebastian coming in and out of the anaesthetic work room but I did not witness any argument or shouting between Joji John and Sebastian.
Once incident I can remember, as Sebastian was leaving the room Joji mentioned to Sebastian something along the lines of “some one is going to relieve you soon” to which Sebastian replied as he walked past, with his hand up in the air, “HOORAY”! Just a joyous expression as he is getting relieved to go home. At this time, me and Rosamma Joice was present on the corridor standing next to Joji. 26
[80] When viewing the CCTV footage at the hearing the Applicant and Ms Saju acknowledged that they had entered the anaesthetic workroom, denied that the Applicant had said anything to Mr John. The Applicant’s arm raising was, according to Ms Saju, a ‘joyous expression’ 27.
[81] While the CCTV footage for 3 February 2017 was absent a date and time on the actual recording, both Mr John and Ms Joice identified the recording as capturing in part Incident One. There was no recording from within the anaesthetic workroom. The Applicant, Ms Saju, Ms Joice, Mr John and the Applicant all identified that the Applicant was the last to exit the anaesthetic workroom and when doing so raised his arms as he walked past Ms Saju, Ms Joice and Mr John.
[82] Having viewed the CCTV footage several times and appreciating that it is absent sound, I am nevertheless unconvinced by Ms Saju’s account that the arm raising formed part of a ‘joyous expression’. The body language of the Applicant did not in any way suggest a joyous expression. The Applicant’s body language simply did not align with Ms Saju’s account regarding the arm raising.
[83] Ms Joice was unable to say what the Applicant said to Mr John as he exited the anaesthetic workroom expressing ‘I never heard those sentence, no’ 28 and then again reaffirming in cross examination:
I just heard - when you came into the work room you said in anger to Joji those inappropriate word. So immediately after that, I came out. You can see me going into the tea room - work room - because I really didn't want to involve, I didn't want to know what is happening, so I just came out. 29
[84] I am of the view that Ms Saju’s version of events is unreliable. Her explanation that the Applicant’s raising of arms was a ‘joyous expression’ does not align with the body language of the Applicant and I find the explanation implausible. The body language of the Applicant did not show joy rather it showed a person who was at least displeased.
[85] Based on the accounts of Mr John and Ms Joice, the timing of witness movements on the CCTV footage, the body language of the Applicant as he departed the anaesthetic workroom, and Ms Saju’s implausible explanation for the Applicant’s arm raising, I am satisfied on the balance of probabilities the Applicant swore at Mr John.
[86] I have considered the submission of the Applicant concerning the credibility of Ms Joice’s account. However, I am not satisfied that the evidence before the Commission supports the Applicant’s submission that Ms Joice was seeking ‘favours’ and that is why she provided a supportive statement for the Respondent. There is no evidence on which to base a finding that Ms Joice is a witness that cannot be believed or that her evidence should be afforded little weight.
[87] While the Respondent raised issue concerning Ms Saju’s credibility I am not persuaded that her inability to secure the CN promotion and subsequent disgruntlement mars her credibility. However, I am simply unable to reconcile Ms Saju’s explanation of the Applicant’s arm raising with what I observed.
Incident Two – work allocation
[88] The Applicant admitted he challenged the decision of Mr John regarding the cardiac roster allocation in front of Mr Londhe and Ms Buktenica. However, he characterized Incident Two as a simple disagreement.
[89] The Applicant submits that Ms Buktenica’s version of the events should not be relied upon as she did not witness the whole discussion between the Applicant and Mr John, and exaggerated events to a completely different level to get maximum effect on this matter once having discussed the matter with Ms Quinn on the telephone. There was no reason put forward by the Applicant on why Ms Buktenica would want to exaggerate events and no evidence of the same.
[90] Ms Buktenica’s account is that the telephone discussion with Ms Quinn was brief and Ms Quinn informed her that the matter was being handled to which Ms Buktenica said she responded ‘Well, this is pretty bad what's happened just now, this needs to be sorted out’ 30.
[91] Ms Buktenica’s account what had happened is set out below, and aligns with the account of Mr John:
…he repeatedly stood behind Joji and kept on saying, “Why can't I be in that theatre, there's no reason why I can't be in that theatre, I do on-call", and I, just hearing and seeing everything, I became aware that there was obviously a lot more issues which I was not aware of at that time and I deliberately stayed very neutral, I said, "Yes, it does seem like a reasonable request, however, Joji will have his reasons. I don't know - it's not up to me to - I don't know what they are, he's got his and he's the boss, you need to abide by what the boss says. If you have a problem with that, take it up with the powers that be on Monday." In no way was Sebastian accepting of what - of Joji.
At what point do you recall that you left the room?---Right. It was after I vividly remember Sebastian coming over very close to Joji. For me, it looked like he was coming over the shoulder area with - he had scissors in his hand with the - he had that pointed in his hand and he was banging on the table saying, "Why can't I do that theatre, there's no reason why I can't do that, you are so arrogant", and then I think I felt quite threatened, I just thought, "Oh, shit, you've overstepped the boundary here, this is - you need to back off." That's what I was thinking in my mind and I did not want to leave Joji alone with Sebastian in the room because I thought this could get physical.
I then - but to answer your question about leaving the room, originally I thought Joji had left or I had left, but I know that we left very similar. I think I - from memory maybe I had left, but I had turned around because then I heard a big crash of a chair and I thought, "That sounds like a chair being slammed into a desk or something" and I would've been only a few steps outside the anaesthetic room and I turned around and I must have seen Joji because I remember vividly in my mind thinking, "Shit, don't say this is getting physical" and to make sure that Joji's okay, and if Joji was still in that room, I would've gone back in that room to see what's going on.
MS FRANCIS: Did the incident have an impact upon you?---It did, a lot, yes. I was very shaken up. 31
[92] Mr Londhe provided evidence that the discussion between the Applicant and Mr John about the duty allocation was very much normal and he didn’t find anything wrong with it. 32 Mr Londhe was also of the view that the Applicant did not repeatedly ask about the cardiac allocation, Mr Londhe said ‘So there was no repeatedly thing has been asked. I don’t know what you’re talking about’.33
[93] While Mr Londhe may have been disgruntled about missing out on the CN promotion, I am not satisfied that is sufficient to doubt his credibility as a witness.
[94] However, the evidence of the Applicant shows that in the discussion with Mr John he raised issue about the cardiac allocation five times. It is difficult to square Mr Londhe’s oral evidence of Incident Two with the evidence provided by the Applicant, Mr John and Ms Buktenica. In his witness statement Mr Londhe gives evidence that the Applicant raised issue concerning the cardiac allocation four times.
[95] Mr Londhe expressed that Mr John had pushed a chair which conflicted with the account Mr Londhe had provided in interview when the workplace investigation took place. When interviewed as part of the workplace investigation into Incident Two, and questioned about whether a chair was pushed or kicked, Mr Londhe stated ‘no… had left the room’. 34
[96] Mr Londhe stated that the different accounts were explained because he was asked by Ms Quinn ‘about Sebastian - whether Sebastian has kicked the chair’ 35. However, Ms Quinn in her evidence stated that she had asked the question as set out on the document.36 The document referred to, did not refer to either Mr John or the Applicant with regard to a chair being pushed or kicked.37
[97] The evidence of Mr Londhe is dissatisfactory in light of its inconsistencies. Further, while Mr Londhe gives evidence that Ms Buktenica left halfway through the discussion between the Applicant and Mr John, I am satisfied that Ms Buktenica was present for the part of the discussion that gave rise to Mr John’s Complaint.
[98] I am satisfied that on the balance of probabilities that the discussion between Mr John and the Applicant is not open to being characterized as a simple disagreement about work allocation. The evidence of the Applicant shows that he repeatedly raised issue about the work allocation in front of colleagues. The evidence of Mr John 38 and Ms Buktenica, which I believe, was that the Applicant did so in a manner that was absent respect and was accompanied by hostility. Mr John reported feeling threatened and Ms Buktenica reported feeling shaken up. There is no evidence to suggest that Mr John responded in an unprofessional manner albeit the Applicant was dissatisfied with Mr John’s response.
Incident Three – surgical mask
[99] The Applicant and Ms McCallum gave evidence that there had been a discussion regarding the Applicant’s surgical mask and how it should be worn.
[100] The Applicant went to lengths to demonstrate the Ms McCallum’s instruction to him concerning the surgical mask was not a lawful and reasonable instruction. However, in circumstances where a senior member of staff provides a direction concerning a surgical mask, is able to justify the direction by reference to the infection control risk, the direction accords with the accepted standard set by the industry and that standard is referred to in the relevant policy, it is open to find Ms McCallum’s instruction to have been lawful and reasonable, which I have.
[101] Neither Ms Rho nor Ms Buller were witnesses in the matter. Further, Ms Buller provided her account of Incident Three to Ms McCallum who was a witness. Therefore, the weight that can be attributed to the accounts of Ms Rho and Ms Buller is impacted upon by these factors.
[102] In light of the evidence, I am unable to say whether the Applicant complied with the instruction. However, having considered the evidence I am satisfied that when discussing the matter with Ms McCallum the Applicant exhibited frustration when instructed to remove his surgical mask.
Agreed Matters
[103] It is not in contest and I am satisfied on the evidence that:
(a) the Applicant is a person protected from unfair dismissal because, at the time of his dismissal, he had completed a period of employment with the Respondent of at least the minimum employment period, an enterprise agreement applied to the Applicant in relation to the employment and his earnings were less than the high income threshold (s.382 of the Act);
(b) the Applicant was dismissed by the Respondent (s.385(a) of the Act);
(c) the Respondent was not a “small business employer” as defined in s.23 of the Act, so the Small Business Fair Dismissal Code was inapplicable (s.385(c) of the Act);
(d) the Applicant’s dismissal was not a case of genuine redundancy (s.385(d) of the Act); and
(e) the Applicant’s unfair dismissal application (the Application) was made within the period required (s.394(2) of the Act).
Harsh, Unjust Unreasonable
[104] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[105] The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained by the High Court of Australia in Byrne v Australian Airlines Ltd. 39 McHugh and Gummow JJ explained as follows:
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. 40
[106] It is clear that s.387 of the Act contemplates that an overall assessment as to the nature of the dismissal must be made by the Commission. In so doing, the Act sets out a number of considerations that must, where relevant, be weighed up in totality.
[107] It is convenient therefore to use the various provisions of s.387 of the Act, with reference to the relevant circumstances, to outline my consideration of the matter.
Was there a Valid Reason for the dismissal - Section 387(a)
[108] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 41 The reason for the dismissal should be ‘sound, defensible and well founded’42 and should not be ‘capricious, fanciful, spiteful or prejudiced.’43
[109] The provisions must be applied in a practical, common sense way to ensure that the employer and employee are treated fairly. 44
[110] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 45 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).46
[111] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the matter before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination. 47
Consideration
[112] The Respondent established that over a period of some ten months the Applicant exhibited confrontational behaviour that had continued notwithstanding feedback, performance counselling and a Warning from the Respondent.
[113] I am satisfied that the Respondent made it clear that it required the Applicant to resolve disagreements with colleagues in accordance with the ‘Resolving a problem at work’ document. This document required the Applicant to raise a disagreement in the first instance with the relevant person in a constructive and respectful manner and escalate it to that person’s Manager should resolution not be achieved.
[114] The Applicant had been provided with feedback concerning his behaviour and examples had been provided such as raising his voice and asking a series of questions without affording an opportunity for the person to fully explain from their perspective. 48
[115] The confrontational behaviour of the Applicant extended to the Applicant providing co-workers with confidential and sensitive file notes about their performance authored by a Supervisor for which he received a Warning on 28 July 2016. 49
[116] The Applicant sought to impugn the legitimacy of the Warning by submitting that a workplace investigation had not taken place. However, I accept the submission of the Respondent that once the Applicant had admitted to distributing the documents to Caregivers it was then for Ms Quinn to determine whether the Applicant understood the document content to be sensitive and confidential in nature. Ms Quinn arrived at such finding and articulated the reasons in her letter to the Applicant of 28 July 2017. I am satisfied that the Respondents reliance on the Warning as one of the reasons for dismissal was not unjust or unreasonable.
[117] The evidence was such that there had been a long standing personal relationship of sorts between the Applicant and Mr John. Over time that relationship had soured to the point that the Applicant had decided not to speak to Mr John for a period. However, I do not consider that a personal relationship formed and maintained outside of the workplace permitted, or in any way justified, a familiarity within the workplace that extended to swearing or a confrontational challenge regarding work allocation.
[118] Within the workplace Mr John was the Applicant’s work colleague and Supervisor. The Respondent required the Applicant to work in accordance with its Values of Respect and Justice. The Value of Respect required all Caregivers to take care to use language that did not offend or demean a person’s dignity and the Value of Justice required all Caregivers to address issues in a respectful manner. In the Warning and subsequent letter to the Applicant of 24 August 2016, Ms Quinn clearly articulated these requirements to the Applicant.
[119] On the evidence it would seem that throughout Incident One and Incident Two Mr John maintained his professionalism and then sought to resolve the issue through the appropriate channels. There was no evidence to suggest that Mr John had provoked the Applicant to act in the manner the Applicant did.
[120] The Applicant submitted that he asked Mr John to allocate him to cardiac many times and the request went unheard. The Applicant further submitted that no one from management tried to resolve the matter which resulted in the disagreement on 3 February 2017.
[121] Save Incident Two, on the evidence I am unpersuaded that the Applicant raised his request to work in the cardiac theatre many times with Mr John. While there was an email from Mr Foster to Mr John dated 7 February 2017 concerning allocating ‘Allie and Sebastian back into cases so they can keep doing on call’ the email was sent post 3 February 2017 and was not indicative that the matter had been escalated to ‘management’. The submission that a lack of management action resulted or caused the disagreement on 3 February 2017 is absent merit.
[122] I am left with no doubt that the actions of the Applicant in Incident One and Incident Two impacted upon the welfare of Ms Joice, Mr John and Ms Buktenica. Ms Joice expressed not wanting to remain in the anaesthetic workroom because she thought something was going to happen. Ms Buktenica gave evidence that she was very shaken up and was concerned for Mr John as she thought the disagreement would become physical. Mr John stated:
…for a few months I was just keeping everything within myself and I was not even discussing it with this management. So when I was not able to function my normal duties with Mr Sajish interfering my normal duties, I went and reported it to Sarah, my line manager, as well as Evelyn Quinn. 50
[123] The Respondent was entitled to set standards of behaviour and having outlined them to the Applicant, insist adherence. The behaviour of the Applicant as traversed in Incident One, and Incident Two when considered in the context of counselling having been provided, a Warning issued and clear behavioural expectations having been communicated, was of such seriousness as to constitute a valid reason to dismiss the Applicant. The Applicant demonstrated conduct in a number of respects which collectively satisfy me that the Respondent had a valid reason to terminate his employment.
Notification of the Valid Reason –s.387(b) and an Opportunity to Respond –s.387(c)
[124] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 51 and in explicit52 and plain and clear terms.
[125] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 53
Consideration
[126] The Applicant was notified of the reason or reasons for dismissal and was given the opportunity to respond to any reason related to his capacity or conduct on 3 April 2017. 54 Mr Jones considered that the Applicant raised new information in his response and as such there was further enquiry. Information arising from the enquiry was considered before the Respondent arrived at a final decision to terminate the Applicant’s employment.
[127] The Applicant was, in addition, afforded the opportunity to meet with Ms Colvin on 10 April 2017.
[128] I am satisfied that the Applicant was notified of a valid reason for his dismissal and afforded the opportunity to respond.
Unreasonable Refusal of a Support Person – s.387(d)
[129] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.
Consideration
[130] At the meeting on 3 April 2017 the Applicant was accompanied by a representative of his union. The Applicant did not request a support person with regards to the meeting with Ms Colvin on 10 April 2017.
Warnings regarding Unsatisfactory Performance – s.387(e)
[131] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.
[132] Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct. 55 The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.56
Consideration
[133] This is a neutral factor in light of the finding that the reason for dismissal was the misconduct of the Applicant rather than his performance. However, it is observed that a Warning concerning the Applicant’s conduct was issued and the Applicant had been counselled regarding his behaviour on two other occasions.
Impact of the Size of the Respondent on Procedures Followed and Absence of dedicated human resources management specialist/expertise on procedures followed – s.387(f)-(g)
[134] When considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which: (a) the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and (b) 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.
Consideration
[135] The size of the Respondent’s business did not impact on the procedures followed by it in effecting the dismissal. The Respondent is a large company, employing approximately 13,000 employees Australia wide and has a dedicated Human Resources department in addition to an Employee Relations function. The procedures followed by the Respondent in affecting the Applicant’s termination of employment were well documented, with an investigation conducted in determining the legitimacy of the reasons relied on for his dismissal.
Other Relevant Matters – s.387(h)
[136] Amongst other considerations, it is necessary to consider the impact the dismissal had on the Applicant given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission. 57
[137] Further, a dismissal may, depending upon the overall circumstances be considered to be harsh on the person due to the economic and personal consequences resulting from being dismissed. 58
[138] In considering the question of what is ‘harsh, unjust or unreasonable’ the Commission is to ensure that ‘a fair go all round’ is accorded to both the employer and the employee. 59
Consideration
[139] The Applicant had worked for the Respondent in a full-time capacity from 13 October 2014. He had occupied a position as a casual Registered Nurse between September 2012 and October 2014 and before September 2012 had worked as a full-time Registered Nurse and then Clinical Nurse in the period February 2010 and September 2012.
[140] During the course of 2016 the Applicant had lodged with the Respondent a bullying and harassment grievance toward Ms Crawford, Ms Quinn and Ms Ferguson. Mr Jones and line management investigated this grievance and it was found that there was insufficient evidence to substantiate the allegations of inappropriate conduct made against the three staff members. 60
[141] During the course of the hearing the Applicant drew attention to Ms Quinn’s involvement in the investigation into Incident One, Two and Three. He raised issue concerning her involvement because of the workplace bullying and harassment grievance he had made against her in September 2016.
[142] The Applicant submitted that he had become a target of management and was confronted with accusations and false allegations one after the other. He further submitted that all issues were blown out of proportion and the investigation that had resulted in a Warning was biased. However, the Warning was issued before the Applicant raised his grievance against Ms Quinn and there was no evidence to find bias.
[143] I accept the submission of the Respondent and the evidence of Ms Quinn that her involvement in the workplace investigation into Incidents One, Two and Three, was limited to interviewing three witnesses, 61 and the workplace bullying and harassment complaint was not substantiated in any event. On the evidence before me I am satisfied that the workplace investigation into Incident One, Two and Three was unaffected by bias, or formed part of management targeting the Applicant.
[144] Mr John gave evidence that he had been experiencing unprofessional conduct from the Applicant since his promotion to the CN position in April 2016. Mr John continued that he had reported to Ms Crawford and Ms Quinn such conduct and that they had asked him to report and update everything what was happening on the floor between himself and the Applicant. 62 Ms Quinn confirmed that if a Caregiver had expressed a problem she would usually say ‘put it in writing to me’63 and that she would ‘say that to all Caregivers who have problems’.64
[145] I am again satisfied that a request to report unprofessional conduct as it arose did not constitute targeting by management in the circumstances of this matter. It follows that I have found that the workplace investigation into the misconduct of the Applicant concerning Incidents One, Two and Three was not a ruse to simply to get rid of the Applicant or formed part of management targeting the Applicant.
[146] Evidence about the Applicant’s previous conduct record has been outlined. I have taken into consideration Applicant’s length of service, the Service Ethos Award and previous conduct record but I am unable to conclude that the dismissal was harsh, unjust or unreasonable.
Findings
[147] I am satisfied that the dismissal of the Applicant was not disproportionate to the Applicant’s conduct of repeated non-compliance with the St John of God Health Care document titled ‘Resolving a problem at work’and behaviours contrary to the Values of Respect and Justice.
[148] While the Respondent provided feedback and counsel to the Applicant regarding behavioural expectations and how others perceived his conduct, regrettably the Applicant demonstrated an inability to modify his approach. The Applicant’s lack of insight regarding his conduct was evident in his written response to the allegation concerning Incident Two:
After the conversation with Joji regarding the cardiac allocation, on 3rd Feb 2017, the way Joji left the room clearly demonstrated to me that he was very frustrated that he couldn’t give me a valid reason for not allocating me in cardiac theatre. 65
[149] There was an inability of the Applicant to appreciate that Mr John’s frustration was likely the result of the Applicant’s repeated confrontational challenge to Mr John’s authority to allocate work, in front of others. Particularly, in circumstances where earlier in the day Incident One had occurred. The Applicant provided evidence that he had apologised to Mr John concerning Incident Two. However, in evidence Mr John disputed that an apology had been given. The Applicant’s own evidence concerning Incident Two weighed against the merits of his case.
Conclusion
[150] Having considered each of the matters specified in s.387 of the Act, I am satisfied the Applicant demonstrated conduct in a number of respects which collectively has satisfied me that the Respondent did have a valid reason for the dismissal of the Applicant and that the dismissal was not unjust, unreasonable or harsh. The Application for unfair dismissal remedy in the matter U2017/5341 is dismissed.
DEPUTY PRESIDENT
Appearances:
S. Sajish Kanamkombil on his own behalf.
C. Francis for the Respondent.
Hearing details:
2017.
Perth:
September 4, 5, 6.
Final written submissions:
Applicant, 14 September 2017.
Respondent, 13 September 2017.
1 Exhibit A1 Doc1.
2 Exhibit A1 Doc1.
3 Exhibit A1 Doc 2.
4 Exhibit A1 Doc 2.
5 Exhibit A1 Doc 2.
6 Exhibit A1 Doc 3.
7 Exhibit A1 Doc 3.
8 Exhibit R1 Attachment 3.
9 Exhibit R4.
10 Exhibit R1 Attachment 13.
11 Exhibit R1 Attachment 14.
12 Exhibit R1 Attachment 14.
13 Exhibit R1 Attachment 15.
14 Exhibit R1 Attachment 11.
15 R1 Attachment 29.
16 R1 Attachment 29.
17 R1 Attachment 29.
18 R1 Attachment 29.
19 Transcript PN3900.
20 Transcript PN2029.
21 Exhibit R1 Attachment 27.
22 Transcript PN702.
23 Transcript PN2061 - PN2094.
24 Exhibit R1 Attachment 3.
25 Transcript PN2187-2192.
26 Exhibit A7.
27 Exhibit A7.
28 Transcript PN2141.
29 Transcript PN2143.
30 Transcript PN2766.
31 Transcript PN2761-2765.
32 Transcript PN482.
33 Transcript PN542.
34 Exhibit R1 Attachment 10.
35 Transcript PN545.
36 Transcript PN3738.
37 Exhibit R1 Attachment 10.
38 Transcript PN2194.
39 (1995) 185 CLR 410.
40 Ibid 465.
41 Shepard v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 377-8.
42 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 373.
43 Ibid.
44 Ibid as cited in Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation (2010) 202 IR 17 [36].
45 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 685.
46 Ibid.
47 King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019 [24].
48 Exhbit A1 Attachment 1
49 Exhibit A1 Attachment 1
50 Transcript PN2229.
51 Trimatic Management Services Pty Ltd v Daniel Bowley[2013] FWCFB 5160; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 151.
52 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151; Previsic v Australian Quarantine Inspection Services Print Q3730.
53 Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1 14-15.
54 Exhibit R1 paragraph 29 attachment
55 Annetta v Ansett Australia Ltd (2000) 98 IR 233 237.
56 Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie[2012] FWA 2 [58].
57 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 14, citing Byrne v Australian Airlines Ltd (1995) 185 CLR 410 465.
58 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 465.
59 Section 381(2) of the Act.
60 Exhibit A1 Attachment 3.
61 Transcript PN3573.
62 Transcript PN2228.
63 Transcript PN3615.
64 Transcript PN3616.
65 Exhibit R1Attachment 13.
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