Ms Deborah Lehane v Austin Health
[2010] FWA 10117
•31 DECEMBER 2010
[2010] FWA 10117 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Deborah Lehane
v
Austin Health
(U2010/1284)
COMMISSIONER RYAN | MELBOURNE, 31 DECEMBER 2010 |
Termination of employment.
Preliminary Issues
[1] Ms Lehane was dismissed within the meaning of s.386(1)(a).
[2] The application in this matter was made within the period required by s.394(2).
[3] Ms Lehane was protected from unfair dismissal within the meaning of s.382.
[4] Austin is not a small business and the Small Business Fair Dismissal Code is not relevant in this matter.
[5] The dismissal of Ms Lehane was not a case of a genuine redundancy.
The Termination
[6] Ms Lehane who was employed by Austin Health as a patient services assistant on night-shift was summarily dismissed by Austin Health on 10 August 2010.
[7] The letter of termination given to Ms Lehane on 10 August 2010 (termination letter) identified two specific reasons for the summary dismissal.
[8] Firstly, it had been alleged that:
“on the evening of 4 August 2010 whilst working on the night shift, you deliberately failed to fulfil your PSA duties by failing to counter-sign the mortuary book which is required when releasing a patient to either a Funeral Home representative or a representative of the Coroner.”
[9] In relation to this allegation that termination letter determined as follows:
“After careful consideration of all of the evidence before us and having regard for your employment history with Austin Health, we have determined that the allegations against you have been substantiated. Further, we have formed the view that your actions were both serious and wilful and therefore warrant summary dismissal in accordance with the Austin Health Disciplinary Policy. Actions deemed to be serious and wilful misconduct warrant termination of employment with immediate effect.”
[10] Secondly, the letter of termination identified a further reason for termination as follows:
“We have also formed the view that you were provided with ample opportunity to give a truthful account of events when defending your actions but have misrepresented the truth in order to influence a disciplinary outcome. This matter of itself constitutes misconduct which justifies dismissal.”
[11] Ms Lehane freely conceded that on the evening of 4 August 2010 she deliberately refused to counter -sign the mortuary book when releasing a deceased patient to a representative of the Coroner. Ms Lehane also conceded that she was aware that on 29 July 2010 Ms Melody Heland, Surgical CSU Director, had issued an urgent directive to all PSAs in the following terms:
“I have received a very disturbing complaint from Anatomical Pathology that there have been incidents where a PSA has not counter-signed the mortuary book when releasing deceased patients to funeral directors and/or the Coroner.
PSAs must be aware that counter-signing the mortuary book is a requirement of all PSAs, is part of the PSA role and must be adhered to. This requirement is not optional.
In the event that any PSA fails to counter-sign the mortuary book, Austin Health will view this matter seriously and will invoke disciplinary procedures as a result.
If any PSA has a problem in this regard please do not hesitate to discuss with your NUM, PSA Supervisor or myself.”
[12] Notwithstanding these two very clear concessions by Ms Lehane, it was contended that the termination was harsh, unjust and unreasonable.
[13] Ms Lehane’s defence of her actions was that on becoming aware of the directive from Ms Heland, Ms Lehane drew this matter to the attention of her union. At a meeting on the evening of 3rd August 2010 involving Ms Lehane, other night-shift PSAs, union representatives and representatives of the respondent, the issue of the directive from Ms Heland was raised by the union with representatives of the respondent and that in doing so, the union had created a dispute around the issue of the performance by PSAs of the counter-signing of the mortuary book when releasing a deceased patient. Having raised a dispute in accordance with the grievance procedures of the relevant agreement, Ms Lehane then refused to comply with the directive from Ms Heland until such time as the dispute had been resolved. Ms Lehane’s refusal to sign the mortuary book on 3rd and 4th August was consistent with her view that the matter of signing the mortuary book was in dispute. An aspect of the basis for the dispute raised by Ms Lehane with her union was that in her view the requirement to counter-sign the mortuary book on releasing a deceased patient to a Funeral Home representative or Coroner was not a function of a PSA.
[14] The Austin’s determination that Ms Lehane had lied during the investigative process was based upon her assertion that she was permitted not to sign the mortuary book as a result of the issue having been raised with the respondent’s representatives at the meeting on 3rd August and being placed in dispute in accordance with the disputes procedure of the agreement. The Austin determined that this was not a truthful statement but an invention in order to justify her misconduct. The conclusion drawn by Austin was based upon an investigation conducted by Austin amongst those of its management staff who attended the meeting with the union and the PSA’s on the evening of the 3rd August 2010.
[15] I determine that Ms Lehane was unfairly dismissed by Austin. I have considered each of the criteria in s.387 in coming to this decision.
Was there a Valid Reason for the Dismissal
Neither of the 2 reasons for the dismissal was sound, defensible or well founded. 1 The reasons for termination are not defensible or justifiable on an objective analysis of the relevant facts in this matter.2
[16] The first reason for the dismissal was predicated upon Ms Lehane being a PSA and in that capacity having a duty to counter-sign the mortuary book.
[17] At the time of the dismissal both the HSUA, representing Ms Lehane and Austin considered Ms Lehane to be a PSA as defined by Appendix E of the Health Services Union of Australia - Health and Allied Services - Victorian Public Sector - Multi Employer Certified Agreement 2002 - 2006 (the 2002 Agreement). The 2002 Agreement was incorporated into the Health Services Union of Australia - Health and Allied Services, Administrative Officers - Victorian Public Sector - Multi Employer Certified Agreement 2006 - 2009 (the 2006 Agreement). Position Descriptions for PSA’s had also been developed by Austin Health and these Position Descriptions were applied by Austin to Ms Lehane’s employment.
[18] During the course of the hearing of this matter it became clear that the classification of PSA as contained in the 2002 Agreement and as incorporated into the 2006 Agreement did not apply to Austin or its employees. It appears that the classification structure of the - Health and Allied Services - Public Sector - Victoria Consolidated Award 1998 AP783945 (the 1998 Award)still applies to Austin Health on the basis that the 1998 Award is also incorporated into the 2006 Agreement. The classification structure from the 1998 Award is based on skill levels and Level 1 includes indicative job titles including, Hospital Orderly or Cleaner. Given the evidence of Mr Bartolo, who described his duties as a PSA at Austin, it would appear that an appropriate classification for PSA’s at Austin is Level 1 under the 1998 Award. I note also that Level 2 and Level 3 classifications in the 1998 Award may also be relevant, given that Level 3 includes an indicative job title of Hospital Attendant.
[19] Whilst Austin has Position Descriptions for PSA’s these do not appear to align with the classification structure which applies to Ms Lehane and Austin by virtue of the operation of the 1998 Award as incorporated into the 2006 Agreement.
[20] Dismissal of Ms Lehane on the ground that she “deliberately failed to fulfil your PSA duties by failing to counter-sign the mortuary book which is required when releasing a patient to either a Funeral Home representative or a representative of the Coroner” cannot be for a valid reason when the objective facts of the matter disclose that Ms Lehane’s was not a PSA within the meaning of the 2006 Agreement.
[21] Whilst Ms Lehane was not a PSA within the meaning of the 2006 Agreement this does not prevent Austin from having a Position Description for a PSA, nor from giving Ms Lehane the title of PSA, so long as the Position Description was consistent with the duties and skill level of a Level 1, 2 or 3 employee under the 1998 Award. Nothing was put to me in these proceedings to establish that the duties expected to be performed by Ms Lehane as a result of the directive issued by Ms Heland on 29 July 2010 were properly duties to be performed by Ms Lehane under the terms of the classifications of the 1998 Award.
[22] Ms Heland was emphatic in her evidence that a night shift PSA had the obligation to both check the tags on the body bag and on the body to ensure that the right body was released from the morgue and to countersign the mortuary book once the representative of the Coroner’s Office or Funeral Home had signed the book. The same level of certainty was not expressed by Ms Lafferty, a Human Resources Business Partner at Austin who gave evidence that the only duty that Ms Lehane was required to perform was to countersign the mortuary book when releasing a body from the morgue.
[23] The basis upon which the HSUA raised the dispute about the duties of PSA’s in releasing bodies from the mortuary was flawed as they relied upon a set of internal Austin procedures which only related to release of bodies from the wards rather than from the mortuary.
[24] The approach of both the HSUA and Austin to the issue of what duties were to be performed by night shift PSA’s were fundamentally flawed. The flawed approach to the issue of the duties of night shift PSA’s was not as a result of any mischievous or improper conduct by anyone. Rather, neither the HSUA nor Austin had a clear accurate understanding of the legal instruments which applied to the Austin and this lead both into error.
[25] Whilst Austin acted in the belief that the termination of Ms Lehane was for a valid reason that is insufficient. 3 The test is not subjective but objective.
[26] On an objective examination of the facts it cannot be found that Ms Lehane had an obligation to sign the mortuary book as it cannot be found that Austin had the right to create that obligation consistent with the operation of the 2006 Agreement incorporating the 1998 Award.
[27] The second reason for the dismissal was that Ms Lehane lied during the internal investigation undertaken by Austin. An objective assessment of the evidence in this matter shows that the finding by Austin that Ms Lehane lied during an internal investigation is fundamentally flawed and is neither well founded, defensible or sound.
[28] The weakness of the internal investigation conducted by Austin is that Austin failed to make any inquiries of the union officials present at the meeting on the 3 August. If such an inquiry had been made it is clear, as the evidence in this matter established, that the union officials present at that meeting on 3 August were of the view that a dispute had been notified to Austin concerning the directive issued by Ms Heland and that the PSA’s did not have to comply with the directive whilst the dispute was being resolved. This alone would have put Austin on notice that Ms Lehane’s version of events as to what happened at the meeting was being supported by officials of the HSUA who attended the meeting.
[29] Both the Austin and the HSUA can be criticised for their respective approaches to the meeting on the evening of 3 August 2010.
[30] The HSUA raised a significant issue concerning the duties of PSA’s at a meeting convened to deal with other matters and then only at the end of the meeting. The HSUA officials did not obtain any clear confirmation by the Austin representatives that the dispute had been acknowledged to be in existence. Nor did the HSUA officials seek any clear understanding and confirmation from Austin as to what would happen if the night shift PSA’s maintained the position that they did not have to comply with Ms Heland’s directive. Nor did the HSUA officials take any action to confirm in writing to Austin the fact of and the details of the dispute.
[31] The Austin representatives at the meeting failed to acknowledge that a dispute had been raised in relation to the duties of night shift PSA’s in relation to complying with Ms Heland’s directive, simply because it was not in writing. The same representatives failed to make clear to the HSUA officials how Austin expected the issue in dispute to be raised with Austin. The Austin officials also failed to ensure that the night shift PSA’s understood what was expected of them by Austin in relation to complying with Ms Heland’s directive whilst any dispute was dealt with.
[32] I am mindful that these criticisms are made from the perspective of reviewing what took place on 3 August 2010 and it is relatively easy to make such criticisms. However I am also mindful that when considering the evidence of those in attendance at the meeting on the 3 August that no one at the meeting acted maliciously or improperly and that both the HSUA officials and the Austin representatives believed that their respective positions would have been understood by the other side.
[33] The short comings of both sides in relation to the meeting of 3 August 2010 influenced the subsequent actions of both Ms Lehane and Austin. Ms Lehane acted on the basis that a dispute had been lodged and therefore the directive of Ms Heland did not have to be complied with unti the dispute was resolved. Austin acted on the basis that no dispute had been lodged and the refusal of Ms Lehane to comply with the directive of Ms Heland was a simple and deliberate act of misconduct by Ms Lehane.
[34] Even in the absence of Austin having made inquiries of the HSUA officials as to what happened at the meeting on 3 August 2010 the internal inquiry was fundamentally flawed. Austin failed to consider or attach any relevance to the fact that on evening of 3 August that a copy of the directive of Ms Heland which was posted at the central workstation for the night shift PSA’s had been written over by Ms Lehane and that on 4 August Ms Lehane also wrote over a copy of Ms Heland’s directive which was posted on the notice board in the mortuary. This latter defaced directive was put before the Tribunal. The first defaced directive had been removed by a representative of management of Austin and the fact of the defacing of the directive had been brought to the attention of Austin. On the 4 August Ms Lehane wrote across the directive posted on the mortuary notice board the following words: “DO NOT DO AS GRIEVANCE LODGED”. It is not known what words Ms Lehane wrote on the directive she defaced on the evening of 3 August 2010 after the conclusion of the meeting between the HSUA and Austin representatives, but the evidence suggests it would have been similar to the above words. As the defacing of the directives took place well before the internal inquiry conducted by Austin then at the very least it shows that on both the evening of the 3 August and the evening of 4 August that Ms Lehane believed that the directive from Ms Heland did not have to be complied with. This in turn supports Ms Lehane’s version of what happened at the meeting on 3 August 2010.
[35] If Austin had given proper weight to what Ms Lehane wrote on directives on both the evenings of 3 August and 4 August then it would not be reasonable to conclude, as Austin did, “that you (Ms Lehane) were provided with ample opportunity to give a truthful account of events when defending your actions but have misrepresented the truth in order to influence a disciplinary outcome.” Such a conclusion is simply untenable.
[36] I am satisfied that Ms Lehane was notified of the reasons for the dismissal. S.387(b).
[37] Whilst Ms Lehane was presented with the allegation concerning her refusal to comply with the directive of Ms Heland and was given an opportunity to respond it is clear that the second reason for the dismissal was only raised with Ms Lehane in the letter of termination. Ms Lehane was not given any opportunity to respond to this reason for dismissal. S.387(c).
[38] I note that at all times during the proceedings leading up to her dismissal that Ms Lehane had the opportunity to be represented by a support person. S.387(d).
[39] Ms Lehane was warned about her alleged unsatisfactory performance before her dismissal. S.387(e).
[40] Austin is a major employer with significant management and HR resources, including having a full range of policies on most issues of significance. The procedures for dismissing an employee are comprehensive. S 387(f) and (g).
[41] I have taken into account that the dismissal of Ms Lehane occurred in circumstances where Ms Lehane’s actions were influenced by the role played by the HSUA in representing her and other PSA’s over a dispute concerning the role of PSA’s in releasing bodies from the mortuary during night shift. As Ms Lehane made clear under cross examination, that at a meeting on 6 August held to consider Ms Lehanes refusal to countersign the mortuary book:
“--I turned around and said at the meeting that if I would have known what was going to happen, like, being fired, I would have signed the book to stop being fired. That's what I said at the meeting.” 4
In submissions in closingMs Lehane also confirmed that if reinstated she would comply with any direction in relation to the checking of tags on bodies and countersigning the mortuary book when releasing a body from the mortuary.
Remedy
[42] Reinstatement is the primary remedy where a dismissal is unfair.
[43] Nothing has been put before the Tribunal which would satisfy me that reinstatement is inappropriate.
[44] There are clearly issues for Austin and the HSUA to address in relation to what are the proper functions and duties of PSA’s in the context of the 1998 Award classifications still being operative at Austin. However these issues affect all PSA’s and will be addressed whether or not Ms Lehane is employed at Austin. The very size and overall professionalism of Austin means that it will be relatively easy for Ms Lehane to fit back into her role as a permanent night shift PSA.
[45] Reinstatement is, pursuant to s.391(1)(a), to be to the position Ms Lehane was employed immediately before her dismissal.
[46] I consider it appropriate having considered all of the circumstances of this matter to make an order under s.391(2) that the continuity of Ms Lehane’s employment is maintained and that that the period of Ms Lehane’s continuous service with Austin is maintained.
[47] I consider it appropriate having considered all of the circumstances of this matter to make an order under s.391(3) to cause Austin to pay to Ms Lehane an amount for the remuneration lost be her because of the dismissal. The amount of lost remuneration has to be determined in accordance with s.391(4). I am not able to calculate the amount of lost remuneration on the basis of the information before me. I intend to relist this matter for the purpose of permitting both the applicant and the respondent in making specific submissions on this issue. An order to restore lost pay will be issued after such further hearing. If the parties agree to the amount of lost remuneration I will issue an order accordingly.
[48] An order giving effect to this decision (other than an order to restore lost pay) is issued with this decision.
COMMISSIONER
Appearances:
D. Langmead of Counsel for the applicant
N. Harrington of Counsel for the respondent.
Hearing details:
2010.
Melbourne:
November 10, 11, 12 and 29.
1 Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 at 373, 7 July 1995, Northrop J.
2 Rode v Burwood Mitsubishi, Print R4471 at pn 19, 11 May 1999, Ross VP, Polites SDP, Foggo C.
3 Ibid.
4 Transcript of proceedings at paragraph 760.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR505614>
0