Ms Patrice Leahy v Mosaic Community Care Inc

[2013] FWC 32

[2013] FWC 32

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Ms Patrice Leahy
v
Mosaic Community Care Inc
(U2012/12425)

COMMISSIONER CLOGHAN PERTH, 4 JANUARY 2013

Unfair dismissal.

[1] This is an application by Ms Patrice Leahy seeking a remedy for alleged unfair dismissal from her employment as a Support Worker caring for people with significant disabilities. The employer denies that Ms Leahy was dismissed unfairly and asserts she was fairly dismissed following an incident with a client which it considered serious misconduct resulting in immediate termination.

PROCEDURAL BACKGROUND

[2] On 17 August 2012, Ms Patrice Leahy (the Applicant) made application to Fair Work Australia (FWA) seeking a remedy for alleged unfair dismissal from her former employer, Mosaic Community Care Inc (the Employer).

[3] Ms Leahy’s employment was terminated with immediate effect on 8 August 2012.

[4] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[5] The application was unable to be resolved at conciliation and was referred to me for arbitration on 10 September 2012.

[6] On 17 September 2012, I issued procedural directions for a hearing on 26 November 2012.

[7] At the hearing, Ms Leahy was represented by Mr K Trainer. Ms Leahy gave evidence on her own behalf. The Employer was represented by Ms A Porter, Human Resources & Training Manager. Ms K Glass, Greenwich House Coordinator gave evidence on behalf of the Employer.

[8] Written documentation received as a result of the procedural directions was incorporated into the arbitral proceedings. Having received the written material and heard oral evidence and submissions, I reserved my decision on 26 November 2012. Having considered all the material and evidence, this is my decision and reasons for that decision.

RELEVANT BACKGROUND

[9] Ms Leahy was employed as a Support Worker (Carer) from 31 March 2008 to 8 August 2012.

[10] Ms Leahy has completed a Certificate III in Aged Care and Disabilities. In addition, the Applicant has undertaken, among others, the following training programmes:

● Epilepsy

● Autism

● First Aid

● Grief

● Incident reporting

● Incontinence

● Key word signing or Makaton

● Medication Management

● Competency assessment

● Non violent crisis and positive behaviour; and

● Passive self defence.

[11] The Employer provides care for clients in its “Houses” and those living independently in the community. The clients have a range of disabilities including physical, emotional and/or intellectual. The majority of clients have an intellectual disability. Wheelchairs are used by approximately 19% of clients and about 12% use walking frames.

[12] The clients also have disabilities which include severe vision impairment, lack of verbal communication, limited intellectual capabilities, challenging behaviours or a combination of all.

[13] At the time of Ms Leahy’s dismissal, the Employer had ten (10) residential styled units of accommodation (Houses) on nine (9) properties modified to accommodate the clients.

[14] Ms Leahy was assigned to Greenwich House but the events leading to her dismissal took place in Scotford House.

[15] Ms Leahy delivered care to a client who I shall refer to as Client A. Ms Leahy had been providing care to Client A for approximately three (3) years.

[16] Client A has a range of disabilities. Client A’s behavioural problems include hitting, spitting, kicking, pinching and biting on occasions. Client A has a very significant intellectual disability and is essentially non verbal.

[17] Client A is confined to a wheelchair but is able to walk short distances. A common behaviour of Client A is to intentionally slide from her chair and walk or crawl to wherever she wants to go.

[18] On 29 July 2012, there was a “Christmas in July” lunch conducted at Scotford House attended by a number of clients, carers and parents.

[19] During the “Christmas in July” lunch, two incidents occurred, one of which is referred to in the Employer’s termination of employment letter.

[20] The first incident relates to Client A sliding out of her chair and entering the kitchen area.

[21] As people in the kitchen were taking hot food to the table, Ms Leahy considered it unsafe and removed Client A from the kitchen. In removing Client A from the kitchen, Ms Leahy spoke to her in a manner which is in dispute. What is not in dispute is that Client A made contact with her head on Ms Leahy’s face; this contact is variously described.

[22] The second incident also involved Client A sliding onto the floor and placing her legs between the wheels of a wheelchair of a client who I shall refer to as Client B.

[23] With respect to the second incident, evidence was given that a complaint had been made that Client A was blocking access to the table with food on it. When Ms Leahy observed Client A, she also noticed that Client A’s leg was placed between the wheels of Client B’s wheelchair.

[24] The manner in which Ms Leahy returned Client A to her chair is at issue but not referred to as a reason for dismissal in the Applicant’s termination of employment letter.

[25] Client A was provided with her Christmas lunch and no further issues arose during 29 July 2012.

[26] Prior to the conclusion of her shift on 29 July 2012, Ms Leahy filled out the Employer’s “Hazard/Incident/Accident” (HIA) form. The description of the hazard/incident/accident on the form is as follows:

“While I was trying to get [Client A] out of the kitchen at Scotford where it was not safe [Client A] head butted me in the face.

Also while getting [Client A] lunch she hit a client from Scotford when I followed directions in [Client A’s] support plan”. 1

[27] The HIA form was sighted by Ms Glass and Mr Graves, the Employer’s Area Manager. Mr Graves noted that the form was incomplete (date reported/location/time) and also that “issue currently under investigation”. 2 Mr Graves dates his report 7 August 2012.

[28] I note that the form has, for serious and critical incidents, the ability for the Chief Executive Officer (CEO) to be notified. The form indicates that the incident was not referred to the CEO.

[29] On 30 July 2012, Ms Noonan, who is the sister of Client B, telephoned Ms Horn, the Scotford House Coordinator, to complain that “they” had observed Patrice [Ms Leahy] “using excessive force to keep [Client A] seated”. 3 From further correspondence provided, it appears that Ms Noonan was not at the Christmas party.

[30] Ms Horn advised Ms Glass, Greenwich House Coordinator and Ms Leahy’s line supervisor, of the complaint.

[31] Ms Glass requested Ms Leahy to prepare a file note as a result of being informed of the complaint by Ms Noonan. Ms Leahy prepared the file note on 30 July 2012.

[32] On 31 July 2012, Ms Leahy completed her duties as normal.

[33] On 1 August 2012, the parent of a client, Ms Ridley, emailed Mr O’Meara-Smith, the Employer’s General Manager Support Services, concerning an incident at the Christmas party. Ms Ridley described the incident in the kitchen as follows:

“...when Patrice [the Applicant] went to pick up [Client A] off the floor, when [Client A] got up she accidently hit Patrice in the head. Patrice’s response was to grab her by the scruff of the neck and yell directly in her face” 4.

[34] On 1 August 2012 Ms Leahy was suspended from duty by Ms Glass and required to prepare a written statement regarding allegations that she had assaulted and verbally abused Client A.

[35] On 3 August 2012, Ms Leahy emailed Ms Porter with the request “would it be possible to receive in writing the allegations made against me, allowing me to respond appropriately” 5.

[36] Separately, on 3 August 2012, Mr Justin O’Meara Smith received a telephone call regarding concerns of Ms Judith Harris. Mr O’Meara Smith requested that Ms Harris put those concerns in writing.

[37] On 4 August 2012, Ms Harris formally complained to Mr O’Meara Smith about “an incident” involving Ms Leahy and Client A on 29 July 2012.

[38] On 4 August 2012, Ms Porter responded to Ms Leahy’s request to receive the allegations in writing as set out in paragraph [35] as follows:

“...on the 30/7/12 you physically pulled [Client A] up off the floor in a manner that was not in keeping with her support plan. This was followed by you ‘yelling directly in her face’ when she hit you in the head as part of the manoeuvre. Your file note from 30/7/12 has been reviewed but given the nature of the complaint Mosaic is requesting a formal statement from you.” 6

[39] Ms Porter further informed Ms Leahy that “physical and verbal assault constitutes serious misconduct” and advised her that she can seek advice and have a support person present for a meeting scheduled for 8 August 2012.

[40] On 6 August 2012, Ms Leahy provided a written formal statement as requested by the Employer. Ms Leahy denied the allegations. However, and importantly, Ms Leahy informed Ms Porter that she had been advised by Ms Glass that further allegations had been made against her; Ms Leahy sought advice on these allegations in order to respond.

[41] Ms Porter’s response regarding the further allegations, whether deliberate or not, is unclear.

[42] On 8 August 2012, Ms Leahy, with a support person present, met with Employer representatives. At the conclusion of the meeting, Ms Leahy was handed a letter terminating her employment with immediate effect.

[43] Ms Leahy gained the strong impression that the decision to terminate her employment was made before the meeting. In response to that assertion, the Employer states:

“60. Agreed. The decision had been made prior to the meeting with Patrice. The point of the meeting was to tell her the result of the investigation and the action that would be taken, based on the findings. The decision was made on 8/8/2012. This was two days after Patrice’s written response had been received by Mosaic.” 7

[44] Ms Leahy’s letter of termination advises that she has been dismissed because:

“Whilst the other staff did not directly observe the incident, the two family members that were a witness (sic) have described an incident that Mosaic considers serious misconduct, resulting in immediate termination” 8.

RELEVANT STATUTORY FRAMEWORK

[45] It is not in dispute that Ms Leahy is protected from unfair dismissal pursuant to s.382 of the FW Act and that the application was made within the statutory timeframe in paragraph 394(2)(a) of the FW Act.

[46] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

● 385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) …
(d) …

[47] The criteria for whether a dismissal was harsh, unjust or unreasonable can be found at s.387 of the FW Act and is as follows:

● 387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(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 dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—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 that FWA considers relevant.

CONSIDERATION

[48] Not every procedural failing will render a dismissal unfair. However, if there is overwhelming evidence of inadequacies of an investigation and subsequent events, it will almost always render the dismissal unfair.

[49] In this application, the Employer cannot be accused of not dealing with a complaint promptly.

[50] On 30 July 2012, the Employer received a telephone complaint that Ms Leahy had used excessive force to keep Client A seated. As a consequence, Ms Leahy was required to provide a file note further to the HIA form, which she had completed the previous day.

[51] Ms Leahy carried out her normal duties on 31 July 2012.

[52] On 1 August 2012, Ms Leahy was suspended from duty.

[53] I have been given no documentation which informs Ms Leahy of why the Employer took the action to suspend her. Having regard to the seriousness in which the Employer considered Ms Leahy’s actions, it may have been appropriate to set down in writing and be specific and clear on the reasons why she was being suspended from duty.

[54] As a consequence of being suspended, Ms Leahy was required to make a formal statement on what had occurred. In the circumstances, it was not unusual for Ms Leahy to email Ms Porter on 3 August 2012 and ask:

“Would it be possible to receive in writing the allegations made against me, allowing me to respond appropriately.” 9

[55] The response provided by Ms Porter on 4 August 2012, states that the allegation is that:

“You physically pulled [Client A] up off the floor in a manner which was not in keeping with her support plan. This was followed by you yelling directly in her face when she hit you in the head as part of the manoeuvre.” 10

[56] On 6 August 2012 at 7:09 am, Ms Leahy enquired of the Employer whether the issue in paragraph [55] was the extent of the allegations. Ms Leahy had been informed by her House Co-ordinator that there was a further allegation. Notwithstanding the alleged second allegation, Ms Leahy provided a formal response to the incident where she was hit in the face by Client A.

[57] Ms Porter’s response to Ms Leahy’s enquiry about a second allegation is:

“Our meeting on Wednesday (8 August 2012) will only focus on the information I have provided below [the incident in paragraph [55] above]. As I wasn’t present I can’t clarify what Kat [Ms Glass] said or meant. As your HC there may be other allegations that are not being investigated and the HC may have decided to discuss them with you but not raise with Head Office as they may not be considered valid, or she may have discussed them and noted them on a Performance Appraisal -- that I haven’t received and that resolves the matter unless it continues or she may have meant that she/the General Manager of Support Services have received more than one complaint regarding the incident at Scotford.” 11 (my emphasis)

[58] Such a response is unspecific and opaque especially in a disciplinary process where Ms Leahy had been advised by the Employer that “this incident” (where the Applicant was hit in the face by Client A) is serious misconduct and “terminable”. A basic principle of fairness is that, as far as reasonably practicable, allegations should be specific and clear. Ms Porter’s response does not meet that test in relation to the second incident.

[59] Having considered this part of the disciplinary procedure, I now turn to the formal meeting on 8 August 2012.

[60] At the meeting, Ms Leahy restated the reasons why she acted in the way she did and gave evidence:

“At the end of the meeting I was given the letter of termination. I had the very strong impression throughout the meeting that a decision had already been made.

I was given copies of the allegations from those described as witnesses subsequent to my termination. I dispute their version of events.” 12 (my emphasis)

[61] While the Employer states in Ms Leahy’s letter of termination of employment that, “we investigated this incident and determined whether you used an inappropriate manual handling techniques or whether the physical maneuver (sic) constituted physical assault” and “investigate this...by following up with other staff members present at the function...”, I received no investigation report. 13

[62] Ms Glass gave evidence that: she was not part of the investigation 14; not at a meeting which decided to terminate Ms Leahy’s employment prior to the meeting on 8 August 201215 and was not aware that the Employer had made a decision to terminate Ms Leahy prior to the meeting on 8 August 2012.

[63] A file note described as Ms Glass’ witness statement was provided to the Tribunal. The file note, which is dated 1 October 2012, states “A full investigation clearly proved her [Ms Leahy] to be in breach of Standard 9 [of the Disability Service Standards] and immediate dismissal ensued”. 16

[64] With regards to this file note, it was completed nearly two months after Ms Leahy had been dismissed. Ms Glass was not present when the incident occurred. The content of Ms Glass’ notations were based on Ms Leahy’s file note and her awareness of complaints 17.

[65] Finally, it is notable that if the Disability Service Standards are important, as I am sure they are, there was no mention of them in Ms Leahy’s termination of employment letter.

[66] With respect to the principles of natural justice and procedural fairness, I consider it safe to say that where the incident has major consequences - in this case, termination of employment - the greater the need for formality and a fuller investigation process.

[67] From the material presented to the Tribunal, I:

● am unaware of who commissioned the investigation;

● have unease that the investigation was “fit for purpose”;

● have evidence that prior to the formal meeting with Ms Leahy on 8 August 2012, Ms Porter, Ms Glass (contrary to her evidence) and Mr Graves met to discuss the Employer’s response to the Applicant’s statement. The Employer’s written submission states, “The decision was made to terminate [Ms Leahy’s employment] as all three Mosaic staff concurred that her behaviour, as stated by herself, warranted termination...Ms Porter created the termination letter at 9:38 am on 8/8/12 and all three staff...met with her [Ms Leahy] support person at around 10:20 pm and informed her of the decision to terminate after she was able to read through the investigation file”;

● received oral evidence from Ms Glass, some of which is contradictory to the submission of the Employer, and which raises the Disability Service Standards two months after Ms Leahy’s termination of employment. Further, the incident relating to the Disability Service Standards concerned the second incident with Client B which is not referred to in the Applicant’s letter of termination of employment.

[68] If the purpose of the alleged “investigation” was to enquire into what has taken place during the incident and to establish the facts and accountability, it appears the Employer took only into account Ms Leahy’s statement and emails from Ms Ridley and Ms Harris.

[69] I have no evidence to say that Ms Ridley or Ms Harris were contacted and interviewed about their emails. Ms Ridley mentioned that Client A “accidently hit Patrice [Ms Leahy] in the head”. Ms Harris makes no mention of this in her email. This inconsistency is mentioned only to illustrate that the emails are divergent in the portrayal of the incident and required further analysis, rather than acceptance by the Employer and grounds for immediate dismissal.

[70] I have no evidence from the Employer which indicates that it took into account the relevant consideration that the incident with Client A took place in a busy kitchen with hot food being transferred to a table. This context is not mentioned in the emails of Ms Ridley or Ms Harris.

[71] I have no analysis by the Employer why it preferred the untested view of Ms Ridley (who was not called as a witness) as to Ms Leahy’s response to being hit in the face by Client A. Ms Leahy described in the HIA as being “head butted in the face”. Ms Ridley’s email indicates that Ms Leahy was accidentally hit in the head.

[72] While I have no evidence to indicate whether Ms Leahy’s verbal response to being hit or head butted in the face was reactionary or proportionate, I am confident a more structured investigation would have given all the parties an opportunity to present their version of the facts and have that version tested.

[73] In addition, a better framework to the “investigation” would have determined, in accordance with natural justice, whether the particular circumstances merited the Support Plan being departed from (which the Applicant denies) in removing Client A from the kitchen area.

[74] Finally, the Employer gave Ms Leahy notice of a formal interview on 8 August 2012. The purpose of the meeting is not directly stated by the Employer, however, it does not contradict or correct Ms Leahy’s view that it is to discuss her case. Notwithstanding this situation, the Employer’s representatives met prior to the meeting and made a decision to terminate Ms Leahy’s employment. A letter was typed - the Employer met with Ms Leahy and at the end of the meeting, she was given her termination of employment letter. Such a process undermines the principles of natural justice and procedural fairness.

[75] The criteria for considering whether the dismissal was harsh, unjust or unreasonable is set out in s.387(a)-(h) of the FW Act in paragraph [48].

CONCLUSION

Was there a valid reason for dismissal?

[76] I have adopted the definition of a valid reason stated by North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 in the following terms:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.”

[77] Ms Leahy’s evidence is simply that Client A left her chair and crawled to the kitchen. In the kitchen, various people were preparing and taking to the table a range of hot and cold foods for a Christmas in July lunch. Ms Leahy gave written evidence that it was an unsuitable place for Client A to be and:

“I walked up behind [Client A] to get her to walk back to the chair she was sitting on...As I was standing behind [Client A] trying to get her to move she gave me a head butt on my cheek. I told [Client A] it was not acceptable and put her back on the chair”. 18

[78] Ms Leahy reaffirmed her written evidence in cross examination. With maybe a tenuous connection to attendance at training courses, cross examination of Ms Leahy did not provide any evidence that she assaulted Client A. Further, Ms Leahy was not cross examined as to whether her actions were consistent or inconsistent with Client A’s support plan.

[79] As a matter of fact, Client A’s support plan (to the extent that was provided in evidence) states:

“Please do not stand or walk behind [Client A] as she tends to throw her head backwards when she knows someone is behind her.” 19

[80] Further, the support plan notes that Client A’s “challenging behaviour” is to strike staff “at meal times, in exciting, new or busy situations”. 20

[81] It is notable that in respect to another behaviour, the Support Plan states:

“Staff is (sic) to immediately where safe and possible to turn and ignore Client A foe (sic) 30 sec and then return and say ‘up’. Client A will normally get straight up”. 21 (my emphasis)

[82] Further, it is documented in the Support Plan, and obvious, that in any response by staff, safety is highlighted. In a residential setting, the need for safety in a kitchen needs to be accentuated; for this reason it is commonsense that Ms Leahy acted swiftly.

[83] In summary, while Ms Leahy may not have responded directly in accordance with the support plan in normal circumstances, her response was consistent with the need to speedily remove Client A from a busy and confined space containing hot food.

[84] In such circumstances, I am not satisfied that there was a valid reason to terminate her employment.

Notification of the reason for termination of employment

[85] Ms Leahy was given reasons for the termination of her employment on 8 August 2012.

Opportunity to respond

[86] Ms Leahy was given the opportunity to respond to a telephone complaint. The complaint related to an incident where Ms Leahy is alleged to have used “excessive force to keep Client A seated”. While this complaint is not specific, Ms Leahy nevertheless responded to this and another incident which occurred on 29 July 2012.

[87] Ms Leahy was also given the opportunity to respond in writing to an email allegation which was not given to her in direct form.

[88] However, the second allegation by a different complainant was not put to Ms Leahy.

[89] Having considered all the evidence of the Applicant’s ability to respond, I find the Employer’s actions inadequate. Further, I find the Employer’s actions of setting up a disciplinary meeting to enable Ms Leahy to respond and then giving her a letter of termination at the end of the meeting, deserving of censure. Simply put, the meeting was a sham, the Employer had already made the decision to terminate Ms Leahy’s employment.

Support person

[90] The Applicant was advised and took the opportunity to have a support person present.

Unsatisfactory performance

[91] This criterion is not relevant to the application.

Employer’s size and human resources

[92] The Employer has a Human Resources Manager and the “papers” indicate membership of an employer organisation.

[93] The Employer concedes that the decision to terminate Ms Leahy was made prior to the meeting on 8 August 2012. This action breaches a most basic element of procedural fairness which is to let an employee put their case before arriving at a decision. Quite simply, on the basis of a file note, an email statement from Ms Leahy and documents which were not given to her, she was found to have committed serious misconduct and dismissed with immediate effect.

[94] In addition to not putting the email complaints to Ms Leahy at the time of the investigation, the Employer did not call the complainants as witnesses in the hearing.

[95] While the complainants express the incident in the kitchen differently in short emails to the Employer, I am unable to assess whether it was conduct sufficient to warrant immediate dismissal in the absence of Ms Leahy being unable to test the veracity of those emails. This is particularly important given that no staff member observed the incident although one unnamed staff member allegedly heard Ms Leahy “yell” 22 at Client A.

REMEDY FOR UNFAIR DISMISSAL

[96] Ms Leahy has sought and found alternative employment. Further, the Applicant is not seeking reinstatement.

[97] Having heard all the evidence, the circumstances leading to the dismissal and the request not to be reinstated, I am satisfied that reinstatement is not appropriate.

[98] As a consequence of determining that reinstatement is not appropriate, I am satisfied that an order for compensation is appropriate as provided for in s.390(3)(b) of the FW Act.

[99] An order for compensation will be made after I have heard from both parties. My Associate will contact both parties regarding the hearing. A hearing does not preclude Ms Leahy and the Employer communicating, without reference to the Fair Work Commission, on an agreed position. In the absence of an agreed position, the Commission will make the appropriate Order.

COMMISSIONER

Appearances:

K Trainer for the Applicant.

A Porter for the Respondent.

Hearing details:

2012:

Perth,

26 November.

 1   Exhibit A5 (A)

 2   Exhibit A5 (A)

 3   Employer’s bundle of documents

 4   Exhibit A4 (8)

 5   Exhibit A4 (4)

 6   Exhibit A4 (5)

 7   Response to Statement by Ms Leahy by the Employer, paragraph 60.

 8   Exhibit A4 (2)

 9   Exhibit A4 (8)

 10   Exhibit A4 (5)

 11   Exhibit A4 (4)

 12   Exhibit A5

 13   Exhibit A4 (2)

 14   PN 292

 15   PN 293

 16   Exhibit R2

 17   PN 301

 18   Exhibit A4 (11)

 19   Employer’s bundle of documents

 20   Employer’s bundle of documents

 21   Employer’s bundle of documents

 22   Employer’s Statement of Facts.

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