Mrs Eme Paule & HSUA v McKinnon House
[1995] IRCA 103
•3 Mar 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1495 of 1994
BETWEEN:
MRS EME PAULE & HSUA
Applicant
AND
McKINNON HOUSE
Respondent
REASONS FOR JUDGMENT (EX TEMPORE)
(Revised from Draft Transcript)
3 March 1995 Judicial Registrar Murphy
Background
Since 1986 the applicant has been employed as a charge nurse at the McKinnon Private Nursing Home which is conducted by the respondent. At the commencement of this proceeding, I ordered that Deslee Pty Limited (ACN 006 489 103) be substituted as the name of the respondent. On 23 August 1994 the applicant's employment was terminated and she brought these proceedings seeking reinstatement to her position and reimbursement of remuneration lost.
The applicant's position was that she works three shifts of 6 hours per week from 7:00am until 1:00pm, Monday to Wednesday.
Circumstances Leading To Termination
At 8:00pm on 16 August 1994, a locum doctor attended a patient at the nursing home and prescribed an antibiotic drug for the patient who had inflammation. The nurse on duty did not order the drug during her shift. The shift ended at 10:00pm that evening. She handed the script to another nurse, Deputy Director of Nursing Elizabeth Bretherton, who took over from her.
At 7:00am on 17 August, the applicant came on duty and the Deputy Director handed over the patients to her. She also handed over the script with instructions to obtain it from a chemist at 9:00am. The applicant's version of the hand over was that the Deputy Director said that it was not urgent. The applicant attended to her duties that morning and at 1:00pm handed over to the Director of Nursing, Mrs A. De Silva. The applicant said that she indicated in the course of her hand over that a drug had been prescribed for the patient and it was in the book to be obtained from the chemist the next day under the usual procedures operating within the nursing home.
The Director's version was that she saw the prescription on the desk just as the applicant was leaving and queried why it had not been ordered. She then mentioned that the applicant had all morning to obtain the drug from the chemist and she could have made appropriate arrangements. The applicant went home. The drug was obtained and the first administered at about 4:00pm that day. Subsequently the Director spoke to Deputy Director and decided to seek an explanation as to why there had been a delay in obtaining the drug.
Her intention was to place it on file to ensure that this did not happen again. On 18 August she wrote an identical letter to each of the three nurses involved. The letter to the applicant reads:
“18/8/94
Sister E. Paule.
Please explain in writing why Augmentin which was ordered for Mrs Gilbert on 16 August 1994 before 10 pm, was not commenced until 4 pm of the 17 August 1994 when I took a handover at 1 pm and had to Stan (sic) to the chemist for it. Thank you.
A. De Silva
P.S. Especially when Mrs Gilbert's foot was diagnosed as "Dry Gangrene”.
A. De Silva.”
Her purpose, as I have indicated, was to obtain an explanation which could remain on file in the event that this matter was ever raised by any of the authorities checking the nursing home or she was required to give an explanation to the relatives of the patient. She was rightly concerned about the incident as she felt it was her duty to ensure that residents had the right to have medicine administered as soon as possible. She had a professional duty to those vulnerable people and obligations under the various regulations of the Health Commission. Her evidence on the seriousness with which she took these obligations was cogent and convincing.
The applicant next attended work on 22 August. On that day the Director's letter was waiting for her. Also on that day a book used by the nursing home for communication between the Director and staff contained an entry by the Director to the applicant requesting her to advise why a particular report in relation to patient movements had not been completed. The applicant was somewhat concerned in relation to this latter request because she had in fact completed the report.
In the course of that morning, the applicant prepared a response to the matter relating to the report on the patients. She added a postscript in relation to the request for a written report in relation to the drug that had been prescribed for Mrs Gilbert. At some stage in the morning the applicant had a conversation with the Director in which she literally threw the letter of response to her. That letter read:
“22 August 1994.
Dear Mrs A De Silva, DON.
Please explain to me in writing why are you asking me to write a report on the Marriott House visit? I have already than (sic) it on the same day at 11 am when they return - if you care to read properly. Please answer this today before 10 pm.
Thank you.
E. Paule.
P.S. Regarding the explanation you wanted, I have discussed it with you on the day.
E. Paule.”
The Director gave evidence that the applicant also told her that she did not intend to give a written report. The applicant denied this. The applicant claimed that on that morning, she also tried to hand to the Director another letter seeking an extension of time to give her written response. She never produced that letter and I reject her evidence that she ever did write such a letter or make such an approach. Later that morning, the Director called the applicant into her office and said to her that she was not happy with her attitude and her rude behaviour, that she had done this many times and this was the last straw.
The Director then offered her the choice of resignation or termination. The applicant conceded that this indeed was what happened in that conversation. The applicant attended at work the next morning. The Director gave evidence, which I accept, that on two occasions that morning she asked the applicant for her written response to her earlier request. The applicant's response was that you cannot talk to me unless my people, meaning the union, were there.
During the course of that morning there were some inconclusive discussions between the applicant and another nurse relating to the way that the Director had dealt with a matter involving that other nurse and comparing the applicant's treatment with the treatment dealt by the Director to the other nurse.
Shortly before the applicant was due to complete her shift, she was called to the Director's office and, in the presence of the Deputy Director, handed a letter of termination. The applicant refused to accept it but later returned and collected it. The letter also contained a cheque containing her entitlements. That letter gave the following reasons for her termination:
“This letter is formal notification of a termination of your services from McKinnon Nursing Home. The reasons for this decision are as follows:
·failure on your part to meet fully the care needs of a resident at the home resulting in that resident unnecessarily suffering pain and discomfort;
·failure to fulfil a requirement to provide a formal report on the incident as requested by myself;
·a general ongoing poor attitude to your responsibilities, fellow staff members, myself and the nursing home in general.”
The letter went on to refer to previous warnings and attempts to counsel. It concluded by saying:
“Therefore due to your disregard for the needs of this resident, rudeness and poor attitude I have come to the conclusion that I can no longer accept your services in a professional capacity in charge of our frail aged residents.
...
A. De Silva”
Previous Warnings
The applicant, on the evidence, had been the subject of two prior warnings in relation to her performance in the previous 2 years. In December 1993, shortly before she was due to take an extended holiday, she was invited to a meeting with the Director, the Deputy Director and a member of management, Robyn De Silva. The applicant claimed that the meeting was to collect her holiday pay. I reject this. She also claimed it was to discuss her coming into work at other times to complete paperwork. I reject this.
I accept the respondent's evidence that at that meeting a whole catalogue of previous incidents were discussed with the applicant. The Director gave evidence that the purpose of the meeting was to allow the applicant to commence with a clean slate when she came back from holidays if she changed her behaviour. The Director gave unchallenged evidence that she had made this offer to her on a number of occasions. At the end of the meeting, the applicant was handed a warning letter which she rejected. It read:
“SRN Eme Paule.
I am compelled to talk to you today regarding the topics that need attention.
Please regard this as a written warning and I expect to see a change and improvement when you return after your 6 weeks leave.
Yours faithfully, A. De Silva
16/12/1993.”
Second Warning
On 10 March 1994, there was a further meeting at which two aspects of the applicant's performance were discussed. She was given another warning letter which she rejected. That letter read:
“Sister E. Paul
Because of your repeated acts of insubordination which are supported by records from your personal file, I am compelled to give you this 2nd written warning.
A. De Silva
10/3/1994.”
The Director gave evidence that the applicant said that next time you call me in, “I want to have my people there”. The Director gave evidence that her performance subsequent to this warning was indifferent and slipshod although she did improve the extent of coming to some staff meetings. Evidence was led in relation to a further incident where there was a dispute between the parties.
Other Matters Of Evidence
Two other matters must be highlighted in the evidence before I consider the appropriate orders in this matter.
The first of these is the medical evidence in relation to the effect of the actions of the applicant in relation to the failure to order the drug for the patient. A general practitioner, Dr Stagg, gave evidence that the drug was an antibiotic and not a pain killer. He was the treating doctor for the patient although had not attended her on the occasion of 16 August. He gave evidence that the drug prescribed was not urgent and that the delay which occurred was reasonable. He further stated that delay would not be likely to make any difference to the condition of the patient.
The respondent's evidence was that it saw it as important to have the drug administered as soon as possible and that the failure to do this did cause increased pain and suffering to the patient. On this conflict of evidence, I prefer the evidence of Dr Stagg that the actions taken by the applicant did not objectively cause the patient additional suffering. I accept however the concern of the Director to ensure that the drug course which was prescribed was commenced as soon as possible, which was indeed what the Deputy Director told the applicant to do, on 17 August.
The applicant gave evidence that she had placed the script in an order book operated by the respondent which would have resulted in the script not being filled until the following day. I reject her evidence that she had done this. Had she in fact done this, I regard that as an unsatisfactory response given the direction to her by the Deputy Director.
A further matter in the evidence was the applicant's performance as a nurse. Dr Stagg gave evidence that from his observation, she was an exemplary employee.
His evidence was given on the basis of a limited exposure to her work performance but he did give evidence that he knew how to tell the difference between a good nurse and an indifferent nurse. It is unnecessary for me to make any finding in relation to the applicant's level of performance and I have some hesitation in accepting the evidence of Dr Stagg on this point due to his limited exposure to her in her ordinary day to day duties.
Compliance With Award Discipline Procedure
The applicant tendered in evidence an extract from the Nurses (Victorian Health Services) Award 1992 [Print N175] which provided for a disciplinary procedure.
That procedure required that a first warning would be verbal and recorded on the personal file. If the matter continued, there would be a second warning in writing. If the matter again continued there would be a final warning in writing. It made reference to the right of an employee to have union representation. The Director gave evidence that this disciplinary procedure was not complied with in that she had not been given a formal final warning. The Director's evidence was that she had read in a manual that in the event that two written warnings had been given, an employer was entitled to terminate in the event of a third occurrence.
I find that the procedure laid down by the Award has been breached in two ways. First, as I have indicated, no final warning was given. Further, after the warning on 10 March 1994, the second written warning, the applicant told the Director that at future meetings she wanted the union present. She also repeated that on 23 August. This was an indication that the applicant was seeking the protection of her award entitlements and on the respondent's own evidence, this was denied to her.
Assessment Of The Witnesses
I found the evidence of the applicant unsatisfactory and in cases where there is conflict between her evidence and that of the respondent, I prefer to accept the evidence of the respondent. A particular matter in her evidence was her claim as I have indicated to hand a letter of request to the Director, seeking an extension of time to reply to the request for a report. The applicant did not produce the letter and I reject her evidence on that point. I also reject her evidence that she had not been handed a written warning on 10 March 1994.
I also reject her evidence that a number of matters relating to her performance were not raised with her in the meeting of 16 December 1993. It follows that I accept the evidence of the respondent that there had been a number of prior verbal warnings to her about various aspects of her performance. I note however that the respondent, despite producing a volume of documents in relation to the medical records of the nursing home, has failed to produce any extracts from the applicant's personal file and I infer from this that in fact none of the verbal warnings that had been administered to the applicant, had been recorded on her file as alleged by the Director.
I found the Director an impressive witness who showed a genuine concern for the welfare of the patients at the hospital. As will emerge in these reasons, in her endeavours to protect the patients, she has transgressed the rights which are accorded to the applicant under the Industrial Relations Act (“the Act”). I was also impressed by the Deputy Director. In short, in my findings in relation to this matter I am content to rely on the evidence of the respondent in preference to any evidence given by the applicant.
Has There Been Compliance With Section 170DC Of The Act
The requirements of procedural fairness have been set out in cases such as Byrne v Australian National Airlines Limited (1994) 52 IR 10 and Nicolson v Heaven & Earth Gallery Pty Limited (1994) 126 ALR 233. The requirements of procedural fairness are flexible and must be applied in a commercial and industrial environment. They are real however, and as Wilcox CJ at 243 said in Nicolson, when discussing section 170DC of the Act:
“The paragraph does not require any particular formality but this does not mean that it is unimportant or capable of profunctory satisfaction. Section 170DC carries into Australian labour law a fundamental component of the concept known to lawyers as "natural justice" or, more recently "procedural fairness". The relevant principle is that a person should not exercise legal power over another, to that person's disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case. The principle is well established in public administrative law. It was accepted into international labour law when Article 7 was inserted in the Termination of Employment Convention. Section 170DC is directly modelled on Article 7. The principle is, I believe, well understood in the community. It represents part of what Australians call "a fair go". In the context of section 170DC it is not to be treated lightly. The employee is to be given the opportunity to defend himself or herself "against the allegations made"; that is, the particular allegations of misconduct or poor performance that are putting the employees job at risk. Section 170DC(a) is not satisfied by a mere exhortation to improve.”
In this case, I have already listed the reasons given to the applicant as justifying the termination. As to the first of the reasons, it is clear that on the respondent's own evidence, this particular matter was not put to the applicant before she was terminated. Indeed, it could not be properly put because it had not been fully investigated. A proper investigation of the allegation that she had failed to fully meet the care needs of the resident resulting in that resident unnecessarily suffering pain and suffering would need to have involved the doctor who prescribed the drug. This was not done.
The second ground on which the dismissal was made was also not formally put to the applicant. She did supply a response to the request by the Director, it was a profunctory response but it was a response. It was never put to her that the response was so inadequate as to justify her termination. It is also significant that the Director only sought the responses from the three nurses involved to place them on the file and I gained the impression from her evidence that the matter was not seen at the time as one of major importance.
Proper compliance with the rules of procedural fairness required that the matter be squarely put, in other words, rather than a request for the written report, the Director was required to say to the applicant, words to the effect that in the event that she did not comply it was to be treated seriously and could lead to a termination.
The final ground sought to be relied on by the respondent, an allegation of a general ongoing poor attitude, was also not put. At no time on 22nd or 23rd August, did the respondent put that directly to the applicant in order to invite her to give her explanation in relation to those matters or seek to exculpate herself.
The respondent had an adequate opportunity to calmly put the matters before the applicant to invite her response before it took the drastic action of seeking the resignation of one of the longest serving employees at the nursing home. The respondent sought to avoid the provisions of section 170DC by suggesting that this was a termination for serious and wilful misconduct and that therefore it was unnecessary for the respondent to put these matters, or it could not have been reasonably expected that the respondent give the applicant adequate opportunity to respond.
In relation to the first and third of the grounds, these are on their face, not characterised by the employer as wilful misconduct rather they go to performance. The respondent sought to argue that the first ground carried an implied breach of an order by the Deputy Director for the applicant to get the script that morning. I reject this and note that the incident was never characterised by the respondent as a failure to obey an order except in the course of these proceedings. It cannot now be relied on in that way.
The second ground, on its face, is a failure to obey an order, however the applicant has provided a written response, albeit one which was unsatisfactory. This makes it difficult to characterise the ground as one of termination for serious misconduct and as one justifying summary termination. The third ground was also never put; it was a catalogue of past matters which had not resulted in a threat to the employment at the time they occurred. For an employer to now seek to bring them up to justify a termination offends against the notions of fair play and is in breach of the requirements imposed by Parliament in section 170DC.
It follows that I also reject the argument of the respondent that it should be relieved of its obligations to comply with section 170DC because it was unreasonable to do so. While the applicant may have been a difficult and insubordinate employee, she had articulated her right to award and union protection. On its own evidence the respondent knew this and there were no operational requirements of the respondent to prevent the matter being dealt with in a procedurally fair manner.
It follows from this that I find that there has been a failure to comply with section 170DC of the Act and it is thus unnecessary for me to deal with whether or not there has been a breach of section 170DE of the Act.
Remedy
Having found a breach of section 170DC of the Act, it is now necessary for me to consider the issue of remedy. I refer to a recent decision of the Full Court of this court, Liddell v Lembke, (Industrial Relations Court of Australia, Wilcox CJ, Keely and Gray JJ, unreported, 3 November 1994) where at 41 when Wilcox CJ and Keely J were discussing the provisions of section 170DC and said this:
“A similar situation applies in relation to a termination in contravention of section 170DC, the procedural fairness provision of the Commonwealth Act. The effect of that section is that the dismissal of an employee in circumstances of procedural fairness is unlawful. If procedural unfairness is established, the employee may be reinstated, unless this is impracticable; and, if it is impracticable, may receive compensation instead. This is so even if the employee was guilty of conduct that would have entitled the employer, adopting proper procedures, to terminate the employment under section 170DE.”
So the effect of the decision in Liddell is that where there is a breach of section 170DC of the act, then the employee is entitled to a remedy under section 170EE. This is confirmed at 42 where the majority said:
“Because of these considerations and the fact that the Commonwealth Act makes a termination in violation of the requirements of section 170DC unlawful in itself, whatever the employees merits or lack of them, it would not be right to withhold a remedy for a breach of section 170DC because of considerations listed in section 170DE(1). They are factors that permit an employer acting fairly to terminate an employee's employment.” (emphasis in original)
Reappointment
It was argued by the respondent that reappointment pursuant to section 170EE was impracticable. The evidence showed that while the Director has reservations about the applicant's work performance, Dr Stagg gave evidence that he believed she was a good nurse. The court cannot avoid the evidence that she has been employed for some 8 years at that nursing home and is one of the longest serving employees there. Whilst there have been two prior written warnings, there is on the evidence no reason why the applicant could not satisfactorily perform her duties to the appropriate level in the event that the respondent follows proper procedures relating to her performance.
The case of Liddell (above) makes it clear that the discretion conferred in section 170EE is a confined discretion and a respondent has a heavy onus to prove the re-employment is impracticable. At 11 of his reasons in that decision, Gray J said that:
“Reinstatement is therefore required if it can be done. If the employer is still employing or able to employ someone to perform the same or similar tasks, then reinstatement will be practicable. Its practicability does not depend on notions of loss of confidence in the employee. Nor does it depend on the existence of grounds which would have justified termination but which were not relied on, because unknown to the employer at the time of the termination.”
It follows that the fact that another employee is doing the applicant's duties is insufficient because if it was sufficient it would allow employers to frustrate the clear intention of the legislature by replacing employees who have proceedings pending in the Court. A further factor which I must consider is that the applicant here seeks reinstatement and having found a breach of section 170DC, she is entitled to a remedy unless the respondent proves that the reappointment of her is impracticable.
Having considered all matters raised by the respondent, I am not satisfied that reappointment is impracticable and I propose to make such an order.
The question of payment of loss of remuneration is also a matter which I have considered. The evidence was that the applicant had been able to mitigate her losses by obtaining other work and that it is agreed between the parties that the losses that she has suffered after taking into account those other earnings come to a total of $6547.35. The applicant is, under section 170EE, in the event that she is reappointed, entitled to an order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination, and I intend to make such order.
It follows from this that I propose to order that the applicant be reappointed to her position and that the respondent pay to her the sum of $6547.35 loss of remuneration. I intend to make an order maintaining the continuity of her employment
Order Of The Court
The respondent reappoint the applicant to the position in which the applicant was employed immediately before her termination;
The respondent pay to the applicant the sum of $6547.35 being remuneration lost because of the termination;
The period from the date of termination to the present time be treated as one of continuous employment for all purposes.
I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment of Judicial Registrar Murphy as recorded in the draft transcript and revised by the Judicial Registrar.
Associate:
Dated:
Representatives for the Applicant:
Mr J. Clancy of the Health Services Union of Australia
Counsel for the Respondent:
Mr M. Rahilly
Dates of hearing:
1, 2, 3 March 1995
Date of Judgment:
3 March 1995
CATCHWORDS
INDUSTRIAL LAW - Termination of employment - failure to comply with warnings and directions - award discipline code - code not complied with - no final warning given - whether employee had opportunity to respond - requirements for compliance with s.170DC - remedy - whether reinstatement practicable.
Industrial Relations Act 1988, ss.170DC, 170DE and 170EE.
Byrne v Australian National Airlines Limited (1994) 52 IR 10
Nicolson v Heaven & Earth Gallery Pty Limited (1994) 126 ALR 233
Liddell v Lembke, (Industrial Relations Court of Australia, Wilcox CJ, Keely and Gray JJ, unreported, 3 November 1994)
MRS EME PAULE & HSUA-v- McKINNON HOUSE
NO. VI 1495 of 1994
Before: MURPHY JR
Place: MELBOURNE
Date: 3 MARCH 1994
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1495 of 1994
BETWEEN:
MRS EME PAULE & HSUA
Applicant
AND
McKINNON HOUSE
Respondent
MINUTES OF ORDER
3 March 1995 Judicial Registrar Murphy
THE COURT ORDERS THAT:
The respondent reappoint the applicant to the position in which the applicant was employed immediately before her termination;
The respondent pay to the applicant the sum of $6547.35 being remuneration lost because of the termination;
The period from the date of termination to date be treated as one of continuous employment for all purposes.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
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