Mrs Daisy Shawl v Anglican Retirement Villages (Arv) T/A Anglican Retirement Villages - Donald Coburn Centre

[2016] FWC 5990

[2016] FWC 5990 [Note: An appeal pursuant to s.604 (C2016/5596) was lodged against this decision - refer to Full Bench decision dated 24 October 2016 [[2016] FWCFB 7191] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mrs Daisy Shawl
v
Anglican Retirement Villages (ARV) T/A Anglican Retirement Villages - Donald Coburn Centre
(U2016/5971)

DEPUTY PRESIDENT BOOTH SYDNEY, 5 SEPTEMBER 2016

Application for relief from unfair dismissal – gross misconduct.

Introduction

[1] Mrs Daisy Shawl was employed as a carer by Anglican Retirement Villages (ARV) at The Donald Coburn Centre in Castle Hill from 31 July 2001 until her employment was terminated during a meeting on 22 March 2016 for gross misconduct.

[2] The conduct that was said to justify Mrs Shawl’s dismissal was that on 10 March 2016 she slapped a resident, Mr Foley, on the mouth. Mrs Shawl denies that she slapped Mr Foley and says that she was unfairly dismissed.

[3] Mrs Shawl asks the Commission to make this finding and order ARV to pay her compensation. She is not seeking reinstatement.

[4] Mrs Shawl was represented by her son, Mr Shawl, and by permission ARV was represented by Ms Bowe, a solicitor from FCB Workplace Law.

[5] Evidence was given by Mrs Shawl on her own behalf. Evidence was given for ARV by Ms Marie Jimenez, a co-worker of Mrs Shawl’s at The Donald Coburn Centre on 10 March 2016, Mr Richard Farmilo, Facility Manager for The Donald Coburn Centre and Mr Simon Heath, Regional HR Manager for ARV.

[6] When conduct is the reason for dismissal the Commission’s first task is always to make a finding, on the balance of probabilities, about whether the conduct actually happened. This is the central issue between the parties in this case.

[7] I note that the term used by ARV in dismissing Mrs Shawl was gross misconduct. This does not alter my obligation. Mrs Shawl was not summarily dismissed. ARV paid Mrs Shawl 5 weeks pay in lieu of notice. ARV said this was done in light of her good record and long service. My task is not to determine whether Mrs Shawl’s conduct amounted to gross misconduct but whether it occurred and if so, whether it founded a valid reason for her dismissal.

[8] For the reasons outlined below I have decided that Mrs Shawl was unfairly dismissed and I have ordered ARV to pay her $16,020.26 before tax, in compensation.

Preliminary matters

[9] Before I get to the central issue there are some initial matters that I must address arising from sections 396 and 385 of the Fair Work Act 2009 (the Act).

[10] I have considered subsections 396 (a) to (d) of the Act and I conclude that they present no impediment to me considering the merits of Mrs Shawl’s case.

[11] I am satisfied that Mrs Shawl made her application within the period required in subsection 394(2)(a) of the Act, that is, within 21 days dismissal after the dismissal took effect.

[12] I am satisfied that Mrs Shawl was a person who was protected from unfair dismissal under section 382 of the Act at the time of her dismissal. She had completed a period of employment with ARV of at least the minimum employment period. The minimum employment period for an employer that is not a small business is 6 months. ARV employs 2044 employees. It is not a small business employer. She was covered by an enterprise agreement, Anglican Retirement Villages, Diocese of Sydney (ARV) Staff Agreement 2008. Her annual rate of earnings at the time of dismissal of $45,851 plus superannuation was less than the high income threshold.  1

[13] As ARV is not a small business employer I do not have to consider whether the dismissal was consistent with the Small Business Fair Dismissal Code.

[14] There is no suggestion that Mrs Shawl’s dismissal was a case of genuine redundancy.

[15] I have also considered section 385 of the Act. It is common ground between the parties that Mrs Shawl’s employment was terminated at the initiative of ARV. That is, in the terms of subsection 386(1) of the Act, she was dismissed. As mentioned the Small Business Fair Dismissal Code does not apply and her dismissal was not a case of genuine redundancy. That being the case it remains for me to consider whether Mrs Shawl’s dismissal by ARV was harsh, unjust or unreasonable.

[16] In doing this I must take into account the factors contained in subsection 387(a) to (h) of the Act. These factors direct the Commission’s attention firstly to the substantive fairness of an employer’s decision to dismiss an employee, secondly to procedural fairness in the way in which the employer’s decision is made and carried out and thirdly to any other matters that the Commission regards as relevant to its consideration.

Conduct

[17] Before turning to these factors I must determine, on the balance of probabilities, whether the conduct complained of actually happened. It is important to appreciate that I am not deciding whether it was reasonable for ARC to conclude that the conduct occurred, but if it did actually occur.

[18] The conduct that was said to justify Mrs Shawl’s dismissal was set out in a letter of termination dated 31 March 2016 as follows:

“you attended to Mr Laurence Foley with another staff member, and whilst providing care you slapped him on the mouth with your hand telling him to keep quiet.”

[19] ARV contend that I can be satisfied that this happened because of the evidence of Ms Jimenez, Mr Farmilo and Mr Heath.

[20] Ms Jimenez’s gave relevant evidence that:

● She was working at The Donald Coburn Centre on the afternoon of 10 March 2016.
● She went to help Mrs Shawl with Mr Foley, a resident with dementia.
● When she arrived in Mr Foley’s room Mrs Shawl and Mr Foley were in Mr Foley’s bathroom.
● Mr Foley was screaming loudly.
● She stepped out of Mr Foley’s bedroom and Mrs Shawl called her back into the bedroom.
● When she entered the bedroom Mr Foley was seated in his shower chair next to his bed.
● She went to get the stand-up lifter from Mr Foley’s bathroom.
● When she returned with the stand-up lifter Mrs Shawl was standing in front and to the right of Mr Foley between the chair and the bed.
● She was standing behind Mr Foley and to his left away from the bed.
● She saw Mrs Shawl raise her right hand and slap Mr Foley in the mouth with her right hand.
● The slap was loud and she heard it over Mr Foley’s screaming.
● She reported this to Jenny, a registered nurse after she had attended to other residents and had her dinner.
● She watched Jenny tell Chris (Ms Giles, Director of Nursing) about her report.
● Later that evening she was called to a meeting with Chris and Mr Farmilo and she told and demonstrated what she saw.
● She repeated this with Mr Heath and Mr Farmilo on 14 March.
● Mrs Shawl did not speak to her about her performance or work methods on 10 March or at any other time.

[21] Ms Jimenez demonstrated to the Commission what she saw Mrs Shawl do. During her demonstration she stated that Mrs Shawl did not have her left hand on Mr Foley’s shoulder at the time of slapping Mr Foley with her right hand.

[22] Mr Farmilo gave relevant evidence that:

● On the evening on 10 March 2016 he returned to work after having gone home. He attended a meeting with Ms Giles, who is Director of Nursing, Ms Abeyeratne who is a registered nurse and Ms Jimenez.
● He heard Ms Jimenez describe an incident in Mr Foley’s bedroom at 4.30pm that afternoon.
● Mr Farmilo’s evidence of what he heard Ms Jimenez say included “I saw Daisy then slap him in the mouth and I heard the slapping sound.” 2
● Ms Jimenez demonstrated what she said she saw. Mr Farmilo’s evidence of what he observed Ms Jimenez demonstrate was that she “cupped her right hand and then swung her hand into [his] mouth to produce a ‘slap’ noise.” 3
● Ms Jimenez showed him “that Daisy was trying to get Laurie to stop screaming, telling him “Stop screaming, stop screaming”, and then swung her right hand with a cupped fashion straight onto his mouth here.” 4
● Based on Ms Jimenez’s account she was standing in front of both Mr Foley and Mrs Shawl. 5
● He interviewed Mrs Shawl at around 8pm on 10 March 2016 and Mrs Shawl said “I didn’t do anything” and “I put my hand up to his mouth but I did not touch him.” 6
● Mrs Shawl demonstrated to Mr Farmilo what she said she did do. In her demonstration she put her hand close to his mouth with all five fingers together without touching him.
● On 14 March he met with Mr Heath, Mrs Shawl and her son, Mr Shawl.
● In the meeting on 14 March he asked Mrs Shawl to tell him what happened on 10 March. Mrs Shawl repeated what she had said to him on the evening of 10 March. She again demonstrated what she said she did do and she said “I raised my hand to near his mouth but I did not make contact.” 7
● He never heard Mrs Shawl say that she put her fingers over her own lips and said “shh”.
● Mr Foley was questioned about what happened on 10 March but his response was “nonsensical” and not “reliable” 8 due to his advanced dementia.
● Mr Foley was examined between 8 and 8.15pm on 10 March and there were no visible marks on Mr Foley.
● Mrs Shawl had been issued with a warning on 29 December 2015 due to two breaches of policy in relation to medication.  9One in relation to medication that had been found popped out of a blister pack and left unattended for some period of time.10 The other in relation to the forcible administration of medication to a resident when the resident tried to refuse to take the medication.

[23] Mr Heath gave relevant evidence that:

● On 14 March he met with Mr Farmilo, Mrs Shawl and her son, Mr Shawl.
● During that meeting Mrs Shawl said “I did not hit him or close his mouth – I did not even touch his mouth. I just said “shh” and put my hand in front of his mouth …”. 11
● During the meeting Mrs Shawl said that she and Florence had told Ms Jimenez that Ms Jimenez should be doing things differently.
● He met with Mr Farmilo and Ms Jimenez at around 2.30pm on 14 March 2016.
● Ms Jimenez said “Daisy very quickly hit his mouth because he was still shouting. Mr Foley’s head moved back a bit and he screamed as loud as before.” 12
● Ms Jimenez was the only witness to this incident.

[24] Mrs Shawl denies that she slapped Mr Foley. She demonstrated to the Commission what she says she did. During her demonstration she placed her left hand on the shoulder of my Associate and brought her right hand from her side towards my Associate’s face. Her cupped hand hovered close to my Associate’s mouth, but her cupped hand but did not make contact with my Associate’s mouth.

[25] When there are two conflicting versions of an event it is necessary to weigh the likelihood of one version being more probable than the other. Ms Jimenez’s version of what occurred is that Mrs Shawl slapped Mr Foley on the mouth with such force as to make a sound which could be heard by her whilst standing behind Mr Foley and which caused his head to move backwards.

[26] First I have considered whether there was any objective evidence of this occurring such as a mark on Mr Foley or any other injury to Mr Foley. The evidence of Mr Farmilo is that there was not.

[27] Secondly I have considered whether there was any corroborative evidence such as a complaint by Mr Foley, an acknowledgement by Mr Foley, a third person over hearing the incident, a contemporaneous note or complaint being made by Ms Jimenez. Mr Farmilo’s evidence is that there was no corroborative evidence from Mr Foley. It was Ms Jimenez’s evidence that after the incident she proceeded to carry out her usual duties of supporting residents with their evening meal and she then took her own meal break. It was after these activities that she reported the incident to the registered nurse. When questioned as to this delay she said it was because she was very busy when the incident happened and only had time to report the incident after dinner. 13

[28] Thirdly I have considered whether there was any tendency or co-incidence evidence as regard to Mrs Shawl’s behaviour on any other occasion. In other words, I have considered whether here has been any other complaint made or issue raised about Mrs Shawl having been violent or abusive or losing her temper with a resident. The only matter that was brought to my attention was an occasion in December 2015 when Mrs Shawl was alleged to have forcibly administered medication to a resident when the resident attempted to refuse to take the medication. The respondent said that this incident gave rise to Mrs Shawl receiving a disciplinary warning.

[29] Mrs Shawl’s evidence before me was that she placed her left hand on Mr Foley’s shoulder and placed her right hand near Mr Foley’s mouth (but not touching his mouth), saying “ssh, please calm down.” 14 This version of events is consistent with her version of events given to Mr Farmilo and Mr Heath during their investigation. That evidence included a demonstration of what she said she did, each demonstration being consistent.

[30] I give particular weight to her evidence before me and her initial statements to Mr Farmilo and Mr Heath.

[31] Mrs Shawl’s account of what happened contained in her Form F2 application to the Commission and in her witness statement were not consistent with these accounts.

[32] In her Form F2 application to the Commission and in her witness statement she said that she placed her two fingers vertically against her own mouth and said “shh”. I have concluded that Mrs Shawl did not write those accounts in either document. It became clear to me during her oral evidence that she was assisted in the preparation of those documents and did not seek to maintain this version of events during her evidence. I prefer her oral evidence.

[33] On the basis of the analysis I have undertaken concerning the two competing versions of events I am unable to conclude, on the balance of probabilities, that the conduct occurred.

[34] I now turn to the factors contained in subsection 387(a) to (h) of the Act to determine whether Mrs Shawl’s dismissal was harsh, unjust or unreasonable.

[35] As mentioned these factors direct the Commission’s attention firstly to the substantive fairness of an employer’s decision to dismiss an employee, secondly to procedural fairness in the way in which the employer’s decision is made and carried out and thirdly to any other matters that the Commission regards as relevant to its consideration.

Substantive fairness

Was there a valid reason for the dismissal of Mrs Shawl relating to her capacity or conduct?

[36] It is common ground between the parties that the reason for Mrs Shawl’s dismissal related to her conduct.

[37] The conduct that was said to justify her dismissal was that “you attended to Mr Foley with another staff member, and whilst providing care you slapped him on the mouth with your hand telling him to keep quiet.” 15

[38] A valid reason will be one that is sound, defensible and well founded….in the context of the employee’s capacity or conduct, or based upon the operational requirements of the employer’s business. 16

[39] In order to properly consider whether the reason was well founded I have considered whether the conduct occurred. I have found that I am unable to conclude, on the balance of probabilities, that the conduct occurred. In this circumstance I consider that the reason was not sound, defensible or well founded.

[40] Accordingly I find that ARV did not have a valid reason for the dismissal of Mrs Shawl.

Procedural fairness

Was Mrs Shawl notified of this reason? (s.387(b))

[41] Mrs Shawl was notified by letter on 14 March 2016 that her employment was in jeopardy and the reason was the incident of 10 March 2016.

Was Mrs Shawl given the opportunity to respond to this reason? (s.387(c))

[42] Mrs Shawl was given an opportunity to respond to ARV when she attended the meeting on 14 March and again on 22 March 2016. This afforded Mrs Shawl the opportunity to respond to the reason given for considering her dismissal.

Did ARV unreasonably refuse to allow Mrs Shawl to have a support person present to assist at any discussion relating to her dismissal? (s.387(d))

[43] Mrs Shawl attended three meetings in the lead up to her dismissal. These meetings were held on 10, 14 and 22 March 2016. On 14 and 22 March she was supported by her son, Mr Shawl. She contends that she was effectively denied a support person on 10 March 2016 when she was interviewed about the alleged incident. I do not consider that this is a denial of a support person to assist at any discussion relating to dismissal. This was not yet a discussion relating to dismissal but a reasonable and timely interview by the employer into an allegation made against an employee by another employee. Mrs Shawl was never denied an opportunity to have a support person present to assist at any discussion relating to her dismissal.

Was Mrs Shawl warned about unsatisfactory performance before the dismissal? (s.387(e))

[44] The reason for Mrs Shawl’s dismissal related to her conduct. ARV did take into account an earlier warning given to Mrs Shawl concerning her performance in weighing their decision about her termination but it was not the reason for dismissal. This factor is more appropriate to be considered when an employee is underperforming in their role and could reasonably be expected to improve his or her performance when this underperformance is pointed out, often with guidance and training. In the circumstances of the kind of conduct found to have occurred in this case I do not consider that this this factor is relevant.

Did the size of ARV impact upon the procedures followed in effecting Mrs Shawl’s dismissal? (s.387(f))

[45] This factor is more appropriate to be considered when an employer is small and there is an absence of rigor in the process of dismissal. Sometimes the absence of due process can reasonably be explained by the employer’s ignorance of its importance or their inability to take time away from core business activity at the time of effecting the dismissal. The factor will always be weighed against the whole circumstance of the dismissal. ARV is a large employer and it was clear from the evidence that a number of specialists were involved in Mrs Shawl’s dismissal. I do not consider that this factor is relevant.

Did the absence of human resource management specialists or expertise impact on the procedures followed in effecting Mrs Shawl’s dismissal? (s.387(g))

[46] ARV is a large employer with human resource management capability. It is clear from the evidence that professional expertise was continuously brought to bear throughout the period that ARV was dealing with the future of Mrs Shawl’s employment. I do not consider that this this factor is relevant.

Conclusion about procedural fairness

[47] ARV afforded Mrs Shawl procedural fairness throughout the process of dismissal. None of the factors above weigh in favour of Mrs Shawl’s dismissal being considered unfair.

Other matters

Are there any other matters relevant to my consideration of whether Mrs Shawl was unfairly dismissed? (s.387(h))

.

[48] I take into account the fact that Mrs Shawl is 56 years of age, has been employed by ARV for 15 years, and has not been able to secure employment at a similar rate of pay since her dismissal.

[49] The Respondent submitted that I should take into account Mrs Shawls “attitude in denying any and all misconduct” in connection with the incident of 10 March 2016, her “lack of remorse or candour throughout the investigation” and the fact that her conduct exposed the respondent to possible sanction and reputational damage. 17 In light of my finding that the conduct in question did not occur these submissions have no merit.

Taking into account all the factors was Mrs Shawl unfairly dismissed?

[50] I have found that there was no valid reason for ARV to dismiss Mrs Shawl. Whilst I have found that ARV afforded Mrs Shawl procedural fairness throughout the process of dismissal the absence of a valid reason for the dismissal strongly weighs in favour of the dismissal being considered harsh, unjust and unreasonable. I have considered the other matters that were put forward by both Mrs Shawl and ARV. The matters advanced by Mrs Shawl weigh in favour of the dismissal being considered harsh. The matters advanced by ARV do not displace a finding of unfair dismissal. On balance I find that ARV’s dismissal of Mrs Shawl was harsh, unjust and unreasonable and therefore unfair.

Remedy

[51] Whilst reinstatement is the primary remedy under the Act 18 I note Mrs Shawl does not seek reinstatement and ARV argue strongly against reinstatement. I find that reinstatement would not be appropriate because the relationship between Mrs Shawl and ARV is unlikely to be able to be restored in any meaningful way. I consider that it is appropriate in all the circumstances of the case for me to make an award of compensation to Mrs Shawl.19

[52] I will now calculate the amount of compensation to be paid to Mrs Shawl based on the criteria contained in the s.392 of the Act and the contemporary application of the Spriggs formula. 20

Effect of the order on the viability of the employer’s enterprise: s.392(2)(a)

[53] ARV is a substantial not for profit business operating a large number of residential aged care facilities. There is no evidence that an order for compensation of the amount proposed will affect the viability of the business and I so find.

Length of service: s.392(2)(b)

[54] Mrs Shawl was employed by ARV for nearly 15 years. I have calculated an amount of compensation to be paid to Mrs Shawl based on the criteria contained in the Act and the contemporary application of the Spriggs formula. I consider that Mrs Shawl’s length of service should not affect the amount of compensation to be ordered.

Remuneration that would have been received: s.392(2)(c)

[55] Mrs Shawl’s salary at the time of her dismissal was $45,851 gross per annum. Taking into account superannuation, 21 her total remuneration was $50,206.85.

[56] I find that Mrs Shawl would have been likely to have continued in her employment with ARV for a period of at least 2 years. She was a long serving employee and there was nothing to suggest that she would have resigned or been dismissed in the near future.

[57] The amount the Applicant would have received over two years was $100,413.70.

Mitigating efforts: s.392(2)(d)

[58] Mrs Shawl gave evidence that she had applied for a number of jobs that were located at a convenient distance from her home. I consider that it was not unreasonable for her to confine her job search to aged care facilities that were within a reasonable travel distance from her home.

[59] Ifind that the Applicant has taken reasonable steps to mitigate her loss suffered as a result of her dismissal.

Remuneration earned: s.392(2)(e)

[60] Mrs Shawl secured a job on 2 May 2016. 22 Her earnings between the date of dismissal and the date of hearing were $7,566.86. I will deduct this amount from the amount above.

Income likely to be earned: s.392(2)(f)

[61] The job secured by Mrs Shawl is a casual job. She may not be employed for an unbroken period for the whole of the period between the time of this decision and the end of the period estimated above. I estimate that she will earn her average weekly earnings of $881.80 plus super for a period of 75 weeks out of the 87 weeks between 20 July 2016 and 22 March 2018. I will deduct $72,417.83 from the amount above.

Other matters: s.392(2)(g)

[62] ARV paid Mrs Shawl 5 weeks paid in lieu of notice and I will deduct an amount of $4,408.75 from the amount above in recognition of this. I make no further change to the amount of compensation for contingencies.

Misconduct: s.392(3)

[63] I have not found any misconduct by the Applicant that contributed to the dismissal.

Shock, Distress: s.392(4)

[64] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.

Compensation cap: s.392(5)

[65] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by Mrs Shawl, or to which she was entitled, for any period of employment with ARV during the 26 weeks immediately before the dismissal, or half of the high income threshold.

[66] The amount the Mrs Shawl would have earned, or to which the she was entitled, for the 26 week period immediately prior to the dismissal was $22,925.50 plus superannuation contribution.

[67] The amount of compensation I will order does not exceed the compensation cap.

Compensation to be ordered

[68] In calculating compensation I have deducted from the remuneration Mrs Shawl would have received over two years the amount of $7,566.86 earned between her dismissal and the date of the hearing. I have also deducted $72,417.83, the amount likely to be earned by Mrs Shawl from the date of hearing to the end of the two years, and $4,408.75, the amount paid to her in lieu of notice.

[69] I order that ARV pay Mrs Shawl $16, 020.26 before tax, in compensation.

DEPUTY PRESIDENT

Appearances:

Mr R Shawl for the Applicant

Ms M Bowe, Solicitor, for the Respondent

Hearing details:

Sydney 20 July 2016

Final written submissions:

August 22 2016

 1   Form F3

 2   Exhibit B11, Statement of Richard Farmilo, paragraph 14

 3   ibid at paragraph 16

 4   PN1070 Transcript 20 July 2016

 5   ibid at PN1078

 6   Exhibit B11, Statement of Richard Farmilo, paragraph 20

 7   ibid at paragraph 36

 8   PN1162-3 Transcript 20 July 2016.

 9   Exhibit B11, Statement of Richard Farmilo, paragraph 8

 10   PN1022 Transcript 20 July 2016

 11   Exhibit B12, Statement of Simon Heath, paragraph 5

 12   ibid at paragraph 10

 13   PN822-824 Transcript 20 July 2016

 14   ibid at PN156-157

 15   Termination letter dated 31 March 2016

 16   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373

 17   Respondent’s outline of submissions, 24 June 2016, at paragraph 32.

 18 s.390(3)(a) Fair Work Act 2009

 19 s.390(3)(b) Fair Work Act 2009

 20   Sprigg v Paul’s Licensed Festival Supermarkets (1998) 88 IR 21; Bowden v Ottray Homes Cobram and District Retirement Villages Inc T/A Ottray Lodge [2013] FWCFB 431;

McCulloch v Calvary Health Care Adelaide[2015] FWCFB 2267

 21   Calculated at 9.5%

 22   Exhibit B9; PN566 Transcript 20 July 2016

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