Mr Vikas Nain v Southern Cross Care T/A Southern Cross Care

[2014] FWC 4675

[2014] FWC 4675

The attached document replaces the document previously issued with the above code on 8 August 2014.

A typographical error in paragraph 16 was corrected.

Associate to COMMISSIONER LEWIN

19 August 2014

[2014] FWC 4675

FAIR WORK COMMISSION

DECISION

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

Mr Vikas Nain
v
Southern Cross Care T/A Southern Cross Care
(U2014/5320)

COMMISSIONER LEWIN MELBOURNE, 8 AUGUST 2014

Application for relief from unfair dismissal - reason for termination - conduct - conflicting evidence - deficiencies of procedural fairness where misconduct is serious - termination not harsh, unjust or unreasonable.

[1] This decision concerns an application for unfair dismissal remedy made under s. 394 of the Fair Work Act (2009) (The Act) by Mr Vikas Nain, in relation to the termination of his employment with Southern Cross Care T/A Southern Cross Care (Southern Cross).

[2] There is no dispute that at the time Mr Nain was dismissed from his employment with Southern Cross he was a person protected from unfair dismissal.

[3] Mr Nain was employed by Southern Cross for 18 months prior to his dismissal, as a Personal Care Assistant (PCA), in an aged care facility at Keon Park in Victoria. Mr Nain generally worked 65 to 70 hours per fortnight for Southern Cross.

[4] Mr Nain’s employment was terminated on 14 February 2014. The reason for the termination of Mr Nain’s employment was because Southern Cross determined that Mr Nain had slapped a resident in care at the Keon Park facility on several occasions.

[5] The application was heard on 2 and 3 July 2014. Permission was granted for both Mr Nain and Southern Cross to be represented by a lawyer. There was considerable conflict in the evidence filed in the form of witness statements, in preparation for the hearing. The need to make critical findings of fact seemed likely to depend heavily on the evidence of the witnesses when under cross examination. I judged that, in these circumstances and as both parties sought to be represented accordingly, to grant the permission would lead to more efficiency in the conduct of the hearing, by enabling skilled cross examination to assist in the evaluation of the conflicting evidence, which otherwise might become a complex and inefficient process if the parties were self represented.

[6] At the hearing the following persons gave evidence.

Mr Vikas Nain (Applicant) - Personal Care Assistant, Southern Cross.

Mr Vincent Cimafranca - Personal Care Assistant, Southern Cross.

Ms Fiona Hsiao - Personal Care Assistant, Southern Cross.

Ms Nilu Morawaka - Care Manager, Southern Cross.

Ms Barbara Stacpoole - Manager, Southern Cross.

Mr Kam Radikowski - Employee Relations Consultant.

Statutory Provisions

[7] To determine Mr Nain’s application, I must decide if the termination of Mr Nain’s employment was harsh, unjust or unreasonable. I must take into account the matters set out in s. 387 of the Act which is set out below:

[8] 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.

[9] Mr Nain denies allegations made by Southern Cross that he slapped the resident. Ms Hsiao and Mr Cimifranca gave evidence that they witnessed Mr Nain slap the resident on the face. The cumulative evidence of the latter witnesses is that Mr Nain slapped the resident on more than one occasion.

[10] In the course of the hearing, counsel for Southern Cross conceded that Southern Cross would rely only on some of the evidence of Ms Hsiao and Mr Cimifranca in relation to the alleged slapping of the resident, namely alleged incidents of the slapping of the resident in January 2014. Those allegations were stated by Southern Cross to Mr Nain in a memorandum of 23 January 2014. Southern Cross was also aware of an allegation by Mr Cimifranca that Mr Nain slapped the resident in late 2013. It is the latter allegation that Southern Cross does not rely upon for their submission that there was a valid reason for the termination of Mr Nain’s employment.

[11] It will be necessary to consider the particulars of the allegations which are relied upon accordingly and make findings of fact in relation to those allegations, on the evidence before the Commission.

[12] Having regard to the concession made by counsel for Southern Cross, I will not make findings of fact in relation to the alleged incident of Mr Nain slapping the resident in late 2013 (October), which was not put to Mr Nain by Southern Cross prior to the termination of his employment. As noted, Southern Cross submits that the allegations and the evidence of Mr Cimifranca concerning events involving the resident in October 2013 can be disregarded for my purposes. I shall do so.

Valid Reason

[13] There is clear conflict in the evidence of Mr Nain, Ms Hsiao and Mr Cimifranca in relation to the allegations which Southern Cross rely upon as a valid reason for the termination of Mr Nain’s employment.

[14] There is no issue of variance in the details of the relevant events said to have been witnessed by Ms Hsiao and Mr Cimifranca, which form the basis of the reason for the termination of Mr Nain’s employment, relied upon by Southern Cross. The issue is simply whether the events took place at all. Mr Nain’s evidence is, effectively, that he did not slap the resident at any time.

[15] It is worthy of note that it has not been submitted that if the events of alleged slapping of the resident were found to have occurred, such action would not constitute a valid reason for the termination of Mr Nain’s employment.

[16] The relevant allegations which were made by Southern Cross to Mr Nain are as follows:

‘Incident 1 - in early January a staff member reported hearing a slapping noise while you were in a room attending to the resident and hearing the resident call out “help me”. When questioned you stated that “she had scratched me”.

Incident 2 - the following day (in early January) the staff member reported witnessing you slap the resident… after she had scratched you and that you said to the resident “don’t do that again”.

Incident 3- a different staff member reported that on the 04/01/2014, at approximately 4:30pm, while working with you that the same resident scratched your co worker and that he witnessed you slap her on the face.’

[17] The first allegation of Mr Nain slapping a resident arises from a report to Southern Cross, and the evidence before the Commission of Ms Hsiao.

[18] The allegation is of a physical assault by a 33 year old man upon an elderly and frail resident of an aged care facility suffering dementia. The seriousness of the allegation requires that the quality of the evidence necessary to sustain such an allegation should be commensurate with the nature of the allegation.

[19] Ms Hsiao did not see Mr Nain slap the resident in the first alleged incident. Her evidence is that she heard what she believes was a slap. Mr Nain denies that he slapped the resident on this occasion. Given the seriousness of the allegation I cannot be satisfied that the quality of this evidence is sufficient for me to find that it is more likely than not that Mr Nain slapped the resident at the time when Ms Hsiao heard what she believed to be a slapping noise. I therefore find that the allegation of Incident 1 above did not constitute a valid reason for the termination of Mr Nain’s employment.

[20] The second allegation, Incident 2, was visually observed directly by Ms Hsiao, according to her evidence. I have considered Ms Hsiao’s evidence, her witness statement and her viva voce evidence. I have done so having regard to the witness statement of Mr Nain and his viva voce evidence. On my consideration of the evidence, as set out below, I have decided to accept Ms Hsiao’s evidence and to reject Mr Nain’s denial of having slapped the resident in the presence of Ms Hsiao in what is described as the Incident 2, said to have occurred in early January 2014.

[21] In my view, Ms Hsiao’s account in her witness statement and under cross examination is clear, comprehensive, coherent and highly plausible in its particularity and narrative progression.

[22] Mr Nain’s denial is simple, blunt and absolute.

[23] Having accepted Ms Hsiao’s evidence unconditionally, it is impossible therefore to construct an alternative account of the relevant interaction with the resident from Mr Nain’s evidence which would explain the alleged event in a manner which excluded the slap. This is to be expected and logical if the slapping event described by Ms Hsiao comprising Incident 2 was entirely concocted by Ms Hsiao. It would seem in the circumstances that there either was or was not an act of slapping of the resident during the interaction described in Incident 2. I find that there was and that Ms Hsiao witnessed Mr Nain slap the resident on the face in early January 2014.

[24] Mr Nain described this evidence and evidence of other incidents as a “fake complaint”. The motive Mr Nain suggested for Ms Hsiao concocting this evidence was a failure by Mr Nain to advance a loan of money to Ms Hsiao.

[25] I have considered the evidence of this putative loan of money as a possible motivation for Ms Hsiao having concocted the evidence in her witness statement. I am not satisfied that it offers a plausible explanation. Mr Nain had volunteered to Ms Hsiao that he may be able to assist her financially with fees for a course of study she was contemplating. There was never any agreement that Mr Nain would loan Ms Hsiao money. Ms Hsiao did not initiate an approach for a loan. The idea was purely Mr Nain’s invention. Ms Hsiao asked Mr Nain to discuss the matter with his wife. When, for financial reasons of his own, Mr Nain later advised Ms Hsiao that he would not be able to loan her money I find she accepted this gracefully and without any resentment.

[26] Ms Hsiao’s evidence in her witness statement and under cross examination was consistent and unshaken. While caution must be observed in consideration of a witness’s demeanor for the purposes of making findings of fact, I saw no reason to disbelieve Ms Hsiao about the circumstances of this putative loan of money from her demeanor when giving evidence.

[27] It was also submitted that Ms Hsiao’s failure to report the incident at the time it occurred or immediately thereafter tells against accepting her evidence.

[28] Ms Hsiao was contacted by a supervisor in the third week of January, it became clear to Ms Hsiao from the enquiry that another PCA had reported that Mr Nain had slapped the resident, at which time Ms Hsiao then reported Incident 2.

[29] In my view, Ms Hsiao refrained from reporting Incident 1 and Incident 2 for personal reasons, which I consider are complex and highly subjective. Ms Hsiao offered, as an explanation for not reporting the incident, that she had been afraid to do so. Ms Hsiao knew at all material times that she should have reported the incident at the time it occurred. She was ultimately disciplined for not doing so. Ms Hsiao was issued with a first and final warning by Southern Cross for her failure to report the incident.

[30] Ms Hsiao had a complex relationship with Mr Nain. She was a friend of Mr Nain and his wife, who also worked at Southern Cross. Ms Hsiao invited Mr Nain and his wife to her wedding. On the other hand, Ms Hsiao gave evidence that Mr Nain had occasionally made inappropriate and suggestive sexual comments to her. It is not entirely implausible that Ms Hsiao simply decided not to report Mr Nain’s conduct in both Incident 1 and Incident 2 because of this ambiguous relationship.

[31] In my view, the complex relationship between Ms Hsiao and Mr Nain most likely lead to Ms Hsiao not reporting Incident 1 and Incident 2 as referred to in the allegations above to Southern Cross.

[32] When it became obvious to Mr Hsiao that her supervisor was investigating a complaint of Mr Nain having slapped a resident, Ms Hsiao was faced with the prospect that if she did not disclose the second incident, (and subsequently the first incident) and it later became known that she had been a witness thereto, possibly even by admission on Mr Nain’s part, there could be very serious consequences for her. I consider that when she became the subject of potential discipline, for failure to report Mr Nain’s conduct, Ms Hsiao said to Southern Cross that she had been afraid to do so, in order to provide herself with some protection from the potential consequences of any disciplinary investigation of the incident and of her failure to report it.

[33] Incident 3 was reported by Mr Vincent Cimafranca, as a result of a telephone call from a supervisor, Ms Morawaka. Mr Cimafranca provided a written report to Ms Morawaka on 24 January 2014 which formed an attachment to the witness statement of Mr Cimafranca filed in the proceedings.

[34] Mr Nain emphatically denied that the incident reported by Mr Cimafranca took place. Mr Nain suggested that Mr Cimafranca concocted the allegation in relation to Incident 3 that he slapped the resident on 4 January 2014.

[35] I am unable to discern a plausible motive for Mr Cimafranca to have concocted his evidence. Mr Cimafranca’s evidence was not disturbed under cross examination. While Mr Cimafranca suffered some confusion about the date upon which he recalled the incident having occurred, of itself, this is not sufficient to cause me to reject his evidence. One may reasonably accept that witnessing such an event would not be easily forgotten.

[36] While Mr Nain gave some evidence which suggested that Mr Cimafranca and himself may not have been working together on the day upon which it was alleged he slapped the resident, that evidence, in my view, lacked sufficient certainty to convince me to accept it and consequently reject Mr Cimafranca’s evidence.

[37] For these reasons I find that the allegation in relation to Incident 3 is substantiated, it is in my judgment more likely than not that Mr Nain slapped the same resident and was so involved in Incident 3 on 4 January 2014, or thereabouts, as described by Mr Cimafranca.

[38] In light of the findings I have made in relation to Incidents 2 and 3 identified in the three allegations made by Southern Cross to Mr Nain in early January2014, I consider that these incidents and in particular my findings that Mr Nain slapped the resident on two occasions comprise a valid reason for the termination of Mr Nain’s employment.

Notification

[39] I find that Mr Nain was notified of the reasons for the termination of his employment as I have found them. I note that the reason for the termination of Mr Nain’s employment more probably than not included acceptance by Southern Cross of Ms Hsiao’s allegation of the first incident referred to above. Given I have found that I cannot be satisfied that this incident occurred I consider notification of the allegation in relation to Incident 1 to be superfluous for my instant purposes.

[40] I will return to consider other reasons for the termination of Mr Nain’s employment, including the first incident, as relevant matters in due course. For the time being, it is only necessary to consider whether Mr Nain was notified of the second and third incidents, which I have found constituted a valid reason for the termination of his employment.

[41] While I have found that, in bare terms, Mr Nain was notified of Incident 2 and 3 as the reason for the termination of his employment, I should note that Mr Nain submits that the notification provided by Southern Cross lacked sufficient particularity to constitute adequate notice in the circumstances of this case. The notification of the allegations by Southern Cross did not identify the persons with whom Mr Nain was said to be working when the alleged incidents occurred. Mr Nain submitted that notification of such serious allegations without relevant particulars does not constitute adequate notice for the purposes of the statute.

[42] There is some force in what Mr Nain submits. In my view, the scheme of the provisions of s. 387 of the Act is that matters concerning adequacy of the notification may be a relevant matter to be taken into account under s.387 (h) of the Act, when considering whether the termination of Mr Nain’s employment was harsh unjust and unreasonable. Accordingly, I will return to consider the adequacy of the notification of the reasons for the termination of Mr Nain’s employment in due course below.

Opportunity to respond

[43] I find that Mr Nain was given an opportunity to respond to the allegations in relation to incidents 2 and 3. The procedure adopted by Southern Cross is outlined in the their submissions was as follows:

‘26. On 4 February 2014, the Respondent conducted a disciplinary meeting where the Applicant was given an opportunity to respond to the allegations. The Applicant provided his response to the allegations at the meeting. The Respondent considered the Applicant’s responses prior to determining the allegations were substantiated and the Applicant would be dismissed.

27. The Respondent further attempted to meet with the Applicant to obtain a response after making its decision to terminate his employment. Due to a failure in communication between the parties, however, this meeting did not take place and the Applicant was informed of his dismissal by letter dated 14 February 2014.

28. The Respondent submits that the Applicant had satisfactory opportunity to respond to the reasons for the dismissal.’

[44] The attempt to meet with Mr Nain referred to in paragraph 27 of Southern Cross’ submissions failed due to Mr Nain being unable to attend at the nominated time. Mr Nain sought another time for the meeting, which did not eventuate.

[45] The opportunity to respond provided to Mr Nain was attended by the same lack of particularity referred to in my consideration of the adequacy or extent of the adequacy of the notification of the relevant allegations provided to by Mr Nain by Southern Cross. As with my observations of the adequacy of the notification given by Southern Cross to Mr Nain of the reasons for the termination of his employment, I will return to consider the opportunity for Mr Nain to respond to those reasons I have found to be valid reasons for the termination of his employment further below, when I turn to consider other relevant matters under s. 387(h).

Support person

[46] On what is before me, there was no unreasonable refusal for Mr Nain to have a support person present to assist in discussions which took place in relation to the termination of his employment.

Warning - Performance

[47] The conduct which I have found to be a valid reason for the termination of Mr Nain’s employment the dismissal of Mr Nain did not relate to unsatisfactory performance. Southern Cross did not rely upon unsatisfactory performance as a reason for the termination of Mr Nain’s employment and there was no relevant warning to Mr Nain in relation to the performance of his duties as a PCA which I must therefore take into account, in order to determine if the termination of Mr Nain’s employment was harsh, unjust or unreasonable.

Size of the employer

[48] Southern Cross is a medium size employer. On what is before me, I can discern no impact upon the procedures followed by Southern Cross in effecting the termination of Mr Nain’s employment arising from this.

Human Resource Management

[49] Southern Cross has dedicated Human Resource Management expertise and personnel. Therefore, there was no absence of such resources which had any impact on the procedures followed in effecting the termination of Mr Nain’s employment.

Other matters

[50] I consider there were aspects of the procedures followed in effecting the termination of Mr Nain’s employment which are relevant to my consideration of whether the dismissal of Mr Nain was harsh, unjust or unreasonable.

[51] On what is before me, the details of the allegations in relation to all three of the incidents which were notified to Mr Nain and the decisions made about the extent of the information provided to him presented Mr Nain with difficulty in responding to what became the reason(s) for the termination of his employment. By choosing not to identify the persons within whom Mr Nain was working at the time the alleged incidents occurred, Southern Cross limited Mr Nain’s ability to identify the place and time when the incidents where alleged to have occurred and to recollect the basis of the circumstances and his conduct which was under consideration.

[52] Additionally, in my view, Southern Cross accepted Ms Hsiao’s allegation of Incident 1 or was more likely than not influenced by that allegation in its consideration of the reason for the termination of Mr Nain’s employment. I consider this is also more likely than not true in relation to additional allegations made by Mr Cimafranca about Mr Nain slapping the same resident in October 2013, which formed part of the material in Southern Cross’s possession in relation to Mr Nain’s conduct towards the resident in question, but which allegation was not put at all to Mr Nain.

[53] I will also have regard to Mr Nain’s service with Southern Cross which was otherwise satisfactory, when considering whether the termination of Mr Nain’s employment was harsh, unjust or unreasonable.

Harsh, unjust or unreasonable

[54] In this case it is useful to commence my consideration of the matters I must take into account to determine if the termination of Mr Nain’s employment was harsh, unjust or unreasonable with an often noted passage of a Decision of the High Court of Australia in the matter of Byrne and another v Australian Airlines Limited 1, whereby the court considered what will be a termination of employment which is harsh, unjust or unreasonable.

‘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 reasonable have been drawn from the material before the employer, and may be hash 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.’

[55] Following the guidance provided by the Court, I will commence with consideration of whether the termination of Mr Nain’s employment was unjust. As I have found that Mr Nain slapped an aged and vulnerable resident in the care of Southern Cross on two occasions it cannot be suggested that Mr Nain was “not guilty of the misconduct on which the employer acted”. Nor was Southern Cross’s decision to terminate Mr Nain’s employment based on material from which the inference that Mr Nain slapped the resident was unavailable. More importantly, the evidence before me establishes to my satisfaction that Mr Nain did slap the resident on two occasions.

[56] In this respect, accepting that Southern Cross more likely than not accepted the truth of the allegations of Incident 1 and Mr Cimafranca’s report that Mr Nain slapped the same resident in late 2013; my not accepting such conduct to be proven before me does not diminish the conduct I have found to have occurred in Incident 2 and Incident 3.

[57] Moreover, I do not consider that to dismiss an employee whose primary and sole duty is the care of aged and vulnerable people for slapping such a person on the face on more than one occasion to be an action not endowed with reason or exceeding the bounds of reason. Nor does such a dismissal lack good sense, sound judgment or can be described as indefensible. Accordingly, I am not satisfied that the termination of Mr Nain’s employment was unreasonable in the circumstances.

[58] Whether the termination of Mr Nain’s employment in the particular circumstances was disproportionate to the offence involved or was harsh having regard to the effect on Mr Nain’s personal economic circumstances, are considerations of a different kind.

[59] In my judgment, the dismissal of Mr Nain in the circumstances was not disproportionate to the conduct I have found to have occurred. The action of repeatedly slapping the resident was inhumane and so far beyond the requisite behavior of a PCA that it is difficult to imagine circumstances where the employment could reasonably continue.

[60] The conduct and delivery of aged care services is a matter of public interest. Accordingly, the provision of such services is highly regulated. Organisations providing such services are highly accountable and must maintain confidence within the community.

[61] I am unable to be satisfied that Southern Cross could have had any sense of comfort that it could act in any other way than it did in terminating the employment of Mr Nain, in the circumstances as I have found them. Moreover, faced with no sign of acceptance of responsibility on Mr Nain’s part I cannot be satisfied that a lesser sanction such as disciplinary action up to but not including the termination of Mr Nain’s employment could have been viable in the context of the employment.

[62] Mr Nain had income from other employment at the time of the termination of his employment with Southern Cross which has continued uninterrupted. While Mr Nain has been unable to replace the hours of work he has lost as a result of the termination of his employment, there is nothing before me that would satisfy me that the economic circumstances he finds himself in are catastrophic. Southern Cross paid Mr Nain an amount in lieu of notice at the termination of his employment. Mr Nain received all of his accrued entitlements in addition to the monies paid in lieu of notice.

[63] Mr Nain was employed by Southern Cross for 18 months. I consider this period of employment to be of limited duration but not insignificant. In less serious or different circumstances it may well have been sufficient to contribute to a finding favorable to Mr Nain.

[64] Finally, while I consider there were imperfections in the procedures followed to effect the termination of Mr Nain’s employment, including the failed meeting referred to above, the gravity of the reasons for the termination of Mr Nain’s employment and my findings in relation thereto weigh against a finding that the termination of Mr Nain’s employment was harsh, unjust or unreasonable in the circumstances because of those procedural imperfections.

[65] For all of these reasons, I am not satisfied that the termination of Mr Nain’s employment by Southern Cross was harsh, unjust or unreasonable.

COMMISSIONER

Appearances:

Ms A Duffy for the Applicant

Mr M Rinaldi for the Respondent

Hearing details:

2013

Melbourne

2 July 2014

 1 (1995) 185 CLR 410 at 465.

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<Price code A, PR553062>