Mrs Colleen Manwarring v Coffs Coast Health & Community Care

[2014] FWC 2269

[2014] FWC 2269

FAIR WORK COMMISSION

DECISION

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

Mrs Colleen Manwarring
v
Coffs Coast Health & Community Care
(U2013/3720)

COMMISSIONER CARGILL SYDNEY, 11 APRIL 2014

Application for relief from unfair dismissal.

[1] This decision arises from an application by Ms C Manwarring (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of her employment by Coffs Coast Health & Community Care (CCHCC or the respondent). The applicant’s dismissal occurred on 13 November 2013 and her application for relief was lodged with the Fair Work Commission (FWC) on 25 November 2013.

[2] The matter was dealt with by a Conciliator on 16 January 2014 but did not settle. It was heard by me on 25 and 26 March 2014 in Coffs Harbour. The applicant represented herself with the assistance of a support person, Ms M Porter. The respondent was represented by Mr Baroni, solicitor, who was given permission to appear in my decision of 17 March 2014 ([2014] FWC 1779). The matter proceeded by way of hearing as I considered that it was appropriate to do so having taken account of the factors set out in section 399 including the views of the parties noted in the Conciliator’s Report.

[3] The applicant gave evidence. She provided a witness statement dated 26 February 2014 which was marked Exhibit Applicant 1. The applicant’s oral testimony is at PN163-1173 of Transcript.

[4] The following witnesses gave evidence on behalf of the respondent:

Ms P Plunkett	Director and owner of CCHCC. Her statement dated 20 March 2014 was marked Exhibit Respondent 3. Her oral testimony is at PN1186-1307 of Transcript;
Mr S Koufis	Chief Operating Officer of CCHCC. His statement dated 20 March 2014 was marked Exhibit Respondent 4. His oral testimony is at PN1309-1731 of Transcript;

Ms D McCann	Home and Community Care Worker with CCHCC. Her statement dated 20 March 2014 was marked Exhibit Respondent 5 and her oral testimony is at PN1741-1913 of Transcript;
Ms S Downes	Home and Community Care Worker with CCHCC. Her statement dated 20 March 2014 was marked Exhibit Respondent 6. Her oral testimony is at PN1920-2037 of Transcript;
Ms G Spreadbury	Assistant in Nursing with CCHCC. Her statement dated 21 March 2014 was marked Exhibit Respondent 7 and her oral testimony is at PN2080-2208 of Transcript;
Ms E Soltau	HR and IR Advisor contracted to provide services to CCHCC on an “as needs” basis. She is employed full time as an HR Manager in another organisation. Ms Soltau’s statement dated 20 March 2014 was marked Exhibit Respondent 8. Her oral testimony is at PN2211-2422 of Transcript.

FACTS AND EVIDENCE

[5] The respondent is a privately owned community care organisation which provides in-home health and domestic services to its clients who are predominantly elderly and often frail. Ms Plunkett estimated that the average age of the clients is around 80 years old.

[6] The respondent employs Registered Nurses and Home Care Workers. The Home Care Workers, including the applicant, each hold a Certificate III in Aged Care or Home and Community Care. The respondent has three full-time employees, 31 part-time employees and 13 casual employees.

[7] The applicant says that she commenced her employment with the respondent on 11 April 2008. Ms Plunkett says that, although the applicant attended an orientation day on that date, she began her employment in November 2008. Nothing in this decision turns on this difference.

[8] The applicant was employed on a casual basis. An offer of a Permanent Part Time Placement was made to her on 29 January 2013 however the applicant did not accept the offer which is at Exhibit Applicant 18.

[9] On 28 January 2010 Ms Plunkett spoke to the applicant about breaching confidentiality by discussing clients and staff with a third party. The applicant agreed that she had discussed the rostering arrangements with one of her neighbours however she denied that she had divulged any information about clients. Ms Plunkett’s file note about the matter is Annexure A to Exhibit Respondent 3. The applicant’s annotated version of the document is Exhibit Applicant 6 and Annexure B to Exhibit Respondent 8.

[10] Ms Plunkett’s evidence is that she was aware that the issue of confidentiality had been raised by the applicant’s case manager in the applicant’s performance appraisal on 3 February 2011. The Performance Appraisal Summary, Annexure B to Exhibit Respondent 3 and Annexure C to Exhibit Respondent 8, notes at Point 3 “Discuss strategies to maintain confidentiality when with clients”. Ms Plunkett says that she did not discuss the matter with the applicant as she felt it had been dealt with by the case manager.

[11] On 31 August 2012 the applicant left a note at the home of a client. The note was apparently directed at the client’s elderly mother. The client complained about the note which is at Exhibit Applicant 7, Annexure C to Exhibit Respondent 3 and Annexure A to Exhibit Respondent 4. Among other things the note mentioned tomatoes and consequently was referred to as the “tomato note” in proceedings.

[12] Ms Plunkett and Mr Koufis held a meeting with the applicant to discuss the complaint. In their statements Ms Plunkett and Mr Koufis each say that this meeting took place on 24 July 2012. However they agreed that this could not have been correct as the note had not been written until 31 August.

[13] The applicant informed Ms Plunkett and Mr Koufis that the particular client was always complaining and had mental problems. She also stated that there was nothing wrong with what she had written. Mr Koufis told the applicant that, if she had concerns about the client’s mental health, she should raise this with the case manager. He also informed her that the note was offensive and aggressive. The applicant received a verbal warning for her actions.

[14] The applicant’s evidence is that her note was actually a hastily written letter of apology. She testified that she wasn’t being condescending to the client. The applicant agreed that clients need respect.

[15] Mr Koufis made a file note of this discussion which is Annexure B to Exhibit Respondent 4.

[16] It is the evidence of Mr Koufis that, on 15 January 2013, he was approached by an employee who complained about the applicant’s use of inappropriate language in the office and her engaging with other employees in making disparaging comments about Mr Koufis, in particular, by describing Mr Koufis as “misogynist”. It is the evidence of Mr Koufis and Ms Plunkett that they held a meeting with the applicant on 20 February 2013 to discuss the issue with her. The applicant’s evidence is that she did not recall the meeting although she agreed that there had been a discussion about her alleged use of foul language which allegation she had denied.

[17] Mr Koufis and Ms Plunkett say that the applicant denied any involvement in any disparaging remarks about Mr Koufis. They also say that Mr Koufis reminded the applicant that she had been “called on” for breaches of the Code of Conduct before. Ms Plunkett’s evidence is that she was disappointed with the applicant’s actions. Mr Koufis made a file note of the discussion. That is Annexure C to Exhibit Respondent 4.

[18] The written complaint about this issue is at Annexure D to Exhibit Respondent 4. I note that the complainant does not suggest that the applicant actually made the disparaging remark, merely that it was made in her presence and in the presence of a third employee. There is no evidence before me as to whether the employee who is alleged to have made the comment, or the third employee, were also spoken to about the issue.

[19] On 31 May 2013 Ms Soltau held a training day on bullying prevention, the Complaints Procedure and the respondent’s Code of Conduct. It is her evidence that all staff, including the applicant, attended this training.

[20] On 3 July 2013 Ms Soltau met with the applicant to discuss some concerns which the applicant had raised about signing the revised Code of Conduct and Complaints Procedure. The Finance Manager, Mr Shanahan, was also present. It is Ms Soltau’s evidence that the applicant claimed that CCHCC had changed documents after she had signed them and that her signature had been forged on the collective agreement. After some discussion the applicant withdrew her claims. Ms Soltau informed the applicant that making denigrating remarks about CCHCC and other staff and breaching client confidentiality could lead to disciplinary outcomes including dismissal. Ms Soltau’s notes of this meeting are at Annexure D to Exhibit Respondent 8.

[21] The applicant’s evidence about this meeting is in her notes which are at Exhibit Applicant 11. She says that she felt she was being pressured into signing a declaration that she had read the documents when she had not seen them. The applicant says that Ms Soltau told her that, by not signing, she was in breach of her employment conditions and that, if there was a further breach, she could be dismissed. The applicant took this to be a threat. The applicant also says that she agreed to withdraw her claims against CCHCC under duress from Ms Soltau.

[22] On 8 August 2013, Ms Soltau conducted an exit interview with Ms Spreadbury. The report on the interview is Annexure E to Exhibit Respondent 8. During that interview Ms Spreadbury informed Ms Soltau that a client, CM, had been making negative comments about CCHCC, Ms Plunkett and Mr Koufis. Ms Spreadbury told Ms Soltau that she thought that the applicant had been spreading rumours which had led to the client’s comments.

[23] Ms Spreadbury’s evidence is that the basis for her belief that it was the applicant who was responsible for causing CM to make the negative comments was that she was one of three main carers for the client. Ms Spreadbury agreed that CM had not named any particular employee as having made negative remarks to her only that such remarks had been made. Ms Spreadbury also agreed that she had not heard any such remarks herself and that her views were based on what CM had told her.

[24] On 13 October 2013 the applicant was carrying out her duties at the home of CM. Her evidence is that CM was distressed and depressed and wanted to talk to someone about issues she had with the service she was receiving from CCHCC. These issues included changes in roster times, turnover in staff and the level of the fees being charged. The applicant says that she suggested CM speak to her carer, her case manager or to Ms Plunkett, however CM rejected each of these suggestions. The applicant says that she then offered to dial the number of the Aged Care Complaints Line into the speed dial facility on CM’s phone. CM declined the offer. The applicant made notes of what had taken place and these are Exhibit Applicant 9.

[25] It is the evidence of Mr Koufis that the applicant telephoned him on 14 October 2013. He informed her that it had been reported that the applicant had rung the Aged Care Complaints Line on behalf of CM. Mr Koufis says that the applicant acknowledged that she had done this and stated that she had been acting as CM’s advocate when she did this. He then told the applicant to come to the office and file an incident report.

[26] It is the applicant’s evidence that she went to the office of her own accord to report the events of the previous day to Mr Koufis. She says that the matter should have been dealt with by way of a complaints form but that Mr Koufis insisted that she complete an incident form. The completed form is Exhibit Applicant 8 and Annexure E to Exhibit Respondent 4. I note that on the form the applicant has indicated that the “incident” took place on multiple dates not just 13 October.

[27] A meeting was held to discuss the issue. The applicant, Ms Plunkett and Mr Koufis were present. The applicant was informed that she had not followed CCHCC’s Complaints and Grievance Procedures in dealing with the issue and that she was not CM’s advocate. She was also told that she had acted inappropriately. The applicant’s evidence is that she thought she might have been acting as CM’s advocate as CM is blind and was very distressed at the time. The applicant says that she felt it was her duty of care to help CM.

[28] Ms Soltau’s evidence is that, on 14 October 2013, she arranged for “performance conversations” to be conducted with staff as part of the annual performance review process. She says that there were 10 employees who had such conversations around that time. These included Ms Spreadbury, who had returned to work with CCHCC, Ms McCann and Ms Downes. The Performance Conversation Process Staff Guide is Exhibit Applicant 15.

[29] Ms Spreadbury’s meeting was held on 15 October. During that meeting Mr Koufis asked Ms Spreadbury about the claims she had made in her exit interview referred to in paragraph 22 above and asked her to make a formal statement about those claims. Ms Spreadbury’s evidence is that, among other things, she mentioned CM’s negative remarks about CCHCC and the fact that the applicant, and another employee, were CM’s main carers. She also stated that the applicant was very negative about her work. Ms Spreadbury’s evidence is that she then signed a typed statement of what she had said which was prepared by Ms Soltau, Annexure A to Exhibit Respondent 7.

[30] The meetings with Ms McCann and Ms Downes both took place on 17 October. Written statements relating to allegations made by each of them about the applicant were typed by Ms Soltau. Both show the same time of 5:15pm. The applicant suggests that the meetings were both held at the same time. Ms Downes and Ms Soltau deny this and Ms McCann says that the people who were present at her meeting were Ms Soltau and Mr Koufis. Ms Soltau’s evidence is that she just copied and pasted the top part of the statements and didn’t change the time. She acknowledged that this was “sloppy”. She says that the two meetings were held half an hour apart.

[31] During her performance conversation Ms Downes said that, although she enjoyed the work, she felt that the applicant was not very welcoming. She said that, after a staff meeting earlier in the year, the applicant had come up to her in the car park and said “I don’t know why you cleaners can’t do cleaning and us nurses do nursing and Stavros should just F..K off and leave us all alone”. The reference to Stavros is to Mr Koufis. Ms Downes’ evidence is that Ms McCann was also present when the applicant made this statement.

[32] In her evidence Ms Downes agreed that she had not lodged a formal written complaint about the applicant. She says that she spoke about what the applicant had said because she felt she was being bullied. Ms Downes later agreed that she had felt highly uncomfortable and that there was a difference between that and being bullied. However in re-examination Ms Downes again said that she had felt bullied by the applicant. Ms Downes says that she hadn’t raised the issue earlier as she didn’t want to appear to be “a snitch”. A statement of what Ms Downes said at the meeting was typed by Ms Soltau and is Annexure A to Exhibit Respondent 6.

[33] During her performance conversation Ms McCann said that she felt that she was “unwelcomed” by the applicant. She said that the applicant had told her that “you girls should have stayed in domestic and left the personal care to us”. At paragraph 13 of her statement, Exhibit Respondent 5, Ms McCann says that this comment had been made at a staff meeting. In Annexure A to that statement, which sets out notes taken at the meeting by Ms Soltau, Ms McCann says the comment had been made “just outside the door”.

[34] In that Annexure Ms McCann also said that “Colleen” had spoken very disparagingly about Mr Koufis, using the “F” word. From the context of the Annexure it appears that Ms McCann was referring to the applicant however I note she also mentions that another person named “Colleen” was present. In the Annexure Ms McCann states that she felt “pretty bad” about the comment made by the applicant which is set out in the previous paragraph. Ms McCann’s evidence is that, at the time of her performance conversation, she had not been aware that her statements would be used in a complaint against the applicant.

[35] The applicant denies making either of the statements attributed to her by Ms Downes or Ms McCann.

[36] On 28 October 2013 the applicant was provided with a letter which informed her that she was to attend a meeting on the following day. That letter is Annexure F to Exhibit Respondent 4 and Annexure F to Exhibit Respondent 8. The letter informed the applicant that complaints had been made against her by other staff and that there were concerns about her interaction with clients. It noted that Ms Soltau and Mr Koufis would be present at the meeting. The applicant was directed not to approach other staff about the matter but was informed that she could have another employee as a support person. She was told to contact Mr Koufis for any further information about the process.

[37] The applicant’s evidence is that, because she didn’t know who had made the complaints, she was not able to ask one of the other staff to be her support person at the meeting. Consequently she didn’t have anyone with her.

[38] It is Ms Soltau’s evidence that the Executive Management Team of CCHCC subsequently decided that Mr Koufis should not attend the interview as he was involved in one of the complaints. Instead, the interview with the applicant was conducted by Ms Soltau and Ms Plunkett.

[39] At the interview Ms Soltau provided the applicant with a letter of allegations, Exhibit Applicant 4, Annexure E to Exhibit Respondent 3, Annexure G to Exhibit Respondent 4 and Annexure G to Exhibit Respondent 8. Those allegations were said to be: the breach of confidentiality in January 2010, incorrectly noted as January 2011; the applicant’s “tomato note” to the client in August 2012; comments made in March 2013, which don’t appear to have been raised elsewhere in the respondent’s material unless there is another error in the dates and this is a reference to the matters set out at paragraphs 16-18 above; the applicant’s refusal to sign the revised Code of Conduct and Complaints Procedure; the matter relating to CM on 13 and 14 October 2013; and the allegations made by Ms McCann and Ms Downes, although neither of them was identified in the letter.

[40] The letter informed the applicant that the allegations had the potential to be a serious breach of her employment contract and went to the heart of the employment relationship. The applicant was told she was suspended on full pay for a week during which time she was to “persuade us in writing why your casual employment should not be terminated”. A further meeting was scheduled for 4 November.

[41] During the meeting on 29 October the applicant denied that she had behaved inappropriately in dealing with CM on 13 October and stated that the allegations from the two employees were fabricated. The applicant requested the names of the employees and the details of when the allegations were made. The respondent’s Minutes of this meeting are at Exhibit Applicant 2. The applicant’s own Minutes are Exhibit Applicant 5. The applicant’s Minutes would appear to have been written after she received the respondent’s version as she comments about certain statements in that document.

[42] In a letter dated 31 October 2013, Exhibit Applicant 19 and Annexure H to Exhibit Respondent 4, the applicant reiterated her request for copies of any statements and allegations against her. She also expressed concern about the timeframe in which she needed to attend the next meeting and provide a response.

[43] On 1 November 2013 the applicant received redacted versions of the statements made by Ms McCann, Ms Downes and Ms Spreadbury, Exhibits Respondent 1, Respondent 2, Applicant 10 and Applicant 21. Confusingly for the applicant it appears that she was also provided with a statement from another employee which made allegations about some unnamed person, not the applicant.

[44] As the applicant was unable to arrange to have a support person with her on 4 November she also requested a change of date. The meeting was rescheduled for 7 November. Again, Ms Plunkett and Ms Soltau represented CCHCC. The applicant who was accompanied by her support person provided her written response to the letter of allegations, Exhibit Applicant 3 and Annexure H to Exhibit Respondent 8. She also provided a copy of the letter of offer of part-time employment as proof that the respondent thought she was a good employee, Exhibit Applicant 18 which is referred to at paragraph 8 above.

[45] In her letter of response the applicant again denied the allegations against her. She noted that the allegations had both been made on the same day which was cause for concern and should be properly investigated. The applicant also noted that none of the matters alleged would constitute bullying or harassment or provide grounds for her dismissal.

[46] The applicant was told that the Executive Management Team would meet to consider her response and that she would be informed of the outcome. The respondent’s Minutes of this meeting are Exhibit Applicant 12 and the applicant’s Minutes are Exhibit Applicant 13.

[47] Ms Plunkett, Mr Koufis and Mr Shanahan, who collectively comprise the Executive Management Team, met on 8 November 2013 to consider the applicant’s responses. The Minutes of the meeting are Annexure F to Exhibit Respondent 3 and Exhibit Applicant 14. I note that these documents are different in some respects. Exhibit Applicant 14 is on letterhead and it does not contain several typographical errors which are in the version at Annexure F.

[48] However, of greater substance is the fact that the version at Exhibit Applicant 14 does not include the determination of the meeting. The determination was that Ms Plunkett had expressed no confidence in the applicant’s continuing employment, however the applicant was to be given a final opportunity “to allow her to make a better decision that might facilitate a more amicable outcome”. It was agreed that, if nothing was forthcoming, the applicant was to be dismissed.

[49] The applicant was provided with a letter dated 8 November which stated that CCHCC considered that she had engaged in serious misconduct and it intended to terminate her employment. She was given until 9am on 12 November to show cause why this should not occur. This show cause letter is Annexure J to Exhibit Respondent 4 and Annexure I to Exhibit Respondent 8. The applicant responded by letter dated 11 November. She stated that her previous communications had clearly indicated her position. The applicant also noted that this would be her last correspondence with CCHCC about the matter. The applicant’s response is Annexure G to Exhibit Respondent 3, Annexure K to Exhibit Respondent 4 and Annexure J to Exhibit Respondent 8.

[50] It is the evidence of Ms Plunkett that she did not feel that she could trust the applicant to work unsupervised in the community. She felt that the applicant was damaging the business that she had worked so hard to establish. Ms Plunkett’s evidence is that the applicant had failed to persuade the members of the management team that she should not be dismissed and it was determined to terminate her employment with notice.

[51] The letter of termination, dated 13 November 2013, is Annexure H to Exhibit Respondent 3. It notes that, as a casual, the applicant was only entitled to minimal notice. It also notes that, in the case of serious misconduct, payment in lieu of notice is not required. The letter goes on to state that, nevertheless, two weeks’ pay in lieu of notice would be provided.

[52] The applicant has received no remuneration from employment since her dismissal. She has registered with an employment agency and, as at the time of the hearing, had applied for two jobs.

[53] It is the applicant’s evidence that her dismissal was contrived and was the result of a conspiracy against her. She says that it is because she asks questions. The applicant’s evidence is that Ms Downes and Ms McCann are part of the conspiracy. They made their allegations against her at the same time. It is also the applicant’s evidence that the respondent has concocted minutes of the meeting after which it is alleged that she made the offending remarks to Ms Downes and Ms McCann. In this regard the applicant noted the differences in dates, 13 and 14 February 2013, and contents as seen in Exhibit Applicant 20. The applicant says that the earlier allegations against her in relation to the use of bad language were further evidence of the conspiracy against her.

[54] Following the hearing both parties provided material concerning the applicant’s remuneration.

SUBMISSIONS OF THE APPLICANT

[55] The applicant provided written submissions prior to the hearing. She also made oral submissions.

[56] The applicant submits that there was no valid reason for her dismissal and that the allegations against her are not sufficient to warrant the termination of her employment. She submits that her dismissal is harsh, unjust and unreasonable. It is unjust because it was disproportionate to the gravity of the alleged offences, harsh because of the dire consequences for her on a personal and financial level and unreasonable because it was based on inferences which could not have been drawn from the material before the respondent.

[57] The applicant submits that she has always denied the allegations made against her. Further, there have been no formal complaints made against her in accordance with CCHCC’s policies and procedures which are in Exhibit Applicant 17. The applicant submits that the allegations against her were no more than passing comments.

[58] The applicant also submits that she was denied procedural fairness. The respondent had already decided to terminate her employment and consequently disregarded any statements which she had made in her defence. CCHCC also refused to provide her with the full particulars and details of the allegations against her. The applicant submits that this prevented her identifying and obtaining any witnesses to support her case.

[59] The applicant submits that the respondent failed in its duty of care by not following its own policies and procedures including those relating to workplace complaints, privacy, bullying, the performance conversation process and the Code of Conduct, Exhibit Applicant 16.

[60] The applicant notes that many of the respondent’s documents contain errors and inconsistencies as to times and dates and include file notes of meetings and warnings said to have happened before the relevant event even occurred. The applicant also notes that neither Ms Downes nor Ms McCann made formal complaints about her. As a consequence CCHCC had no grounds on which to dismiss her.

[61] The applicant submits that much of the respondent’s evidence was fabricated to build a history against her. Further, Ms Soltau did not properly investigate the allegations.

[62] The applicant submits that the loss of her job has caused her much personal anguish. She loved her job, had formed many friendships with other staff and a strong rapport with clients. The applicant submits that the dismissal has caused her to suffer sleeplessness, anxiety and nausea. She has had to rely on her savings and her husband’s income. The applicant submits that her financial situation was not likely to improve as there was high unemployment in the area and she was unable to relocate because of family commitments.

[63] The applicant submits that her age also counts against the likelihood of her obtaining other employment. In addition her reputation has been tarnished. The applicant seeks financial compensation, not reinstatement. She notes that, as at the date of the hearing, she had been out of work for 20 weeks.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

[64] Mr Baroni submits that it is very important to consider the nature of the respondent’s business. It provides care for the frail and elderly in a small community where its reputation is particularly significant. Mr Baroni submits that, as a consequence, CCHCC’s relationship with its employees has added importance especially its trust and confidence in them. In this context, Ms Plunkett’s evidence that she had lost faith in the applicant because of the cumulative effect of all of the matters which had occurred during her period of employment was crucial.

[65] Mr Baroni submits that credit is an important issue in this case. There were two employees making direct allegations about the applicant’s behaviour. He submits that, despite the applicant’s suggestion, there is no evidence of collusion between Ms Downes and Ms McCann. Mr Baroni submits that their evidence should be preferred to that of the applicant, as should the evidence of the other respondent witnesses all of who were credible.

[66] Mr Baroni submits that, in contrast, the applicant had been evasive and inconsistent in her evidence. She is a conspiracy theorist who doesn’t accept that she did anything wrong even in relation to the “tomato note” which she agrees she left for the client in August 2012.

[67] Mr Baroni submits that there was a valid reason for the applicant’s dismissal. He agreed that the allegations of Ms Downes and Ms McCann on their own were not sufficient. However the totality of the issues provided a valid reason. Mr Baroni submits that the applicant’s conduct may not have had the same degree of importance in a large organisation as it did in one of the respondent’s size.

[68] Mr Baroni rejects the applicant’s submission that, because there had been no formal complaint about her, there was no proper basis for her dismissal. He submits that the reality was that issues had been raised about the applicant. These had been investigated and dealt with in a fair and open manner as soon as they had come to the respondent’s attention.

[69] Mr Baroni concedes that the respondent could have handled the process better. He notes that letters and statements contained incorrect dates and other inconsistencies. He submits however that the process leading to the applicant’s dismissal had been fair. She had been provided with a letter which informed her that allegations had been made which required discussion. A meeting was held where the allegations were put and she was asked to respond at a later date. She was suspended on pay to allow the issues to be investigated.

[70] Mr Baroni noted that the applicant had been provided with a copy of the statements against her some days before she was required to respond. He submits that it had not been necessary that the applicant be given the names of those who had made the statements or the dates on which they had been made. Mr Baroni submits that CCHCC considered the applicant’s response to the allegations but took the view that it believed Ms Downes and Ms McCann rather than the applicant. It then considered the applicant’s previous history of counselling and warnings and decided she should be dismissed. There had been no predetermination of the outcome.

[71] Mr Baroni submits that section 387(a), (b), (c), (d) and (e) have been met. He notes that the size of the respondent and its lack of human resource specialists is an important factor. Mr Baroni refers to two decisions: Little v Credit Corp Group Limited [2013] FWC 9642 @ paragraph 81; and Telstra Corporation Limited v Streeter [2008] AIRCFB 15.

[72] Mr Baroni submits that the applicant’s claim should be dismissed. Alternatively, reinstatement should not be awarded. He submits that the applicant has failed to make proper attempts to mitigate her loss.

CONCLUSIONS

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

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

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

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

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

[74] As will have been apparent from paragraph 1 of this decision the application was made within the 21 day time period required in section 394(2). There is no suggestion that the applicant was not a person protected from unfair dismissal. Paragraphs (c) and (d) of section 396 have no relevance in this matter.

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

“(a) the person has been dismissed; and

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

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

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

Paragraph (a) is clearly met in relation to the applicant. Paragraphs (c) and (d) have no relevance. Consequently it is to paragraph (b) that my attention must be directed.

[76] In this regard it is necessary to turn to section 387 which sets out the factors which must be taken into account by the FWC in deciding whether a dismissal is harsh, unjust or unreasonable. These factors are as follows:

“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

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

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[77] The first factor which must be taken into account is whether there was a valid reason for the applicant’s dismissal. In this case the respondent relies upon the totality of several instances of what it says is misconduct. As noted earlier, the applicant disputes most of these. I shall address each of them in chronological order.

[78] In both January 2010 and February 2011 the applicant was spoken to about the need for confidentiality in dealing with all aspects of client and staff information. The applicant agreed that these discussions occurred but disputed that, in relation to the first occasion, she had actually divulged any confidential information. The applicant’s notes on her copy of Ms Plunkett’s file note, Exhibit Applicant 6, includes her recollection of what she had said to her neighbour. I accept that discussing rostering arrangements in a general sense may not breach confidentiality requirements. However, I do note that the applicant appears to have made a very inappropriate remark about the employee who did the rostering.

[79] On 31 August 2012 the applicant left the “tomato note” at a client’s home. She says that it was a letter of apology. Although the note does contain the word “sorry” four times, its overall tone is very sarcastic and disrespectful. It was certainly not an appropriate communication to leave for a client or their elderly parent. The applicant received a verbal warning for this incident.

[80] The next incident concerns the applicant’s alleged use of bad language and involvement in the “misogynist” comment in early 2013. The applicant denies she used bad language but otherwise did not recall the events. I accept the evidence of Ms Plunkett and Mr Koufis that they did have a discussion with the applicant about the allegations which she denied. However, as I have noted in paragraph 18 above, there is nothing before me to suggest that other participants, especially the employee who was said to have made the remark, were spoken to. In my view this tends to downgrade the importance which should be attached this particular incident.

[81] The comments which Ms Downes and Ms McCann allege the applicant made are said to have occurred in February 2013 although they did not come to the respondent’s attention until October of that year. I accept the evidence of Ms Downes and Ms McCann as to the incident and reject the applicant’s evidence that they are part of a wider conspiracy against her. The comments again were most inappropriate and had the effect of making both Ms Downes and Ms McCann feel that they and their work were not valued. The fact that neither lodged formal complaints does not detract from the substance of their allegations or the ill-advised nature of the applicant’s comments.

[82] During the meeting with Ms Soltau on 3 July 2013 the applicant made allegations that CCHCC had altered documents after she had signed them and that her signature had been forged on the collective agreement. These are very serious allegations and do not appear to be supported by any evidence. At this meeting Ms Soltau put the applicant on notice that further breaches of her employment conditions such as making denigrating remarks about her employer and other staff could lead to dismissal.

[83] In early August 2013 Ms Spreadbury informed Ms Soltau of her belief that the applicant had been spreading rumours which had caused CM to make negative comments about CCHCC, Ms Plunket and Mr Koufis. However, in view of the fact that CM had other carers and in the absence of evidence from them, or CM, I am not prepared to find that the applicant was responsible for CM’s views.

[84] The final incident concerns the applicant’s actions on 13 August 2013. In her evidence before me the applicant says that she did no more than offer to put the number of the Aged Care Complaints Line into CM’s phone. However both Ms Plunkett and Mr Koufis say that the applicant had conceded to them that she had made a call to the Complaints Line on CM’s behalf. I consider that such an action was inappropriate even though I accept the applicant’s evidence that she believed she had a duty to help CM.

[85] I do not consider that any single one of these instances would amount to a valid reason for the applicant’s dismissal. However, in my view even disregarding the events set out in paragraphs 80 and 83 above, the cumulative effect of the remaining actions gives rise to a valid reason. I do note however that I do not consider that the applicant’s conduct amounted to serious misconduct.

[86] I now turn to the next three paragraphs of section 387 which deal with what might be characterised as procedural fairness issues. I am satisfied that the applicant was provided with the reasons for her dismissal. The allegations which were made against her were set out in the letter of 29 October. Although there were some errors in the letter I consider that the applicant was adequately informed of what she had to answer. I note that she did not receive the statements of Ms Downes and Ms McCann until 1 November, however the meeting at which she was to provide her response did not take place until 7 November. In my view the redactions in these statements did not prevent the applicant knowing what was alleged against her.

[87] I am also satisfied that the applicant was provided with an adequate opportunity to respond. She was given a period of several days in which to respond to the letter of allegations and then a further opportunity to reply to the show cause letter.

[88] There was no unreasonable refusal by CCHCC to allow the applicant to have a support person present to assist her in any discussions relating to the dismissal. However, I do note that the applicant experienced difficulties in relation to the meeting of 29 October as she had been directed not to contact any other employees yet she was restricted in her choice of a support person to someone within that group.

[89] Although the termination of the applicant’s employment was not related to her performance I have noted that she did receive some warnings during the period of her employment.

[90] CCHCC is not a small business employer within the meaning of that term in section 23 of the Act. However it is by no means large. It has no human resource management specialists within its enterprise but had access to and utilised the services of Ms Soltau in dealing with the applicant’s dismissal.

[91] There are two matters I wish to consider under paragraph (h) of section 387. The first concerns the involvement of Mr Koufis in the decision to dismiss the applicant even though one of the issues put against her related to the “misogynist” comment alleged to have been made about him. I appreciate that Mr Koufis is a member of the Executive Management Team, nevertheless it would have been prudent if he had not been involved in the decision. However I accept that Ms Plunkett, as the owner and director of the business had lost faith and confidence in the applicant and consequently, that regardless of the involvement of Mr Koufis, the decision was not likely to have been any different.

[92] The second matter of relevance is the impact of the dismissal on the applicant’s personal and economic circumstances.

[93] In all the circumstances of the case and having taken account of each of the factors in section 387 and my findings thereon, I have determined, on balance, that the applicant’s dismissal was not harsh, unjust or unreasonable. It follows from this and the matters addressed in paragraph 75 above that the dismissal was not unfair.

[94] The application is dismissed. An order PR549480 to this effect is issued at the same as this decision.

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

COMMISSIONER

Appearances:

C.Manwarring, applicant on her own behalf
M.Baroni, solicitor for the applicant

Hearing details:

2014.
Coffs Harbour:

March 25, 26.

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<Price code C, PR549355>