Ms PCW v The Residential Care Centre (RCC)

[2015] FWC 3563

[2015] FWC 3563

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ms PCW
v
The Residential Care Centre (RCC)
(U2015/474)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 28 MAY 2015

Application for relief from unfair dismissal - allegation of assault - standard of proof - no valid reason - reinstatement.

[1] On 4 February 2015 Ms PCW lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment as a Personal Care Worker with The Residential Aged Care Centre (the RCC). Because of the nature of this matter and the involvement of other parties I have not identified the names of any of the parties involved in the matter. The parties have been advised of a legend which enables identification of persons referred to in this decision. I note at the outset that this matter epitomises the equity issues which often arise relative to allegations of elder abuse in aged care facilities. In these instances the employer is generally required to act in accordance with the aged care legislation and difficulties associated with proving allegations in a manner which is fair to residents, the employee and the employer are substantial.

[2] Ms PCW's application was not resolved through the conciliation process and was referred to me for determination. It was the subject of a hearing on 4, 5 and 6 May 2015. Prior to this, it was the subject of a telephone hearing on 16 April 2015 at which I dealt with an application for an order for the production of documents.

[3] In this matter Ms PCW was represented by Mr Blewett of United Voice and the RCC, by its Human Resources Manager, Mr HRM.

[4] The issues associated with this application are relatively limited. Ms PCW worked as a personal care worker at the RCC from 1999. Whilst she had received warnings in relation to her attendance at work, there is no dispute that the sole reason for the termination of her employment on a summary basis on 21 January 2015 was that the RCC concluded that she physically assaulted a resident on 6 January 2015.

[5] Ms PCW was charged with assault on 6 January 2015. Those charges were ultimately dropped on 17 April 2015. Ms PCW was suspended, on pay, from 7 January 2015. She, together with her union representative, Mr Zammit, met with the RCC representatives on 14 January 2015. She was summarily dismissed on 21 January 2015 and was provided with written advice to this effect.

[6] At the outset, the parties agreed that there are no jurisdictional or initial issues associated with the application. The fundamental issue to be determined goes to whether there was a valid reason for the termination of Ms PCW’s employment. The parties also agreed that, any findings relative to Ms PCW’s conduct should be made on the balance of probabilities, but that the principles in Briginshaw v Briginshaw 1 should be followed such that a proper degree of satisfaction is achieved having regard to the seriousness of the allegations.2

[7] Ms PCW asserts that she did not hit or physically assault the resident, Mr R. The RCC asserts that, sometime between 11.00 a.m. and 12:00 p.m. on 6 January 2015 Ms PCW physically assaulted Mr R, a resident of the facility.

[8] The nature of these allegations is such that Ms PCW concedes that if the allegation is established, the termination of her employment cannot be regarded as unfair. As a consequence, whilst I have considered issues associated with the process and procedures followed by the RCC, my primary attention has been directed at the question of whether the assault occurred.

[9] It is appropriate to note at this point that Ms PCW seeks reinstatement with continuity of service and payment of lost wages. The RCC asserts that, if the Fair Work Commission finds that the termination of Ms PCW’s employment was unfair, an order for reinstatement would be inappropriate in that there is an irretrievable loss of trust and confidence which meets the test generally accepted by the Fair Work Commission. 3 The RCC assert, in the alternative, that reinstatement to an alternative position on terms and conditions not less favourable than those that previously applied to Ms PCW would be more appropriate than reinstatement to the RCC facility. The RCC’s preferred remedy, if any, is for compensation.

The Evidence

[10] Notwithstanding that I have considered all of the material provided to me in reaching a conclusion in this matter, I have briefly summarised the extensive witness evidence in the following terms.

[11] Ms PCW’s evidence went to her employment history and recognised the extent to which she had received warnings relative to her attendance at work. She gave evidence about her assessment of Mr R. Her evidence went to the tasks she undertook on 6 January 2015 and, in particular, her interactions with Mr R. Ms PCW’s evidence was that after she completed her specified shift she went home and was later telephoned by Ms HGM, the RCC Residential Home General Manager. Ms HGM advised her that a serious allegation had been made against her and the matter had been referred to the police. Ms PCW was subsequently arrested and charged with assault. Ms PCW's evidence went to a meeting she had with Mr HRM, the RCC Human Resources Manager on 14 January 2015. Two allegations were made against her. The first was that she had lifted, or attempted to lift, Mr R on the morning in question, without assistance. The second allegation was that Ms PCW had hit Mr R.

[12] Ms PCW denied both allegations. She responded to various questions about her actions on 6 January 2015.

[13] Ms PCW's evidence went to her reasons for not seeking other work, both before and after the police charges were dropped on 17 April 2015.

[14] Ms RN is a Registered Nurse at the RCC. Her evidence went to her high regard for Ms PCW and her assessment of Mr R. Ms RN was the Registered Nurse on duty on 6 January 2015. She was made aware of the injury to Mr R and observed his injury. She asked the Duty Nurse to examine Mr R. Her assessment was that she did not think Mr R's injury was the result of being hit.

[15] Ms CSM is a Care Services Manager at the RCC. Her evidence confirmed various warnings given to Ms PCW primarily in relation to her attendance. Ms CSM’s evidence was that she was asked to see Mr R on 6 January 2015 and observed what looked to be a haematoma on his lip. Mr R told her that someone hit him. Her evidence went to her discussions with Mr R and Ms HGM to try and establish who had hit him. Ms CSM detailed the basis upon which she concluded that Ms PCW must have assaulted Mr R. This included showing Mr R a photograph of Ms PCW and his confirmation that she had hit him.

[16] Ms PCW2 is a personal care worker. On 6 January 2015 she worked as a casual agency worker. Her evidence went to the assistance she gave Ms PCW to help her lift Mr R from his bed to a chair. She gave evidence that, at that time Mr R did not have any cuts or wounds on or around his lips or mouth.

[17] Ms PCW3 is a personal care worker at the RCC. Her evidence went to the duties she undertook in relation to Mr R on 6 January 2015. She advised that she attended him around 9.00 a.m. and that he had no wounds on or around his lips or mouth at that time. Ms PCW3's evidence was that at around 11.50 a.m. another RCC employee told her she had seen Mr R and asked what was wrong with his lip. She then went to his room and Mr R told her that someone had punched him in the mouth. Ms PCW3 then reported the matter.

[18] Ms PCW4 is a personal care worker at the RCC. Her evidence was that she worked with Ms PCW3 on 6 January 2015, until Ms PCW3 went into Mr R's room to assist Ms PCW at approximately 10.45 a.m.

[19] Ms D is Mr R's daughter. Her evidence went to the advice given to her by Ms HGM on 6 January 2015 that there was an allegation that her father had been assaulted. Ms D's evidence was that her daughter visited her grandfather on 7 January and subsequently reported that he told her that a young woman hit him. Ms D then visited her father on 12 and 14 January 2015 when he repeated, on multiple occasions that a female carer had hit him, that he hadn't had an argument with her and didn't know why she had done it. Ms D's evidence was that her father had repeated his advice to this same effect as late as 23 April 2015 and that it was unusual for him to talk about one topic for so long.

[20] Ms HGM, the RCC General Manager for the facility gave evidence about the RCC's operations, Ms PCW's employment and the RCC Code of Conduct for its employees.

[21] Her evidence went to her meeting with Ms PCW in a relief area shortly before 1.00 p.m. on 6 January and her observations of Ms PCW walking away towards the car-park. She assumed that Ms PCW had finished her shift but later discovered that her shift was not supposed to finish until 1.00 p.m. and that Ms PCW had not scanned herself off work.

[22] Ms HGM's evidence went to how she was alerted to Mr R's injuries and her subsequent discussions with him which led her to conclude that Ms PCW had hit Mr R. She then showed Mr R photographs of Ms PCW and gave evidence that Mr R identified her as the carer who had hit him.

[23] Ms HGM's evidence then went to the reports she made of the matter and her involvement in the investigation which culminated in the termination of Ms PCW's employment.

[24] Mr PCW5 is a personal care worker at the RCC. His evidence was that between 11.00 a.m. and 11.15 a.m. he heard Mr R calling out for help and, on attending him, observed the wound on his lip. He asked Mr R what had happened and Mr R told him that someone had hit him. Mr PCW5 assumed that someone else had already reported the matter and did not do so.

[25] Mr PCW5 saw Mr R again in a lounge area at around 12.30 p.m. His evidence was that Mr R repeated that a nurse had hit him. In this respect Mr PCW5 said that Mr R often confused nurses with personal care workers.

[26] Ms PCW6 is a personal care worker at the RCC. Her evidence went to her observations of Mr R's injuries at around 12.00 p.m. on 6 January 2015. Ms PCW6 briefly conferred with Ms PCW3 before reporting the matter to an enrolled nurse in accordance with the RCC procedures. Ms PCW6 also gave evidence that she saw Ms PCW as she came out of an adjacent room. She asked Ms PCW whether she had noticed anything relative to Mr R. Ms PCW6 was surprised at Ms PCW's casual reaction to Mr R's injuries when she entered Mr R's room and saw him. Ms PCW6's evidence was that she saw Ms PCW taking Mr R's meal tray from his room at around 12.30 p.m. and understood that she had fed him. Ms PCW6 and Ms PCW3 had a discussion with Mr R at around 1.30 p.m. when he said a girl had come and bashed him.

[27] Ms PCC is the RCC People and Culture Coordinator. Her evidence went to discussions she had with Mr HRM and Ms PCW and her support person from United Voice on 14 January 2015. In this discussion Ms PCW advised that the only time she saw Mr R on 6 January 2015 was when she and another personal care worker bathed and then transferred him at between 10.50 a.m. and 11.00 a.m. Ms PCW said his lip was fine at that time. Ms PCC's evidence was that Ms PCW denied ever seeing Mr R's injured lip.

[28] Mr R's evidence was that he recalled a woman hit him in the face before lunch. Mr R's memory of the events was very limited. He did not recall the circumstances under which he says he was hit. I have noted that Ms HGM confirmed that, in the course of assisting Mr R with his statement, she was aware that Mr R was shown a photograph of Ms PCW and that he was unable to identify her as his assailant.

[29] Ms AC is responsible for rostering and the monitoring of time records at the RCC facility. Her evidence went to the operation of the biometric scanning system implemented some six months before the termination of Ms PCW's employment and to her recollection of Ms PCW being present in a relief area around 12.30 p.m. on 6 January 2015 and of her leaving the workplace at around 12.50 p.m. Ms AC subsequently found that Ms PCW had not "swiped off" and, given that she was, at that time, suspended, sought Ms HGM's advice about how her clock off time should be recorded. She recorded that time as 12.50 p.m. on the basis of her last contact with Ms PCW. She noted that employees omitted to ‘swipe off’ reasonably frequently.

Findings

[30] Before considering the factors set out in s.387 of the FW Act I have detailed my conclusions about the relevant facts on the application of the Briginshaw v Briginshaw principles such that I have reached conclusions based on a high level of satisfaction about the circumstances that are in dispute.

[31] The initial issue goes to whether Mr R was hit. A conclusion that he was not hit by a woman would negate the allegations against Ms PCW.

[32] I have significant doubt that Mr R was hit at all. Before setting out my reasons for this reservation I have detailed the following more general conclusions about the events of 6 January 2015.

[33] In considering the evidence before me I have noted that it is common ground amongst the careers who tended Mr R that he frequently called out for assistance irrespective of whether this was actually required. Indeed the patient care notes 4 specifically address this and attendant care strategies. I have concluded that the RCC staff generally responded to his calls irrespective of their frequency.

[34] Ms PCW had performance issues associated with her attendance at work. These were noted in her own evidence. 5 They were also noted by various RCC witnesses.

[35] Notwithstanding this, Ms PCW was highly regarded as a carer. 6

[36] On 6 January 2015 Ms PCW worked as a carer on a shift from 8.00 a.m. to 1.00 p.m. 7 She took a cigarette break shortly after 10.00 a.m. After that break she went to Mr R’s room and commenced to wash and move him.8 The evidence is divergent about who arranged help for her and whether the nature of that help extended to ensuring that Mr R was lifted by two staff consistent with the RCC procedures. Ms PCW says she was helped in that respect by an agency carer, Ms PCW2. However, the arrangement of that help, and the extent of it are disputed. I have not found it necessary to make findings in this regard. What is clear from Ms PCW2’s evidence9 is that when she left Mr R’s room, he was not injured.

[37] Ms PCW’s evidence is that, after Ms PCW2 left Mr R’s room she remained there. She gave Mr R a drink and tidied the room. Whilst she was in the bathroom she took a photograph of herself on her phone at 10.44 a.m. 10 Her evidence was that she had dyed her hair the previous day and that this prompted her to take the photo.

[38] Ms PCW did not observe any injury to Mr R at the time she left his room.

[39] I have concluded that the injury to Mr R was first noticed by Mr PCW5 who responded to a call by Mr R shortly after 11.00 a.m. Mr PCW5’s evidence was that:

“I then went to Mr R’s room, and noticed that Mr R had been showered as he was up and dressed and sitting in his chair. I said to Mr R “How are you going xxxx (Mr R)?” and then I noticed Mr R had a tissue in his hand with some blood on it, I then looked at Mr R’s face and saw the would on his lip which resembled a blister and we had a conversation with words to the following effect:

Me: Jesus xxxx (Mr R), what happened to you?

Mr R : Someone hit me.

Me: Christ, that’s terrible. I’ll see what I can do.

I did not ask Mr R any further questions.” 11

[40] Mr PCW5 assumed that the matter had been reported and did not take further action.

[41] Mr R’s injury was next noticed by Ms PCW6. Her evidence was:

“At approximately 12.00pm I went directly to Mr R’s room which is not far from the lunch room and I saw Mr R slumped over in his chair. I thought Mr R may have been asleep, and so I bent over to see whether his eyes were closed and then I thought “what’s that?” I could see a large bruise-like mark on Mr R’s lip. I called to Ms PCW3 who was passing by, and asked her if she knew what had happened, and she replied she did not.” 12

[42] Apart from some time variations, this is consistent with the evidence of Ms PCW3, 13 with the addition that Ms PCW3 then advised:

“Ms PCW6 and myself went to Mr R’s room and asked him what had happened, to which Mr R responded “someone punched me in the mouth.” Mr R did not say anything else.”

[43] In her evidence, Ms PCW3 was less certain. She advised that Ms PCW6 may have initially told her that she thought Mr R had bitten his lip. 14

[44] Ms PCW6 reported Mr R’s injury to the Duty Nurse consistent with the RCC procedures.

[45] There is some difference about the circumstances under which Ms PCW3 and Ms PCW6 then told Ms PCW about Mr R’s injury, but I am unable to be at all sure of this, or of its relevance.

[46] Ms PCW took Mr R’s lunch in to him in his room. Her evidence 15 was that he did not need to be fed.

[47] At some later, unspecified time Mr R was moved into a lounge area. A number of staff (including, but not limited to Mr PCW5, Ms PCW3 and Ms RN) spoke to him. The various recollections of his explanation for the injury to his lip were to the effect that a woman had hit him.

[48] Ms PCW met and spoke casually to Ms HGM and Ms AC in a smoking area some time around 12.30 p.m. I have concluded that, at that time, Ms HGM was not aware that Mr R had injured his lip. The evidence before me is contradictory about Ms PCW’s demeanour at that time such that I am unable to draw any conclusions about it.

[49] I also note that there is some difference about the time Ms PCW actually left work. I have taken it that she did not actually clock of, that this is not particularly unusual in that workplace, and that she left work slightly before 1.00 p.m.

[50] The Care Services Manager, Ms CSM was called to talk with Mr R around 1.50 p.m. on 6 January. When Mr R advised her that “someone bashed me”, 16 she called Ms HGM as the General Manager.

[51] I have concluded that, notwithstanding various questions asked of Mr R, Ms HGM and Ms CSM were not advised of the circumstances under which Mr R continued to allege he had been hit. I accept Ms HGM’s evidence that:

“I immediately went to see Mr R with Ms CSM and could see that he had a large hematoma blister on his upper lip and a split on his lower lip. We had a conversation with words to the following effect:

Me: What happened?

Mr R : Someone smacked me in the mouth.

Me: Do you know who?

Mr R : Yes, the attendant this morning.

Me: Do you know what they look like or what they were wearing.

Mr R : A green shirt.

PCWs wear green shirts and so I asked two PCWs, Ms PCW6 and Ms PCW3, to come into the room to show Mr R. Mr R confirmed that it was the PCW green shirt but that it was not either Ms PCW6 or Ms PCW3.

I also asked a cleaner to come into the room as they wear aqua coloured shirts and I wanted to make sure that Mr R was not getting confused with the shirt colours. Mr R said it was not the aqua colour shirt.

Me: Do you think it was an accident?

Mr R : No it wasn’t.

Me: How do you know that xxxx (Mr R)?

Mr R : Because it was more than one blow from her.

Me: What colour hair xxxx (Mr R)? Light or dark?

Mr R : Dark hair.

Me: What colour skin did she have?

Mr R : Light skin.” 17

[52] After Ms HGM and Ms CSM went through a process of progressive elimination of staff by uniform type and other distinguishing characteristics, they showed Mr R photographs of Ms PCW. I accept Ms CSM’s evidence that:

“By a process of elimination Ms HGM and myself determined that the Applicant had assaulted Mr R. This was because Mr R was talking about a female, which eliminated Mr PCW5, Mr R eliminated Ms PCW3 and Ms PCW6 himself and Mr R said the female had light coloured skin, which eliminated Ms PCW2 as she has dark coloured skin.

I then located a photo of the Applicant and showed it to Mr R, and Mr R responded “that’s her”.” 18

[53] Ms HGM followed the requisite mandatory reporting procedure and reported the matter to the police. There is a great deal of evidence about the events that then followed but I am not satisfied that this assists in my assessment of whether Mr R was hit at all or whether Ms PCW hit him.

[54] My conclusion that I am not satisfied that Mr R was hit or bashed at all is based on the following findings.

[55] Firstly, there was no medical evidence called or put to me to indicate that the injury was the result of Mr R being hit apart from limited evidence to that effect from Ms HGM. Ms HGM recalls bruising that later became more evident 19 and cuts on Mr R’s lower lip. I am unable to confirm the nature and extent of Mr R’s injury from the photographs provided to me. However, Ms RN noted only the hematoma on Mr R’s upper lip. Ms CSM20 also noted only the hematoma on his upper lip and that there was no surrounding bruising. Ms CSM’s evidence continued to state:

“Mr Blewett:
What I want to suggest Ms CSM is that it is likely that a punch to the mouth of an elderly person would give rise to greater damage that a blood blister ... would you agree?

Ms CSM:
Um, it could, but yeah, it depends on the force.

Mr Blewett:
And repeated blows to the mouth are likely to cause greater injury than one blood blister in an elderly resident.

Ms CSM:
That would again depend on the person.

Mr Blewett:
It is unlikely, do you agree, that repeated blows to the mouth would result in an injury to only one location, namely this hematoma on the top lip.

Ms CSM:
Um yeah, there could be more.” 21

[56] Ms RN's evidence was that on 6 January 2015 she did not observe swelling to other parts of Mr R’s face. 22

[57] The identification of the injury in the report to the doctor on 6 January 2015 referred only to an upper lip injury. 23

[58] The Doctor’s file note 24 only refers to an upper lip blood blister and a subsequent Doctor’s note of 15 January 201525 notes that there was no bruising at that time.

[59] I have concluded that there was a small 1-1.5 cm blood blister on Mr R’s upper lip. To the extent that there was other bruising or cuts or blood blisters on his lower lip, I have concluded that these were not significant.

[60] Additionally, the Doctor’s note following his examination of Mr R on 7 January 2015 26 recorded: “query accidental injury”.

[61] This uncertainty about the cause and nature of Mr R's injury is compounded by other evidence.

[62] This included Mr R’s calm demeanour after the event which appears inconsistent with a bashing or with being punched. Even more significant in this regard is that Ms PCW took his lunch into him. Had it been the case that he had just been hit by her I would have expected a substantial reaction to her at that time.

[63] I have also noted that none of the witnesses was able to draw similarities between Mr R’s injury and other instances of elder abuse

[64] The evidence before me establishes that Mr R has memory problems. The Doctor’s notes of 25 August 2014 record memory issues 27 and the Patient Care Plan28 notes a previous brain injury and confusion. Additionally, in his evidence before me, Mr R appeared to be confused. I hasten to add that is clearly understandable given his age and the circumstances.

[65] The evidence was that Mr R was being given various medications to address anxiety and agitation issues and, in addition, was taking aspirin which increased the effect and likelihood of bruising.

[66] I have also noted that a previous incident report 29 indicates an occasion in September 2014 where Mr R sustained bruising and swelling to his lip whilst he was being fed.

[67] I have taken the evidence that favours a finding that Mr R was hit into account. Firstly, there is Mr R’s repeated assertions, on 6 January 2015, that a woman had hit him. I have noted that he repeated these concerns to Ms D, his daughter, for some time after 6 January 2015. Those assertions, however, must be considered in the context of my earlier findings about Mr R. They do not enable a conclusion that Ms PCW or anyone else assaulted Mr R to be reached with what I consider to be the necessary degree of satisfaction.

[68] Additionally, I have concluded that Ms HGM was of the view that Mr R had been hit. Notwithstanding her views, I have concluded that the weight of the evidence, and particularly the evidence relative to the nature of Mr R’s injury, does not support her opinion.

[69] Having considered all of this material, I am simply not satisfied that Mr R was, as he suggested on 6 January 2015, smacked or bashed or punched on multiple occasions. This should not be misconstrued.

[70] It may well be the case that he was hit, or alternatively, that the injury arose whilst he was eating but the application of the Briginshaw principle does not support the conclusion that he was hit, slapped or punched.

[71] Having reached this conclusion, the underpinning basis for the termination of Ms PCW’s employment is not established and the termination of her employment lacks a valid reason.

[72] However, the evidence is clear that Mr R was indeed injured and, I have considered whether the evidence permits a conclusion that this injury was caused by Ms PCW or occurred whilst she was in his room such that her behaviour or failure to report the matter represented misconduct. I note that this was not argued before me.

[73] Similar issues of uncertainty arise about the nature of the injury and uncertainty about when and how it occurred. It is quite possible that Ms PCW was with Mr R when he was injured, that she was aware of his injury or that she may have contributed to that injury in some way. However, the evidence before me simply does not enable such a conclusion to be reached with any degree of confidence.

[74] Finally, I have considered the extent to which an inference about Ms PCW’s reliability or behaviour can be drawn from the evidence. In that respect I have noted the many differences in time recollections on the part of the witnesses but attribute this to the normality of the day - apart from Mr R’s injury.

[75] Ms PCW’s work performance issues relate to her attendance. I cannot discern from the evidence matters which enable an inference that she has lied in her advice relative to Mr R’s injury.

[76] Consequently, I am not satisfied that the evidence before me enables a conclusion about Ms PCW’s conduct in either contributing to, or being aware of, but not reporting Mr R’s injury. Again, this conclusion should not be misconstrued. It is quite possible that Ms PCW contributed to, or was aware of Mr R’s injury but the evidence before me does not enable a conclusion to this effect.

[77] Consequently, I have concluded that I cannot be satisfied that Ms PCW’s conduct relative to Mr R can be described as misconduct.

[78] Section 387 states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.”

[79] Given my findings in this matter, consideration of these factors becomes straight forward.

[80] On the principles set out in Selvachandran v Peterson Plastics Pty Ltd 30, I do not consider that there was a valid reason for the termination of Ms PCW’s employment. I have noted that the second allegation put to Ms PCW on 14 January 2015, to the effect that she lifted Mr R without involving a second person was not pursued and that there is no evidence to substantiate it before me.

[81] I accept that Ms PCW was advised of the reason for the termination of her employment.

[82] There is no dispute that she was given an opportunity to respond to the concerns that led to the termination of her employment and had a representative with her at that time.

[83] The RCC is a substantial employer which has detailed policies and procedures and has specialist human resource management expertise.

[84] No other issues are significant to this matter.

[85] As a result I regard the termination of Ms PCW’s employment must be regarded as harsh in that there was no valid reason for it. It must be regarded as unjust in that it was based on inferences rather than facts. It was unreasonable in that misconduct was not established.

[86] In these circumstances s.390 directs my attention to a remedy. The primary remedy is that of reinstatement. Ms PCW seeks reinstatement and the RCC argues that it would be inappropriate.

[87] In considering the appropriateness of reinstatement I have had regard to the extent to which Ms PCW has worked for the RCC for some 16 years and have concluded that the aged care industry is clearly her chosen career and the RCC, her preferred employer. Indeed, given the circumstances of this matter, I consider that there is a real possibility that, unless she is reinstated to the RCC, she may well have difficulty obtaining other employment in this industry as a consequence of this matter.

[88] I have also concluded that this matter has most likely been difficult for both the RCC and for Mr R and his family. Indeed, his daughter alluded to those difficulties in her evidence.

[89] Having considered all of these issues, I am not satisfied that, on the application of the approach in Perkins v Grace Worldwide (Aust), 31 the RCC has demonstrated that reinstatement is inappropriate. The evidence before me established the Ms PCW was highly regarded by both the RCC management and her peers. I am not satisfied that she has demonstrated any animosity that would prejudice re-employment.

[90] I have concluded that re-instatement is appropriate in these circumstances, but that pursuant to s.391(1)(b), the RCC should have the capacity to reinstate Ms PCW to another position on terms and conditions not less favourable than those that applied before the termination of her employment. In this respect, the RCC may appoint Ms PCW to a carer position in another aged care facility within a reasonable distance from her home.

[91] Section 391(2) permits the Fair Work Commission to order continuity of service and payment of lost wages. I consider that an order for continuity of service is appropriate in this case. I also consider that an order for payment of lost wages is appropriate. The evidence before me confirms that Ms PCW has not worked since the termination of her employment, but given that the Police assault charges against her were current until 17 April 2015, I have concluded that this restricted her capacity to obtain alternative employment such that an order for payment of lost wages is appropriate.

[92] An Order (PR567734) giving effect to this decision will be issued.

Appearances:

S Blewett representing the applicant.

Mr HRM representing the respondent.

Hearing details:

2015.

Adelaide:

May 4, 5 and 6.

 1 (1938) HCA 34

 2   Exhibit A1, para 5

 3   Perkins v Grace Worldwide (Aust), (1997) 72 IR 186

 4   Exhibit A14 and A15

 5   Exhibit A2 and in her evidence in the hearing -Transcript Sound Recording, 4 May 2015, 10.58 am

 6   See Ms PCW’s evidence Transcript Sound Recording, 4 May 2015, 11.12 am, Ms PCW3’s evidence 4 May 2015 14.27pm, Ms RN’s evidence Exhibit A5 pn3 and Ms CSM’s evidence 4 May 2015 16.05pm)

 7   Transcript, Sound Recoding, 4 May 2015, 11.13 am

 8   Exhibit A2, para 18

 9   Exhibit R8, para 9

 10   Exhibit A2, para 22

 11   Exhibit R13, para 4

 12   Exhibit R14, para 4

 13   Exhibit R7, para 8)

 14   Transcript Sound Recording, 4 May 2015, 14.35 pm

 15   Transcript Sound Recording, 4 May 2015, 11:35 am

 16   Exhibit R10, para 5

 17   Exhibit R16, para 11

 18   Exhibit R10, paras 12 and 13

 19   Transcript Sound Recording, 5 May 2015, 14.23 pm

 20   Transcript Sound Recording, 4 May 2015, 16.15 pm

 21   Transcript Sound Recording, 4 May 2015, 16.44.08 pm

 22   Transcript Sound Recording, 4 May 2015, 13.08 pm

 23   See Exhibits A6, A9 and A10

 24   Exhibit A11

 25   Exhibit A12

 26   Exhibit A10

 27   Exhibit A13

 28   Exhibit A14

 29   Exhibit A17

 30 (1995) 62 IR 371 at 373

 31 (1997) 72 IR 186

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<Price code C, PR567733>