Ms Sally-Anne Hall v Mirridong Services Inc T/A Mirridong Services

[2014] FWC 1448

[2014] FWC 1448

FAIR WORK COMMISSION

DECISION

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

Ms Sally-Anne Hall
v
Mirridong Services Inc T/A Mirridong Services
(U2013/2904)

COMMISSIONER ROE MELBOURNE, 5 MARCH 2014

Termination of employment.

[1] The matter arises from an application filed on 29 August 2013 under s 394 of the Fair Work Act 2009 (the Act) by Ms Sally-Anne Hall (the Applicant) for relief in respect to the termination of her employment from Mirridong Services Incorporated (the Respondent).

[2] The Applicant was employed by the Respondent for more than 19 years. The Applicant was initially employed on a casual basis but was a permanent part time employee since 2010. The Applicant was dismissed at the initiative of the employer on 19 August 2013. The dismissal was a summary termination for alleged serious and wilful misconduct. The Applicant was on annual leave from 13 July 2013 and was scheduled to return to work on 2 August 2013 but suffered injury whilst on annual leave and was on paid sick leave until 18 August 2013. The Applicant was rostered to return to work on 21 August 2013 but was dismissed on 19 August 2013. On 13 August 2013 the Board of the Respondent endorsed a recommendation from the CEO, Mr Webb, that the Applicant be terminated. The CEO of the Respondent advised the Applicant by telephone on 18 or 19 August 2013 that she had been terminated. A letter dated 14 August 2013 was posted to the Applicant that day which advised of the termination and the reasons for the termination.

[3] I am satisfied that the Applicant is protected from unfair termination. The Respondent is not a small business employer. The Respondent is a national system employer. The Applicant is a disability support worker and her employment with the Respondent is covered by the Social, Community, Home Care and Disability Services Industry Award 2010.

[4] The Respondent raised no issues concerning the performance of the Applicant. The termination of the Applicant related to one incident of alleged misconduct. There were no other previous issues of misconduct alleged by the Respondent.

[5] I agreed to the parties being represented by counsel given the complexity of the factual disputes in this case. The hearing was held in Morwell.

[6] The care of a particular resident of the disability care facility operated by the Respondent was central to the alleged incident of misconduct. In response to an application from the Respondent I agreed that the identity of that resident should be protected. Any reference to the name of that resident in the Commission’s file, in the exhibits in the proceeding and in the transcript should only be available to the parties and should not be accessible to the public. If there are requests for public access to these materials then the name of the resident in any of those documents should be redacted. I shall refer to the particular resident as the resident.

Evidence

[7] Evidence was given by the following persons:

● The Applicant.
● Ms Narelle Barlow, a disability support worker in the same team as the Applicant.
● Ms Brenda Mirra, a disability support worker in the same team as the Applicant.
● Mr Webb, CEO of the Respondent.
● Ms Kerrie Anne Dessent, Team Leader of the Applicant.

[8] Concerns had been raised about the deterioration in the behaviour of the resident in early 2013. Dr Livingstone was requested in February 2013 to undertake an assessment of the resident and her care and management. Dr Livingstone assessed the resident on 27 May 2013. The assessment did not involve observation of the care of the resident provided by the Applicant, Ms Barlow or Ms Mirra. Dr Livingstone provided a report dated 7 June 2013 1 which included the following observations:

● The negative behaviours of the resident “are strongly tied to her accommodation”.
● The negative behaviours of the resident “are variable in the home environment depending upon whom she is interacting, and she does not display them at all for some staff members”.
● “It is of interest that the staff members for whom she displays these behaviours are reportedly those who have the warmest and most approachable style of interaction”.
● “A behaviour consultant has provided some management recommendations, but these have not been taken up by house staff as there were some concerns about how well they respected the rights of other clients as well as (the resident).” There has been some change to medication. “This has coincided with some improvement in her behaviour, although it is noted that one of the staff with whom she particularly shows this behaviour has been on leave recently.”

[9] Dr Livingstone recommended that clear communication between those involved in the management of the resident was required, a structured and consistent schedule and consistent behavioural management by all staff involved. Dr Livingstone recommended some training and education for staff to assist positive behaviour support. Dr Livingstone did not criticise or suggest a change to the warm and approachable style of interaction or prescribe a particular approach to behavioural management.

[10] On 31 July 2013 there was a regular staff meeting. The report of Dr Livingstone was tabled at that meeting. There were seven staff members at the meeting including Mr Webb, Ms Barlow and Ms Mirra. The Applicant was not present as she was on sick leave. At the meeting Mr Webb identified the Applicant, Ms Barlow and Ms Mirra as staff members for whom the resident had displayed negative behaviours.

[11] Ms Barlow and Ms Mirra were upset at being singled out and publicly identified in the meeting. They spoke to the Applicant. The three employees sought and obtained a meeting with Mr Webb early the next day at which they raised their concerns. The Applicant, Mr Webb, Ms Barlow and Ms Mirra were the only persons present at the meeting which lasted between 30 minutes and one hour. Mr Webb says that the meeting was between 30 and 45 minutes and the Applicant says that the meeting was approximately one hour in duration.

[12] At the meeting the employees expressed their concern at being identified as they believed that the resident showed the negative behaviours to all staff involved except for the team leader Ms Dessent. In the proceedings Mr Webb accepted that this was the case. Mr Webb said at the meeting that it was his perception that the behaviours were most displayed with the three employees and that he was not singling out the employees and emphasised that it needed to be sorted out as a team. In the proceedings he accepted that the identification of the three employees was not based upon advice from Dr Livingstone or his own direct observation. He suggested that his perception was based upon observations reported to him by the mental health nurse.

[13] Mr Webb identified the Applicant as the employee referred to in the report as being on holiday. In the proceedings Mr Webb did not identify the basis for this conclusion. It was the unchallenged evidence of the Applicant that she was not on leave at the time Dr Livingstone made her report. Mr Webb accepted that Ms Barlow had said in the meeting that the Applicant had not been on leave at the time the report was written.

[14] Mr Webb emphasised the need for working as a team so that all staff managed the resident in the same way. In the proceedings the employees gave evidence that they understood Mr Webb to be asking them to take a tougher and less empathetic approach with the resident. In the proceedings Mr Webb said that it was about not doing everything for the residents but encouraging and assisting the residents to be more self reliant. At the meeting, in response to the call that all staff manage the resident in the same way the three employees said that they did not want to handle the resident the same way as Ms Dessent and proceeded to give examples of why they did not wish to emulate the approach taken by Ms Dessent.

[15] The three employees say that the Applicant referred to the approach taken by Ms Dessent as bullying. Mr Webb does not recall the use of that word. All present agree that two particular examples were given. There is conflict in the evidence about a third example. The two agreed examples are:

● Ms Barlow said that she had observed Ms Dessent screaming aggressively at the resident concerning a toilet brush incident. Ms Barlow said that Ms Dessent was very close to the resident’s face.
● The Applicant said that she had observed Ms Dessent grab the resident by the arm and dragged her to her room to put her clothes on. Mr Webb agreed that the word dragged was used.

[16] Mr Webb says that a third example was raised by the Applicant that she had seen Ms Dessent grab the resident by the throat and slam her against the wall. Mr Webb says that the Applicant used the term assault to describe the actions of Ms Dessent. In his statement Mr Webb says that after the allegation concerning grabbing the resident by throat was made “I made a point at this stage that she ought to be very careful about what she was saying. I pointed out that what was being indicated was an assault, not simply a person being led by the arm.” 2 The Applicant denies using the word “assault” and denies that she ever said anything about the resident being grabbed by the throat and pushed or slammed against the wall. Ms Barlow and Ms Mirra gave similar evidence. The Applicant does say that at the meeting she said that another staff member had witnessed Ms Dessent with her finger in the resident’s face whilst screaming at her. Ms Mirra gave evidence that she had seen such an incident but that she did not suggest that the finger made physical contact with the face.3

[17] Ms Mirra left the meeting shortly before it concluded and Mr Webb says that it is possible that she was not present when this third example was raised. The Applicant and Ms Barlow say that all examples were raised before Ms Mirra left.

[18] The Applicant and Mr Webb agree that Mr Webb asked why the Applicant had not reported the incidents and the Applicant agreed that she should have done so.

[19] An hour after the meeting Mr Webb telephoned the Applicant. Mr Webb told the Applicant what she had alleged was a category 1 incident which would have to be reported. Mr Webb says that he repeated to the Applicant that she had accused Ms Dessent of grabbing the resident and pushing her against the wall. The Applicant agrees that Mr Webb made this allegation. The Applicant says that she responded by denying that she made the allegation. In the proceedings Mr Webb conceded that the Applicant responded that she had never said that Ms Dessent had grabbed the resident by the throat. 4 Mr Webb made no mention of the Applicant denying that she had ever said that the resident had been grabbed by the throat in his statement prepared for these proceedings or in the report he made for the Board in August 2013. Mr Webb says that the Applicant then said that she had not seen the incident but that it had been reported to her by Ms Mirra.

[20] Shortly after the conversation with the Applicant, Mr Webb telephoned Ms Mirra. In his statement Mr Webb says that it was a short conversation and that he asked Ms Mirra if she has ever seen a staff member assault a client and Ms Mirra replied that she had not.

[21] Ms Mirra says that:

“Mr Webb asked her whether I had heard Sally tell him that she had seen Kerry push (the resident) against a wall by her throat. I told Mr Webb that I had not heard that said by Sally but that I had left the meeting early. Mr Webb then asked about Kerry’s treatment of (the resident) and whether it would constitute assault or whether it would constitute rough treatment of the kind that her mother might use. I indicated that I was not sure whether it constituted assault.” 5

[22] In his report to the Board which was prepared sometime between 2 August 2013 and the Board meeting of 13 August 2013 Mr Webb says that:

“I immediately phoned Brenda who denied ever seeing Kerry assault clients but Brenda said that in her opinion Kerry was committing assault every time she assisted (the resident). Kerry assisted (the resident) by holding (the resident’s) arm to move if required. This assisting has been done by (the resident’s) mother ever since she was a child and is carried out with the full consent and knowledge of (the resident’s) mother, it has been seen by the mental health nurse Natalie Sidebottom who has indicated that this prompting is acceptable and in some cases should be encouraged as it is a normal part of (the resident’s) life. In her eyes it is not assault. I asked Brenda if Kerry was using unnecessary force on (the resident) when she holds her arm and Brenda agreed that she did not. When I asked Brenda if she had seen Kerry hold (the resident) against the wall, or had ever seen (the resident) assault (the resident) she vehemently denied it and she denied every telling Sally anything of the sort.” 6

[23] It is notable that Mr Webb makes no reference to holding by the throat.

[24] Mr Webb gave evidence that he did not take any notes during the meeting. He gave evidence that he progressively wrote and refined the report to the Board in the ten days following the incident in August 2013 as he progressively remembered the incident. He says that the report is incomplete and inaccurate in some respects which he attributes to being emotional at the time. 7 He said that he became more rational and considered as he revised his notes in finalising the report to the Board. However, he says that the statement prepared in January 2014 for these proceedings is more accurate than his report to the Board.8

[25] On 2 August 2013, following the telephone conversations with Ms Mirra and the Applicant, Mr Webb rang Ms Dessent. Mr Webb told Ms Dessent that the Applicant had alleged that she had assaulted the resident. Ms Dessent denied that she had ever assaulted the resident. Ms Dessent gave evidence that Mr Webb told her “that it had been alleged by a staff member that she had seen me with my hands around (the resident’s) throat holding her up against the wall or words to that effect. I denied it.” 9 It is obvious from the rest of Ms Dessent’s evidence that Mr Webb revealed the identity of the employee who it was alleged made the allegation to Ms Dessent.

[26] Mr Webb says that he made further contact with the Applicant by phone on about 2 August 2013 and requested that she come into the office to discuss the allegations made. Mr Webb says that the Applicant said words to the effect that “this is bullshit” and “I am going to get a solicitor as you are bullying me.” The Applicant confirms that a conversation did take place and that she did tell Mr Webb that she felt she was being bullied. The Applicant said that she told Mr Webb that she was busy at the doctors. The Applicant says that she intended to talk further to Mr Webb about the matter when she returned from sick leave. The Applicant says that she reiterated to Mr Webb that she had not made the statements he was attributing to her.

[27] Mr Webb did not contact the other person present at the 1 August 2013 meeting, Ms Barlow. He made no further investigation but concluded that the Applicant had made a false allegation of assault and decided to recommend the dismissal of the Applicant. Mr Webb gave evidence that had the Applicant not been on leave the termination would have taken place immediately after the Board accepted his recommendation to terminate the Applicant.

[28] The next time Mr Webb tried to contact the Applicant was on or about 19 August when Mr Webb rang and advised the Applicant that she was being terminated.

[29] The termination letter 10 includes the following:

● In respect to the meeting of 1 August 2013: “At this meeting you made allegations regarding Kerry Dessent physically assaulting a client (the resident) approximately one year ago. You made the allegation that you had personally seen Kerry push (the resident) up against a wall at the Curry House residence.”
● In respect to the investigation: “I rang you to confirm that you personally observed Kerry assaulting (the resident) to which you changed the allegation and advised me that you had only been told about the assault by another staff member, Brenda Mirra. When I rang Brenda to discuss your allegation she vehemently denied the allegation and stated that she had never seen any member of staff assault any clients.”
● The outcome of the investigation: “As a result of my investigation I consider this to be a matter of serious and wilful misconduct as your allegation placed two staff members at serious risk of criminal charges. The allegation was baseless and untrue.”
● The dismissal: “... the Board unanimously passed a motion that your employment be terminated as your conduct in this matter is deemed to be serious and wilful misconduct as described under Mirridong’s procedure 3.1.11.”

[30] The Applicant was paid accrued entitlements up to 19 August 2013 and was paid a lump sum equivalent to five weeks in lieu of notice.

[31] The Applicant made a complaint in January 2013 about the failure of Ms Dessent to arrange an employee to be rostered with her on a particular shift. The Applicant and Mr Webb gave evidence that this was a minor incident and that there were no significant issues in the working relationship between Ms Dessent and the Applicant prior to the incident in August 2013. Although in her statement Ms Dessent suggested that the relationship was poor in the proceedings she accepted that the incident was insignificant and that their interactions were limited. . 11

Conclusions from the evidence

[32] The “false allegation” was variously described as follows:

● Mr Webb said: “Kerry had (the resident) by the throat and slammed her against the wall”. 12

Ms Dessent said: “hands around (the resident’s) throat holding her up against the wall”. 13

The termination letter said: “push (the resident) up against a wall at the Curry House residence”.

● The Applicant said that in the phone conversation on 1 August 2013 Mr Webb said: “you accused Kerry of pushing (the resident) against the wall by her throat.” 14

Ms Mirra said that in the phone conversation on 1 August 2013 Mr Webb said: “push (the resident) against a wall by her throat”. 15

[33] There is a big difference between pushing or holding someone against the wall and slamming someone against the wall. I am satisfied that Mr Webb described the allegation to Ms Dessent, Ms Mirra and the Applicant as push or hold not as slamming. It is obvious that the most violent and serious element of the allegation is the holding of the throat. I am satisfied that this accusation was put to the Applicant, Ms Dessent and Ms Mirra on 1 August 2013. The Applicant and Mr Webb both agree that the Applicant denied that she had ever said that Ms Dessent had held or pushed the resident by the throat. Mr Webb says that the Applicant only denied the part of the allegation relating to holding the throat. Mr Webb said that because the Applicant went on to say that she had not seen the incident but that Ms Mirra had told her about the incident he considered that the Applicant was persisting with an allegation that Ms Dessent had pushed the Applicant against a wall. When Ms Mirra denied that she had witnessed any incident of assault and Ms Dessent denied any such action, Mr Webb said it was open to him to conclude that the Applicant had made a false allegation.

[34] Ms Barlow was present throughout the meeting on 1 August 2013 and she says that the statement was never made by the Applicant. Ms Mirra also says that the statement was never made whilst she was at the meeting although she left the meeting shortly before it concluded.

[35] The Applicant says that she did make a reference in the meeting of 1 August 2013 to being told of another incident involving the waving of a finger in the face.

[36] Ms Barlow, Ms Mirra and the Applicant were consistent and straightforward in giving their evidence. Of course it is possible that the employees have conspired to assert the Applicant’s innocence. Having regard to all of the evidence and the manner in which that evidence was given in the proceedings I do not consider this probable.

[37] I have no doubt that Mr Webb was extremely agitated as a result of the allegations made at the meeting on 1 August 2013. Mr Webb was rightly very concerned that if the allegations amounted to assault there were mandatory reporting requirements and even if the allegations were subsequently not substantiated this could cause damage to the careers and reputations of some employees and the Respondent. I am satisfied that Mr Webb made an appropriately speedy investigation of the allegations by speaking to the Applicant, Ms Dessent and Ms Mirra and satisfied himself that the matters raised did not constitute physical assault of the type which justified formal reporting. Ms Mirra denied that any matter she had seen constituted a physical assault of that sort. The incident described by Ms Barlow was not a physical assault of that sort. The incident described by the Applicant about dragging the resident by the arm was regarded as consistent with what the mother had always done and not physical assault of that sort. The Applicant denied making the allegation about grabbing by the throat and Mr Webb had satisfied himself that it had not occurred.

[38] However, Mr Webb’s evidence concerning the events as they relate to the termination of the Applicant and the allegation of making a false allegation were quite inconsistent. I am satisfied that Mr Webb sincerely believes his recollection of the events of 1 and 2 August 2013. However, I am satisfied that his agitation and his failure to take notes affected his recollection of events. It is notable that it was only during the proceedings that Mr Webb first accepted that the Applicant had denied that she had ever made the allegation that Ms Dessent had put hands around the resident’s throat one hour after the allegation was allegedly made. The Applicant has consistently maintained this position.

[39] The report to the Board fails to mention the details of the allegation made by Ms Barlow and the allegation made by the Applicant about the resident being dragged by the arm down the corridor. 16 The report mentions that Ms Barlow said that she thought that Ms Dessent sometimes verbally assaulted clients but Ms Barlow, Ms Mirra and the Applicant all gave evidence which I accept, that Ms Barlow made a much more specific and detailed allegation. Mr Webb accepted during the proceedings that Ms Barlow made the specific allegation.17 It is the consistent evidence of Ms Barlow, Ms Mirra and the Applicant that both these allegations were made at the meeting. Mr Webb accepts that this evidence is correct.18 The report to the Board claims that it was alleged that Ms Dessent had “physically assaulted (the resident) on numerous occasions around the house”. Mr Webb accepts that “numerous” was never raised and was not correct. Mr Webb’s account of the telephone conversation with Ms Mirra in the Statement and in the Board report are starkly different. There are a number of other inconsistencies between the Board report and Mr Webb’s statement and the evidence given in the proceedings.

[40] For these reasons I generally prefer the evidence of the Applicant, Ms Mirra and Ms Barlow concerning the events of August 1 and 2 where it is inconsistent with the evidence of Mr Webb.

[41] I am satisfied that when the Applicant said that she never alleged that Ms Dessent held or pushed the resident by the throat this should be understood as a denial of the allegation that she had made an allegation of physical assault against Ms Dessent. If there had been a misunderstanding or if she had given the incorrect impression then she was making it clear that she did not allege that Ms Dessent had physically assaulted the resident.

[42] There is one element of the Applicant’s evidence which concerned me. The Applicant does not suggest in her Statement that she referred to Ms Mirra as having told her about an incident involving Ms Dessent. The Applicant does say that in the meeting on 1 August she gave the example of another staff member witnessing Ms Dessent with her finger in the face of the resident while screaming at her. Neither Ms Mirra nor Ms Dessent refer to this in their statements. During the proceedings Ms Mirra did give evidence of an incident when Ms Dessent had her finger close to the face of the resident. 19 Ms Mirra also said that the Applicant had said in the meeting that she had seen Ms Dessent bully the Applicant on a number of occasions and wished she had written it down.20 Mr Webb did ring Ms Mirra after his phone call with the Applicant. In his Statement Mr Webb does not suggest that he told Ms Mirra that the Applicant had alleged that Ms Mirra had told the Applicant that Ms Dessent had pushed the resident against the wall by the throat. However, in the report to the Board Mr Webb says that Ms Mirra “denied ever telling Sally anything of the sort”. Under cross examination Mr Webb was at first adamant that the version in the Statement was correct but then was of the view that the version in the Board report was more likely to be correct.21

[43] I consider it possible that the Applicant did make some reference to an allegation she had heard from Ms Mirra in the telephone conversation with Mr Webb on 1 August 2013. However, I am not satisfied that the Applicant said that Ms Mirra had witnessed Ms Dessent commit a physical assault such as slamming the resident against the wall. I am satisfied that Ms Mirra reiterated to Mr Webb that she did not approve of Ms Dessent’s approach to the resident but that she had not observed any physical assault.

[44] One of the difficulties in this case arose because Mr Webb insisted on describing matters using the term “assault”. The Applicant, Ms Mirra and Ms Barlow did not necessarily share the same understanding of the meaning of this word as Mr Webb. They were understandably reluctant to describe matters as an “assault”. Mr Webb says that he asked the Applicant and Ms Mirra had they observed any assault and took a negative answer to this as evidence that earlier described incidents had not occurred. More comprehensive and careful questioning might have elicited different information. It is this approach which probably explains why Mr Webb does not appear to have taken any action in response to the allegation raised by Ms Barlow that Ms Dessent had screamed aggressively at the resident concerning a toilet brush incident. 22 The allegation raised by the Applicant that Ms Dessent dragged the Applicant down the corridor by the arm did involve physical contact. It is clear that Mr Webb was concerned that this could constitute an assault. I am satisfied that this is one reason why Mr Webb reacted more strongly to the matters raised by the Applicant during the 1 August 2013 meeting and followed this up by the telephone call to the Applicant shortly after the meeting.

[45] My conclusion in this respect is reinforced by the evidence of Ms Mirra, that I accept, that Mr Webb raised with her in their telephone conversation on 1 August 2013 the following:

“Mr Webb then asked about Kerry’s treatment of (the resident) and whether it would constitute assault or whether it would constitute rough treatment of the kind her mother might use”. 23

[46] This evidence suggests that Mr Webb was concerned about the allegation raised by the Applicant concerning dragging the resident down the corridor by the arm. Mr Webb was clearly agitated about the matters raised during the meeting on 1 August 2013 and his confusion about the details of those matters is most clearly illustrated by his failure to mention that the Applicant made an allegation at the 1 August meeting concerning dragging the resident down the corridor by the arm in his report to the Board. Mr Webb, Ms Barlow, Ms Mirra and the Applicant all agree that this allegation was made by the Applicant during the meeting. Given that Mr Webb failed to mention this central matter in his report to the Board which he prepared in the days after the incident, it is clearly possible that he confused this matter and other matters raised. According to the evidence of Mr Webb and the Applicant there were only three specific allegations raised at the meeting. As noted earlier it is significant that Mr Webb failed to mention the details of two of those matters, the allegation raised by Ms Barlow and the allegation raised by the Applicant, in his report to the Board. This is particularly the case when it is the allegations raised at the meeting and the consequent responses which form the sole basis for the termination and are the sole reason for the report to the Board.

[47] I consider it more likely than not that the Applicant did not make the allegation that Ms Dessent had the resident by the throat and slammed her up against the wall. In any case I am satisfied that if any allegation of that sort was made it was effectively retracted one hour later.

[48] I am not satisfied that the Applicant, Ms Mirra or Ms Barlow used the term assault in the meeting on 1 August 2013. I am satisfied that the evidence shows that Mr Webb was understandably very concerned as to whether or not the matters raised constituted assault. This may well have led to some confusion about who used that terminology and when.

[49] I am satisfied that the Applicant never had any opportunity to respond to the allegation of making a false claim. In fact that allegation was never put to the Applicant prior to her termination. Mr Webb only concluded that a false allegation may have been made after he spoke to Ms Mirra and Ms Dessent. He did not speak to the Applicant again in any detail after those conversations. The Respondent accepts that this is the case. In the circumstances of this case this is important not just from a procedural fairness point of view. I am satisfied that for Mr Webb the facts of the situation were confused. Had the allegation been directly put to all of those who participated in the meeting of 1 August 2013 it may well have clarified the situation.

[50] I consider it possible that the Applicant, Ms Mirra and Ms Barlow may have overstated the nature of the incidents involving Ms Dessent in order to defend themselves against what they regarded as unjust allegations that they were somehow responsible for the negative behaviours of the resident. I do not consider that the report of Dr Livingstone contained or implied such criticism of the three workers. However, whether it was justified or not there is no doubt that the three workers were upset and spoke in the heat of the moment. The Applicant was particularly upset at being identified by Mr Webb as the person mentioned in Dr Livingstone’s report as being on leave when the resident’s behaviour improved. The evidence suggests that she was wrongly identified.

[51] I am satisfied that the evidence of Ms Dessent establishes that Mr Webb told Ms Dessent that the Applicant had alleged that Ms Dessent had put her hands around the resident’s throat even though the Applicant had denied this in a conversation with Mr Webb shortly beforehand. It was only later on that Mr Webb told Ms Dessent that the Applicant had denied that she had ever seen this. 24

Criteria for determining whether a termination is unfair

[52] The legislation provides as follows:

“s387 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.”

Was there a valid reason for termination? (S 387(a))

[53] I am satisfied that there was no valid reason for the termination of the Applicant. Only one reason was advanced in the proceedings, the making of a false allegation. I am satisfied that had the Applicant made the false allegation it may have constituted a valid reason for dismissal. I agree with the Respondent that in the context of disability care the making of a false allegation of assault by a co-worker is an extremely serious matter. However, I am satisfied that the term assault was not used by the Applicant, Ms Mirra or Ms Barlow. I am also satisfied that matters were raised in the heat of the moment. I am satisfied that the implications and nature of what was being alleged was not clear to all the parties involved in the conversation. I am satisfied that this is why Mr Webb rang the Applicant shortly after the meeting concluded. If the implications and nature of what was being alleged was clear in the meeting I am satisfied that Mr Webb would have taken immediate action at the meeting or arising from the meeting. To the extent that the impression may have been given that physical assault was involved that impression was dispelled by the denial of the Applicant one hour later and the clarification by Ms Mirra shortly after that. I am not satisfied that the conduct alleged occurred. I am not satisfied that the evidence establishes on the balance of probabilities that the Applicant knowingly made a false allegation.

Procedural matters. S387(b)-(g)

[54] The procedural defects in the circumstances of this case were serious.

[55] The allegation that an employee has made a false allegation of serious physical assault against another employee is extremely serious. To find such a serious allegation proven without any proper investigation is a grave breach of procedural fairness. The allegation was never put to the Applicant. The Applicant had no opportunity to respond. The allegation was never put to Ms Barlow who was a direct witness of everything which had occurred at the meeting on 1 August 2013. The matters were only partially put to Ms Mirra. To the extent that they were put to Ms Mirra, she denied that the Applicant had made the statement alleged. Given that the CEO was directly involved this is a situation where the Respondent should have involved someone more independent in the process of investigation. There was no urgency. Mr Webb correctly understood that investigating whether or not there had been an assault of the sort which requires reporting was urgent. However, the matter of whether or not there had been a false allegation made and the consequences of that action was not time critical. It could have waited until the Applicant returned from sick leave.

[56] In my view the Applicant cannot be criticised for angrily denying that she had said what was alleged and for not attending work whilst on sick leave to discuss it further. If the Respondent had wanted to take it further as a matter of urgency the allegation of making a false statement should have been put to her in writing together with a proposal for a meeting to discuss the matter further. I am satisfied that the Applicant was not given a reasonable opportunity to respond to the allegation of making a false claim.

[57] The Respondent referred to its own disciplinary procedure in the termination letter. That procedure was not followed by the Respondent. Mr Webb said that he was familiar with the procedure. The procedure clearly provides for access to information and the opportunity to respond. In the case of alleged serious misconduct the procedure provides for stand down on full pay pending investigation and discussion. 25 There is no reason why the procedure could not or should not have been followed.

[58] I am not satisfied that the Applicant was notified of the reason for her termination. The reason for her termination was related to her capacity or conduct. It is well established that notification of the reason for termination must occur prior to the advice of the termination. In this case the notification of the reason for termination occurred after the termination.

[59] I am not satisfied that the Applicant was given any opportunity to respond to the reason for termination. The Applicant was simply informed of the termination by telephone and then by letter.

[60] There was no refusal to have a support person present because there was no meeting or discussion about the proposed dismissal. However, the Respondent was on notice that the Applicant was seeking legal advice.

[61] The termination did not relate to unsatisfactory performance so the absence of a warning is not relevant.

[62] The Respondent is a medium sized employer which operates within a regulated environment where there is access to documented procedures and policies. The Respondent does not have a dedicated human resources specialist. However, the nature of the procedural defects in this case are so serious that these can only be regarded as neutral factors.

Other matters. S387(h)

[63] The long service of the Applicant and the limited employment opportunities in the Latrobe Valley are factors which stand in favour of a finding that the termination was harsh.

Conclusion as to whether the termination unfair

[64] I am satisfied that there was no valid reason for the termination, that the Applicant was not afforded procedural fairness and that there are significant factors relating to the situation of the Applicant which make the termination particularly harsh. I am satisfied that the termination was harsh, unjust and unreasonable.

Remedy

[65] The Applicant seeks reinstatement. I am satisfied that a remedy is appropriate in the circumstances of this case given the serious injustice caused by the termination. I can order reinstatement or compensation but I must not order compensation unless I am satisfied that reinstatement of the Applicant is inappropriate.

[66] I consider that the long service of the Applicant, the limited employment prospects in the Latrobe Valley and the absence of any performance issues during the long period of service are all factors which stand in favour of reinstatement.

[67] I accept the evidence of the Applicant that she is able to work with Mr Webb and Ms Dessent in the future. I was satisfied by the evidence of the Applicant and the manner in which it was delivered that the Applicant is not inflexible or vindictive. The Applicant demonstrated a strong commitment to her employment and the well being of the residents. The Applicant demonstrated a capacity to frankly raise and discuss issues.

[68] Ms Dessent gave evidence that she could not work with the Applicant. This is an understandable reaction given that she believes that the Applicant made a very serious and harmful false accusation against her. However, I am satisfied that the allegation was not made in the terms reported to her and that there is no negative finding against her. Ms Dessent did not witness the Applicant make any false accusation against her. I am not satisfied that the concerns of Ms Dessent are a reason to not reinstate the Applicant.

[69] Mr Webb gave evidence that reinstatement would be inappropriate. His trust and confidence in the Applicant has been lost. I accept that an allegation of assault can have significant consequences for the Respondent and its employees. In this respect I understand the level of concern and agitation of Mr Webb when he believed that such allegations were made. However, in these circumstances the only basis for this loss of trust and confidence is Mr Webb’s sincerely held belief that the Applicant knowingly made a false accusation against Ms Dessent. I am not satisfied that this did in fact occur and that had Mr Webb undertaken a better investigation this may well have become apparent to the Respondent. I accept that the Applicant can be criticised for failing to put in an incident report. However, given the lack of clarity over whether or not the behaviour was or was not acceptable this is not a major concern. I accept that there was some discussion between Mr Webb, the Applicant, Ms Mirra and Ms Barlow about the appropriate management of the resident. I do not accept that this amounted to a rejection of Dr Livingstone’s report. My understanding of the evidence is that if Dr Livingstone’s report meant that the employees had to be rough with the resident they did not accept it. 26 There is no suggestion that Dr Livingstone’s report proposed that the employees be rough with the residents. Mr Webb suggested that the Applicant was resistant to the approach to care which encouraged more independence in the residents. There may be some truth to this concern but it is clearly not confined to the Applicant and it is a matter which can be dealt with through appropriate management support.

[70] The issue of reinstatement as a primary remedy for unfair dismissal, and whether a loss of trust and confidence in the employee is a valid argument against granting the primary remedy of reinstatement was addressed extensively in Perkins v Grace Worldwide (Aust) Pty Ltd. 27

[71] In this case, Wilcox CJ and Marshall and North JJ made the following comments:

“[t]rust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage the relationship or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Ltd (unreported, Industrial Relations Court of Australia, Full Court, No. 606/96, 13 December 1996). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 81-82 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

...

Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.”

[72] Bromberg J also indicated in Quinn v Overland 28 that a break down in trust and confidence will not always be a valid reason to avoid the primary remedy of reinstatement.

“Dismissed employees are regularly reinstated into their former employments without apparent consequent difficulties. The long-standing nature of this remedy, and its acceptance as part of the industrial furniture, is a testament to the fact that as a matter of practice, a breakdown in confidence is not necessarily irreconcilable. What needs to be achieved by a reconciliation is a sufficient level of cooperation for a proper working relationship to resume; mutual affection and friendship are not essential. 29

[73] Gray J in Australian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd 30 found:

“The law relating to the need for trust and confidence in an employment relationship was developed at a time when employment invariably involved a close personal relationship between employer and employee. The advent of corporate employers has diminished the importance of this element of the employment relationship. A corporation has no sensitivity. The crucial question must be what effect, if any, loss of trust by a manager in an employee is likely to have on the operation of the workplace concerned.” 31

[74] In Abbott-Etherington v Houghton Motors Pty Limited, 32 Marshall J found that reinstatement of a managerial employee was not impracticable, despite a claim by the respondent that they had lost confidence in her. He said that:

“It is entirely inappropriate ... for the respondent to rely in part on its very basis for its termination of the applicant’s employment to seek to deny the applicant her primary remedy.”

[75] In the circumstances of this case the concerns of Mr Webb and Ms Dessent about their loss of confidence in the Applicant are not sufficient to deny the Applicant her primary remedy. I am satisfied that a reconciliation is possible sufficient to achieve a proper working relationship.

[76] The Applicant should be reinstated.

[77] Although I accept that the Applicant may have been intemperate at the meeting of 1 August 2013 and her choice of words may have contributed to the situation, I am not satisfied that there was any misconduct.

[78] I will Order that the Applicant be reinstated to the position in which she was employed immediately before the dismissal. I will allow the Respondent liberty to apply to vary this Order to allow appointment to another position on terms and conditions no less favourable than those on which the Applicant was employed immediately before the dismissal.

[79] I consider it appropriate to also Order that the continuity of employment of the Applicant be maintained.

[80] I also consider it appropriate, having taken into account the factors in Section 391(4) of the Act, to Order restoration of lost pay. I will deduct from that lost pay the amount of $2,080, being the gross amount earned by the Applicant since the termination. As the Applicant is not currently employed there is no deduction for the period between the making of the order for reinstatement and the actual reinstatement. I see no reason why the reinstatement should not operate from the date of the Order.

[81] I will Order the Respondent to calculate the amount of loss less $2,080 within 14 days and provide the basis for that calculation to the Applicant and her representative. There is liberty to either party to apply to vary the order to insert the specific amount of lost pay should there be disagreement about the amount of lost pay. The lost pay is to be paid within 21 days of the date of the Order.

COMMISSIONER

Appearances:

Mr J Hooper represented the Applicant.

Mr D Langmead represented the Respondent.

Hearing details:

2014

Morwell

February 13 and 14

 1   Exhibit M3.

 2   Exhibit M1, at para 14.

 3   PN723 to PN731.

 4   PN472 to PN494.

 5   Exhibit H2, at paras 23 and 24.

 6   Exhibit M2.

 7   PN282 to PN306.

 8   PN320 to PN327 and PN558.

 9   Exhibit M4, at para 5.

 10   Exhibit M1, Attachment A.

 11   PN43 to PN48.

 12   Exhibit M2 and Exhibit M1.

 13   Exhibit M4.

 14   Exhibit H1, at para 28.

 15   Exhibit H2, at para 23.

 16   Exhibit M2.

 17   PN169 to PN170.

 18   PN215 to PN220.

 19   PN634.

 20   PN648.

 21   PN288 to PN327 and PN549 to PN568.

 22   PN169 to PN178 and PN359 to PN377.

 23   Exhibit H2, at para 24.

 24   Exhibit M4, at paras 5 and 6.

 25   Exhibit M1, Attachment D.

 26   PN151 to PN153.

 27   Perkins v Grace Worldwide (Aust) Pty Ltd [1997] IRCA 15.

 28 [2010] FCA 799.

 29   Quinn v Overland [2010] FCA 799, para 98.

 30 [2000] FCA 627.

 31   Australian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd [2000] FCA 627, para 42.

 32   Abbott-Etherington v Houghton Motors Pty Limited (1995) 63 IR 394, paras 396-397.

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