Mrs Leana Kandasamy v Embracia Communities Pty Ltd T/A Embracia in Lynbrook

[2014] FWC 9215

[2014] FWC 9215

FAIR WORK COMMISSION

DECISION

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

Mrs Leana Kandasamy
v
Embracia Communities Pty Ltd T/A Embracia in Lynbrook
(U2014/11847)

COMMISSIONER ROE MELBOURNE, 22 DECEMBER 2014

Application for relief from unfair dismissal.

[1] Ms Kandasamy was employed by Embracia from February 2012 until 30 July 2014 first as an aged care physiotherapy aide and then as a lifestyle assistant. Ms Kandasamy was dismissed for allegedly shouting repeatedly at another employee, Ms Miller, in front of residents, staff and clients. The shouting allegedly continued in the office of Ms Rooney, the Administration Officer. The incident which led to the termination occurred on 23 July and she was stood down with pay and advised in writing of the allegation. Ms Kandasamy was also advised that she should attend a meeting on 29 July to discuss her response to the allegations and was warned that termination of employment was a possible outcome and that she was welcome to have a representative present.

[2] This followed earlier incidents on 14 and 16 May 2014. It is alleged that on 14 May Ms Kandasamy used “verbally abusive language” to Ms Gillick, Ms Boucher and Ms Hart (Ms Hart did not give evidence). Ms Kandasamy was talking in the corridor about the food which had been given to a resident with her manager Ms Gillick and Ms Alison Hart the Kitchen Manager. The discussion later continued in the office of Ms Boucher the Residential Services Manager. It is alleged that on 16 May 2014 Ms Kandasamy shouted at her manager, Ms Gillick, despite requests to stop. Ms Kandasamy and Ms Gillick were discussing the issue of whether or not Ms Kandasamy was allocated for work on Tuesday 22 May for the Australia’s biggest morning tea event. Following this discussion Ms Gillick rang Ms Boucher and requested her attendance. When Ms Boucher arrived Ms Gillick repeated her allegation. Ms Boucher then gave Ms Kandasamy a letter Ms Boucher had prepared prior to the meeting alleging that Ms Kandasamy had been shouting despite repeated request to stop and advising her that she was stood down on pay until a meeting on 21 May 2014 when she would have an opportunity to respond and that she may be represented.

[3] Following the meeting on 21 May 2014 Ms Kandasamy received a first and final written warning dated 22 May 2014. Following the meeting on 29 July 2014 she received a termination letter dated that same date on 31 July 2014.

[4] Embracia say that Ms Kandasamy was counselled in May 2013 by Ms Boucher, Residential Services Manager, about raising her voice. Ms Kandasamy denies being counselled at that time but she does recall a discussion about inadequate notice of rosters. Ms Kandasamy says that this was on an occasion when because of inadequate notice of the roster she was allegedly late for work.

[5] The allegations made by Embracia are supported by witness evidence. The witnesses generally attest to Ms Kandasamy being dedicated to her work and caring of the residents. The complaints are about her conduct towards other employees not about poor performance or conduct towards residents.

[6] It is not a matter of contention and I am satisfied that Ms Kandasamy is protected from unfair dismissal in that:

● Embracia is a large national system employer with approximately 1000 employees, 97 of whom are at the facility where Ms Kandasamy worked.
● Ms Kandasamy had more than six months service and was dismissed at the initiative of the employer for reasons related to her conduct.
● It is not suggested that the termination was for reasons of redundancy or that the small business code applies.

[7] The major issue in contention is whether there was a valid reason for termination. There is dispute about whether the alleged conduct occurred and whether termination was a proportionate response. Ms Kandasamy says the tolerance of similar behaviour by others is relevant to this. This is denied by Embracia and its witnesses. Embracia say that Ms Miller was counselled. The other issue in contention is whether or not Ms Kandasamy had an adequate opportunity to respond. Ms Kandasamy says that the details of what was alleged to have been said in respect to each incident were never raised with her so she could not properly respond.

[8] If the allegations did constitute a valid reason then it is accepted that Ms Kandasamy was notified of the reason. The opportunity for a support person was not denied. There was a warning about the alleged conduct. Embracia is a large employer with human resource management expertise. The service of Ms Kandasamy is neither particularly long nor short.

[9] Ms Kandasamy was a permanent part time worker whose regular hours total 21 per fortnight. Ms Kandasamy also agreed to work additional shifts. In the last year of her employment she worked an average of about 4 hours extra per week. 1 Ms Kandasamy was paid two weeks in lieu of notice. It was accepted that because Ms Kandasamy is over 45 years of age she was entitled to three weeks notice. There is nothing to suggest that this was anything other than an oversight. Embracia advised that they have now taken action to pay the additional week. I am not satisfied that the termination can or should be characterised as a summary dismissal for alleged serious misconduct. The termination was a dismissal with payment in lieu of notice for alleged misconduct.

[10] Embracia is an aged care facility. The facility has policies concerning staff conduct to promote a suitable environment for residents. It is in this context that Embracia argue that it is reasonable to ensure that staff do not disturb residents and their families and to ensure that disputes between staff are not visible or audible to residents. I accept that it is reasonable to expect higher standards of conduct in respect to such matters in an aged care facility than in many other workplaces. I have taken this into account in assessing whether or not there was a valid reason for the termination and whether or not termination was a proportionate response to the conduct.

[11] The issues which I will consider are:

a. Did Ms Boucher counsel Ms Kandasamy about raising her voice in May 2013?

b. In respect to the incident on 14 May 2014:

• Did Ms Kandasamy use “verbally abusive language” to Ms Gillick, Ms Boucher and Ms Hart?



• Was Ms Kandasamy shouting?



• Were the actions of Ms Kandasamy unreasonable?

c. In respect to the incident on 16 May 2014:

• Did Ms Kandasamy shout at her manager, Ms Gillick? Did Ms Gillick shout?



• Did she continue shouting despite repeated requests to stop?



• Were the actions of Ms Kandasamy unreasonable?

d. In respect to the incident on 23 July:

• Did Ms Kandasamy shout at Ms Miller in front of residents?



• Did Ms Miller shout at Ms Kandasamy in front of residents?



• Did Ms Kandasamy continue to shout when the discussion continued in Ms Rooney’s office?



• Were the actions of Ms Kandasamy unreasonable?

e. Did Ms Kandasamy accept that she shouted or yelled at Ms Miller on 23 July at the termination meeting on 29 July 2014?

f. Did the actions of Ms Kandasamy constitute a valid reason for termination?

g. Did Ms Kandasamy have a reasonable opportunity to respond to the allegations about her conduct which led to her termination?

h. Was the termination unfair?

i. If the termination was unfair what is the appropriate remedy?

[12] I will deal with some observations about the witness evidence before considering these issues.

Witness evidence

[13] The distinction between raised voices and shouting and yelling was blurred in much of the evidence from a number of the witnesses. Sometimes witnesses used these terms interchangeably and I am not satisfied that when they used a different term they were always referring to different behaviour. I am not satisfied that when a witness denied shouting or yelling this means that they were denying using a raised voice. In some circumstance where a witness used the term shouting they may well have meant using a raised voice. On a few occasions witnesses were directly asked to demonstrate how loud Ms Kandasamy was speaking. None of the witnesses demonstrated anything which could be regarded as yelling and I consider that generally raised and upset voice would the best description of what was demonstrated.

[14] I found Ms Kandasamy to be a credible witness. The witnesses for Embracia confirmed her commitment to the job and her care and consideration for the residents. It was suggested by Ms Gillick that Ms Kandasamy went overboard in seeking to provide the best for residents and that this sometimes created extra work for others which they resented. Ms Kandasamy also did additional unpaid work for Embracia to assist the residents. Ms Kandasamy was calm in the witness box and even under cross examination did not shout or abnormally raise her voice. Of course it is possible that behaviour in the witness box and behaviour in the workplace might be different.

[15] Embracia challenge the credibility of Ms Kandasamy’s insistence that the witnesses for Embracia either made it up or got it wrong when they said that she had shouted in each of the relevant incidents. There were certainly some significant issues with the Embracia evidence and there is room for differing perceptions but I am satisfied that there was no basis for concluding that the allegations against Ms Kandasamy were completely manufactured. I am satisfied that there were some issues in the relationship between Ms Gillick and Ms Kandasamy but I am not satisfied that they were acute. Both gave evidence that there were no problems in the relationship after May 2014. I am satisfied that there were some issues in the relationship between Ms Kandasamy and other workers but again I am not satisfied that they were particularly significant.

[16] Ms Kandasamy conceded that she may have raised her voice on occasion but denied other instances where it was alleged that she had yelled or shouted. In some circumstances where Ms Kandasamy denied using a raised voice she may have considered that she was defending herself against an allegation of shouting or yelling. Ms Kandasamy said that if she raised her voice with Ms Gillick it was out of frustration and in the context that Ms Gillick raised her voice to Ms Kandasamy. I found that on occasion Ms Kandasamy was pedantic. For example, she focused on the fact that Ms Miller did not have the formal title of team leader but after questioning she accepted that when Ms Gillick was away Ms Miller took on Ms Gillick’s role and therefore could provide some direction to the work of others in the lifestyle team including herself. Ms Kandasamy felt strongly that perceived injustice or unfairness to her must be corrected. For example, Ms Miller asserted that Ms Kandasamy was allocated to be working with her doing manicures on 23 July 2014. Ms Miller was wrong about this as the activity sheet did not allocate Ms Kandasamy to that task. Ms Kandasamy considered this to be an injustice which had to be rectified and I am satisfied that she found it difficult to focus on other aspects of the situation.

[17] The warning letter issued on 22 May 2014 states that Ms Kandasamy indicated that she would not “shout” at work colleagues again. I am satisfied that at the meeting of 22 May 2014 Ms Kandasamy conceded that she had raised her voice in the May 2014 incidents.

[18] On each of the occasions when it is alleged Ms Kandasamy raised her voice, Ms Kandasamy believed that she was being treated unfairly or not being listened to. In May 2013 she was taken to task for allegedly being late for work in circumstances where, it is conceded, she had not had adequate notice of rosters in accordance with the Agreement. On 14 May 2014 she says that Ms Gillick said “spit it out you have two minutes” and was therefore not open to listen to her properly and she had difficulty communicating that she was advocating on behalf of a resident who was not happy about their food. She then perceived that Ms Boucher did not want to hear her side of the story. On 16 May 2014 Ms Gillick had previously led Ms Kandasamy to expect that she would be working on the Australia’s biggest morning tea and Ms Gillick then said that it was not going to happen because others in the team believed that she overdid it and did not want her involved. She then perceived that Ms Boucher did not want to hear her side of the story. On 23 July 2014 Ms Miller incorrectly alleged in front of a resident that she was allocated to work on the manicures and Ms Miller refused to look at the activity sheet which demonstrated that this was not the case. She then perceived that Ms Rooney did not want to hear her side of the story.

[19] For these reasons I consider it likely that Ms Kandasamy did not appreciate the extent to which she became frustrated on the occasions when she believed that her position was not properly acknowledged or listened to by managers. Although this was not put directly to Ms Kandasamy, I also consider it possible that her voice in these situations may have become raised without her necessarily being fully aware of the extent to which this was occurring.

[20] Ms Gillick completed a performance appraisal of Ms Kandasamy on 18 June 2014. 2 This was after the alleged incidents of May 2013 and May 2014. The appraisal form assessed employees on a five point scale, zero to four, in respect to a number of characteristics. In respect to safe work practices, initiative and commitment to quality, and focus on quality services Ms Gillick assessed Ms Kandasamy as a four (that is she always demonstrated these skills). In respect to the remaining factors - reliability and punctuality, team work and harmonious relations, effective communication and knowledge of practice and procedures - Ms Gillick assessed Ms Kandasamy as a three (that is she mostly demonstrated these skills). Ms Gillick generally made positive comments. Her overall comment was: “Leana enjoys her job very much. She is willing to learn from others to increase her skills. Leana has agreed to communicate more with the lifestyle team, to ensure information relating to residents needs are increased.” I am not satisfied that this assessment suggests that there were any issues of concern about the way in which Ms Kandasamy communicated with other members of the staff. I consider that this puts the seriousness of the allegations made in May 2013 and May 2014 into perspective.

[21] Ms Stuart was not a direct witness to any of the incidents. She was however present at the counselling meeting of 21 May 2014 and helped draft the relevant correspondence outlining the allegations in May 2014.

[22] Ms Boucher has been the Residential Services Manager at Lynbrook since May 2013. I was not satisfied that Ms Boucher had a detailed independent recollection of the relevant incidents. She was often reliant upon her written statement.

[23] I found that Ms Gillick was focused upon doing her job efficiently and effectively. I am satisfied that Ms Gillick dealt with matters directly and was not particularly tolerant of distractions and delay. Ms Gillick denies that she raised her voice in the incidents involving Ms Kandasamy. Although it was not put to Ms Gillick, I consider that it is possible that when she was frustrated in her ability to deal with matters directly she may have raised her voice without necessarily being aware that she was doing so.

[24] Ms Rooney was adamant that it was not her role to investigate or mediate in the incidents where she had some involvement on 14 May, 16 May and 23 July 2014. I consider it is possible that some details may have been missed by Ms Rooney because of her focus on communicating to the other participants that it was not her role to get involved. It appears that she may have been mistaken when she gave evidence that Ms Miller and Ms Kandasamy were sitting down in her office during the 23 July incident. The other participants say that this was not the case. Ms Rooney stated that there were a number of incidents where Ms Kandasamy raised her voice however as a result of the cross examination I am not satisfied that she could recall any other incidents than those on 14 May, 16 May and 23 July 2014.

[25] Ms Miller gave her evidence in an assertive manner. She spoke more loudly than the other witnesses. She became agitated during cross examination and raised her voice further. She was not aware that she was speaking with a raised voice. Ms Miller in responding to questions was sometimes more focused on defending herself and her version of events than on responding to the questions asked.

Did Ms Boucher counsel Ms Kandasamy about raising her voice in May 2013?

[26] There are documented complaints about an incident in May 2013 and one of those complaints has the notation that the “DOC has spoken to the staff member about this matter and has cautioned the staff member.” There was some challenge to the validity of two of the reports. I am satisfied that Ms Boucher did not raise the details of the complaint reports or the identity of the complainants with Ms Kandasamy. I am satisfied that the major issue at the time was Ms Kandasamy’s complaint about not having had adequate notice of the roster change. Ms Boucher found that this was the case and issued instructions for proper notice to be given in the future. I therefore consider it understandable that Ms Kandasamy does not recall the matter of the alleged shouting being raised. However, I consider it more likely than not that Boucher did raise the matter with Ms Kandasamy. I am not satisfied that it was given any particular emphasis or prominence.

The 14 May 2014 incident

Did Ms Kandasamy use “verbally abusive language” to Ms Gillick, Ms Boucher and Ms Hart?

[27] I am not satisfied that Ms Kandasamy used verbally abusive language to any of these employees. There is no allegation that Ms Kandasamy swore. In fact her direct supervisor Ms Gillick gave evidence that she has never heard Ms Kandasamy swear. I am satisfied that Ms Kandasamy reported that the resident had said that the food was “crap.” To the extent that there any conflict in the evidence I prefer the evidence of Ms Kandasamy that at the time she was advocating on behalf of the resident and primarily describing the resident’s opinion of the food. The only instance of abusive language reported by any of the witnesses was the word “crap.” Considered in context I am not satisfied. this was verbally abusive language directed at any of the employees.

Was Ms Kandasamy shouting?

[28] Ms Kandasamy denies shouting but conceded that she may have raised her voice in frustration. Ms Gillick says that there was shouting. Ms Hart’s report says that Ms Kandasamy stated that the food was rubber and that “she stated this rather loudly.” The report of Julie states that Ms Kandasamy was “talking in a loud voice”. Ms Rooney gave evidence that Ms Kandasamy was speaking in a voice which was a little louder than normal conversation. Ms Boucher says that Ms Kandasamy was speaking with a “raised” voice.

[29] I am not satisfied that Ms Kandasamy was shouting when she raised the issue of the quality of the food in the corridor on 14 May 2014. However I am satisfied that she was talking in a voice that was a little louder than normal conversation. I am also satisfied that when meeting with Ms Boucher, Ms Kandasamy’s voice was agitated and raised.

[30] I do not accept the evidence of Ms Boucher that Ms Kandasamy burst in to her office with an outburst and that Ms Gillick arrived at a later time. The door to the office was open and I prefer the evidence of Ms Kandasamy that she and Ms Gillick went into the office together. The incident form completed by Julie Mersin does not contradict this. 3

Were the actions of Ms Kandasamy unreasonable?

[31] It was inappropriate to discuss the alleged poor quality of the meal in the corridor using a volume that may have been heard by residents. However, I am not satisfied that the volume was particularly loud and I am satisfied that Ms Kandasamy was primarily advocating on behalf of the resident and was not being unprofessional or abusive. It was inappropriate for Ms Kandasamy to raise her voice with the facility manager Ms Boucher. It is not a matter which would generally warrant discipline if an upset employee on occasion expresses their frustration and agitation about a work matter forcefully to the manager of the facility. There is no evidence from Ms Boucher that this conduct towards her had occurred previously or was repeated prior to the termination meeting. Ms Boucher did suggest that Ms Kandasamy raised her voice in the termination meeting on 29 July 2014 but this was denied by Ms Kandasamy and Mr Kandasamy.

The 16 May incident

Did Ms Kandasamy shout at her manager, Ms Gillick? Did Ms Gillick shout?

[32] Ms Gillick says that Ms Kandasamy was shouting and denies that she raised her voice. Ms Rooney says that both Ms Kandasamy and Ms Gillick raised their voices during the incident. Ms Pekez provided a statement but was not available for cross examination. She says that she overheard the conversation and does not suggest that voices were raised initially. She then says that Ms Kandasamy raised her voice and Ms Gillick told her to stop. Ms Boucher gave evidence that Ms Pekez told her that both Ms Gillick and Ms Kandasamy had raised voices but that Ms Kandasamy initiated it. Ms Kandasamy denies that she was speaking with a raised voice. She says that when she challenged Ms Gillick over her failure to allocate her work on the Australia’s biggest morning tea Ms Kandasamy says that Ms Gillick shouted “you’re not working”.

[33] Generally I find the evidence of Ms Kandasamy about the incident to be credible and consistent. However, I note that in the first warning letter Ms Boucher stated that Ms Kandasamy “indicated that you enjoyed working at Embracia and that you would not shout at Sam or any of your work colleagues again”. 4

[34] I am satisfied that both Ms Kandasamy and Ms Gillick spoke with raised voices. Both parties deny raising their voices and so I do not accept the evidence of either participant in respect to that matter. I do not consider it appropriate to rely on the Statement of Ms Pekez which is not available for cross examination to conclude who raised their voice first. That Statement makes no reference to Ms Gillick’s raised voice but Ms Boucher says that Ms Pekez told her that both Ms Gillick and Ms Kandasamy had raised voices. 5 I am not able to determine who raised their voice first.

Did Ms Kandasamy continue shouting despite repeated requests to stop?

[35] Ms Kandasamy accepts that at one point in the conversation Ms Gillick asked her to leave the office and at another point asked her not to shout at her. I am satisfied that Ms Kandasamy did not end the discussion when first requested to do so by Ms Gillick. Instead Ms Kandasamy responded that she was not shouting. This was confirmed by Ms Gillick. I am satisfied that after Ms Gillick said that she was going to contact Ms Boucher, the discussion ended and Ms Kandasamy waited in silence in the shared lifestyle department office until Ms Boucher arrived thinking that she would then have the opportunity to discuss the matter with Ms Boucher until that occurred. There is no suggestion that Ms Kandasamy raised her voice again when Ms Boucher arrived about ten minutes later.

Were the actions of Ms Kandasamy unreasonable?

[36] I am not satisfied that Ms Boucher considered the circumstances which led to Ms Kandasamy being frustrated and upset. I am satisfied that Ms Gillick had advised Ms Kandasamy that she would be working on Australia’s biggest morning tea. Ms Gillick accepted this in cross examination. Ms Gillick when asked told Ms Kandasamy “you will not be working those hours”. When Ms Kandasamy questioned this statement given the earlier understanding, Ms Gillick told Ms Kandasamy that the other team members did not want her to work on the event and had complained about her overdoing it on a previous occasion.

[37] I am satisfied that Ms Kandasamy had good reason to feel that Ms Gillick’s behaviour was unreasonable and unjust. In those circumstances it is understandable that Ms Kandasamy was upset and raised her voice and wanted Ms Gillick to hear her side of the story and to reconsider her decision.

[38] It was of course inappropriate for Ms Kandasamy to raise her voice in the conversation with Ms Gillick but in the circumstances I am not satisfied that it was misconduct that warranted the findings made by Ms Boucher. In the warning letter Ms Boucher acknowledges that Ms Kandasamy said that Ms Gillick raised her voice first and that Ms Kandasamy may have raised her voice in frustration. However, Ms Boucher states that none of the witnesses said that Ms Gillick had shouted despite the fact that Ms Boucher in her witness statement in these proceedings acknowledges that Ms Pekez told her that both participants had raised voices.

The 23 July incident

Did Ms Kandasamy shout at Ms Miller in front of residents?

[39] Ms Kandasamy says that on 23 July 2013 Michelle Miller interrupted work she was doing with a resident to tell her that Ms Kandasamy should be working with Ms Miller elsewhere. Ms Kandasamy says that Ms Miller was wrong and that the activity sheet did not have Ms Kandasamy listed to work with Ms Miller. Ms Kandasamy says that Ms Miller would not let her explain this to her and was yelling at her. Ms Kandasamy says that she tried to report the incident to Ms Boucher and completed an incident form. She says that she then went to see Ms Miller to try to explain what was on the activity sheet. Ms Kandasamy says that Ms Miller continued to state that she was wrong. Ms Rooney then came out and told Ms Miller and Ms Kandasamy that they were very loud and to come into her office. Ms Kandasamy says that Ms Rooney only listened to Ms Miller’s side of the story and then told them that they had to discuss it further with Ms Boucher. Ms Kandasamy says that she attempted to give Ms Boucher her incident or complaint form a number of times during the day but Ms Boucher’s door was closed. At the end of the shift Ms Boucher did see Ms Kandasamy but did not hear her side of the story and simply handed her the letter with the allegation about her shouting and standing her down.

[40] I am satisfied that Ms Kandasamy did speak to Ms Miller in a raised voice when she was attempting to get Ms Miller to look at the activity sheet which demonstrated that she was not rostered to work with Ms Miller on manicures. Residents were present at the time. Ms Rooney heard loud voices coming from the room. I am satisfied that this was more than one voice; that is, it was both Ms Miller and Ms Kandasamy.

Did Ms Miller shout at Ms Kandasamy in front of residents?

[41] The evidence of Ms Kandasamy and Ms Rooney is that Ms Miller was using a loud or raised voice in front of the residents. Ms Kandasamy says that Ms Miller also used a raised voice with her earlier when she was in the resident’s room.

[42] When Ms Miller gave evidence she spoke more assertively and in a louder voice than Ms Kandasamy. Ms Miller said that she did not raise her voice on 23 July and that she had been speaking as she was speaking in the witness box. At that time I observed that Ms Miller was speaking in a distinctly loud voice.

[43] I accept Ms Kandasamy’s evidence that Ms Miller used a raised voice in front of the residents in both the resident’s room and in and around the manicure salon.

[44] Ms Miller acknowledged that she interrupted Ms Kandasamy by entering a resident’s room and then accused Ms Kandasamy in front to the resident of not being with her to perform the manicures as she was supposed to be. Ms Miller acknowledges that she wrongly thought that Ms Kandasamy was allocated this work on the activity sheet and acknowledges now that the activity sheet showed that in fact this was not the case. Ms Miller acknowledged that she told Ms Kandasamy in front of the residents in the manicure salon that she needed to have better time management skills. At the time Ms Kandasamy was standing in the doorway to the salon and Ms Miller got off her seat and approached Ms Kandasamy. Ms Miller then returned to her seat. This illustrates that Ms Miller was an active participant in the confrontation in front of the residents.

Did Ms Kandasamy continue to shout when the discussion continued in Ms Rooney’s office?

[45] I am satisfied that the confrontation between Ms Miller and Ms Kandasamy did continue in Ms Rooney’s office. I am satisfied that Ms Kandasamy was upset. Ms Rooney told Ms Kandasamy to listen to Ms Miller. Ms Kandasamy wanted to tell her side of the story. I am satisfied that Ms Kandasamy raised her voice.

Were the actions of Ms Kandasamy unreasonable?

[46] Complaints about the incident on 23 July 2014 were made by Ms Kandasamy, Ms Miller and Ms Rooney. Ms Kandasamy made a number of attempts to see Ms Boucher about the matter during the day. Ms Boucher did not make herself available. Ms Boucher did meet with Ms Miller and made notes of that conversation. Ms Boucher says that she also read the form filled in by Ms Rooney. Ms Boucher was aware that Ms Miller’s inappropriate actions in confronting Ms Kandasamy in front of a resident triggered Ms Kandasamy’s upset. Ms Boucher says in her contemporaneous note that she reached the following conclusion after taking into account Ms Miller’s statement, the fact that Ms Miller made an inappropriate approach in the first instance which triggered the outburst and the statement of Ms Rooney: “there has been a clear breach of code of conduct policy and as Leana is on a first/ final for the same behaviour that we would be looking termination.” 6

[47] Ms Boucher reached this conclusion before she had considered Ms Kandasamy’s complaint or her side of the story.

[48] I am satisfied that Ms Boucher did not take into account the fact that Ms Miller falsely accused Ms Kandasamy in front of a resident of being on the activity sheet to work with her in the manicure salon and then refused to look at the activity sheet which demonstrated the correctness of what Ms Kandasamy was saying.

[49] I am satisfied that it was Ms Miller not Ms Kandasamy who was primarily responsible for the incident. Ms Kandasamy responded to Ms Miller’s inappropriate behaviour. Ms Kandasamy’s feeling of injustice and upset was understandable. It was inappropriate for Ms Kandasamy to continue to raise the issue in front of residents and it was inappropriate for her to raise her voice when they moved to Ms Rooney’s office.

[50] I am satisfied that Ms Kandasamy perceived Ms Rooney’s attempts to not get involved as her side of the story not being listened to and this to some extent explains why she persisted with her loud explanations and expressing her upset whilst in Ms Rooney’s office.

[51] I am not satisfied that Ms Rooney’s evidence about what happened inside her office is reliable. Ms Rooney was adamant that the parties involved were sitting in the office but both Ms Miller and Ms Kandasamy are equally strong that they were standing.

[52] I also note that the first warning letter of 22 May 2014 states that Ms Kandasamy “will be required to complete a performance improvement plan which will involve taking steps to manage your frustration/anger in a professional manner.” This did not occur and Ms Gillick and Ms Boucher gave evidence that there were no subsequent issues involving Ms Kandasamy and them.

Did Ms Kandasamy accept that she shouted or yelled at Ms Miller on 23 July at the meeting on 29 July 2014?

[53] Ms Boucher gave evidence that Ms Kandasamy became upset during the termination meeting and raised her voice. Ms Kandasamy also raised allegations about having been bullied and treated unfairly. Ms Boucher gave evidence that at one point Ms Kandasamy accepted that she had yelled at Michelle but added that Michelle had yelled at her. Later in the meeting Ms Boucher says that Ms Kandasamy denied that she had yelled at Michelle.

[54] Mr Kandasamy was present at the meeting on 29 July 2014. He gave evidence that Ms Kandasamy did not raise her voice at the meeting and was not asked to keep it down. He also gave evidence that during the meeting Ms Kandasamy did not acknowledge shouting at Michelle Miller at any point. Mr Kandasamy gave evidence that the meeting was civil.

[55] Ms Boucher’s notes of the meeting 7 report that Ms Kandasamy said that both participants were yelling when just outside the manicure salon. They also report that Ms Kandasamy denies screaming in front of Wendy. This is a reference to when they were in Ms Wendy Rooney’s office. I am not satisfied that the words “screaming” and “yelling” are necessarily the words used by Ms Kandasamy. They may have been words used by Ms Boucher in the meeting. As discussed earlier there was little precision about the use of words “raised voices”, “loud voices”, “yelling” and “screaming” by witnesses in the proceedings. I am satisfied that Ms Kandasamy may have acknowledged using a loud or raised voice but I am not satisfied that Ms Kandasamy accepted that she was yelling.

[56] Ms Boucher’s contemporaneous notes make no mention of Ms Kandasamy raising her voice in the meeting of 29 July 2014. Ms Boucher says that this was because she stopped taking notes later in the meeting. Having regard to the evidence of Mr Kandasamy I am unable to conclude that Ms Kandasamy behaved inappropriately in the meeting on 29 July 2014.

[57] Ms Kandasamy accepts that she never made a formal bullying complaint against Ms Gillick.

Did the actions of Ms Kandasamy constitute a valid reason for termination?

[58] If what appeared in the Embracia witness statements and reports was accepted then there would be a valid reason for termination. As noted earlier it is reasonable for an aged care employer to expect standards of communication which are respectful of the residents of the facility. However, the cross examination of the witness evidence revealed a more nuanced picture than was revealed by the Embracia witness statements and reports.

[59] I am satisfied that on 14 May, 16 May and 23 July 2014 Ms Kandasamy did inappropriately raise her voice in circumstances where it may have been disturbing to residents. However, I am satisfied that on 16 May and 23 July 2014 her actions were provoked or instigated by unfair or inappropriate actions of others. I am also satisfied that on all three occasions other participants and Ms Gillick and Ms Miller in particular also raised their voices. On 14 May 2014 Ms Kandasamy was primarily seeking to advocate on behalf of a resident, however, her raised voice to others including Ms Boucher was inappropriate and I am not satisfied that it was provoked. Some form of warning or counselling was justified in respect to each of these incidents. However, given the extenuating circumstances, termination was not a proportionate response to the conduct.

[60] I also note that Ms Miller was verbally counselled about her role. Ms Miller gave evidence that this was not formalised in any documentation of which she was aware. This reinforces my view that termination of Ms Kandasamy was not a proportionate response.

[61] I am not satisfied that there was a valid reason for termination.

Did Ms Kandasamy have a reasonable opportunity to respond to the allegations about her conduct which led to her termination at the meeting on 29 July 2014?

[62] Mr Dirks for Ms Kandasamy argued that the details of the statements made by the other participants upon which Ms Boucher relied were not put to Ms Kandasamy and therefore she did not have an opportunity to respond to the detail of the allegations.

[63] The essential basis for the termination was that on 23 July Ms Kandasamy shouted and continued shouting despite requests to stop. This behaviour was seen to be consistent with the earlier behaviour which had been the subject of the May warning which also involved inappropriate shouting. I am satisfied that Ms Kandasamy was advised in writing prior to the meeting of the essential nature of the allegations and that she had the opportunity to give her side of the story in respect to the allegations at the meeting on 29 July 2014. In the circumstances I consider that there was sufficient detail provided for her to be able to effectively respond.

[64] The notes of the conversation with Ms Miller to which I referred earlier might suggest that Ms Boucher had decided to terminate Ms Kandasamy’s employment prior to the termination meeting on 29 July 2014 and prior to hearing Ms Kandasamy’s version of the events. However, this was not squarely put to Ms Boucher in cross examination and I reach no conclusion about that matter.

Was the termination unfair?

[65] As discussed earlier the factors in Section 387 of the Act other than valid reason and opportunity to respond are neutral factors in this case. I am not satisfied that there was any significant procedural unfairness. However, I am satisfied that there was no valid reason for termination and termination was not a proportionate response to the conduct. Taking into account all of the factors I am satisfied that the termination was harsh and unjust.

Remedy

[66] Ms Kandasamy does not seek reinstatement. In the circumstances of this case given the centrality of problematic relationships to the reasons for the termination, I am satisfied that reinstatement is not an appropriate or practical remedy. I am satisfied that compensation is an appropriate remedy in the circumstances.

[67] It is not suggested that any order I might make would effect the viability of Embracia. I take into account the fact that service was a little more than two years. This also influences my assessment of the length of time I estimate Ms Kandasamy would have remained in employment with Embracia if she had not been dismissed.

[68] I have found that Ms Kandasamy did inappropriately raise her voice in each of the four reported incidents. I have accepted that there were mitigating circumstances, however, I concluded that some form of warning or counselling was an appropriate response. Of course it is possible that employment would have continued without any further problem. However, it is my assessment that the more likely outcome is that the employment would have continued for a further period of six months.

[69] Ms Kandasamy gave evidence that she had been looking for work however there was not much detail about her efforts. Ms Kandasamy has been working regularly in the aged care sector for a limited number of hours each week since the termination. Given that her permanent part time weekly hours with Embracia were 10.5, I am satisfied that Ms Kandasamy has made adequate efforts to mitigate her loss. There should be no deduction in the compensation for this reason.

[70] It is not appropriate in the circumstances of this case to determine the remuneration which would have been earned only by reference to the hourly rate multiplied by the 10.5 regular part time hours. This is because Ms Kandasamy earned some weekend and shift penalties and worked additional hours on a reasonably regular basis. The best available information about remuneration in the circumstances of this case is the total earnings for the period 1 July 2013 to 15 June 2014 (a period of 50 weeks). That amount is $18961.40 or an average of $379.63 per week. With the addition of superannuation this amounts to $414.75 per week. Ms Kandasamy would therefore have earned $10,783.50 had she not been dismissed.

[71] In the 18 weeks between the termination and 2 December 2014 Ms Kandasamy says that she has earned $3600. In that period Ms Kandasamy would have earned $7465.50 from Embracia, leaving a balance of $3865.50.

[72] I estimate that based upon the recent pattern of earnings Ms Kandasamy would earn a further $600 in the period between 1 December 2014 and the payment of compensation. Ms Kandasamy would have earned $3318 from Embracia in the 8 week period from the 1st of December 2014. This leaves $2718 compensation applicable to the remaining 8 week period. I deduct an amount for contingencies of 20%. Leaving an amount of $2174.40.

[73] This leaves a total compensation amount of $6039.90. I will deduct 15% for misconduct as the behaviour of the Applicant did to some extent contribute to the termination decision. I do not consider any other factors to be relevant.

[74] This leaves an amount of compensation of $5133.92 which, subject to deduction of appropriate taxation, should be paid within 14 days.

[75] An order to this effect will be issued together with this decision.

COMMISSIONER

Appearances:

Mr G Dircks appeared for the Applicant.

Ms A Duffy appeared for the Respondent.

Hearing details:

2014

Melbourne

December 2

 1   See pay summary Exhibit K1, Attachment LK1.

 2   Exhibit E4, Attachment SG1.

 3   Exhibit E2, Attachment KS6.

 4   Exhibit E2, Attachment LK6.

 5   Exhibit E3, at para 14.

 6   Exhibit E2, Attachment KS13.

 7   Exhibit E2, Attachment SB4.

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