Mrs Angelika Adamopoulos v Thompson Healthcare Pty Ltd t/a Thompson Health Care

[2017] FWC 3505

[2017] FWC 3505 [Note: An appeal pursuant to s.604 (C2017/4530) was lodged against this decision and the order.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 394 - Application for unfair dismissal remedy

Mrs Angelika Adamopoulos

v

Thompson Healthcare Pty Ltd t/a Thompson Health Care

(U2017/1706)

Deputy President Sams SYDNEY, 28 JULY 2017

Application for an unfair dismissal remedy – summary dismissal of Director of Nursing at an aged care facility – allegations of serious misconduct, poor performance and failure in duty of care to residents – allegations of misconduct not proven – collusion between senior nursing staff – motives for collusion – allegations of poor performance not made out – duty of care reasonable – errors of judgement – contrition and apology – exemplary service, pay rises, commendations, bonuses – procedural unfairness – reasonable opportunity to respond not provided – weight of evidence did not justify dismissal – no valid reason for dismissal – dismissal harsh, unjust and unreasonable – reinstatement not sought – reinstatement inappropriate – compensation ordered.

1. A Director of Nursing (DON) in a public or private hospital or other healthcare facility, such as a nursing home, is a position of critical importance and responsibility. Overarching all the regular administrative and leadership duties, the DON is required to ensure at all times, the care of residents/patients, and the safety of staff, visitors and other residents/patients. The DON is a key contributor to the efficient and effective delivery of the highest quality healthcare. The DON must ensure the reputation and strict regulatory standards of the facility are not compromised and are open to scrutiny at any time. For a registered nurse, the position of DON is recognised as the pinnacle of the nursing profession. It is a widely respected and esteemed position in the community and within the profession.

1. Ms Anjelika Adamopoulos obtained her nursing qualifications in 1980 in Hamburg, Germany. After migrating to Australia in 1984, and caring for her family for the next 15 years, Mrs Adamopoulos returned to full time work as a registered nurse at Concord Hospital in 1999. She holds a specialist qualification in gerontological nursing and has held senior nursing positions since 2002, including Clinical Nursing Specialist, Care Manager/Facility Manager and DON at Anthem Care, Bowral from January 2013 to June 2014. She had worked at Abbey House (‘Abbey’), another aged care facility in Mittagong since August 2014. Mrs Adamopoulos was appointed acting DON of Abbey from December 2015 and DON from January 2016.

1. Abbey is one of two aged care facilities operated by Thompson Health Care Pty Ltd in the Southern Highlands of New South Wales. The other is Bowral House in Bowral. Thompson Health Care is a family owned company and has 12 other aged care facilities in New South Wales, in which around 1400 persons are employed. Abbey has 143 elderly residents, including some with high care needs, such as dementia. The facility employs around 200 staff.

1. Mrs Adamopoulos’s employment was covered by the Thompson Health Care Pty Ltd NSWNA & HSU East Branch Enterprise Agreement 2012 [AE896785] (the ‘Agreement’). Her salary was $150,000 per annum. Mrs Adamopoulos was dismissed on 10 February 2017 for alleged poor performance and serious misconduct (identified as issues one to five). These are set out in a letter dated 7 February 2017 (show cause letter) and in the letter dated 10 February 2017, in which Mrs Adamopoulos’ employment was terminated. That letter reads as follows:

Private and Confidential Angelika Adams

Dear Angelika,

Re: Interview Outcome

I am writing to confirm the outcome of proceedings undertaken with you after management were notified of a number of serious and significant concerns regarding your conduct and performance while undertaking your duties as Director of Nursing (DON) at Abbey House Nursing Home.

By way of background, on 7 February 2017 you were issued with a letter directing you to attend a compulsory interview which was scheduled for 8 February 2017. The purpose of the interview was to provide you with an opportunity to respond to a number of performance related issues that were detailed in that letter.

On 8 February 2017, you attended the scheduled interview with your support person Mr Kyle Kutasi, Solicitor from Solve Legal. At the commencement of the interview you reported that you had a prepared statement from which you would read.

For clarity of the issues and your reply, detailed below is our account of your responses and our determination.

Item 1 -Ability to be reliable, available and contactable as Director of Nursing

Three particular issues were discussed under this Item heading. Specifically, we discussed an outing on 27 October 2016, 13 January 2017 and allegedly not taking calls outside work hours.

During the interview when asked about the outing on 27 October 2016 you denied instigating going to particular shops and said DDON Simone suggested the visits. When asked about the incident of 13 January 2017 you denied requesting Ashley to drive you to Mittagong Market and stated Ashley volunteered. When asked about not taking calls outside work hours, you initially denied not being available, and then confirmed you take calls on weeknights only, with DDON Simone and DDON Donna being available on alternate weekends. You also confirmed that you have taken calls from a couple of RN's during night shift in recent times.

Following our interview we undertook a further investigation into the matters discussed. Based on the evidence gathered relevant to these matters, we view the issues discussed under this item have been substantiated.

Item 2 -Conduct toward Administration Assistant Ashley Hills

When asked for your response on Ashley's bullying and harassment allegation, you denied the claim.

We note during our interview your version of events changed from making a comment at the door, to making the statement after walking into DDON Simone's office.

Following our interview we undertook a further investigation into the matters discussed. Based on the evidence gathered relevant to this matter, we view this allegation has been substantiated.

Item 3 - Development of your team

In regards to your participation in assisting with Simone's mentoring, and developing a Leadership Development Plan for her, you advised that you had discussions with Simone on four occasions about her performance and conduct, and you also confirmed you liaised on work tasks with Simone and mentored her on daily basis. During the interview we noted no evidence was found to support your statement and you confirmed you have not documented this mentoring.

Although we believe you have not adequately undertaken your role as a leader and mentor with your management team, we confirm no further action will be taken with regard to this matter.

Item 4 -Absence from duty on Thursday 9 November 2016

When asked about your absence from duty on Wednesday 9 November 2016 you reported that you asked Ashley if you could take a "day in lieu" informing her that you would come to work on the Sunday instead. When questioned as to why you asked a subordinate if you could take a day in lieu you provided no response.

At this time you were reminded that Thompson Health Care does not offer "time in lieu" and you said you were not aware. When asked if you informed Jill Rodgers that you would be absent from the facility on 9 November 20 16 you said "no, I didn't" and further added that you were aware of your obligations to inform Jill when taking leave.

When asked about whether you instructed Ashley to change your time sheet in Time Target to reflect that you had taken personal/carer's leave on 9 November 2016, you denied the allegation.

As raised at our meeting, Thompson Health Care does not recognise time in lieu and this is clearly articulated in the Human Resources Manual: Leave Policy. Further, as the DON, a position responsible for the managing and running of the facility, a position that directly reports to the THC Executive, it is your responsibility to inform Senior Management when you are absent from the facility. Moreover, it is your responsibility to ensure that all timesheets are actioned in accordance with the law.

Following our interview we undertook a further investigation into the matters discussed. Based on the evidence gathered relevant to this matter, we view these allegations have been substantiated. Further to substantiating these allegations we confirm we believe that you acted in a fraudulent manner and that this is consistent with serious misconduct which can warrant the immediate termination of your employment with THC.

Item 5 -Managing quality resident care and responsiveness to resident and relative queries

When discussing this item we specifically referenced concerns regarding Resident Dr Bob[1] and an incident where a staff member, Amber, was slapped by Bob.

You acknowledged our concerns regarding Bob, and confirmed that he often returns to the facility "tipsy" and he is known to bring back bottles of alcohol with him. You also confirmed your awareness of an incident where Dr Bob slapped a member of staff, after she had tried to remove alcohol from him.

Of significant concern to management was your admission of Dr Bob's conduct and your decision to allow Dr Bob to continue to take these excursions, knowing he would return to the facility under the influence of alcohol and potentially, physically violent. Of further concern was your decision, even after the incident involving Amber, to allow him to continue these excursions, returning at times when you were no longer on the premises, leaving his conduct to be managed by your nursing team.

Finally, we also highlight our concern that after you were notified of the incident involving Amber, you downplayed the event, and did not report it to HR as per THC policy.

Following our interview we undertook a further investigation into the matters discussed. Based on the evidence gathered relevant to this matter, we view these allegations have been substantiated. We confirm we view your actions in relation to these incidents and your directions regarding Dr Bob is a breach of your duty of care, and has put staff safety at risk. These actions and decisions are inconsistent with our expectations of a DON.

As valued and crucial members of the THC Management team, we require our DONs to conduct themselves in a way that is in accordance with all company policies and procedures and that promotes the highest professional standards. I am of the view that your recent performance and conduct has not been in line with these standards which can only be viewed as unacceptable from a member of the team who is expected to lead by example.

We confirm after careful and comprehensive investigation and consideration of all matters discussed the decision has been made to terminate your employment contract due to serious misconduct with immediate effect.

Please be advised you are not to return to the facility. Please arrange a time with myself, Deborah Jennings or Jill Rodgers to return any company equipment and items that may be in your possession. You are directed to keep these proceedings confidential and are reminded of your post employment obligations with regards to privacy. Your final wages, and any outstanding leave entitlements will be issued to you shortly. Your final payslip will be sent to the above email address.

As you are no longer an employee of THC, you are not to present at the facility or make contact with staff at the facility, residents or relatives of the facility unless you have prior authorisation from myself or Jill Rodgers.

If you have any questions in relation to this decision please contact me on

I, Selina Lie send on behalf of
Deborah Jennings

1. On 16 February 2017, Mrs Adamopoulos (or Adams) (hereinafter referred to as the ‘applicant’) filed an application with the Fair Work Commission (the ‘Commission’), under s 394 of the Fair Work Act 2009 (the ‘Act’). She seeks compensatory relief for her unfair dismissal from Thompson Health Care (the ‘respondent’). The application was subject to the Commission’s usual conciliation protocols, but was not resolved. Accordingly, the Commission issued directions for the filing and service of evidence and other documentary material in preparation for an arbitration of the applicant’s claim on 30-31 May 2017. At the hearing, and in earlier interlocutory proceedings dealing with the production of documents, Mr K Kutasi, Solicitor appeared for the applicant and Mr G Boyce, of Counsel appeared for the respondent. Both parties were granted permission to be represented by legal practitioners, pursuant to s 596 of the Act.

THE EVIDENCE

1. The following persons provided written and oral evidence in the proceedings:

   • Angelika Adamopoulos, applicant;
   • Donna Gladwin, Director of Nursing, Abbey House;
   • Simone Mackenzie, Deputy Director of Nursing, Abbey House;
   • Ashley Hill, Administration Assistant – Rosters and Payroll, Abbey House;
   • Amber Smith, Assistant in Nursing, Abbey House; and
   • Deborah Jennings, Human Resources Manager, Thompson Health Care.

For the applicant

1. Two clauses in the applicant’s contract of employment are pertinent to this case. These are cl 7 and 17 which I set out below:

7. Hours of work

The Employee’s contracted hours of employment will be 76 hours / fortnight.

The Employee must (unless prevented by incapacity) devote their whole time and attention to the Business.

The Employee must not, without the prior written consent of the Proprietor:

take part in any other business (of whatever nature) which impinges upon the Company’s time, or
have an interest in any other business which is similar to or competes with the Business.

17. Separation and Termination

The Employee’s Employment may be terminated by the Employee or the Company with the provision of four (4) week’s written notice. The Company at its discretion, may require the Employee to work out the notice period, or may pay remuneration in lieu of notice.

The Company reserves the right to terminate the Employee’s Employment without notice for serious or gross misconduct or for any other reason which would justify summary dismissal at common law.

The Employee’s final payment will consist of all statutory entitlements owing.

Upon termination of the Employee’s employment, the Employee must deliver to the Company all property and documents belonging to the Company. This includes all records, papers, keys, security cards, data devices, mobile phones, computers and other material (including copies) in the Employee’s possession or control which relate in any way to the business or activities of the Company, its clients or customers.

1. The applicant described her working conditions at Abbey House. Her ordinary hours of work were Monday to Friday 8.30am to 5pm, with occasional hours outside these days and times. She said she was always available to be contacted outside of working hours on her mobile and home phone. She always took such calls or called back as soon as possible. She had never told anyone not to contact her outside of work hours. In December 2014, the applicant was paid a $2,500 bonus and in July 2015 her salary was increased to $102,500 per annum.

1. The applicant described her work in assisting Abbey House’s reaccreditation in February 2015 and during the extension of the facility in September 2015 by an additional 70 beds (from 73). 21 of the new beds were dedicated to a new dementia specific unit for which she had considerable responsibility for managing.

1. In late January 2016, the applicant was appointed as the permanent DON with a salary of $130,000. In March 2016, the Deputy(D) DON Debbie Luscumbe resigned. The applicant spoke to Ms Jennings about replacing her with Donna Gladwin who was then the Clinical Nursing Specialist (‘CNS’). Ms Mackenzie then replaced Ms Gladwin as the CNS in October 2016. As the facility had grown, the applicant suggested to Ms Jennings a second DDON was necessary and Ms Mackenzie was appointed to that role.

1. The applicant said she made various suggestions to attract residents to fill beds, provide incentives to staff, altered staff rostering arrangements and recruited new staff. Her salary was increased to $140,000 from 1 July 2016 and she received numerous compliments and praise for her initiatives and performance. Revenue from the Commonwealth Government increased from $500,000 to $800,000 a month during her tenure as DON. In October 2016, the applicant’s salary was increased to $150,000 and she received a $15,000 bonus in December 2016. At Christmas 2016, Mr Douglas Thompson, the respondent’s owner and Ms Jill Rodgers, Director, presented her with a crystal bowl and a card which read as follows:

‘Dear Angelika,

Wishing you a very Merry Christmas and many thank(s) for all your hard work during the year.

Best wishes, Jill’

‘Dear Angelika,

Thanks for a great year at The Abbey.

Doug.’

1. In setting out this decision, I propose to deal with the evidence surrounding the allegations against the applicant under each of the headings described as ‘Issues’, as relied upon by the respondent to ground the applicant’s dismissal followed by the applicant’s evidence in reply to each allegation.

Issue 1 – ability to be reliable, available and contactable as DON

As you are aware, it is a condition of your role as DON to be available and contactable at all times to ensure the efficient running of the facility, as well as be in a position to provide support and direction to members of your team when required.

It is of concern that the following instances have been brought to our attention which suggest that there have been a number of recent occasions whereby you have been unavailable, due to conducting tasks that were unrelated to your role as DON, as well as an inappropriate exercise of your authority.

-     27 October 2016 – on this day, DDON Simone confirmed that she drove you to an employee’s medical appointment in Mittagong. Following the appointment, instead of going straight back to the facility, DDON Simone has detailed that you asked her to drive you to a coffee shop where you had coffee, then visited the shop next door and the Polish Deli before asking her to drive you past DDON Donna’s house as you had not seen it and then to Frensham Swimming Pool, where you stopped for a period of time, before driving back to the facility.

It should be noted that in duration, you and DDON Simone were away from the facility for approximately two hours and 15 minutes and during this time, DDON Donna was managing the facilities by herself. DDON Donna has also stated that she was expecting you back at the facility around 2.15pm and at no point did she receive any communication from you to suggest that you were going to be away from the facility for longer than anticipated.

-     Friday 13 January 2017 – Between approximately 11am and 12:15pm, administration Assistant Ashley Hill has detailed that at your direction, she drove you to Mittagong Market Place to shop.

Of concern to us is that Ashley has detailed that she felt uncomfortable questioning your request that she drive you to the Market Place. DDON Simone has further added to our concerns by confirming that on this day you did not inform her that you were leaving the facility  and that you left her as the only member of the management team, until after you had returned.

-     Wednesday 1 February 2017 – DDON Donna and DDON Simone both have detailed that on 9 January 2017 you engaged in a conversation with them about the facility management team’s on call roster, whereby you confirmed that you do not take calls outside of work time. When questioned further about this, they both confirmed that you advised them to ‘sort the on-call roster between themselves’.

Result – Issues discussed substantiated

1. Ms Hill was employed as an Administration Assistant and worked on rosters and payroll. She had been employed for 18 months. It was Ms Hill’s evidence that the applicant had asked her on three or four occasions to drive her to do her shopping. She did not offer to do so, but felt she had to because the applicant was her boss. She had not claimed any allowance or reimbursement for driving the applicant to the shops during work hours. She said she felt pressured at work when she was required to leave the facility. Her husband was also upset that she was being taken advantage of and using her car for the applicant’s private purposes. This had caused a few arguments at home.

1. In reply, the applicant’s first response to Ms Hill’s allegation above was given by her at the interview with Ms Jennings, Ms Lie and her solicitor, Mr Kutasi:

   ‘I did not request nor have I ever requested Ashley to drive me anywhere.

   Ashley has volunteered often to go to Mittagong to purchase gifts for staff. She has never been directed or requested to do this.

   On the above occasion Ashley again volunteered and willing(ly) took me along to purchase gifts for Garth Thompson and RN Herrington. I am surprised that she claims that she was uncomfortable on this particular or other occasions.

   Prior to leaving the facility I tried to contact DDON Simone but was unable to locate her and I made sure that Nola at the Reception was aware that Ashley and I were leaving and to let DDON Simone know.’

1. In her written evidence, the applicant said that on 13 January 2017, Ms Hill volunteered to drive her to Mittagong so she could buy gifts for staff as a reward for service. Ms Hill agreed to because she also wanted to buy supplies for a child’s party. The applicant said that on several occasions she allowed Ms Hill to leave the facility to attend doctors’ appointments for her children or to do her own personal shopping.

1. At the time of the applicant’s dismissal, Ms Gladwin was DDON and became the DON on 13 March 2017 after acting in the position from 18 January 2017.

1. In Ms Gladwin’s statement, she claimed that she liked the applicant as she had always been good to her and mentored her as DDON. She felt caught in the ‘middle of all this’ (the case). Ms Gladwin referred to an issue which arose as a result of a verbal complaint  about the applicant from the daughter (Ms Sue Muelleman ) of resident, Mrs Peters (‘the Muelleman complaint’). She had told them:

   ‘Angelika was rude and abrupt in a previous enquiry we had over another incident with Mum. She would not release use any information. We were so angry, that she ended up having us escorted out of the facility. Anjelika has always been cold to me after this happened.’

1. Ms Gladwin believed this was a serious complaint which required reporting to Head Office as the family said they felt intimidated by the applicant. Ms Gladwin left the matter to Head Office, but was later interviewed by Ms Rodgers, with Ms Mackenzie present. She became emotional when questioned by Ms Rodgers because she felt she had betrayed her boss. Nevertheless, she believed she owed a duty of care to residents and their families. At this meeting, Ms Mackenzie added ‘but Donna, this is not the only thing is it?’ Ms Gladwin replied that she believed Ms Mackenzie was being treated unfairly by the applicant and she felt bad that she had done nothing about. Ms Gladwin said that Ms Mackenzie ‘took over’ the discussion and raised various issues as examples of her concerns, including recently allowing Dr Bob to go out and get drunk.  When he returned intoxicated, he had slapped Ms Smith.

1. In cross examination, Ms Gladwin believed that the applicant did ‘a good job as DON’. Ms Gladwin denied that she had stood to gain from the applicant’s dismissal. In fact, she had not wanted to become the DON, but someone had to do it. The extra money ‘meant nothing to her’. Ms Gladwin was referred to the concluding paragraphs of her and Ms Mackenzie’s emails to Ms Jennings of 1 February 2017. They read:

   ‘Thank you for your ongoing support Deborah. It is much appreciated. This hasn’t been easy for us and we are very concerned about Angelika returning now HO is aware.’ – Ms Mackenzie’s email

   ‘Thank you Deborah for your support today. This has been very difficult for me and I feel anxious regarding Angelika’s return from holidays to this.’ – Ms Gladwin’s email

1. She did not think it was odd that they signed off in similar terms within fourteen minutes of each other sending their complaints to Ms Jennings. She claimed it was just a coincidence. She denied colluding with Ms Mackenzie in preparing their emails. Ms Gladwin was asked why Ms Mackenzie was present when Mr Rodgers questioned her about the Muelleman complaint. She said it was the practice to have two management persons present in such meetings. She did not believe that this was inappropriate, given it concerned a complaint against the DON.

1. Ms Mackenzie has 27 years nursing experience. She is currently the respondent’s DDON having been appointed to that position in October 2016 from her previous role as a CNS. Ms Mackenzie said that she was oriented to the CNS role by the applicant and Ms Gladwin, although not much from the applicant. One of her roles was auditing for accreditation purposes. She claimed that when she inquired of the applicant as to obtaining relevant information for accreditation she replied ‘just make it up’. She believed this was unacceptable and put up ‘flags’ about the applicant’s approach to her work. She seemed to have a ‘low care factor’ and was just ‘floating on by’. Ms Mackenzie believed that in the two months she was CNS, she was basically the applicant’s personal assistant making up for her lack of communication skills and running up and down to her office for minor tedious tasks.

1. Ms Mackenzie claimed the applicant would end her day by sitting in the café lounge at 4.00pm, just waiting for 5pm to tick over. She often asked Ms Gladwin and her to join her by the fire for a cup of tea, despite her having so much other work to do. Ms Mackenzie recalled one occasion when a complaint was made by the family of a resident. The applicant just panicked and ‘palmed it off’ to her and Ms Gladwin to resolve.

1. It was Ms Mackenzie’s evidence that the applicant ‘would use bullying behaviour’. On one occasion she shouted in her face about something she thought she had done, but she had not. Ms Mackenzie described her behaviour from that point as ‘always up and down’. She said:

   ‘From then on, her behaviour with me was always ‘up and down’. She could be sickly fake and sweet, or all aggressive. There was little in between.’

1. Ms Mackenzie highlighted an incident on 7 December 2016 in which she claimed the applicant misrepresented her to Head Office. She claimed the applicant acted ‘sheepishly and cowardly’ when handing her a complaint letter and told her to go home. Ms Mackenzie said that she grabbed her personal belongings, drove out of the facility to the lake where she read the letter. Ms Mackenzie believed the applicant was engaged in a ‘complete fabrication’ and told lies to dismiss her. During a meeting with Ms Jennings and the applicant about the complaint, Ms Mackenzie claimed Ms Jennings said:

   ‘Simone when you feel Anjelika may be about something you don’t agree with then lightly tap her arm and say ‘I’ve just remembered something important to do.’’

1. Ms Mackenzie stated that the applicant ‘had failed in her mission to get rid of me… she was not sophisticated enough to pull the wool over the Head Office’s eyes’. After this, Ms Mackenzie said the applicant’s attitude changed to being ‘sickly sweet’ all the time with a ‘real paranoia’.

1. It was Ms Mackenzie’s further evidence that, on one occasion, the applicant had asked her to drive her to an appointment. Although she did not want to, she agreed. After the appointment, the applicant asked her to go to a particular café for a coffee and to use the toilet. After the coffee, they browsed the Polish deli next door. On the way back, the applicant wanted to see where Ms Gladwin lived and then wanted to see the local pool, Frensham Pool, to assess whether she wanted to use the facilities. They ended up ‘doing a tour’ of the pool. Ms Mackenzie claimed that all up, an excursion which should have been around 30 minutes, ended up having them away from the facility for two hours. Ms Mackenzie believed this to be unacceptable and inconsiderate, given she had work to do and Ms Gladwin had been left alone at the facility.

1. In cross examination, Ms Mackenzie agreed that up until May 2016, she had no nursing management experience. She did not believe that the applicant had been doing a good job and ‘found her quite inept’. She cited the examples earlier referred to, including when the applicant put her on performance management plan. There was also an incident, which she described as ‘elder abuse’, which the applicant had not attended to promptly. This incident was listed in the 31 complaints in Ms Mackenzie’s email to Ms Jennings of 1 February 2017, but not referred to in the applicant’s dismissal letter.

1. Ms Mackenzie claimed her personal feelings about the applicant were different to her professional views. She denied hating her. Ms Mackenzie said she did not believe she could do a better job than the applicant. In fact, she had a ‘soft spot’ for her and felt very said that she, and everyone else, has been put in this position (of the hearing). Ms Mackenzie was asked if having a ‘soft spot’ for her was consistent with the critical language she had used in her statement. She said her attitude towards the applicant changed after she tried to have her sacked.

1. Ms Mackenzie claimed she lost trust in the applicant around the time of the ‘elder abuse’ incident (September/October 2016). Ms Mackenzie accepted that most of the information she needed for the audits were available on the respondent’s computer system. It is accessible to everyone at Thompson Health Care, with the exception of the HR function which the applicant had not taught her to access. She agreed this system (Time Target) had not existed before August, 2016. There was an existing payroll system before that time. Ms Mackenzie could not say why the applicant would ask her to ‘just make up’ the numbers, if the system is verifiable.

1. As to her statement of feeling like the applicant’s personal assistant, she said this was because she had to type emails for her. While she could not recall details or how many, she suggested it was more than 10, but less than 100 (the applicant had sent 2,500 emails in her last six months of employment). Ms Mackenzie also believed she had to deal with the applicant’s responsibility for recruitment. While Ms Mackenzie said she had no recruitment training, she never asked for training and just got on with it and did what she was told. Ms Mackenzie claimed other people witnessed the applicant sitting in the café at 4pm, but could not say why no one else had said so in their evidence. She conceded it was not every day, but ‘frequently’. She could not explain why this issue was not mentioned in her list of 31 complaints emailed to Ms Jennings on 1 February 2017. Ms Mackenzie denied making up this allegation.

1. Ms Mackenzie agreed that the complaint letter the applicant gave her on 7 December 2016 reflected the content of the subsequent meeting she had with Ms Jennings. The outcome was for her to continue with the leadership development program and to re-familiarise herself with the THC policies and procedures, in particular the staffing and rosters policy and the professional conduct policy. Ms Mackenzie later apologised to the applicant for the whole episode. Ms Jennings’ outcome letter concluded:

‘On review of all allegations discussed and your responses, I am of the view that you have failed to perform your role in accordance with your position description and expected reasonable standards of conduct set out in THC policies. However, taking into consideration your apology to DON Adams, your acknowledgement of your inappropriate behaviour and your willingness to learn from the incidents and to participate in a Leadership Development Plan, I also believe you will continue to be an asset to our management team. Having regard to this, you are issued with a formal warning as an outcome of this matter.’

Earlier, the letter said:

‘Regarding the allegation that you left the facility without authorisation from DON Adams, you agreed that you had done this.’

Ms Mackenzie now agreed that her earlier claim that the applicant had ‘engaged in a complete fabrication’ should read a ‘partial fabrication’. Ms Mackenzie denied using this ‘florid language’ because she wanted the applicant fired.

1. In further cross examination, Ms Mackenzie explained that the appointment the applicant asked her to drive to (see para 26 above), was to meet with a doctor in respect to a staff member’s return to work following a workers’ compensation claim. She denied purposely leaving this out from her statement. She now agreed the request to drive the applicant also suited her because she wanted to check on her cat, as she lived around the corner. Ms Mackenzie denied that it was her suggestion to go to the coffee shop and the Polish deli. She denied deliberately leaving out the details of this incident, which were supportive of the applicant. She intended to explain it ‘here and now’. As to the visit to Frensham Pool, Ms Mackenzie said the applicant had picked up a brochure and they looked at the pool. While describing this as a ‘tour’, they had not walked around the pool or go anywhere else. Ms Mackenzie denied working with Ms Gladwin on her email to Ms Jennings and denied colluding with her, despite the similar language used by both of them. She said it was a coincidence.

1. In reply, the applicant’s first response to the above allegations was given by her in writing at the interview with Ms Jennings on 8 February 2017.

   ‘I have never directed any member of staff to drive me on personal outings. I am disappointed that you would even consider this to be the case.

   I requested DDON Donna or DDON Simone to drive me to the doctor’s surgery, Simone offered to drive me down as she would be able to check on her cat or dog, which I believe she did. As you may recall from previous discussions, I believe DDON Simone regularly leaves the facility to attend her animals.

   The medical appointment took approximately one hour and fifteen minutes. After the medical appointments DDON Simone suggested that she take me to her favourite coffee shop nearby and regrettably I agreed. We had a cup of coffee and then she briefly showed me the store next door and a Polish delicatessen close by the car. On us coming back to her car, her parents were there and she chatted with them for a while. She drove back to work via DDON Donna’s home and the local swimming pool, to show me. This was not at my request.

   I regret not contacting DDON about our delay.

   I deny ever saying that I do not take calls outside of work time.

   All staff know that it is my policy to be available at all times whether at the facility or away.

   There was a conversation regarding the call roster for weekends, where DDON Donna and DDON Simone offered to be on call at alternate weekends. If they were unable to be reached or needed advise (sic) they were to call me anytime. All staff have my home and mobile numbers and can call at any time and they do. ’

1. In her statement, the applicant dealt with the Muelleman complaint as follows. In November 2015, the applicant was involved in a meeting with Mrs Peters’ family, her GP and the then DDON, Mrs Horsely, concerning her view that Mrs Peters should move to the dementia unit. Mrs Muelleman was opposed to this course whereas her other daughter, Caroline and her GP were supportive. The applicant said she proposed a tour of the dementia unit in order to allay Ms Muelleman’s concerns. However, she and her husband refused and stayed behind with Mrs Horsley. When she returned with Caroline and her husband, she found Mrs Horsley shaking and crying. Mrs Horsley told her that when they left, Mrs Muelleman became aggressive. She and her husband were shouting at each other, and pointing fingers in her face. She just had to get out of there. As she returned to Ms Horsley’s office, Mr and Mrs Muelleman were still shouting and swearing at each other. She asked them to leave, but they refused. They were then escorted out of the facility. Mrs Horsley reported the incident to the respondent’s Director.

1. The applicant claimed she heard no more about this incident until 8 February 2017. In the meantime, she had seen Mrs Muelleman about a dozen times. Their interactions were always polite and good natured. Mrs Muelleman in fact, thanked her on a number of occasions for the care given to her mother. Mrs Muelleman never told her she was unhappy with her conduct and no complaint was ever made until it was raised in February 2017, and not by Mrs Muelleman. Mrs Peters did not move to the dementia unit and passed away in January 2017, after falling and breaking her hip. One month after the Muelleman incident, Mrs Horsley’s employment was terminated. She was appointed Acting DON, until further notice.

1. In respect to Ms Mackenzie’s claim of being forced to drive her to an appointment, the applicant said it was an appointment with Dr Hanbury. She said Ms Mackenzie volunteered because she wanted to check her dog at her home. She had later admitted to Ms Jennings that they had a coffee and they had returned to the facility, via Frensham Pool. They had not toured the pool, but spent a few minutes asking about the rates and opening times, as the pool was en route back to the facility.

1. It was the applicant’s evidence that Ms Mackenzie would occasionally ask to leave the facility in work hours and she never denied her requests. She would also often drive home to check on her animals, without asking. On one occasion she was away from work (with permission) for around five hours, so she could purchase a car. In December 2016, she asked to leave to go to her daughter’s school Christmas function. She often took time off or was late for work, citing medical appointments or other family reasons. The applicant said that such absences did not particularly concern her, because she exercised her discretion to allow staff flexibility. Staff would work extra hours or days to make up time.

1. The applicant gave details of the circumstances leading to Ms Mackenzie receiving a formal warning on 7 December 2016.

1. The applicant said that in early November 2016, she became so concerned about the attitude and performance of Ms Mackenzie that she sent the following email to Ms Jennings:

‘In or around early November 2016, I began to become concerned about the attitude and performance of Ms Mackenzie. Accordingly, on or about 24 November 2016, I sent the following report to Ms Jennings by email:

·     A meeting was held with care staff regarding an incident

·     Simone, Donna and I continued discussion after care staff had departed on how we could do things differently next time to prevent any awkward situations arising again

·     I explained to both DDON's that we require all details: when, where and who witnessed before we start or act on an investigation

·     Simone disagreed. She stood, swore at me, ("this is all fucking bullshit') than left the office around 1030 hours. I later learned that that she left the facility and went for a drive to Mittagong.

·     Approximately 1100 hours I called Simone for assistance with an RN interview, her telephone was set not to accept calls

·     I called Ashley and asked her to send Simone down to help me, Ashley rang me back and said Simone refused to come

·     I did the interview with Ashley

·     I heard from Donna around 1200 hours that Simone had gone for a drive to the lake. Donna said that Simone felt that I was directing conversation only to her and that Simone felt that I had raised my voice toward her.

·     At around 1500 hours Donna came and informed me that Simone had left for the day.

·     This left us in a situation where we had a very difficult afternoon dealing with challenging resident's behaviour, internal transfers and family consultations without the support of the correct staff.

·     A meeting at Bowral House with a local Surgery, had to be cancelled.

·     At no time did Simone come and see or speak to me again, to let me know what was happening

·     Remarks:

This episode has confirmed my fears regarding Simone. For some time now I have been observing her responses and actions in her work and have concluded that she is not suitable to be a member of our team at The Abbey. It is a busy environment. It would be better to not have such problems within my management team. I find her:

§  Argumentative

§  Domineering

§  Impulsive

§  Moody

§  Lacking empathy with family members

§  Encouraging unwelcomed culture with staff

§  On occasion, unprofessional.’

1. Ms Jennings called the applicant shortly thereafter. They discussed the email and the applicant told her that Ms Hill and Ms Mackenzie were forming a ‘clique’ and spending an inordinate amount of time together. She proposed moving Ms Mackenzie’s office closer to hers. Ms Jennings agreed ‘this was a prudent course’.

1. A disciplinary meeting was held with Ms Mackenzie arising from which she received the following outcome letter, which included a formal warning:

‘Dear Simone,

Re: Outcome letter

I write to confirm the outcome of the disciplinary proceedings recently undertaken with you regarding your alleged conduct and behaviour whilst performing your role as a Deputy Director of Nursing at Abbey House Nursing Home.

On 28 November 2016, you were issued with a notice directing you to attend a compulsory interview which was scheduled for 29 November 2016. You attended the scheduled interview without a support person.

During the interview, you were asked to provide a response to a number of alleged events that had occurred at the facility. Full details of the allegations were provided in my letter to you dated 28 November 2016.

At the beginning of the interview you requested to read from your notes, a copy of which you also provided to me. During the course of the interview, you provided an apology to DON Angelika Adams for your behaviour on 22 November 2016 and expressed a hope that she could forgive you. Following this, you detailed the events of the day that you felt contributed to your behaviour.

Regarding the allegation that you swore at DON Adams, you admitted that you said "I'm sick of this f"** bull***': however you reported that you remember saying this with your head down and eyes to the ground and that you did not look or direct this comment at DON Adams specifically. We discussed that this comment was made directly after a comment by DON Adams and that from DON Adams perspective, it appeared that it was a response to her. You acknowledged this and apologised for your unprofessional behaviour.

Regarding the allegation that you left the facility without authorisation from DON Adams, you agreed that you had done this. You reported that at about 10.45am you informed DDON Donna Gladwin that you were going for a walk, however, that once you passed your car in the parking lot you decided to drive to the lake and take a walk. You reported that you returned to the facility about 11.15am and informed DDON Gladwin that you would not go to the meeting at Bowral House with DON Adams. You reported that you "felt bad that we (DON Adams and yourself) didn't go". Further, you acknowledged that you left the facility at 3pm that day and whilst you informed DDON Gladwin, that you did not inform DON Adams.

We discussed the meeting that took place at approximately 9am on Wednesday 23 November 2016 between yourself, DDON Gladwin and DON Adams. You reported that you regret not apologising for your behaviour during this meeting and stated that "my only answer if that I was still processing things". It was acknowledged that you did go to DON Adams on Thursday 24 November and apologise.

During the interview we then discussed how to move forward as a management team. DON Adams and yourself both reflected on the events leading to the incident and both identified conversations ,interactions and behaviours that may have contributed to the incident and how these could be managed differently in the future.

On review of all allegations discussed and your responses, I am of the view that you have failed to perform your role in accordance with your position description and expected reasonable standards of conduct set out in THC policies. However, taking into consideration your apology to DON Adams, your acknowledgement of your inappropriate behaviour and your willingness to learn from the incidents and to participate in a Leadership Development Plan, I also believe you will continue to be an asset to our management team. Having regard to this, you are issued with a formal warning as an outcome to this matter.

Please ensure you are familiar with the Thompson Health Care policies and procedures, in particular the Staffing and Rosters policy and our Professional Conduct Policy.

I also remind you of the direction not to approach or discuss any matter outlined in this letter with any member of staff or resident of this facility. Any failure to abide by this direction, which is considered reasonable in the circumstances, may result in further disciplinary action being taken against you.’ (My emphasis)

1. The applicant said that from this time on, Ms Mackenzie’s attitude towards her was negative.

1. On 5 December 2016, the applicant observed Ms Mackenzie and Ms Hill discussing the warning letter. The applicant called Ms Jennings who told her to call Ms Mackenzie and tell her she should not be seen to be so close to Ms Hill. When she did so, Ms Mackenzie said she understood and agreed.

1. The applicant said that in the afternoon of 21 December 2016, she noticed Ms Hill in Ms Mackenzie’s office on three occasions. The applicant claimed that when she entered the office the following exchange occurred:

Applicant: ‘Ashley, can I please ask you what you are doing here?’
Ms Hill: ‘I am doing allocations with Simone.’
Applicant: ‘That doesn’t make any sense. I took over the allocations last month and you know that.’
Ms Mackenzie: ‘Oh come on, we’re just having a coffee.’
Ms Hill: ‘Well, thank you for being honest, Simone.’

1. The applicant reported this incident to Ms Jennings who offered to advise her on how to deal with the problem. She then spoke to Ms Gladwin. They agreed one step to take was to remove Ms Hill from the regular Monday Heads of Departments’ meeting. It made sense anyway, as Ms Hill was not a Head of a Department. This decision was communicated to Ms Hill and the other Heads of Department.

1. In further evidence in reply, the applicant denied Ms Mackenzie’s evidence in respect to:

   • instructing her to make up information for the audits;
   • Ms Mackenzie being her ‘Personal Assistant’ and assisting writing emails;
   • sitting in the lounge at 4pm before leaving at 5pm;
   • her being panicked by a complaint from Mr Coleman’s family; and
   • her being surprised and concerned by Mr Mafoa’s visit, as she knew he was coming beforehand.

2. In respect to Ms Gladwin’s statement the applicant:

   • denied her version of the Muelleman incident; and
   • Ms Muelleman had later thanked her for the notes and care given to her mother.

1. In cross examination, the applicant denied Ms Mackenzie’s version of events about when they went together to Mittagong. She agreed to stop at the Frensham pool to quickly go in and ask for opening times after Ms Mackenzie (who knew she liked swimming) said ‘there’s the Frensham Pool would you like to go and have a look?’ There was no tour of the pool. The applicant restated that it was Ms Mackenzie’s suggestion to go for a coffee because she wanted to show her her favourite café, to look at the Polish Deli because she was a customer there and visit the pool because she knew she enjoyed swimming.

1. The applicant accepted the appointment ending up taking about two and a half hours. She acknowledged this was inappropriate. She had apologised in the 8 February 2017 interview and told Ms Jennings that she very much regretted her actions, especially for not having informed Ms Gladwin they would be late.

1. In further cross examination, the applicant claimed Ms Hill was ‘not uncomfortable’ about driving her to the shops, because she had left the facility on numerous occasions to also go to the shops. In the applicant’s case, it was for work related shopping. Ms Hill had never told her that her husband had been annoyed about driving her.

1. The applicant denied she had ever told anyone she did not want to be called after hours or on weekends. She accepted being on call was part of her job as DON. She always responded to calls and all staff had her home and mobile numbers. She further denied telling Ms Mackenzie or Ms Gladwin to resolve issues between themselves, without calling her.

Issue 2 – Conduct towards Administration Assistant Ashley Hill

As DON, it forms part of your role to establish strong working relationships with all members of your team. At Thompson Health Care, we believe that our team is crucial to our resident’s receiving the highest standards of care and for the company to continue to operate successfully. Our management team play a vital role in making this happen by ensuring that all members of our team feel valued when at work and empowered to undertake their roles to the best of their abilities.

In light of this, it is disappointing that we have received a report from Administration Assistant Ashley Hill which does indicate that your alleged recent conduct towards her has left her feeling ‘bullied and harassed’.

In her report she has detailed that at approximately 2:50pm on 21 December 2016, she was in DDON Simone’s office discussing roster allocations and a recent staff issue. Ashley has detailed, and this has been confirmed by DDON Simone, that you walked into the office, stood over her and asked ‘what are you doing here(?)’ in an angry and aggressive tone. Following, Ashley has reported that you then stated words to the effect of ‘you’re not to talk to Simone in her office about allocations or staff complaints’.

The next day, Ashley presented for work and noted an email from you dated 21 December 2016 at 5:07pm in which you advised her that she was no longer required to participate in the regular Monday morning meeting, something she has participated in for over six months.

Ashley has detailed that previously her involvement has enabled her to communicate and liaise effectively with team leaders about the facility’s operational events and staff matters which is a key aspect of her role. Further to this, she has articulated that you have never explained to her why she was suddenly not welcome at the meetings, leaving Ashley to assume that it may have been related to the interaction in DDON Simone’s office the day prior.

Result – allegation substantiated

1. Ms Hill said that on 21 December 2016, when she was discussing staff allocations with Ms Mackenzie in her office, the applicant barged in, stood over her and said ‘What are you doing here?’ Before she could answer, Ms Mackenzie responded. The applicant then escorted her out of the office. Ms Hill claimed this incident was most embarrassing and unprofessional.

1. In cross examination, Ms Hill said that until around November/December 2016, she had a working relationship with the applicant. Around this time, the applicant hardly spoke to her, they no longer shared a coffee and she split her from others. She did not like or dislike the applicant, but just did her job as she was told. Ms Hill was shown her Facebook page and the following entries from her:

   ‘Hope your (sic) having a great time!!’ (8 November 2016)
   ‘Hope you have a safe trip and enjoy every moment you (g)et (t)o spend with your mum!!’ (18 January 2017)

She was asked whether these comments were consistent with her negative view of the applicant.

1. In reply, the applicant’s first response was in writing during the disciplinary meeting on 8 February 2017:

   ‘I am disappointed that you would believe that I bully and harass anyone.
   That is not what I do.
   At around 2:00pm on 21 December I left my office to deal with an issue in the kitchen. I noted that Ashley had come down to visit DDON Simone when passing DDON Simon’s office. On my return Ashley was still there. I when (sic) to my office and continued work and then needed to go to Maple Ward. Going pass (sic) DDON Simone’s office. On my return Ashley was still there. I found this a little disturbing. I Went to the door of DDON Simone’s office and asked Ashley: “Can I please ask you what you are doing here?” She replied: “I am doing the allocations with Simone.” I reminded Ashley that I had taken over the allocations from DDON Simone and she needed to see me if necessary. She was made aware of this back in November post office change and possibly by email.

   At no time, was I aggressive.
   I denying saying the words stated in the last part of the paragraph.
   I also rang Deborah Jennings about this incident. And received advice on how to deal with it.
   I spoke to DDON Simone about this incident in my office later.
   As a result of discussions with DDON Donna, it was resolved that only H’sOD would attend the Monday morning briefing. All other who previously were attending were advised of this decision by email. They included Ashley. Ashley and Nola were meeting with me daily, so they were superfluous to the Monday meeting.’

1. In her reply statement, the applicant said that contrary to Ms Hill’s allegation of bullying behaviour towards her, Ms Hill’s disposition towards her was generally positive and cheerful.

1. In respect to the incident with Ms Hill on 21 December 2016, the applicant denied Ms Hill’s version of events. She did not yell at her. She would always say please when asking a question, as she did on that occasion. The applicant said she was concerned that Ms Hill and Ms Mackenzie were too friendly.  When Ms Hill was in Ms Mackenzie’s office for over an hour and she claimed they were doing staff allocations, this was a surprise because it was she who was now doing the allocations.

1. The applicant denied shuffling or escorting Ms Hill out of the office. She believed Ms Hill was embarrassed when Ms Mackenzie had said they were just having coffee. Ms Mackenzie did not tell her the next day that Ms Hill was ‘shaken up’.

1. In oral evidence, a separate issue was raised about Ms Hill being proposed for a photo shoot for the Company magazine. She claimed the applicant told her she was not going to be in the magazine because they wanted someone from a Nepalese background. When asked about this, the applicant said she had no idea what was in the magazine until she saw it. In re-examination the applicant said she had no input at all in respect to the magazine. It was all done by Head Office.

   Issue 3 – Development of your team
   You will recall that in November 2016 you were involved in a disciplinary process with your direct report, DDON Simone in which a number of performance concerns were discussed. As an outcome to this matter, DDON Simone was instructed, with your assistance, to participate in a Leadership Development Plan.

   At the time of writing this email, despite numerous emails being provided to you with told to assist you in initiating and managing this process with DDON Simone, it is of concern that DDON Simone reports that you have not provided her with any mentoring with respect to her leadership capabilities and nor have you commenced this Leadership Development Program.

   This is of concern to management given that a key aspect of your role is to develop your team and to ensure that they have the skills and abilities to effectively undertake their roles. Despite our conversation on 29 November 2016 where I articulated the importance of you mentoring DDON Simone, and the email sent to you on 7 December 2016, there is no evidence any positive steps have been taken to develop and implement this.

Result: Performance criticised but no further action to be taken.

1. In reply, the applicant said:

   ‘This is not true.

   The development program has been discussed with DDON Simone on 4 occasions.

   ·A hard copy of Leadership Development Program was given to DDON Simone. And she was advised to see me with any questions. She told me that she would begin with ‘self development’.

   ·Email sent with date to attend meeting with me. Due to work circumstances I was unable to meet with her on the specific date.

   ·Spoke with DDON Simone and it was decided that we would have our meeting when she returns from leave.

   ·When DDON Simone returned there were only a few days overlap and that it might be best to do it when I return from my leave.

   At daily morning meeting with DDONS, DDON Simone is always informed and mentored by me about how to deal with leading up issues of the day or previous days.’

2. As mentioned above, this matter resulted in no further action being taken and did not feature in the evidence. Accordingly, I take it no further.

Issue 4 - Absence from duty on Wednesday 9 November 2016

Payroll records currently indicate that this day was paid as personal/carers leave without a medical certificate.

Since this pay period, it has been brought to our attention by DDON Simone that prior to your absence on 9 November 2016 you informed herself, DDON Donna and Ashley that you would be absent from the facility as you needed to make a trip to Sydney with your husband. Ashley has detailed that you informed her prior to the 9 November 2016 that you intended on making up the missed hours on the following Sunday. However, Ashley has reported that following your return to work, you advised her to update the Time Target system to indicate that you were on personal/carers leave on 9 November 2016.

Although this may be explained by a simple misunderstanding, based on the numerous conversations reported by your colleagues, we are concerned that you may have fraudulently claimed personal/carer’s leave on 9 November 2016, which if found to be true could amount to serious misconduct, which, if found to be true, may warrant the immediate termination of your contract of employment.

We expect all our employees to engage in ethical and honest practices when undertaking their roles at the facility, and therefore if found to be true, we are extremely concerned that one of our Senior Managers, and role model to other staff, may have engaged in dishonest practices.

Result: Allegation substantiated – fraudulent conduct consistent with serious misconduct

1. Ms Hill’s evidence was that on 8 November 2016, the applicant told her that as she had to go to Sydney the next day, she was having the day off and that she should mark her down on payroll as working. She added that she might come in on Sunday to make up the time, but would see how she felt. Ms Hill said a Head Office representative, Mr Mafoa visited the facility the next day when the applicant was absent.

1. Ms Hill claimed that on 10 November 2016, the applicant told her:

   ‘In relation to me (sic) day off yesterday, change the payroll entry and mark me down as being on sick leave.’

1. Ms Hill agreed to do so. Her evidence was that it is not her place to query her boss, but to do as she was told and not ask questions. She made the payroll change a week later in the middle of the pay cycle.

1. In cross examination, Ms Hill said that Ms Jennings had asked her on 1 February 2017 to email a list of complaints about the applicant. Although she did not know the applicant was being investigated, she knew something was ‘afoot’. Ms Hill agreed that her reply to Ms Jennings did not refer to the sick leave issue in her list of 12 complaints. She explained that this came up later and her list was not a complete list of her complaints. Ms Hill said that at the time she was emotional and not thinking clearly.

1. Ms Hill said that the applicant did not tell her to mark her down as being on sick leave until she returned on 10 November 2016. Ms Hill conceded that when Ms Jennings had asked her why the applicant was not in on 9 November, she did not mention the applicant had asked her to record her being on sick leave. Rather, she had said ‘no, she did not call up sick’, as the applicant had told her, Ms Gladwin and Ms Mackenzie that she was going to Sydney with her husband. Ms Hill denied she had not told Ms Jennings she had marked the applicant as sick, because she knew she might be in trouble for marking her sick.

1. While Ms Hill could not recall the time of day the applicant had asked her to mark her as sick, she denied making it up. Ms Hill said she did not ask questions about directions given to her by the applicant, as she was her boss. She did what she was told. In any event, an employee does not need a medical certificate for a single day absence. Ms Hill claimed that no employee makes up hours on other days. She could not recall it ever happening before. She agreed employees do make requests for ADOs.

1. It was Ms Gladwin’s evidence that the applicant had told her on 8 November 2016 that she was going to the city the next day with her husband. She added:

   ‘I won’t be taking annual leave, ADO or sick leave for it. I save it for my holiday to Germany next year. I might come in on Sunday. I will see how I feel.’

1. The applicant returned on 10 November, the day after Ms Smith had been slapped by Dr Bob. When she heard that someone from Head Office (Mr Maafu Mafoa) had also visited the facility on her day off, the applicant appeared ‘quite concerned and a bit agitated’.

1. Ms Gladwin believed that any ADOs, sick or other leave taken by the DON needed to be notified to Head Office. This is because the facility can be subject to random inspections at any time and someone needs to be on ‘standby’ if this happens. In cross examination, Ms Gladwin said she became aware of this requirement during the investigation of the applicant. She had not seen the Thompson Health Care Leave policy prior to this time which required the DON to notify any of their absences to Head Office. Prior to becoming the DON herself she had relied on what the applicant told her about advising of absences.

1. Ms Mackenzie’s evidence was that on the morning of Monday 4 November 2016, the applicant said to her:

   ‘I have to go to the city on a weekday as it is less busy then. I won’t take annual leave, ADO or sick leave. Maybe I come in on Sunday.’

1. In reply, the applicant’s written response given to Ms Jennings on 8 February 2017 was:

   ‘I find it offensive that you would think that I would commit fraud.
   I can confirm that I asked Ashley for a day in lieu and that I would make it up the following Sunday. This is what happened.
   On that Sunday I was able to deal with ongoing issues that occur on the weekend with staff, as well as being able to show management presence. Should you want to confirm, any staff rostered on the day will confirm this.’

1. It was the applicant’s statement evidence than on 7 November 2016, in the Head of Departments’ meeting with Ms Gladwin and Ms Mackenzie present, she informed them that she needed to take Wednesday 9 November off to go to Sydney and that she would be working the next Sunday to make up the time. She told them to contact her in the event of an emergency. Shortly after, she told Ms Hill she was taking Wednesday off as a day in lieu and would be working on Sunday instead. It was common for her to advise Ms Hill of staff absences, including her own. The applicant claimed she was unaware of any formal leave policy that applies to the DON. If it did exist, it had never been brought to her attention. The applicant attended an optometrist appointment on 9 November and worked on the following Sunday. She did not receive, expect or ask for additional payment for that day.

1. In respect to Ms Gladwin’s evidence, the applicant said she never discussed taking a day off with her on 8 November 2016. Rather, she advised the regular Heads of Department meeting on Monday 7 November, that she would be away on 9 November.

1. In cross examination, the applicant agreed she was obliged to comply with all of the respondent’s policies and procedures. This included an obligation to deal with leave requests from staff and approve such leave. She agreed that in respect to her own annual leave, she would notify Ms Rodgers. She had never notified her when she was taking RDOs, or taking sick leave. Nevertheless, when shown a request for an RDO on 13 April 2016, she was surprised, because she didn’t usually do that.

1. The applicant conceded that it was important for the DON to notify Head Office if he/she is not to be present at the facility. This is because the DON is the key person under the Aged Care Act in respect to issues arising at the facility and to attend to ‘spot’ inspections by accreditation agencies.

1. The applicant claimed she was unaware of, and had not seen the policy that DONs (or any employee) could not use TOIL for days off. She had believed that by working 76 hours a fortnight (as set out in her contract), it did not specify this was to be between Mondays to Fridays. Nevertheless, she agreed that her normal hours were 8.30am-5pm, Monday to Friday. It would only be on rare occasions that she might come in on a Saturday or a Sunday.

1. The applicant agreed that on 6 November 2016, she had asked Ms Rodgers for annual leave from 19 January to 5 February 2017, but made no request for leave on 9 November 2016. The applicant denied Ms Mackenzie’s version of events of 6 November. She had said to Ms Hill that she was having the day off in lieu and would work on Sunday instead. This meant that she was working makeup time on Sunday. The applicant did not tell Ms Rodgers (on the phone) when she requested annual leave about the day off on 9 November, because she was not sure about her appointment booking. The applicant said that if the DON was away, the Acting DON would inform Head Office, if any issue arose.

1. The applicant reaffirmed that she was aware Mr Mafoa was coming to the facility on 9 November to set up the Christmas decorations for the facility – an all day exercise. His wife had told her on the Thursday or Friday before. She had even told staff on the Monday before his visit. Mr Gladwin and Ms Mackenzie knew, as did the Lifestyle Coordinator and the maintenance employee. They were all at the Monday meeting, including the chef. The applicant had not mentioned this in her statement, because she did not think it was important.

1. The applicant again agreed that she accepted she should have sought permission for leave from Ms Rodgers. She had told Ms Jennings she should have done so. It was never her intention to take the leave, without Head Office knowing about it. She had told all the team. She denied telling the DDONs not to communicate with Head Office, except through her.

1. The applicant’s evidence was that as DDON in 2015 she had twice sought, and was granted TOIL by the then DON. The 9 November 2016 was the only time she had done so when in the role as DON. She agreed that if she had asked for a day off, it might have been proposed as an RDO or annual leave day.

1. The applicant strenuously denied Ms Hill’s version of events of their conversation. She had indicated to Ms Hill that she was taking a day in lieu and would make it up the next Sunday. She never told her to mark her in payroll as being on sick leave. She herself could have also made the entry into the system. She denied telling Ms Hill to do so because she was worried that two significant events happened on her day off – Ms Smith’s slapping by Dr Bob and Mr Mafoa’s visit.  

1. In re-examination, the applicant said that when she asked for an RDO in April 2016, this was different to taking TOIL. In any event, she was unsure, if she had received the Company’s policies, but may have at orientation. Having had it brought to her attention that she should have sought Head Office permission, she agreed with Ms Jennings she had made a mistake.

Issue 5 – Managing quality resident care and responsiveness to resident and relative queries

On 1 February 2017 it was reported to me by DDON Donna and DDON Simone that you allowed [Dr. Bob] to go on unsupervised outings to the pub and return to the facility intoxicated by alcohol. This is of great concern. Specifically, following the incident on 2 September 2016. On this date it is alleged that Resident [Dr. Bob] was unable to be found at the facility for a period of approximately 30 minutes at 5pm. At the time the resident was on an unsupervised outing, which you had permitted, and you left the facility for the day prior to his return, with no instruction provided to the facility regarding his return.

It should be noted that both DDON Donna and DDON Simone only left the facility after the resident had been located by RAO Katinka and was in transit back to the facility. They left instructions with the RN in charge to contact either of them if had did not arrive.

As you are aware, missing residents can form part of the facility’s compulsory reporting requirements and therefore it is of concern that you left the facility despite being aware that a compulsory reporting incident may have been imminent. You further did not follow up with the facility that night to ascertain whether the resident had been located and well.

It is of further concern to Senior Management that despite this incident you permitted Resident [Dr Bob] to continue going on unsupervised outings. Indeed on 9 November 2016 it is documented that on returning from such an unsupervised outing, resident [Dr Bob] “slapped” Nursing Assistant Amber Smith whilst intoxicated. As previously detailed in this letter, you were absent from the Nursing Home on this day. It is alleged by DDON Simone that herself and DDON Donna managed the incident at the time and raised the incident with you the following day 10 November 2016. DDON Simone alleges that when she reported the incident to you, you responded by saying “It was just a little slap” and indicated that you did not want to do anything about it. It was noted that Staff Injury and Incident Report was completed by RN Jennifer Gabiana on 9 November 2016 and signed by you on 10 November 2016. The report was not received by Selina Lie in Human Resources until 16 November 2016.

It is noted and of great concern that you have permitted [Dr Bob] to continue to go on unsupervised outings since these incidents. The Outing register book has recorded that resident [Dr Bob] has signed out over 10 times since the 9^th November 2016. It has been noted that Resident [Dr Bob’s] permission to go on unsupervised outings has been withdrawn by Acting DON Donna whilst you have been on annual leave.

We also specifically discuss[ed] the circumstances around the lead time in closing but a complaint made by the family of Resident Betty Mumford in February 2016 as well as a complaint received by the facility from Relatives Sue and Max Muelleman on 30 January 2017 regarding your conduct towards them since November 2015.

Result: Allegation substantiated – breach of duty of care and put staff safety at risk

1. Ms Amber Smith, Nurse Assistant, described the incident on 9 November 2016 when she was slapped across the face by Dr Bob, shortly after he returned to the facility at about 4pm. Dr Bob was in another resident’s (Eric) room when Ms Smith came to dispense Eric’s medications. There were two cups on the table, one of which appeared to be full of whiskey. Dr Bob told her it was cold tea. When she went to move the table, she moved Dr Bob’s cup. He then stood up and slapped her across the face. She added that while Dr Bob was old, he was strong. Ms Smith said she was stunned and told him he did not need this (the alcohol) anymore, especially if he was going to hit staff. She smelt the contents. It appeared to be whiskey. She left Eric’s room and poured the contents of the cup into the sink in the hallway. As she did so, Dr Bob stumbled out and yelled ‘you fuck’n bitch, you fuck’n fat bitch’.

1. Ms Smith reported the incident to the RN on duty, Jenny Gabiana, as the applicant was not on duty. She then informed Ms Gladwin and Ms Mackenzie. They asked her if she wanted to go home, but she declined. The next day, the applicant rang her at home and asked how she was feeling. The applicant told her she had spoken to Dr Bob’s wife who was upset at what had happened and she proposed offering her a gift. The next day, the applicant told her she had taken away Dr Bob’s privileges.

1. A few days later, Ms Smith went to the Doctor, as she was experiencing trouble chewing. He gave her some anti-inflammatory medication. He insisted she fill in a Workcover certificate. Ms Smith said that when her Dad found out what had happened, he was very angry and had phoned the applicant. A couple of weeks later, Dr Bob apologised to her and gave her a box of chocolates.

1. It was Ms Smith’s evidence that during the six months she had looked after Dr Bob, he was drunk (not just tipsy) every one or two weeks. Ms Smith disputed the applicant’s version of events as told to her by Dr Bob. His slapping was very deliberate. She did not believe it was appropriate or correct to let Dr Bob go out again, as it was very likely his conduct would be repeated.

1. In cross examination, Ms Smith was shown Ms Gabiana’s incident report of the incident. Ms Smith agreed that she had not required first aid or medical treatment. Ms Smith was asked why the incident report was different to her statement evidence of what had happened as she had not mentioned the offensive language used by Dr Bob.  Ms Smith accepted that she did not give the applicant any reason to believe she had been seriously hurt, as she had stayed at work.

1. Ms Smith said she could not answer on what basis she had formed the view that Dr Bob should not be let out again. She agreed she had seen other intoxicated residents at the facility. However, no one else had hit her before. She was not aware of any other resident who had been barred from leaving the facility, apart from Dr Bob.

1. It was Ms Gladwin’s view that a person with Dr Bob’s dementia and physical impairments should not be let out, especially to get drunk. The applicant had once told her that letting Dr Bob out was ‘a good thing’. While she disagreed with the applicant, she did not challenge her authority.

1. Ms Gladwin’s evidence of the incident was that Ms Smith had come to her office (Ms Mackenzie was present). She had a ‘huge red mark on her face’. She looked very agitated and upset and close to crying. She told them Dr Bob had slapped her. Ms Gladwin calmed her down, and offered her some ice. Ms Smith did not want to call the police or go home. Ms Gladwin said she and Ms Mackenzie took control of the situation by:

   • Directing Registered Nurses to work in pairs if they need to attend to Dr Bob;
   • Ms Smith was not required to look after him; and
   • Dr Bob was not allowed out on his own.

1. Ms Gladwin told Ms Smith that what happened was ‘totally unacceptable’. When Ms Gladwin went to Dr Bob’s room, she found him completely intoxicated with a bottle of scotch beside him. When she attempted to retrieve it, he refused. She left it there as she believed that to force the situation was risky.

1. Ms Gladwin said that during a Work Health and Safety (WH&S) meeting on 2 December 2016 (when this incident was raised), Ms J Stevenson (AIN) barged into the meeting in a panic to say that Dr Bob had jumped into a cab and had left the facility. While everyone knew he was not to leave alone, the applicant said ‘don’t worry, I’ll deal with it later’. The applicant had said that Dr Bob’s slap of Ms Smith was ‘Just a little slap, she (Ms Smith) is a big girl. He is a small man’.

1. At the end of the day, when the applicant was leaving, she asked if Dr Bob was back. Ms Gladwin told the applicant to ring his daughter and other staff rang around a few local hotels, where he was known to frequent. Ms Gladwin said that when the applicant was being driven out of the grounds by her husband, she ran into Dr Bob in a taxi on the way back in. The applicant turned around, got out of her car and searched Dr Bob for alcohol. She found a bottle, took it from him and then went home. There were no further entries made in the resident’s notes about the incident.

1. Ms Gladwin annexed to her statement copies of care notes, health assessments and other relevant records including, Ms Smith’s Workcover certificate.

1. In cross examination, Ms Gladwin agreed she had never prevented a resident from leaving the facility. She accepted that Dr Bob had returned to the facility on Australia Day (26 January 2017) intoxicated and while she was not on shift, she was still in charge. Another staff member had let him out and Dr Bob signed himself out. He had gone out again recently and had returned drunk. Further restrictions were put on him - he was not allowed out, even with family members. She said he also steals wine from other residents. Other residents give him alcohol. Steps have been taken to stop this from happening. Ms Gladwin claimed she was not aware of other residents getting drunk outside and returning inebriated to the facility.

1. Ms Gladwin was asked about the report of the slapping incident. The RN on duty prepared the incident report and Ms Gladwin reported it to the applicant the next day. While Ms Gabiana had filled in the incident report, a few bits of information were missing, such as her noting a red mark on Ms Smith’s face.

1. Ms Mackenzie corroborated Ms Gladwin’s version of events concerning the slapping of Ms Smith. When the applicant returned to work the next day she reported the incident to her. When the applicant replied ‘it was just a little slap in the face’, Ms MacKenzie said ‘no Angelika, it was assault, you can’t minimise that’ and ‘you need to act on this now’. The applicant replied in an angry and frustrated tone, ‘right I will deal with this now’. When Ms Mackenzie had told her that Mr Mafoa from Head Office visited the day before ‘she went solemn and white and looked very concerned’.

1. Ms Mackenzie corroborated Ms Gladwin’s evidence of the meeting of the WH&S Committee on 2 December 2016. She claimed that as the applicant had left early, she had checked the cameras. This established that Dr Bob left at 1pm that day. One person rang the local pubs and just before the police were to be informed, a staff member rang to say Dr Bob had turned up.

1. In cross examination, Ms Mackenzie said that the applicant ‘looked white and very concerned’ when she told her:

(a)A staff member had been assaulted; and

(b)A Head Office person had visited the facility when she had been on unauthorised leave on Wednesday 9 November 2016.

1. Ms Mackenzie could not say if Dr Bob was being appropriately cared for at the facility. She agreed that as an alcoholic, the facility had to have strategies to address his issues. She was not aware of what these were, because it was the applicant’s responsibility, in consultation with Ms Gladwin. Ms Mackenzie was asked about the further incident on 26 January 2017. As she was not at work that day (a public holiday) an RN would have been in charge. Ms Gladwin would have had to instruct staff on how to handle Dr Bob.

1. Ms Mackenzie agreed residents drank alcohol on the premises. She knew Dr Bob would leave the facility and go to local pubs to drink. Most residents can go out, but she did not know if they drank or returned intoxicated. Ms Mackenzie’s further evidence was that:

(a)she could not recall other residents returning drunk to the facility;

(b)she was not aware if any residents get intoxicated in their room;

(c)some families bring alcohol to residents;

(d)she did not know if residents shared alcohol;

(e)she never witnessed Dr Bob hitting anyone before the 9 November 2016 or subsequently, but he was verbally aggressive.

1. Ms Mackenzie was aware that Dr Bob had returned to the facility intoxicated very recently (the Sunday just passed). He used to sneak alcohol into the facility or hide it in the bushes and retrieve it later.

1. In reply, the applicant responded to the allegation in the meeting with Ms Jennings as follows:

   ‘Resident, [Dr Bob] is a Medical Doctor. [Dr Bob] is an intelligent man who is mentally alert in command of all his faculties. He likes to be independent. He likes reading, music and cars. To satisfy this he enjoys reading magazines which he purchases at the Bowral Newsagency where he has an account. Also he buys music, DVD’s (sic) and books at a local bookshop where he also has an account. It seems that on occasion he likes to go to the local Hotel before coming home.

   I have taken a special interest in [Dr Bob], and have together with his family, employed several strategies to help his wellbeing during my time at the Abbey.

   It has been reported to you that I permit unsupervised outings to the pub and he is allowed to become intoxicated.

   I permit [Dr Bob] to go to Bowral to shop and bank when he signs the resident’s in an out register. Sometimes Dr Bob has returned a little tipsy, but I have never observed him intoxicated.

   I can only assumed (sic) that you regard this as a reportable incident if [Dr Bob] did not sign the in and out register. [Dr Bob] is continually reminded to ensure he signs the register every time he leaves the facility.

   Yes. The report was sent on 16 November.

   I deny saying those words. I told the DDONs that were really unaware of precisely what occurred and we should speak with [Dr Bob] and Amber.

   I spoke to Amber and Dr Bob regarding this. Action after this included: Phone conference, and face to face with Mrs XXX and [Dr Bob].

   I am not in a position to restrict [Dr Bob] when he is able to sign the in and out register and he wishes to leave the facility.

   I am aware of Doug Thompson’s feeling that this facility is the resident’s home.

   There was a time after the Amber Smith incident where I attempted to restrict [Dr Bob] from leaving the facility. However, he approached me to revise this after a time, because he felt strangled not having his freedom.

   I determined, in consultation with his Wife Ann and DDON Donna, that we will allow him to go to Bowral once or twice a week, provided we book his taxi  for his journey to and from. This was done to ensure that he would return to the facility by 5:00pm. There was also a stipulation that he was not to purchase any alcohol while in Bowral to bring back to the facility. This was done as I felt there was the potential that [Dr Bob] would sneak out of the facility, without signing the register, which would be a bad outcome.

   Before I went on annual leave I discussed and it was agreed with DDON Donna that [Dr Bob] would not be able to go to Bowral for the length of my leave as this may present a problem for her.

   I am unable to recall detail of the Betty Mumford complaint, please provide details as this is now one year ago.

   If this is Joyce Peters’ family who have made this complaint, then I recall some details, even though this is claimed to be in November 2015. These people were loud and aggressive, making physical threats to the then DON Horsley, and they were asked to leave the premises by James Ewart and I.

   At the time, Jill Rodgers was informed of the incident.

   In all my dealings with family, staff and residents I maintain at all times, courtesy and respect for all.

   At times, staff have been very disrespectful to me as you are aware.

   I would like you to be aware that I come to work every day and work hard for the residents, their families and the staff at Abbey House.

   I carry out my duties diligently and thoroughly. I wish to think that I am a fair supervisor and mentor to my staff.

   I keep you and Doug Thompson updated regularly on what is happening at the Abbey. I believe I am good at what I do. No one is perfect and there are occasions where I make mistakes.

   Disappointment in your claim is overwhelming.

   The allegations, to which you refer to, would make up just part of my day at Abbey House an all would be dealt with in a manner after each is considered on its merits. Most of them have no basis and I cannot help but feel that there is a slight vindictiveness to them.’

(e)That the applicant was a bully. No person other than Ms Mackenzie and Ms Hill made this claim. It is rejected as baseless.

(f)That the applicant acted ‘sheepishly and cowardly’ in presenting Ms Mackenzie with a letter of complaint. Again my observation of the applicant was that she was a firm and decisive manager, completely inconsistent with a ‘sheepish or cowardly’ personality.

(g)That the applicant had been negligent when she directed the applicant to visit a café, a Polish deli, Ms Gladwin’s home and Frensham pool on 27 October 2016. I accept Ms Mackenzie herself had left the facility to check on her pets, purchase a car, attend her child’s Christmas function and that she was sometimes late for work for medical or personal reasons.

(h)That the applicant had been guilty of ‘elder abuse’ occurring in an incident in September/October 2016;

1. That the applicant had used Ms Mackenzie as her Personal Assistant and directed her to write emails;

(j)That the applicant told Ms Mackenzie and Ms Gladwin not to call her when off duty and to handle issues themselves. No details were given. I accept the applicant had provided her home and mobile phone number to all staff and had answered all calls as soon as she was able to.

1. As these allegations have either not been made out, are rejected or the applicant accepted she had made some errors of judgement and was apologetic, I do not consider that any, or all of them in combination, constitute a valid reason for dismissal.

Ms Hill’s allegation (Issue 2)

1. In her email to Ms Jennings of 1 February 2017, and in her oral evidence, Ms Hill said ‘she had felt bullied by the applicant’. However, in her statement, Ms Hill did not allege the applicant had bullied her. The only specific incident Ms Hill set out in her statement that caused her to claim she had felt embarrassed and that the applicant had acted unprofessionally, was on 21 December 2016, when she was questioned as to why she was in Ms Mackenzie’s office.

1. Given that the applicant had concerns (which she had also raised with Ms Jennings), as to Ms Hill and Ms Mackenzie spending too much time together, it was certainly within the applicant’s responsibilities to address these concerns. While she might have appeared to have been rather stern and annoyed, Ms Hill’s focus on this issue, did not amount to anything of any great moment. I do not accept the applicant ‘barged in’ and ‘stood over’ her. I consider Ms Hill’s embarrassment was more likely due to her explanation that they were doing the staff allocations and then Ms Mackenzie contradicted her and said they were just having coffee.

1. In oral evidence, the applicant elaborated on one of Ms Hill’s 12 complaints concerning her apparent blaming of the applicant for her photo not appearing in the Company newsletter. I accept the applicant’s evidence that she had no input into the content of the magazine and did not know what was in it and had no idea what was in it until she saw it published. In my view, this criticism was not only wrong, but was such a petty matter that it demonstrated the levels to which Ms Hill and Ms Mackenzie would descend to drag up any silly and irrelevant matter to denigrate the applicant.

1. As to Ms Hill’s claim that she had occasionally been directed by the applicant to drive her to town so she could do her shopping, Ms Hill left out that the shopping was work related. She also failed to mention that on 13 January 2017, she drove her to town and used the opportunity to buy supplies for a child’s birthday. She also omitted mention of occasions she had requested and was granted time off, to attend her children’s doctors’ appointments or do her own shopping.

1. I do not accept that the applicant had bullied Ms Hill, or otherwise acted inappropriately towards her. The highest her evidence reached was that the applicant made her feel uncomfortable and embarrassed. This is not bullying. The allegations surrounding this issue have not been made out and do not constitute a valid reason for the applicant’s dismissal.

Was the applicant’s dismissal harsh, unjust or unreasonable?

1. The meaning of the expression ‘harsh, unjust and unreasonable,’ in the context of a dismissal, was explained in the oft-quoted extract from Byrne & Frew v Australian Airlines (1995) 185 CLR 410 (Byrne) by McHugh and Gummow JJ, as follows:

‘128. … 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.’

1. Returning to the specific matter under s 387 which the Commission is required to take account of, I make the following findings.

Whether there was a valid reason for the dismissal: s 387(a)

1. As was said in Selvachandran:

   ‘In its context in subsection 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business.’

1. For the reasons, I have set out elsewhere in this decision, I am not satisfied the respondent had a valid reason for the applicant’s dismissal.

1. The applicant’s dismissal was capricious, spiteful and prejudiced and cannot be allowed to stand as a fair or reasonable outcome. At the very most, the applicant could have received a verbal counselling about:

(a)not notifying Head Office of her absence of he absence on 9 November 2016; and

(b)not advising Ms Gladwin of her and Ms Mackenzie’s late return from Dr Hanbury’s appointment.

Whether the applicant was notified of that reason (s 387(b))

1. When she returned from overseas on 4 February 2017, Ms Jennings had phoned the day before and asked her husband to tell her to call her. When the applicant called, she was informed she was stood down while an investigation was underway and not to return to work until further notice. Ms Jennings did not give her the reason for the investigation.

1. The applicant received the ‘show cause’ email on 7 February 2017 and told to attend a disciplinary meeting the next day. Given that:

(a)the five issues of concern mentioned numerous specific allegations and other generalised allegations about her conduct and behaviour;

(b)the applicant had no access to her work records at the facility; and

(c)she had less than 24 hours to respond,

I am not satisfied that the allegations were set out with sufficient specificity for the applicant to respond sufficiently or appropriately within 24 hours on 8 February 2017. This was a denial of procedural fairness.

Whether there was an opportunity to respond (s 387c)

1. I have just concluded that the breadth and nature of the generalised allegations were such that giving her a mere 24 hours to respond was unfair. This was the only opportunity the applicant had to respond to the allegations, until she was dismissed, two days later on 10 February 2017. It would have been abundantly clear from the applicant’s written responses to the allegations that her responses were not the best she could have done in such a short timeframe. She had even expressed the view that she did not understand all of what was being alleged. As a matter of natural justice, the applicant should have been provided with greater detail and a longer period to respond, including by allowing her access to her work diaries, records, files and emails.

1. The unseemly haste and unsatisfactory opportunity given to the applicant to respond does not reflect well on the investigation or the investigator. It is a matter of some curiosity that when Ms Mackenzie had her disciplinary interview with Ms Jennings; see para 41 above, on 29 November 2016, the outcome was provided to her eight days later, yet the applicant’s dismissal (an obviously more serious matter) was affected just two days after the one and only disciplinary meeting.

1. I note that Ms Jennings actually sought further details from Ms Mackenzie, Ms Gladwin and Ms Hill when she met with them on 31 January 2017 over the Muelleman incident and even asked Ms Hill for further explanation about the applicant’s absence on 9 November 2016. Thus, it would seem the applicant’s accusers were given a greater opportunity to come up with the specifics of their grievances, than the applicant was afforded in defence of them. This was manifestly unfair, particularly given Ms Jennings failed to consider whether there was a concerted vendetta against the applicant or that Ms Mackenzie, Ms Gladwin and Ms Hill could have colluded and had real motivations for bringing the applicant down. That Ms Jennings could not see the obvious collusion from the wording of the last paragraphs of Ms Gladwin and Ms Mackenzie lists of complaints is a matter of some regret.

1. Ms Jennings relied on Ms Gladwin telling her that the applicant and ‘instructed Ashley to mark that day as sick’. Ms Jennings was queried as to whether she had asked Ms Gladwin how she knew this. Ms Jennings said she did not believe Ms Hill had any reason to lie, notwithstanding Ms Hill’s bullying complaint against the applicant a few weeks earlier.

1. In my view, Ms Jennings had no basis to conclude that Ms Hill’s evidence of being instructed to mark the day as sick leave, had been corroborated. It did not take into account that Ms Hill may have had a motivation for reporting the applicant. Nor does it explain her marking the applicant as sick because she may have had a reason to protect herself when her inadvertence or miscommunication was discovered.

1. Ms Jennings claimed the incident report was not sent to HR as per policy. However, the incident was on 9 November 2016, the applicant signed it off the next day and emailed it to HR on 16 November 2016. Ms Jennings was wrong to say that the report was not sent to Head Office. Ms Jennings’ oral evidence was that HR should have been notified immediately after the incident. In any event, Ms Smith’s evidence was that she had given the applicant no impression the incident was serious, so this would explain why it was not sent immediately after the incident (which it could not have anyway).

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal (s 378(d))

1. The applicant attended the disciplinary meeting on 8 February 2017 accompanied by her solicitor, Mr Kutasi. The applicant was therefore not denied an opportunity to have a support person present. This is a neutral factor in this case.

Whether the applicant had been warned about unsatisfactory performance (s 387(e))

1. Although only two of the specific complaints (not notifying Head Office of her absence and not advising the DDON of her lateness on 27 October 2016 might be said to be matters of poor performance, I would characterise both of them as errors of judgement - nothing more.

1. There is no evidence of the applicant being ever warned about these two matters or indeed of any of the complaints alleged against her. Moreover, in respect to the care of Dr Bob, no one gave her any advice or counselling about how to deal with his returning to the facility intoxicated. Indeed, even when the applicant had left, no one had any better idea on how to handle these circumstances, because he did the same at least twice on Ms Gladwin’s watch.

1. In addition, there was no evidence of the applicant ever being the subject of a formal complaint about her care or oversight of others by the family of a resident. She has no record of any warning, counselling, performance or behavioural issues. To the contrary, she had received numerous compliments and praise from family members and senior management (see 11 above) as well as pay rises, bonuses and two promotions. No witness disputed her exemplary record of service.

The degree to which the size of the employer’s enterprise and the degree to which an absence of a dedicated human resource management specialist would likely impact on the procedures followed in effecting the dismissal (ss 387(f)-(g))

1. The respondent is a large, well resourced and respected operator in the industry. I am dismayed by the deficiencies in the investigation, the denial of procedural fairness towards the applicant and her dismissal, by an employer whose size, experience and expertise would have dictated otherwise.

1. Ms Jennings was both the investigator and the decision maker. She concedes she has no nursing qualifications. It would seem very few others, if anyone else, was involved in the investigation and the decision. I note Ms Jennings said she sought advice concerning the show cause letter, but provided no details. Certainly, there was no evidence of anyone else’s involvement, aside from Ms Lie who seemingly attended the 8 February disciplinary meeting. She gave no evidence in the case. Ms Jennings did not even give the applicant the courtesy of personally signing the applicant’s dismissal letter. Moreover, it is a matter of some curiosity and mystery to me, why the dismissal of the most senior nursing figure at Abbey House – someone in charge of 200 employees – was, with respect, a decision taken by Ms Jennings alone. I would have imagined, at the very least, senior personnel above Ms Jennings, including Ms Rodgers or the owner, and perhaps an experienced nurse manager from another of Thompson’s facilities, should have been involved in the decision making process. I have no evidence that senior management was even consulted about the matter, even though the applicant’s contract of employment stipulated that she reported to the ‘Proprietor’. There was no evidence of any report to, or meetings with others in senior management. In some respects, I consider Ms Jennings shouldered the burden which should have been the responsibility of others, more senior and better qualified to appreciate the inherent duties, responsibilities and difficulties for nurses at the level of DON.

1. In addition, there was no weight or insufficient weight given to the applicant’s exemplary service demonstrated by frequent compliments and praise, significant pay rises and a $15,000 bonus at the very time (December 2016) it was said she had so alienated her staff.

Any other matters that the Commission considers relevant (s 387 (h))

1. I have taken into account that the applicant did not have long service with the respondent (two and a half years) and less than one year as DON. But this is to be measured against her long history in nursing and previous nurse management positions. I have also taken into account that at the level of DON, finding alternate DON, or even DDON positions, is not an easy feat in the Southern Highlands.

1. In my view, Mrs Adamopoulos has suffered a grave injustice. In a relatively small NSW regional setting, she has had her reputation tarnished and career prospects damaged by an unfair dismissal, without any valid reason/s. She has lost her job because of the resentment and improper payback motives of a few of her colleagues.

1. In summary, I am satisfied that the applicant’s dismissal was ‘harsh, unjust and unreasonable’ within the meaning of s 387 of the Act. Her dismissal was substantively and procedurally unfair. Mrs Adamopoulos’s dismissal was unjust, because she was not guilty of the misconduct alleged against her; unreasonable because she was not afforded a sufficient opportunity to explain or give her version of the complaints from Ms Mackenzie, Ms Gladwin and Ms Hill and harsh because of the personal and economic circumstances that she found herself in as a consequence of her dismissal.

Appropriate remedy

1. Section 390 of the Act sets out the circumstances in which the Commission may make an order for reinstatement or compensation. The section reads:

390        When the FWC may order remedy for unfair dismissal

(1)       Subject to subsection (3), the FWC may order a person’s reinstatement or the payment of compensation to a person, if:

(a)       the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b)       the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3)       The FWC must not order the payment of compensation to the person unless:

(a)       the FWC is satisfied that reinstatement of the person is inappropriate; and

(b)       the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note:   Division 5 deals with procedural matters such as applications for remedies.

1. Had the applicant sought reinstatement, I would have had no hesitation in ordering that outcome. No witness – not even her critics – had said they could not work with her again. Nevertheless, the applicant has left the Southern Highlands and does not seek reinstatement. She is looking for work in the larger catchment of the Sydney metropolitan area. Accordingly, I am satisfied that reinstatement would not be appropriate. I find accordingly.

1. Section 392 of the Act sets out the matters the Commission must have regard to when determining:

(a)whether compensation should be ordered;

(b)if so, what amount of compensation should be ordered;

(c)the effect of any order as to any findings of misconduct by the applicant;

(d)the upper limit of compensation; and

(e)specific matters not to be taken into account.

1. Section 392 reads as follows:

‘392      Remedy—compensation

Compensation

(1)       An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2)       In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

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

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

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

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

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

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

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

Misconduct reduces amount

(3)       If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4)       The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5)       The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a)       the amount worked out under subsection (6); and

(b)       half the amount of the high income threshold immediately before the dismissal.

(6)       The amount is the total of the following amounts:

(a)       the total amount of remuneration:

(i)        received by the person; or

(ii)       to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b)       if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.’

1. The methodology to be adopted by the Commission in calculating compensation having regard for each of the matters set out in s 392 of the Act, (often referred to as the Sprigg formula), was considered by a Full Bench of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. t/a Ottrey Lodge [2013] FWCFB 431 (‘Ottrey’); see also: Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21 and Ellawala v Australian Postal Corporation [1999] AIRC 1250. A recent Full Bench said in Balaclava Pastoral Co Pty Ltd ATF O’Connor-Fifoot Family Trust v Nurcombe [2017] FWCFB 429 at [42]-[43]:

   ‘[42] The correct approach to the assessment of compensation was summarised by the Full Bench in the recent decision in Double N Equipment Hire Pty Ltd t/a A1 Distributions v Alan Humphries as follows (footnotes omitted):

“[16] The well-established approach to the assessment of compensation under s.392 of the FW Act, taking into account the matters specified in s.392(2), is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages. Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c) - that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed. In Bowden this was described in the following way:

‘[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’...’

[17] The identification of this starting point amount “necessarily involves assessments as to future events that will often be problematic” . Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.”

[43] We would add to this that in quantifying compensation, it is necessary to set out with some precision the way in which the various matters required to be taken into account under s.392(2) (and s.392(3) if relevant), and the steps in the Sprigg formula, have been assessed and quantified. That is to say, the way in which a final compensation amount has been arrived at should be readily apparent and explicable from the reasons of the decision-maker.’ (footnotes omitted) `

1. In adopting the above methodology, I make specific findings as follows:

(a)As the respondent put no evidence as to the effect any order of compensation would have on the viability of its enterprise, I am not satisfied that the order I intend to make would have any deleterious effect on the respondent’s viability. In any event, the respondent is a medium to large employer with around 1400 staff at 12 facilities.

(b)The applicant had two and a half years service with the respondent – a reasonable period of employment.

(c)it is notoriously difficult to speculate with any certainty how long a period the applicant would have continued in employment, but for her dismissal. In McCulloch v Calvary [2015] FWCFB 873, the Full Bench of the Commission put it this way and said at para [27]:

‘[27] We would also observe that, in our view, the evidence upon which the Commissioner relied was insufficient to sustain the inference that, but for the dismissal, the appellant would only have remained in employment for a further 8 weeks, at which time he would be summarily terminated. Implicit in the Commissioner’s finding is that the conduct which led to his dismissal (and which the Commissioner found did not constitute a valid reason for termination) would not only be repeated within a relatively short period of time but would in fact be repeated in a more serious form such as to constitute serious misconduct. While the task of determining an anticipated period of employment can be difficult, it must be done. In the context of this case it seems to us that the Commission would require cogent evidence to conclude that a person such as the appellant, who was dismissed without a valid reason, would only have worked another 8 weeks at which time he would have been summarily dismissed. The Commissioner’s s.392(2)(c) finding constitutes a significant error of fact, within the meaning of s400(2) of the Act.’

I am prepared to accept that given the point in her nursing career, the applicant would have continued as DON for a further 12 months. That amount is $150,000. I apply an amount of 10% for contingencies; including the more likely are her reemployment opportunities in Sydney and for other personal or family reasons for leaving the Southern Highlands. This leaves an amount of $135,000.

(d)The applicant made efforts to obtain alternative employment and continues to look for alternative employment in Sydney. I am satisfied she has made real and genuine efforts to mitigate the losses suffered by her dismissal.

(e)There was no evidence of any remuneration the applicant has earned since her dismissal.

1. The applicant received no notice of termination and no payment in lieu of notice (presumably with the respondent relying on summary dismissal, without notice). Had the applicant been dismissed for poor performance, she would have received 4 weeks pay in lieu of notice under the terms of her contract of employment. I have taken that matter into account.

1. Given I have found that there was no misconduct of the applicant, no deduction in compensation is made on that score (s 392(3)).

1. The order I intend to make contains no component by way of compensation for shock, distress, humiliation or other analogous hurt (s 392(4)).

Compensation cap

1. The compensation cap in relation to the applicant is the lesser of the amount equivalent to the remuneration earned by the applicant in the 26 weeks immediately before her dismissal (s 392(6)) and half the high income threshold immediately before the dismissal. The high income threshold at the relevant time was $138,900. Half that amount is $69,450. It is self-evident that my calculations, based on the Sprigg formula above results in a total amount of compensation ($135,000) which exceeds the compensation cap: an amount between $70,000 and $75,000; not $82,125 as claimed by Mr Kutasi. This is because in the 26 week period immediately before the applicant’s dismissal (starting on 12 August 2016), the applicant’s salary was $140,000 and increased to $150,000 in October 2016.

1. Accordingly, the amount of compensation to be ordered in favour of the applicant is $69,450 plus 9.5% superannuation ($6,597.78).

CONCLUSION

1. For the aforementioned reasons, I am satisfied that the dismissal of the applicant by the respondent on 10 February 2017 was ‘harsh, unjust and unreasonable,’ within the meaning of s 387 of the Act. Finally, s 381(2) of the Act is a significant and overarching object of Part 3-2. It is expressed in these terms:

‘381 Object of this Part

(1)  The object of this Part is:

(a)  to establish a framework for dealing with unfair dismissal that balances:

(i)  the needs of business (including small business); and

(ii)  the needs of employees; and

(b)  to establish procedures for dealing with unfair dismissal that:

(i)  are quick, flexible and informal; and

(ii)  address the needs of employers and employees; and

(c)  to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2)  The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

Note:         The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.’

1. In this case, I am satisfied reinstatement is inappropriate and compensation in an amount of $69,450, plus 9.5% superannuation,  is appropriate have regarding to all the circumstances of this case; see: Bowden v Ottrey Homes at para [17]. The amount so ordered will be with any deductions of appropriate taxation according to law. I am satisfied that the remedy I have determined will ensure a ‘fair go all round’ is accorded to both the applicant and the respondent. The amount of compensation is to be paid to the applicant within 21 days of today. Orders giving effect to my conclusions will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:
Mr K Kutasi for the applicant.
Mr G Boyce for the respondent.

Hearing details:
2017.
Sydney.

May 30 and 31.

[1] In order to protect the resident’s identity, his surname is redacted and from here on in he shall be referred to as ‘Dr Bob’.

Printed by authority of the Commonwealth Government Printer

<Price code J, PR594213>