DECISION

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

Ms Grace Mazi
v
Arcare Pty Ltd
(U2019/11474)

COMMISSIONER SPENCER

BRISBANE, 26 NOVEMBER 2020

Application for unfair dismissal remedy – serious allegations – aged care industry – report of the matter to the police – implications of such for ability to continue work – no valid reason for dismissal – dismissal unfair.

INTRODUCTION

[1] Ms Grace Mazi (the Applicant) made an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) contending that the termination of her employment with Arcare Pty Ltd (the Respondent) was harsh, unjust or unreasonable.

[2] The Applicant had been employed as a registered nurse, working nightshift in the Sanctuary Manners Aged Care facility located at Sanctuary Cove on the Gold Coast. The Applicant had been employed for over one year.

[3] The Applicant considered that her dismissal was harsh, unjust and unreasonable and sought reinstatement and continuity of service and wages for the interim period, pursuant to s.391 of the Act.

[4] In terms of the termination of the Applicant’s employment, a set of allegations were contained in the ‘first letter of allegations’, provided to the employee.

[5] In this correspondence, the Applicant was directed to attend an investigation meeting to respond to these allegations. This correspondence is set out further below.

[6] The most serious of the allegations is allegation 1, where it was alleged that the Applicant engaged in elder abuse, by using unreasonable force when undertaking a suctioning procedure to assist the resident’s breathing. In addition, it was alleged the Applicant had directed a personal support worker, (working on the shift with her) to use unreasonable force to hold down the resident’s hands, when the resident, it was alleged, was not agreeable to having the procedure performed.

[7] As set out in the correspondence, the Respondent considered the Applicant’s alleged conduct constituted elder abuse and that if substantiated, would present as a contravention of the Respondent’s Senses framework, Code of Conduct, the Resident’s Charter of Rights and the Aged Care Act 1999.

[8] Prior to the investigation meeting with the Applicant, the employer, as set out below, assessed the conduct in allegation one, to be elder abuse and accordingly, the Respondent considered it necessary at that point to report the incident to the Queensland Police and the Department of Health. It was submitted that an appropriate investigation, affording the Applicant procedural fairness had not been undertaken prior to the reporting. The name of the resident/patient (as agreed) has been redacted.

[9] The allegations as set out in correspondence, refer to a period over three months (the First Allegations Letter):

“Private and Confidential

11 September 2019

Grace Mazi.

[address redacted]

Dear Grace

Re: Investigation of allegation of Serious Misconduct

I am currently investigation alleged serious breaches by you of Arcare’s Code of Conduct. More specifically, your actions in the workplace, if substantiated, are unsatisfactory and constitute serious misconduct.

It is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 6172
Decision Date: 26 NOVEMBER 2020

CaseChat Overview and Summary

Ms Grace Mazi has brought an application for an unfair dismissal remedy against Arcare Pty Ltd. The dispute revolves around allegations of serious misconduct by Ms Mazi in her role within the aged care industry, specifically involving an incident that led to a report being made to the police. Ms Mazi claims that her dismissal was unjust and without valid reason, despite the seriousness of the allegations against her. The Federal Circuit and Family Court of Australia was tasked with determining whether the dismissal was fair and justified under the circumstances.

The legal issues before the court included whether Ms Mazi's dismissal was valid under the Fair Work Act 2009, and if there was a valid reason for her termination. Additionally, the court had to consider the implications of the police report on her ability to continue working in the aged care sector. The court was required to balance the seriousness of the allegations against Ms Mazi with the procedural fairness of the dismissal process, as well as the potential impact of the police report on her future employment prospects.

The court found that there was no valid reason for Ms Mazi's dismissal, as the employer had not provided sufficient evidence to support the allegations of misconduct. Furthermore, the court determined that the dismissal process was not conducted fairly, given the serious nature of the allegations and the lack of a proper investigation. The court emphasised the importance of procedural fairness in employment terminations, particularly when serious allegations are involved. Consequently, the court ruled that Ms Mazi's dismissal was unfair and ordered that she be reinstated to her former position, along with appropriate compensation for the period of her wrongful dismissal.

Orders