Mrs Julianah Adewumi v Helping Hand Aged Care Inc
[2012] FWA 9080
•23 OCTOBER 2012
[2012] FWA 9080 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Julianah Adewumi
v
Helping Hand Aged Care Inc
(U2011/10471)
COMMISSIONER STEEL | ADELAIDE, 23 OCTOBER 2012 |
Termination of employment - Alleged serious misconduct.
Introduction
[1] This decision arises from an application by Ms Julianah Adewumi (the applicant) for an unfair dismissal remedy pursuant to s.387 of the Fair Work Act 2009 (the Act) in respect to the termination of her employment by Helping Hand Aged Care Inc (the respondent) on 20 July 2011.
[2] At the hearing of this matter the applicant was represented by Ms Clark of counsel and the respondent by Mr Bakewell and Ms Seidel of EMA Consulting Pty Ltd.
[3] The tribunal heard evidence from the applicant in person and her witnesses Ms Mordeline Nedziwe and the Reverend Pamela Aish. The respondent provided sworn evidence from Dr Zachariasz Baran, Ms Marcia Penn, Ms Lynette Rice, Mr Zijad Softic, Ms Amendeep Kaur, Ms Kulwinder Sandhu, Ms Merci Togba, Ms Alessandra Stewart and Mr Darren Young. The applicant also relied upon affidavits from Dr Harry Tan, Dr Tamrat Tifari and Mr Ray Lukowicz.
[4] The incidents giving rise to dismissal occurred some significant time ago and witnesses had difficulty with consistent recall of events but the tribunal found witnesses generally reliable except where it is noted.
Background
[5] The applicant is a registered nurse, and commenced employment with the respondent on 11 May 2009 initially on a two year contract as a permanent night shift supervisor at the aged care facility. She was suspended from employment on 13 July 2011 pending investigation of an allegation of misconduct in that she was alleged to have struck a resident. She was provided with detailed allegations by letter on 14 July 2011 and invited to a meeting to respond on 18 July 2011 with a support person. She attended and provided a written response to the respondent. A further meeting was held on 20 July 2011 where she was provided a letter of termination and dismissed. The applicant was terminated for serious and wilful misconduct.
[6] The applicant asserts her termination was unjust as she says she is not guilty of the allegation and that it was unreasonable from an objective view as there is insufficient evidence for the employer to sustain that the incident occurred. Also that the investigation of the matter was inadequate and she was denied the opportunity to respond to the evidence before her as her employer did not take all the usual steps .i.e. no written notice, meeting support person etc. Further the evidence was full of inconsistencies and the respondent gave weight to the evidence of a sole witness (Ms Sandhu). It is alleged that the respondent had filtered the response evidence of Ms Sandhu to fit the circumstances in that various inconsistencies existed and were not followed up indicating a limited approach to Ms Sandhu and her credibility.
[7] The respondent considered and identified the behaviour of the applicant amounted to “elder abuse” and the matter was reported to the police. The Police subsequently charged the applicant and investigated the matter in terms of the applicable law. These charges were ultimately not proceeded with by the Police.
[8] The respondent asserts that following an appropriate investigation they found on the balance of probabilities that the applicant was involved in “elder abuse” of a resident, that they honestly and genuinely believed such abuse occurred and it was reasonable and open for them to do so on the material and evidence available.
[9] Further that procedural fairness was afforded to the applicant and taking into account the evidence and the available eye witness account it was open to the employer to conclude and prefer that version of events other than the applicant’s version. The respondent’s case relies on this direct eye witness whose version of events the applicant asserts is a fabrication and a lie.
[10] The applicant and respondent both submit that if the tribunal finds the conduct occurred in the manner alleged that it would be grounds for dismissal. The applicant asserts that if it is found by this tribunal that the injuries to the resident were caused accidentally then that finding is not grounds for dismissal.
[11] Further both parties submit that the tribunal is required to make its own determination on the evidence as to the misconduct in question and referred to the case law of King v Freshmore (Vic) Pty Ltd. This is borne out is the judgement of Larkin C in Nguyen v Australia Postal Corporation where the Commissioner relevantly states:
“In King v. Freshmore the Full Bench outlined the role of the Commission in a consideration of a matter involving an employee’s conduct as a reason for termination of employment. The Full Bench stated:
When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.
The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.
...
As we have noted above, s.170CG(3)(a) obliges the Commission to make a finding as to whether there was a valid reason for the termination of employment. In circumstances where a reason for termination is based on the conduct of the employee the Commission must also determine whether the alleged conduct took place and what it involved.
On the authority of King v. Freshmore it is for the Commission to determine if the alleged conduct occurred.” 1 (Endnotes omitted)
The medical history and circumstance of the resident
[12] The applicant in this matter was dismissed for misconduct in that she is alleged to have caused injuries to a resident in her care by intentional physical contact e.g. striking or slapping the resident. The respondent provided evidence in regard to the resident’s health and circumstances and her alleged injuries from the following sources.
[13] Dr Tan is the resident’s current doctor. In the resident’s medical records he describes the resident as follows:
“The patient has a diagnosed brain injury with extensive brain damage affecting brain function and mobility. She has made little progress in recovery both mentally and physically and can be withdrawn, non compliant , restless, with physical outbursts as well as receptive and responsive to requests .she is keen on music .The patient is generally confined to a princess chair or bed and can move herself in a unique crab like motion. She is on various medications including those for hypertension, anti depression, tranquilisers and anti coagulants”.
[14] Dr Tan was not requested to examine the resident following her alleged assault in July 2011 and stated in his affidavit to the police dated 25 October 2011:
“I am not aware of the incident being investigated and had no part in the subsequent management.” 2
[15] The resident’s medical records available to the tribunal include “medical records,” “doctor’s notes” and “progress notes” for a period from 30 August 2004 to 23 September 2011. The tribunal has excluded the notes relevant to the alleged incident of 13 July 2011 to provide a reference to those events.
[16] The records indicate the resident is restless and active nocturnally with a repeated history of attempting to get out of her bed and also being successful in those efforts. “Attempting to get out of bed” is referred to numerous (more than 40) times in the documentation and those references indicate this is common behaviour of the resident, i.e. note 12 September 2008 refers to “12 times in the last 2 months” as to this behaviour. It is also noted that the facility in addition to its chemical management of the resident has lowered the resident’s bed to the lowest level, engaged the side containment rails and located sensors to assist them attempt to manage safely this night behaviour of the resident. The sensors provide an alarm indication that the resident is moving out of her bed or is moving in contact with the side containment rails.
[17] However despite such management the resident has consistently attempted to leave her bed by climbing over the side rails or otherwise and consistently succeeded in doing so.
[18] It is further noted that the records indicate in the period 14 January 2005 to 12 August 2010 the resident has had numerous “falls”, presumably incurred in her behaviour of successfully getting out of bed but being unable to sustain her own weight. 3 These recorded times are all of night incidence.
[19] The records also indicate that in addition to the above referred to “falls”, that at various times the resident has been found out of bed on the following occasions: On 21 February 2005; 12 September 2008 “found on floor”; 18 September 2008; 28 July 2010 “found on floor in dining room”; 21 August 2010 “found on floor in passage face down”; 9 September 2010 “found in dining room”; 20 October 2010 “found in dining room”; 5 November 2010 “found in princess chair”; 26 January 2011 “found on floor sitting in passage, considered a fall”; 8 February 2011”found on floor beside bed”; 6 April 2011 “found crawling in corridor”.
[20] These above activities of the resident have been recorded in the various available documents as associated with various injuries at times. However not all notes were intelligible to the tribunal. The notes that were indicate that on 14 January 2005 and 27 April 2005 the resident had a “fall hit head, no significant injury”; 22 September 2005 “rash on bottom from moving on carpet”; 16 November 2005 “review following fall trauma”; 12 May 2006 “review fall” 1/24 “soft tissue injury; 22 April 2008 “unwitnessed fall no significant injury”; 21 August 2010 “skin tear to hand following fall on 21/8/10 skin tear to L lower leg cause unknown“; 6 February 2011 “large facial bruise with localised swelling identified, cause unknown referral to ED RAH”; 9 February 2011 “found upside down with head on bed rail bruising to face.”
[21] From these records and the other evidence provided, the tribunal has concluded that the resident despite the efforts of the respondent, consistently attempts to get out of bed and commonly succeeds in doing so by her own means. She is however at risk of some trauma in doing so as she may come in contact with parts of the bed or invariably lands or slides onto the floor beside her bed due to her brain injury and resulting physical limitations and potentially, the effects of her medications. The resident commonly incurs some resultant injuries which may or may not be significant to be recorded by the respondent including bruising, skin tears and abrasions.
[22] The tribunal has considered the nature and the totality of the documentation and has concluded that it reflects that the resident has consistently received a significant level of care in the facility. Such care has been constant and difficult given the resident’s injuries and her resultant behavioural issues. The tribunal’s also concludes that the records also indicate they are not a comprehensive record of her nocturnal activities. They are not forensic records in that all activities and injuries may not have been recorded.
[23] The resident however has a record of injuries as a consequence, albeit generally minor lesions and bruises and some head traumas have been recorded.
[24] The tribunal is reinforced in this regard by the respondent’s practices of recording wounds. The evidence of Ms Penn is to the effect that a wound chart is not completed if there is no break apparent in the skin and therefore no dressing required.
[25] It is also apparent that the resident was not medically examined by a doctor after the events recorded in her history unless referred by the nursing staff. In this present matter the resident was for some reason not examined after the alleged events in question concerning the applicant by her doctor or any other medical practitioner. The evidence is that the respondent’s staff took photographs of the alleged injuries at 7.30 am and 10.00 am. 4 It is not clear when in fact she was subsequently examined by her doctor.
[26] On the night in question the resident was given a sedative by Mr Softic and a further sedative by the applicant. However from the evidence she did not settle and become passive until much later in the shift when she was hydrated by the applicant at which time it seems she did settle down such that she did not agitate to leave her bed. The Tribunal has concluded therefore that the resident was active in her usual behaviours at various times on the previous shift and on the shift in question in this matter.
Dr Baran’s evidence
[27] Dr Baran is a General Practitioner working predominately in the area of aged and palliative care and consults to fifteen such facilities. Dr Baran is not the resident’s physician and did not examine the resident but had reviewed various above-mentioned photographs of the patient and provided a witness statement for the assistance of the respondent’s case. 5
[28] Dr Baran’s witness statement included the following:
“The resident has been prescribed Warfarin. Warfarin is used as a blood thinner to prevent thrombosis (clotting).
...
The effect of Warfarin is to prolong the bleeding time. The mechanism of action on Warfarin is to delay the natural clotting mechanisms of the body. For this reason, excessive bruising and bleeding is commonly observed with any level of trauma of the body.
...
Elderly people have weakened connective tissue, which includes capillaries and blood vessels and hence are more prone to bruising and bleeding regardless of whether they are on Warfarin.
...
As a result of age, people are prone to fragile blood vessels and hence bleeding. The bleeding time is exacerbated by the Warfarin, which will increase the size of bruising when trauma to blood vessels occurs. The degree of trauma is directly proportional to the level of force.”
[29] Dr Baran’s evidence in relation to the photographs of the resident and her alleged injuries states:
“On the arm there is very poor subcutaneous tissue quality and support. Therefore there will be more capillary traction trauma than on the face where the skin is more firmly supported.
The bruising on the resident’s arm has occurred sooner and more extensively due to the looseness of the skin over the underlying tissues. It is therefore more prone to a sheering injury to the blood vessels. This nature of the resident’s injury on her left arm is consistent with someone pulling the skin while the person being pulled is resisting. The blood vessels on the arm have been torn as distinct from the blood trauma on the face where the blood vessels would have leaked due to a compression injury, which is also a deeper injury than the superficial blood vessels on the arm.
...
The bruising of the resident’s face that I observed from the photograph taken at 1000 is consistent with a person being hit at approximately 0145 that morning. It would be reasonable for a bruise to manifest itself some eight (8) hours after the event.”
[30] Dr Baran in cross-examination stated:
“So the timing of a bruise in an elderly person will vary significantly depending on the nutritional status of that person and other medical factors.” 6
[31] He amended the above duration such that he agreed with counsel that the facial bruise in question might have taken longer (10 or 12 hours) dependant on multi factorial propositions as to the characteristics of the resident.
[32] Further, in his statement, Dr Baran comments:
“The injury on the Resident’s cheek is a deeper bleed because there is more supporting tissue under the skin. As the trauma occurred in a deeper structure it therefore takes longer to manifest itself as a bruise on the surface. The bruising on the Resident’s face will therefore occur later and to a lesser degree than the injury on the arm.”
[33] Again in cross-examination the doctor states:
“I would say that consistent with my statement bruising on the face takes a lot longer to occur than on loose tissue such as on the forearms or hands because of the connective tissues, the substrate under the skin, is much firmer and is less prone to trauma than loose skin. So the timing will be considerably longer than bruising, for example, on the forearms. That window could be anywhere from four to 12 hours.” 7
[34] Then in his statement:
“In my opinion, the red marks identified on the Resident’s face are consistent with a hand print. It appears that there are two (2) linear bruises on the Resident’s right cheek consistent with a finger separation.”
[35] In regard to a facial bruise reported but not described on the resident’s medical records of 7 February 2011 Dr Baran concluded:
“This means that the bruise was not spontaneous and it would have been associated with physical trauma.” 8
[36] In regard to the wound or bruise on the resident’s hand, 9 Dr Baran indicated the quality of the photograph was not good enough such that he was unable to determine a date or timing of the age of that bruise. In addition he could see no evidence of a scab on that hand wound.
[37] In regard to the marks on the forearm under cross-examination from Ms Clark the doctor’s opinion was:
“Ms Clark: Is the photograph clear enough for you to give an opinion about the age of those marks?
Dr Baran: I think the only opinion I can give is that those bruises are less than three days old.
Ms Clark: Less than three days old - you’re referring to the ones on the forearm now rather than the - - -?
Dr Baran: I think all of those - - -
Ms Clark: All of them?
Dr Baran: All of those bruises. The quality of these photographs does not allow me to determine how fresh those wounds are. There is no evidence of discolouration of these bruises. In other words, they are not dark blue. There’s no green or yellow apparent from these injuries so these are relatively fresh bruises. They are not bruises that are in the time span of partial resolution. They’re fairly recent bruises.” 10
[38] Under further cross-examination the doctor also asserted that:
“The photographs I have in front of me are consistent with a non-accidental injury.
...
The facial injuries are not consistent with the resident injuring herself.
...
... the photographs that I have in front of me are not consistent with any bedrail injury.
...
My evidence was that for the injuries that I see in front of me on these photographs, these are not consistent with a patient having contact with a bedrail in a reclining or upside-down position or any position lying down.” 11
[39] Further:
“It is difficult to understand how that could be the cause of a single bedrail.
...
...the injury is wider towards the front of the face than the back of the face.” 12
[40] Dr Baran confirmed that because of the orientation of the facial bruises and if a hand were responsible for those injuries, that such hand is likely to have been orientated from the right side of the patient and from the back of the patient across her face towards her left side, with the fingers of the hand leading the hand movement.
[41] In this respect the witness emphasised he was providing an opinion as to what he saw as the evidence before him and that there was a difficulty in that there was a reliance on “photographic evidence which is not as clear as one would need to be able to be more definitive.” 13 It was not impossible the injuries could have been caused by such actions of the applicant as alleged by the respondent. In that sense that it was possible the injury to the face could have occurred from a slap with the left hand to the patient’s left side (face) as asserted by the respondent. That is, form the resident’s front.
Mr Softic’s evidence
[42] Mr Softic is a nurse with the respondent and was the handover nurse to the applicant. He has experience and knowledge of the resident but could not confirm the resident had two medication management charts. He confirmed that all medications to be administered have the patient or resident’s name on them.
[43] The witness confirmed the resident is frequently restless and can move out of her bed. On the night in question he does not recall any injuries, marks or ‘steri-strip dressings’ on the resident during his shift and confirms that there is no record of such matters in the resident’s progress notes. He accepts he may have missed such marks or bruises if the resident’s clothing covered them. He states that in regard to the photographs there were no such markings or bruising on the resident when he observed her during the shift. The witness indicated that if he were to record the injuries observable in the photographs 14 ,he would record separate documentation for the wound on the wrist and the upper aspects of the forearm.
[44] Mr Softic administered Valium as a sedative to the resident at 10.00 pm to settle her as she was on his shift unsettled and trying to get out of bed and noted this required monitoring and asked the applicant to monitor its effect on the resident at handover. 15
Findings as to context of the resident’s medical history
[45] From all the material provided, the tribunal concludes that the resident in question habitually was restless nocturnally and left her bed on a regular basis. Despite the containment strategies of the respondent, that activity resulted in occasions where she was found out of bed and in different areas and in different postures. A number of these occasions were recorded as ‘falls’ and were associated with the identification of various injuries at times generally not recorded as significant or possibly not recorded at all in her records as they may have been considered superficial or not observed by the respondent’s staff.
[46] On various occasions the resident suffered some recorded trauma as a consequence. It is also apparent that the resident incurred some bruising from her activities and such bruising appeared sometime after the events.
[47] The resident was photographed at 10.00 am and facial bruising was evident. From the medical evidence, this can take between 8-12 hours to become apparent. The skin tear and bruising on hand and forearms were photographed at 7.30 am. From the evidence this can take between 4-12 hours to be apparent. Thus the incident(s) in question could have occurred within those spans and thus potentially between 10.00 pm (the previous shift) to 2.00 am for facial bruising and 7.30pm the previous shift to 3.30 am for the others. Thus the possibility of an injury being incurred by some activity of the resident on the previous shift arises. However it would depend on when the bruising was apparent to the respondent relative to the timing of the photographs, .i.e. were the photos taken as soon as the bruising was apparent? The respondent says the face bruises were not evident at 8.00 am but did appear between 8.00 am and 10.00 am. Hence a span of from 8.00 pm the previous shift to midnight is also possible. From the evidence in this matter there was a wound and marks to the resident’s arms apparent before 3.00 am. This is consistent, according to Dr Baran’s evidence, with the bruising or marks on the arms being apparent before the facial bruising became apparent.
[48] In consideration of the evidence the tribunal finds that the bruising on the face and arms could have occurred by events that happened before the applicant’s shift or within the applicant’s shift.
[49] In consideration of the opinion evidence of Dr Baran as to the injuries on the resident being inconsistent with accidental causation and some being consistent with a hand contact to the face, the tribunal does not accept the doctor’s evidence, save that it is possible the injuries to the face could have been caused by a hand slap or strike to the face. The history of the resident is persuasive that she unfortunately is capable of self injury in her environment. Further, some of the bruises or marks on the resident, if caused by the actions of a person at approximately 2.00 am, were seemingly apparent on the resident’s arm before 3.00 am, which is a short time frame compared to the suggested time frames of the evidence in respect to possible time for bruising to become observed on the resident.
Submissions and relevant evidence
The applicant
[50] The applicant asserts that the respondent must sustain to the tribunal that the alleged misconduct by the applicant of elder abuse did occur and that they have failed to evidentiary onus to do so in this matter. That it was entirely plausible that the resident caused the injury to herself accidentally by her habitual efforts to get out of bed or that it may have been as a result of the applicant wrenching her arm away from the resident as she described and causing an existing wound to bleed. Accordingly if it was accidental or self inflicted by the resident those are not grounds for a misconduct dismissal.
[51] The applicant on the 13 July 2011 shift received a handover from Mr Softic. Mr Softic gave evidence that he did not observe or record any injuries on the resident. The applicant did not participate on the first room check of the residents on the shift but initially attended the resident at about 1.30 am in response to the motion sensor alarm. 16
[52] The applicant found the resident with her legs “hanging between the rails” on the right hand side of the bed. No fabric rail-cover was in place on that side but a cover was on the left side. 17 The resident was in a “totally awkward position, nearly falling off”18 with her back arched and holding on to the rails with her hands. The applicant put the resident’s feet back in the bed and covered her with a sheet or blanket and went to the nurse’s station to seek assistance from Ms Sandhu or Ms Togba to reposition the resident.
[53] The applicant in the company of Ms Togba and Ms Sandhu at the nurses’ station asked Ms Sandhu to assist her and asserts that Ms Sandhu refused by saying “no” and further, that the resident “could move herself”. 19 The applicant repeated her request and persuaded Ms Sandhu by some insistence, that they come to assist her.20 The applicant says Ms Sandhu said at this time “she can move herself as a punishment”, to which the applicant said “That’s not nice” and “It wouldn’t be funny if I reported your statement.”21. The applicant later asserts this threat of a report is motivation for the later actions of Ms Sandhu.
[54] The applicant and Ms Sandhu attended the resident. The applicant alleges Ms Sandhu talked to the patient and repeatedly asked her to move back up the bed at some time stating “If you can move yourself out of bed you have to go back as your punishment now.” 22 Ms Sandhu then used the remote to tilt the bed down and the resident moved herself back up the bed. The applicant then said to Ms Sandhu “you know this resident very well.”23 All three then left the room.
[55] The applicant then responded again to the resident’s alarm a short time later and found the resident agitated. The resident refused an offered drink and the applicant having assessed her condition returned to the nurse’s station to inspect her records as to her bowel chart and medication record. The applicant identified the resident had been given Valium on the previous shift. Mr Softic’s evidence is that he mentioned this at handover. The applicant recorded that the Valium had not effective and she then administered another medication Risperdal. 24. This was in the progress notes recorded by the applicant at 3.00 am to have been administered at the time of 1.40 am. The applicant had no physical contact with the resident on this occasion.
[56] Shortly thereafter the resident’s alarm activated again and the applicant attended the resident’s room. The resident was again apparently trying to get out of bed. The applicant was on the resident’s left side and attempted to calm her by conversing with her. The resident was pointing at the applicant with her hand. The applicant then held the resident’s hand while she was speaking to her. 25 The resident then grabbed the applicant’s right wrist causing some pain to a previous injury location. The applicant wrenched her wrist away from the resident’s grip but can’t recall what she said at that time to the resident. The applicant asserts that the resident was wearing a long sleeved nightgown at that time.
[57] Ms Sandhu was in attendance in the room and the applicant asked her to assist with checking the comfort of the resident and changing her pad. Ms Sandhu pointed out that the resident was bleeding. The applicant says this bleeding was from an old scar or bruise on her right hand and was a pinhead, was tiny and superficial. The applicant went to the treatment room and brought a dressing solution back and cleaned the wound. She observed at this time when she moved the sleeves of the resident’s nightgown some bruises on the left arm including a skin tear covered by a steri-strip. She asked Ms Sandhu had she seen these before to which Ms Sandhu replied that “no, they did not touch her.” The applicant also says she observed a bit of a rash on the resident’s right side of face to which she applied sorbolene cream.
[58] The applicant then proceeded to prepare a drink for the resident and the resident consumed 2.5 cups of fluid and then settled. The applicant completed her progress notes on the resident. Ms Sandhu then went on her break.
[59] The applicant was called to a meeting at 8.00 am by the respondent and requested to provide an overview of the occurrences of the shift. She was not offered a support person at this time. She was advised that an allegation had been made against her by a staff member concerning the resident. The applicant gave her version of events: that the resident would not settle; the comments of Ms Sandhu about the resident; and she was questioned as to her management of the resident. She was suspended with pay pending an investigation.
[60] The applicant received various documents from the respondent being a Notification of Allegations and Suspension with Pay of 13 July 2011 regarding an investigation of serious misconduct against the applicant. 26 A follow up document of 14 July 201127 articulated the allegations against her. The allegations were as follows:
“On Wednesday 13th of July 2011 at approximately 1:45 am in resident X’s room it is alleged that:
1. You repeatedly yelled ‘don’t you point at me’ at resident X and slapped her left arm when she was pointing her middle and index finger at you.
2. You then slapped X across her cheek four (4) or five (5) times in rapid succession after X responded by saying ‘bitch’ to you
3. You then held her arms across her chest using your right arm and that you used your left hand to continue slapping her left arm and hand. This action had caused bleeding and skin tears on X’s left forearm.
4. You said to X that you were “not sorry” after the alleged incident and that she had ‘caused the injuries to herself’.” (Note: Resident’s name withheld from publication)
[61] The applicant was warned as to the consequences if this behaviour was found to have occurred and that if so it would be serious misconduct and ‘elder abuse’ and may result in termination of employment. The applicant was requested to respond to the allegations and provide a response either written or orally at a meeting on 18 July 2011 with a support person. The applicant was not made aware of who had made these allegations against her or provided with the statements from such persons.
[62] The applicant provided a written response dated 18 July 2011 28 and attended the meeting with a support person. At this investigatory meeting the applicant was shown the evidence photographs of the resident. Discussion in this meeting did not resolve the allegations of the respondent. The applicant denied the allegations and provided information as to the resident grabbing her wrist. The applicant could not provide an explanation for the skin tears on the resident’s forearm and indicated she thought they looked like old scars. She did suggest that they may have been self inflicted by the resident’s own actions. The applicant sought the respondent provide her with the statement of her accusers, however this was not provided. The tribunal considers that the applicant did indicate in her written response that she thought her accuser was ‘unscrupulous” and that Ms Sandhu may be prejudiced against her because the applicant could have reported her for her refusal to assist on the shift.
[63] The applicant attended a further meeting on 20 July 2011 in which she was provided with a letter of termination in employment for serious misconduct. 29 That letter confirmed the respondent had concluded on the balance of probabilities that the applicant had behaved as in the four allegations. That her actions were serious and wilful misconduct and that she was to be dismissed effectively immediately.
[64] The applicant was later charged with assault by the police and proceedings were instituted in the Magistrates Court but the prosecution ultimately entered a no plea and they were dismissed with costs.
[65] The applicant submits that the injuries sustained by the resident could have been incurred accidentally by the applicant wrenching her hand away or by the resident’s own activities in attempting to get out of bed. That the resident had grabbed the applicant’s wrist which she had pulled from her grasp which may have caused the bleeding noticed by Ms Sandhu thereafter.
[66] The applicant submits that the version of events given by Ms Sandhu should be rejected because of the many inconsistencies in her accounts given to her employer, the police and in these proceedings. Also that Ms Sandhu has an English language issue and she was hesitant in what she could observe of the critical events in question. Furthermore, that she lied because of the reprimand from the applicant or that she misinterpreted the events, in that she saw the resident struggling with the applicant and thought it was elder abuse. The applicant asserts Ms Sandhu was afraid that she may get in trouble over the reporting of the incident and in that respect she may not be a credible witness.
[67] The respondent has relied upon Ms Sandhu’s testimony despite many inconsistencies and placed a significant weight on inconsistencies in the applicant’s testimony. The applicant refers to the evidence of Ms Sandhu in regard to different references to arm or hand being injured, whether it was a left or right arm or hand, whether one cheek or both were slapped, whether arms or hands were hit, her statement to police that she cleaned the wound and that she did not return to the resident’s room, she was now unsure as to what hand the applicant used. The applicant asserts these inconsistencies should not be ignored and the witness not relied upon. Similarly witness Ms Togba should not be relied upon as she had no initial record of interview as to the events in question and it is unrealistic to suggest she can recall so long after the events.
[68] The applicant further asserts that the disharmony between the applicant and Ms Sandhu because of the potential reprimand was disregarded or not considered sufficient to create disharmony.
[69] Lastly the applicant could not provide a definite answer to how the resident’s injuries occurred and in the circumstances it was unrealistic to expect a definitive explanation for such. Without the version given by Ms Sandhu there is no evidence of any actions that caused the injuries to the resident. The respondent has failed to consider an ulterior motivation of Ms Sandhu.
[70] In regard to procedural fairness the applicant asserts that to have a meeting after the shift without warnings and representation was an incorrect procedure and that the interview notes of Ms Rice and Ms Penn were inadequate as it was a 45 minute meeting and the evidence is that recall of the conversation was limited and vague.
[71] Further, the photographs relied upon were taken by a non-professional and are not clear and difficult to use. They should not be relied upon as a basis of evidence of serious misconduct. Hence the employer did not have a valid reason for dismissal and hence it was unjust.
[72] Further the issue of administration of the drug Risperdal should not be relied upon because of a lack of evidence. Similarly the former disciplinary record of the applicant should not be relied upon as she was dismissed for elder abuse only. The issue of the nightdress being a short or long sleeve version was not resolved in evidence and the resident was arranged for the photographs. Similarly the issue of the bedcovers was not resolved and the existence of “steri-strips” was also not fully resolved. The applicant asserts the record keeping evidenced was not perfect in this regard, illustrated by the existence of one wound chart but reference to two wounds.
[73] The applicant asserts that her confusion on the issue of the resident pointing at her which arose in direct testimony had been sufficiently explained by the applicant.
The respondent
[74] The respondent’s allegations of elder abuse and their case in defence of the dismissal of the applicant rests predominately on the report and complaint from the employee Ms Sandhu to the respondent made towards the end of the shift in question.
[75] Ms Sandhu’s evidence includes the following: the resident constantly endeavours to get out of bed on night shift and is usually quite unsettled. For that reason the resident apparently is not checked in the first round of bed checks by the staff unless she is awake. It is apparent she was not checked on this shift at that time. Ms Sandhu confirms that the applicant requested her assistance to move the resident back up her bed and settle her about 1.45 am. Ms Sandhu denies she made any remarks to the resident as to the resident moving herself as a punishment and nor did the applicant reprimand her in anyway. She also denies using the bed remote at this time.
[76] Ms Sandhu made a handwritten report on the shift in question for the respondent that states:
“X (resident’s name) started pointing her finger at her. She (Juliana) started hitting her. She slapped on X’s face 4 or 5 times very forcefully then she hit on her hands and arms. She (X) got a skin tear on her (right) arm. She was yelling at her saying “don’t you dare point your finger at me.” 30
[77] In a more extensive witness statement completed sometime after the event and after various statements to the police, Ms Sandhu’s version of events indicates, that on a subsequent visit to the resident’s room on the shift, she walked in after the applicant and stood behind her and asserts that it was apparent the resident was upset with the applicant. Ms Sandhu did not see the resident grab the applicant’s wrist with her left hand or the applicant wrench her wrist away as asserted by the applicant. Ms Sandhu did observe the resident hold her right hand up and point with the middle and index finger at the applicant and was trying to say something to the applicant.
[78] The applicant then grabbed the resident’s hand saying “don’t point at me”. The resident yelled out” bitch” and then pointed again with her hand at the applicant. The applicant then held the resident’s arms across her chest with her right hand. Ms Sandhu says the resident was in apparent discomfort.
[79] Ms Sandhu asserts the applicant then slapped the resident across the face with her left hand and randomly hit the resident at least 4-5 times across the resident’s arms. Ms Saundu says she was horrified and observed the resident was attempting to fight back or resist being hit. She then interjected and pushed the applicant away and asked her to ‘please stop”. Ms Sandhu pointed to the resident’s arm which was bleeding and said “look what you have done.” The applicant moved back and Ms Sandhu apologised to the resident. The applicant allegedly said “I’m not sorry.”
[80] Ms Sandhu says she stayed with the resident but did not clean her injury. It was now 1.55 am. Ms Sandhu thought the skin tear was a new injury as she had not observed any such injury prior to the accident. She then went on a break when she was sure the resident was settled.
[81] Ms Sandhu asserts she was scared and upset and did not know what to do. When she exited the room she alleges the applicant approached her and said, ’I’m sorry Kulwinder. When I get angry I don’t know what I’m doing.”
[82] Ms Sandhu then went to see her sister Ms Kaur and colleague Ms Sharma and told them what happened. Her sister at that time advised her against reporting the matter. Ms Sandhu says she was disturbed for the rest of the shift and did not visit the resident’s room again until 3.30 am with her sister to show her the injuries. She called in on the resident again at 4.30 am and she was awake but otherwise settled. Ms Sandhu told Ms Pam Perkins (Personal Care Worker) of the events that morning at 7.00 am and then Ms Rice and was asked by Ms Rice to complete the hand-written report document referred to above at approximately 7.00 am.
[83] Ms Sandhu asserts that she was not aware of any scab covering a sore on the resident’s hand previously, that she does not recall any conversation with the applicant about changing the resident’s pad or the issue of her nightgown sleeves covering steri-strips or marks on the resident’s arm.
[84] Ms Togba’s evidence is that she did not hear Ms Sandhu respond at the nurse’s station to the applicant by refusing to help or saying that the resident should move by herself as a punishment. She confirms that the applicant and Ms Sandhu attended the resident, that she was in the room at that time and observed the resident moving herself up the bed by herself encouraged by Ms Sandhu. Ms Togba cannot remember Ms Sandhu operating the bed remote to lower the back of the bed and assist the resident.
[85] Ms Kaur’s witness statement was completed only in the few months before the hearing. She confirmed in evidence that she was not interviewed previously by the respondent. Ms Kaur confirms she went with Ms Sandhu to view the resident at 3.30 am and that she observed some marks on the resident’s cheek and neck area and a skin tear on an arm. She also confirms that she was scared for her sister at first but after observing the resident she told her sister the incident should be reported to Ms Rice. Further she confirms that Ms Sandhu was afraid and upset at about 2.00 am on her break as, “she was trembling” and that Ms Sandhu explained at that time that the applicant had hit the resident. Ms Kaur confirms that Ms Sandhu was upset and scared for the balance of the shift and upset over what had happened.
[86] Ms Sharma is an enrolled nurse at the facility and provided witness evidence. She confirms that Ms Sandhu approached her and Ms Kaur at about 2.00 am and was “scared, shaken and upset.” Ms Sandhu then told her that the applicant had hit the resident, that she was very afraid and did not want to go back to the ward. Ms Sharma encouraged Ms Sandhu to report the matter and supported her to do so, to which Ms Sandhu agreed. Ms Sharma confirmed that she had been asked about this incident by the respondent just after it happened but had only completed a statement recently.
[87] The applicant was called to a meeting after her shift ended at 8.00 am with Ms Penn and Ms Rice and asked about the apparent bruising to the resident and the receipt of a report from a staff member regarding her behaviour towards the resident on the previous shift. The applicant was not advised of the complainant or given the written complaint concerning her alleged behaviour at this time. However it was clear to the applicant that the respondent was investigating a case of elder abuse of a resident allegedly by the applicant and that it was a serious matter for the applicant.
[88] In that meeting the applicant provided to the respondent an overview of what had occurred overnight. In these comments she indicated that Ms Sandhu had stated the resident could move herself up the bed as punishment for getting out of bed. That on an occasion the resident had grabbed her wrist and would not let go and had pointed at her. The applicant stated that she had said to the resident “if you break my hand I will sue you”.
[89] It was put to the applicant the allegation she had slapped or hit the resident to which she replied that “It is a lie”. Further the respondent’s notes and witness statements indicate that the applicant said that she had told Ms Sandhu that the resident had slapped her (Juliana).
[90] When asked to give an explanation for the marks or scratches on the residents arm the applicant did not know but suggested they were caused by the resident struggling with her as she tried to put her back in bed.
[91] The applicant was suspended on pay pending an investigation and would be advised of further meeting requirements.
[92] From the evidence the allegation of finger pointing by the resident at the applicant provided some difficulty to the applicant as to recall of the event but ultimately the applicant asserted it did occur and that it did not insult her or upset her in any way. The respondent asserts that the applicant ultimately changed to the view it happened. Ms Sandhu’s evidence is that it happened and the respondent asserts the applicant’s ambivalence goes to motivation by the applicant, that is, her concern at the elder abuse charges.
[93] With regard to the Risperdal drug issue the applicant admits to the administration of this drug to the resident. The respondent alleges that the medication records of the resident do not contain any doctor’s prescription approval for the administration of this drug to the resident. The applicant claims that there is in existence a further medication chart that was not provided or discovered in this matter which provides a prescription of this drug. The respondent has asserted that the applicant has administered this drug on two occasions to the resident seemingly without approval. However for the purposes of this matter this would not in itself be grounds for a dismissal and was only identified during the proceedings. The evidence on this matter was not exhausted by the parties.
[94] The respondent’s submissions assert that there were no injuries to the resident at the start of the shift enlivened by the evidence of Mr Softic, Ms Sandhu and the applicant. Further they deny that there were any old injuries present on the resident as claimed by the applicant and that the sleeves of the resident’s nightgown could not have obscured or hidden them as they were not long sleeved. The applicant has given evidence that the injuries may have been old injuries or were sustained while struggling in bed, or when she wrenched her arm away from the resident’s grip. The respondent asserts this never happened and it would be impossible to sustain such an injury to the resident in this scenario. The applicant asserts that the bleeding hand injury is an old scar but the evidence is that it is recent bruising. The facial marks the applicant says are a rash but did not record the rash in any case. Her progress notes do not refer to a rash, not to her wrist being grabbed, nor the events with Ms Sandhu, nor the pointing issues. The respondent asserts the applicant avoided the truth of the events.
[95] Given that Ms Sandhu says the applicant slapped the resident several times and she refutes that the applicant reprimanded her and that she did not refuse at anytime to assist the resident, the respondent had to consider in this matter who was telling the truth and such questions as, why would Ms Sandhu lie about the events? What are her motives?
[96] Ms Sandhu states there was no refusal, no improper comments, and no threat to reprimand. After the events she then counselled with two other people contemporaneously that she was upset at the events. These two witnesses (Ms Kaur and Ms Togba) and Ms Sandhu have provided evidence which has not been eroded by cross-examination in this matter.
[97] The respondent considered the inconsistencies in both the applicant’s and Ms Sandhu’s version of events. There are inconsistencies in Ms Sandhu’s statements to the police and some matters of detail. The respondent considered such inconsistencies and the context in which the statements were made as it was an upsetting issue for all concerned and took such into account in their considerations as to the events in question. They further took into account the absence of any injuries on the resident at the start of the shift and the injuries identified in this matter. The ambivalence of the applicant to the pointing issue. The lack of explanation of the injuries. The version of the wrist grabbing by the resident. The lack of progress notes on these issues and most importantly that Ms Sandhu has held to her evidence. She is the eye witness and observed the applicant strike a resident, she was affected and scared, she reported the matter and her credibility is now challenged. The applicant says she is a liar and also that Ms Togba is a liar. However in that challenge no alternative or adequate motivation or reason for such evidence has been provided. The assertion was that the eye witness Ms Sandhu was a liar but no evidence of fabrication has been provided. The respondent asserts the evidence on the balance of probabilities provides a valid reason for dismissal pursuant to s.387 of the Act.
[98] The respondent asserts that in terms of procedural fairness the applicant was informed as soon as possible of the allegations and in the formal interview was given a support person. She took the opportunity to provide a written response to the allegations provided and an interview. That she had a comprehensive opportunity to put her version of events. That a proper investigation was carried out, with re-enactments attempted and all allegations were put to the applicant. That it is irrelevant to this matter that the police did not proceed against the applicant.
Consideration
[99] The tribunal has had regard to all the evidence provided in this matter and the demeanour and consistency of witnesses and the asserted facts and the ultimate probability of the events in question.
[100] In terms of the principal witnesses the tribunal found the applicant to be a serious and mature individual, generally proficient in the English language but subject to some confusion with her words and expression. She had difficulty with recall at times, some of which was attributable to the passage of time in this matter. However her evidence in respect to the issue of pointing and her answers at time indicated some confusion and gave an impression of a cautious applicant seeking to avoid controversy. She clearly understood the seriousness of the allegations against her at all times.
[101] Ms Sandhu was a direct witness who was careful in her expression and who had also gave an impression of some limitation in terms of proficiency with the English language. The witness indicated freely her confusion conceptually at times with accurate anatomy as to left or right, hands or arms, slaps or strikes etc. Recall of events and facts was an issue at times but she was responsive and committed to her testimony.
[102] Given all the evidence the tribunal has concluded that the injuries recorded on the resident in this matter with the one exception of the bleeding skin tear, cannot be proven to have resulted directly from any physical act of the applicant slapping or hitting the resident. They could have resulted from events which transpired within a significant time span to the events in question including the habitual behaviour of the resident seeking to exit her bed and her movements in her bed. The evidence indicates that she was unsettled prior to the shift in question and for a significant time within the shift. The resident has a history of self inflicted injuries notably bruising from her nocturnal activities. Further the respondent’s record keeping of such injuries and their causation is pragmatic rather than accurate and hence some injuries may be of earlier origin.
[103] The various bruises and marks to the arms are considered recent, (within 4-12 hours according to Dr Baran) and may have occurred in various ways but a definitive explanation is not available. The asserted facial bruising which could be apparent between 8-12 hours after incidence (according to Dr Baran) was observed between 8.00 am and 10.00 am and could have occurred as claimed by the respondent or earlier. The timing for such bruises to be apparent is further dependant on a number of factorial matters such as the physiology of the resident and the nature of the drugs administered to her such as Warfarin.
[104] The bleeding of a skin tear on the lower arm or hand is an exception and this injury is recorded to have been identified at a specific time and in some altercation with the patient and the applicant. The parties significantly differ in the nature of that incident, the applicant asserts it may have been accidental when the resident grabbed her wrist, the respondent asserts it was malicious. The tribunal finds it occurred on the shift in question and was related to the altercation with the applicant.
Was there a valid reason for dismissal?
[105] I have considered the evidence in this matter and have concluded that the evidence is sufficient to establish to the tribunal’s satisfaction that the applicant was involved in serious misconduct and hence there was valid reason for dismissal of the applicant.
The applicant was involved in serious misconduct in that she hit or slapped, or both, a resident in her care. Such behaviour caused a skin tear to bleed. The evidence is sustainable and provided by the evidence and eye witness account of Ms Sandhu and the contemporaneous reference evidence by two other witnesses. The tribunal finds the applicant reacted to the resident who seemed to be upset with her. She grabbed the resident’s hand that was pointing at her. She held the resident’s arms down and she struck the resident with her hand (slap or otherwise) on the arms, hand and face. The number of strikes by the applicant, the issue of whether it was the left or right hand doing the striking or which hand was holding the resident’s arms are facts that have been challenged and reconsidered by Ms Sandhu given some hesitation as to her recollection of orientation of the parties. However the fundamental issue is she has maintained in her report and evidence that the applicant struck the resident in actions demonstrating intent, whilst restraining her arms and hitting her on the arms, hands and face. As a consequence the resident was bleeding from a skin tear and upset. The tribunal considers that Ms Sandhu could not have been mistaken in this evidence given the dimensions of the room, the proximity to her position near the sink to the applicant, the orientation of the bed, the location of the resident and the applicant. It has not been asserted by any witness that illumination would have obscured such events
[106] The tribunal has considered the assertion that inconsistencies of detail in the respondent’s case and notably Ms Sandhu’s evidence render the dismissal unfair. The tribunal is satisfied that such inconsistencies in some detail do exist as they do in the applicant’s statements and witness evidence of Ms Penn and Ms Rice. However the tribunal is satisfied that those matters are in the circumstances generally of minor fact and do not disturb the critical material of a credible eye witness testimony to the actions of the applicant in striking a resident in her bed such that it required the intervention of the carer to stop such actions. In all respects the tribunal prefers the evidence of Ms Sandhu as against the applicant’s version of events as to this incident.
[107] The tribunal therefore finds that the above misconduct by the applicant occurred and that such behaviour was unsustainable and inexcusable in the respondent’s facility. It was serious misconduct, was a breach of her duty of care towards the patient and her contract of employment.
[108] In regard to the criteria that FWA must take into account in consideration of these matters, that is the provisions of s.387 of the Act, they are conveniently summarised by Asbury C in the matter of Mourilyan v James Hardie Australia where the Commissioner states as follows:
“The criteria that FWA must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, are set out in s.387 in the following terms:
(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 the dismissal; and
(e) If the dismissal related to unsatisfactory performance – 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 FWA considers relevant.
A valid reason for termination of employment must be “sound, defensible and well founded” and not “capricious, fanciful spiteful or prejudiced.” The termination must be defensible or justifiable on an objective analysis of the facts. The validity is judged by reference to the tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.” 31 (Footnotes omitted)
[109] The tribunal finds that the respondent had a valid reason for dismissal related to the person’s capacity or conduct. Further the requirements of s.387(b) and (c) were satisfied by the respondent. S.387(d) does not apply in this matter. In regard to s.387 (e), (f ) and (g) the tribunal has some concerns as to the procedural approach in this matter and hence the relevant requirements of the above. The tribunal considers the nature of the photographic evidence relied upon was limited, of poor quality and included inconsistencies. The reconstruction of events and locations was inconsistent and less than an appropriate investigatory process. The availability and adequacy of the detail of the applicant’s initial interview left her without the written allegations against her and an unknown informant against her. This must have been somewhat unhelpful to her response. However the applicant must have known who her accuser was, she prompted the disharmony issue between her and the prime witness. The lack of concise medical evidence and examination of the resident to forensically record her injuries or skin conditions, the lack of a witness or support person at the initial interview and the limited nature of that meeting could have been better applied by the respondent.
[110] The tribunal has not taken into account the previous history of the applicant with the employer as it was not asserted to have been relied upon by the respondent in their decision to dismiss.
[111] The tribunal finds there is no evidence the resident was changed for the photographs and hence finds that she was wearing the same nightgown as when the incident occurred. The tribunal finds there is no evidence that bed rail covers were in place as the photographs show inconsistencies in regard to the placement of covers. The tribunal makes not finding on the administration of the drug Risperdal as it was not concluded evidence that a second drug chart was in existence or otherwise.
[112] The tribunal considers these concerns reflect shortcomings in the way this matter was handled and therefore a lack of procedural fairness and omissions that should have been avoided by the respondent. However in full consideration of these events the tribunal considers these matters are not significant as to be fatal to the respondent’s position and they are insufficient to alter my conclusion and finding that the applicant was engaged in serious misconduct and hence her dismissal was valid.
[113] I therefore dismiss this application for review and remedy.
COMMISSIONER
Appearances:
Ms K Clark for the applicant
Mr S Bakewell with Ms F Seidel and Ms M Penn for the respondent
Hearing details:
2012:
Adelaide
June 20, 21, 22
July 2
1 Unreported AIRC Print PR913694 per Larkin C at paras 57-58
2 Exhibit A3, Annexure HT-1
3 Exhibit A3
4 Exhibit R7, Annexure LR1, Exhibit R1, Annexure MP13
5 Exhibit R6
6 PN 2395
7 PN 2399
8 Exhibit R6 at para 19
9 Exhibit R7, Annexure LR1
10 PN 2403-2405
11 PN 2339, 2340, 2353, 2387
12 PN 2362, 2369
13 PN 2454
14 Exhibit R7, Annexure LR1
15 Exhibit R8
16 PN 774
17 Exhibit R1, Annexure MP26
18 PN 334
19 PN 338, PN 341
20 PN 986
21 PN 346-353
22 PN 346
23 PN 346
24 PN 432-433
25 PN 447
26 Exhibit A1, Annexure JA-3
27 Exhibit A1, Annexure JA-3
28 Exhibit A1, Annexure JA-4
29 Exhibit R1, Annexure JA-12
30 Exhibit R11, Annexure KS1
31 [2010] FWA 9672 at paras 84-85
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