Nikoloska v Stirling Ethnic Aged Community Hostel
[1996] IRCA 125
•12 April 1996
DECISION NO: 125/96
CATCHWORDS
INDUSTRIAL LAW - UNLAWFUL TERMINATION - HARSH UNJUST OR UNREASONABLE TERMINATION - REINSTATEMENT - Application of the Industrial Relations and other Legislation Amendment Act 1995 (Cth): Sch 2, s 14 - Meaning of "in all the circumstances of the case - when such amendments apply"
Industrial Relations Act 1988 (Cth): ss 170ea, 170ee
Industrial Relations and other Legislation Amendment Act 1995 (Cth): Sch 2, s 14.
Aged or Disabled Persons Act 1954 (Cth): Sch 1.
JACKIE NIKOLOSKA v STIRLING ETHNIC AGED COMMUNITY HOSTEL
WI 1053R of 1995
CORAM: MADGWICK J
PLACE: PERTH
DATE: 12 APRIL 1996
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
No. WI 1053R of 1995
BETWEEN JACKIE NIKOLOSKA
Applicant
AND STIRLING ETHNIC AGED COMMUNITY HOSPITAL
Respondent
CORAM: MADGWICK J
PLACE: PERTH
DATE: 12 APRIL 1996
MINUTES OF ORDER
The orders of the Court made by Judicial Registrar Fleming on 3 October 1995 are varied in the following respects.
The respondent shall reappoint the applicant to the position in which she was employed immediately before the termination of her employment;
The employment of the applicant shall be deemed to have been continued for all purposes from 25 January 1995 until the date of her reinstatement in accordance with these orders;
The respondent shall pay the sum of $11,496.00 to the applicant within 21 days.
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
No. WI 1053R of 1995
BETWEEN JACKIE NIKOLOSKA
Applicant
AND STIRLING ETHNIC AGED COMMUNITY HOSPITAL
Respondent
CORAM: MADGWICK J
PLACE: PERTH
DATE: 12 APRIL 1996
EX TEMPORE REASONS FOR JUDGMENT
REVISED FROM TRANSCRIPT
MADGWICK J: The sole point on this application for review by Mrs Nikoloska has been whether her reinstatement should be ordered or not. I have come to the conclusion that she should be reinstated to her former employment.
The proceedings involved a consideration of four alleged incidents of misconduct by Mrs Nikoloska in her employment by the respondent, and some evidence as to her general personality, attitude and aptitudes apart from those four incidents.
The respondent employer operates, as the name suggests, a caring facility on a residential basis for people of certain ethnic origins, namely, Macedonians, people having a background stemming from the other provinces of the former state of Yugoslavia, and Italians. As her name would suggest, Mrs Nikoloska herself is of Macedonian extraction. Though not a woman of high education, she apparently has some practical facility with languages.
It is right to understand some of the notorious social history lying behind the development of modern facilities such as that operated by the respondent. For many years there was considerable community concern about standards of care and respect for aged residents of such hostels, particularly where, as here, a considerable proportion of the residents of a given hostel had some intellectual deficits. During the eighties, steps were taken by the Commonwealth Government, using its funding power, to improve the effective regulation of such places, and various amendments were made to the Aged or Disabled Persons Care Act 1954 (Cth).
In particular, there has been enacted a "Statement of the Rights and Responsibilities of the Residents of Approved Hostels". This "Charter" is set out as Schedule 1 to the Act. It includes the following "Preamble":
Every person has the right to freedom and respect and the right to be treated fairly by others. A person's rights do not diminish when he or she moves into a hostel, regardless of his or her physical or mental frailty or ability to exercise or fully appreciate his or her rights...EACH RESIDENT OF A HOSTEL HAS THE RIGHT:... to be treated with dignity and respect and to live without exploitation, abuse or neglect...
It is a matter or ordinary human experience that the care of residents of hostels such as that in question here can be very demanding. There are many people of excellent character and accomplishment who are simply not suited to be employed as carers in such a place. The work requires a particular degree of patience and the sort of dedication that does not come through gritting one's teeth, but which comes naturally. It requires that people have an instinctive gentleness and kindness, as well as the ability on occasions to protect themselves from indignities that may very well be offered to them by intellectually-frail, aged people.
Before the Judicial Registrar, the matter was very greatly canvassed as to the four alleged incidents of misconduct. They all, in one way or the other, involved suggestions that Mrs Nikoloska had been insufficiently respectful of the rights of particular residents. The Judicial Registrar's conclusions on that subject were these, at page 10:
The respondent has not discharged its burden of proving to the Court that it had a valid reason for terminating Mrs Nikoloska's employment. There is nothing before me which proves that Mrs Nikoloska physically or verbally abused any resident.
Mrs Nikoloska's manner may be misinterpreted. She has a loud voice and a matter of fact manner but I am satisfied that she did not either physically or verbally abuse the residents.
Note here that the Registrar did not limit the language of judgment to a reliance upon the employer's onus of proof. She was "satisfied that she did not either physically or verbally abuse the residents".
In dealing with the remedy, however, the Judicial Registrar was not persuaded (as Mrs Nikoloska, by her legal representatives, submitted she should be) to order reinstatement. The Registrar said:
I do not agree that Mrs Nikoloska's future employment prospects are so bleak and given how she presents as a hard working and enthusiastic employee I consider her chances of re-employment to be very good. I am also satisfied that given the demeanour of Ms Dillon in the witness box, it is this Court's view that the employment relationship has broken down irretrievably and to the extent that it is impracticable to reinstate her.
Dealing with the learned Registrar's reasons, it is well settled that, under the law as it stood at the time of the Judicial Registrar's decision, hardship or lack of hardship for Mrs Nikoloska in possibly obtaining other employment was not a relevant matter for consideration in relation to whether she should be reinstated. The sole question as to whether reinstatement, as the primary remedy envisaged by the Act, ought to be granted or not is whether an employer had established that it was impracticable.
The respondent relied heavily on Ms Dillon's evidence. Ms Dillon is a woman whose sincerity and qualifications are beyond question. She had been involved with the respondent by having been hired out to it as a nursing consultant. Her task was to address issues in the care of residents which had caused concern, and to ensure that the legislative requirements, under which the Commonwealth funds such hostels, were met. Among other things she was vitally concerned with ensuring that the Charter of Residents' Rights and Responsibilities to which I have referred was lived up to in the respondent hostel.
She was initially engaged on a semi full-time basis for about 3 months, and thereafter on a more intense basis, up to October 1994. Mrs Nikoloska's employment was terminated in January of 1995. Ms Dillon was intimately involved in the assertion of wrong-doing by Mrs Nikoloska and fully supported the decision to terminate her employment. Without finding anything adverse about the credit of Ms Dillon, and indeed one gathers quite the contrary, the Judicial Registrar nevertheless came to the vindication of Mrs Nikoloska. Ms Dillon gave scant evidence about the practicability of reinstatement unrelated to the merits of the four suggested occasions of misconduct by Mrs Nikoloska.
I have had the advantage myself of seeing Ms Dillon. She radiates sincerity and competence. But, sincerity and competence do not themselves provide cogency. In response to a direct question from me, Ms Dillon amplified her reasons for thinking it impracticable for Mrs Nikoloska to be reinstated. She said (doing her best to put aside the rejection of her approach by the Judicial Registrar, as I had asked her to do) that she believed Mrs Nikoloska was simply not suited for employment in a caring role in a hostel such as this.
I bear in mind what the Judicial Registrar said, namely, that Mrs Nikoloska's manner may be misinterpreted, and that she has a loud voice and a matter-of-fact manner. It may be that she is brusque; it may be that she is not an especially gentle sort of person; but kindness does not come in only one set of covers. It is difficult to conclude, from what was said by Ms Dillon both in her affidavit and orally here, that Mrs Nikoloska is by nature unsuited for work in such a facility.
The respondent employer put on also an affidavit by Ms Marina Bozich, presently the hostel supervisor, who had known Mrs Nikoloska for about 5 months, having worked with her on and off, according to their shifts, as a carer. Ms Bozich deposes that "information that has come to light about Mrs Nikoloska suggests that she would not be an appropriate person to be working with" the residents at Sterling Hostel, many of whom are very vulnerable. Ms Bozich based her concerns on information which can only be the four instances of supposed misconduct negatived by the Judicial Registrar, and information which emerged in cross-examination of Mrs Nikoloska before the Judicial Registrar. That is, that Mrs Nikoloska had left her previous employment under a cloud, amidst allegations that she had been responsible for the physical bruising of residents of another - one gathers - similar hostel.
Had Ms Bozich herself noticed anything amiss about Mrs Nikoloska's propensities, attitude, demeanour, talents or actions, one would certainly have expected those things to be included in the affidavit, but none was. This has to be a telling point in favour of Mrs Nikoloska.
To conclude the position, a Mr C.O. as I will identify him, a hostel resident, put on an affidavit saying that he did not trust Mrs Nikoloska, was scared of her, and would not let her near his son (also a resident of the hostel). But, for reasons that the transcript makes abundantly clear, no weight could be put on this. It is clear that it comes from a biased person. Among other things, this elderly gentleman had been in the habit, at one time, of asking sexual favours of the female staff, and Mrs Nikoloska had, within reasonable bounds, very properly sent him packing.
An affidavit was put on from one of the residents alleged to have been verbally abused by Mrs Nikoloska, Mr D. as I shall refer to him. His answers to questions hardly advanced the employer's case and, if he had manifested the same problems of answering questions when he swore his affidavit, I have no doubt that the affidavit would never have been put in.
The final piece of new evidence before me comes from a young woman, Ms Petrovska, also of Macedonian extraction, who works as an administration officer at the hostel. She complains that Mrs Nikoloska would gossip about the staff, a circumstance that, in my view, would put her within about 51% of the employee population of Australia. But, more importantly, she complains that Mrs Nikoloska was in the habit of discussing confidential personal details of staff members. If this were true, it would be another and considerable act of misconduct. This witness had offered to help the hostel at the outset of the proceedings, but a decision was taken - as it will appear, in my view, rightly - not to involve her earlier. On a little probing, it seems that Ms Petrovska has a vivid imagination. She made a somewhat startling claim that she was scared for her own safety as well as that of the residents, based on her stated fear of Mrs Nikoloska's capacity to work black magic on her. This young woman totally destroyed her own credit by suggesting that all Macedonians believe in, and are frightened of, black magic. If anyone but a Macedonian-Australian had said it, that would be rightly condemned as a piece of nonsensical racism. No weight at all, in my view, can be placed upon her evidence.
It may be that, ultimately, Ms Dillon is right. One cannot be left without an uncomfortable suspicion that she is, but suspicions do not amount to proof. If Mrs Nikoloska, on sober and dispassionate consideration of the facts, is unsuited for work in the nursing hostel, then no doubt that would be a valid reason for the termination of her employment. What the justifiable terms of such a termination, both financially and as to finding her other work, might be, given the events that have occurred over the last nearly 2 years, is another matter. For the moment, as far as I am concerned, it has by no means been shown that it would be impracticable to reinstate Mrs Nikoloska. She wishes to be reinstated and, subject to one matter, should be.
That matter is the Industrial Relations and other Legislation Amendment Act 1995 (Cth) ("the Amendment Act"). Relevantly, it altered section 170ee of the Act so that it now reads:
(1) In respect of [an appropriately unlawful] termination of employment of an employee, the Court may, if the Court considers it appropriate in all the circumstances of the case, make the following orders:
(a)an order requiring the employer to reinstate the employee...
It is argued that, because of the sincere concerns held by Ms Dillon and the facts surrounding the earlier allegations, there is an unacceptable risk to the continued viability of the employer, that is, to its ability to provide a home for the residents, work for its other staff, and for the safety and well-being of the residents. It is argued, therefore, that the Court would not, in all of the circumstances of the case, think it "appropriate" to reinstate Mrs Nikoloska. If the amending Act does apply to this case, then those considerations would be relevant to "all the circumstances of the case". However, "all the circumstances of the case" would also include the vindication - in positive terms - of Mrs Nikoloska as to charges of misconduct by the Judicial Registrar. They would include the considerable delay in finalisation of the matter, for which Mrs Nikoloska is not to blame. And they would include the commonsense industrial injustice of relieving the employer, 21 months later, of the consequences of its own evidently inadequate inquiry as to Mrs Nikoloska's antecedents, and its own failure, in an area which seems to cry out for it, to impose and require a probationary period.
Even if the Amendment Act applies to this case, in my view it is appropriate, in all the circumstances, that Mrs Nikoloska be reinstated. It is doubtful how much difference the amendments made by the Amending Act have made. However, it was held time and time again in this Court that reinstatement was the primary remedy and that impracticability was the only reason it should not be granted. But it had also been held that an industrially commonsense view of practicability should be applied, and one can only judge practicability in all the circumstances. I do not doubt that there is some theoretically greater element of discretion for the Court now than before, but the precise area over which that discretion has been widened may nevertheless be narrower than has perhaps been thought in some quarters.
My own view, upon such argument as there has been in this case and the matter might perhaps have been more fully argued, is that the amendments do not apply to this case. Under Schedule 2 of the 1995 Amendment Act, the amendments to Section 170ee apply, under Section 14(1)(b) of Schedule 2 of that Act, to the termination of the employment of an employee that occurs before [the date fixed by proclamation for the commencement of the other amendments to the Act] if no application to this Court had been made for a remedy under Section 170ea of the Act or (s14(2)(b)(ii)):
"if such an application has been made to that Court before that day but the Court has not pronounced final judgment in respect of the application before that day."
In this case, the Judicial Registrar did pronounce final judgment in respect of the application made to the Court which she heard. She was exercising the powers of the Court and, had there not been an application for a review of her decision, her decision would have disposed of the matter. This would have been final relief in relation to a proceeding in the Court and it would have been "final judgment". That phrase is a technical one, usually used to distinguish between "final" and "interlocutory" judgments. It is not clear to me that it was intended to have any other meaning.
The question of what law was applicable to the case can hardly depend on whether one party appealed. A contrary approach gives rise to difficulties. Every argument of convenience and practicality tends against a construction of the phrase "pronounced final judgment" that would accord it the meaning: "finally pronounced final judgment". There would be good reason for this having been the approach. If possible review and appellate phases of the Court's processes were also to be taken into account before it could be said that the Court had pronounced final judgment, many appeals would come adrift because it would be necessary to do justice that one or both sides be able completely to reopen and recast the case offered for the Court's consideration.
Where, as here, the employee was the applicant for review, the contrary view could operate to the disadvantage of the employee. This can hardly have been intended, even if there were some sympathy felt for an employer who was dissatisfied with a Judicial Registrar's decision.
Further, the amendment might operate in respect of a years-old termination of employment which was winding its way up a multi-step review and appellate process.
The legislative intention, quite apart from arguments from convenience and practicality, seems to have been to draw the line in respect of matters that had either not yet got before the Court or in respect of which the Court was, at best, part-heard in the trial and interlocutory phases.
In order to make sense of any assumptions as to dates and the course of events when, as inevitably will happen, this ex tempore judgment is revised and issued, it will have appended to it, as an annexure (Annexure A), the judgment of the learned Judicial Registrar.
I certify that this and the preceding 9 pages are a true copy of the Ex Tempore Reasons for Judgment of His Honour Justice Madgwick.
Associate:
Dated: 12 April 1996
APPEARANCES
Representative for the Applicant: N Ellery of Australian Liquor Hospitality & Miscellaneous Workers Union
Representative for the Respondent: P G Robertson of Chamber of Commerce & Industry of Western Australia
Dates of hearing: 20, 21 February 1996
C A T C H W O R D S
INDUSTRIAL LAW - UNLAWFUL TERMINATION - VALID REASON - HARSH UNJUST UNREASONABLE
Industrial Relations Act 1988 ss.170DC, 170DE, 170EE
Evidence Act (Commonwealth) 1995 s.13
CASES:AWU FIME Amalgamated Union & Joseph Patrick Farrell v Conagra Wool Pty Ltd, Parkinson JR,
Lawton & SDAEA v Ultinel Pty Ltd, Staindl JR, VI 1547 of 1995
JACKIE NIKOLOSKA -v- STIRLING ETHNIC AGED COMMUNITY HOSTEL
No. WI 1053 of 1995
Before: Judicial Registrar Fleming
Place: Melbourne (heard in Perth)
Date: 3 October 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1053 of 1995
B E T W E E N :
JACKIE NIKOLOSKA
Applicant
AND
STIRLING ETHNIC AGED COMMUNITY HOSTEL
Respondent
MINUTES OF ORDERS
Judicial Registrar Fleming 3 October 1995
THE COURT ORDERS:
That the Respondent pay to the Applicant the sum of $9,647 in
compensation.
That the Respondent have 21 days in which to pay.
That the Respondent have liberty to apply.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court
Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1053 of 1995
B E T W E E N :
JACKIE NIKOLOSKA
Applicant
AND
STIRLING ETHNIC AGED COMMUNITY HOSTEL
Respondent
Before: Judicial Registrar Fleming
Place: Melbourne (heard in Perth)
Date: 3 October 1995
REASONS FOR DECISION
Background
The Respondent is an Aged and Disabled hostel. Emcare Pty Ltd administers the hostel. Mr Emery is the director of Emcare and the administrator of the hostel. The duties of the administrator are to organise payroll, billing and staff policy. Mr Emery commenced in this role on 25 May 1994.
Mrs Nikoloska (the Applicant) is 42 years old. She commenced at Stirling Ethnic Aged Community Hostel on 15 April 1993 as an assistant supervisor or carer. Her duties involved caring for residents such as showering, shaving, dressing, cleaning, washing and medication. Mrs Nikoloska has no formal qualifications.
Mr Robertson for the Respondent sought to rely on episodes where the Applicant was counselled prior to 25 May 1994 when Mr Emery took over as administrator. I made a ruling during the course of the proceeding that the Court would not hear evidence of the two warnings that may have been two or three years old as they are too remote. I am also guided by the 12 month rule in provision 37(7)(c) of the Aged & Disabled Persons Hostels Award 1987 which states:
“Should it be necessary, for any reason, to reprimand an employee three times in a period not exceeding 12 months continuous service, the contract of service shall, upon the giving of that further reprimand, be terminable in accordance with the provision of this award.”
Mr Robertson further submitted that the Court should not review each of the warnings the Respondent was relying on. This is inconsistent with Mr Robertson’s submission in relation to the initial warnings prior to May 1994 and I am persuaded by the decision of Staindl JR in Lawton & SDAEA v Ultinel Pty Ltd 157/95 (unreported) wherein he states it was reasonable to review each warning and to consider the reasonableness of each warning.
Warnings
There are four warnings that the Respondent seeks to rely upon as the basis for the termination. They are as follows:
1. Ms E.M. incident
2. Mr P. incident
3. Mr D. incident
4. Mr C.O. jnr incident
To protect the identity of the residents I will not refer to them by name and I will deal with each of the episodes separately.
Ms E.M. incident
On 10 September 1994 while on duty Mrs Nikoloska was alleged to have spoken roughly to the resident Ms E.M. Exhibit C is a statement of Ms Bozich who was on duty at the time. Her letter is written 10 days after the alleged episode and in response to a request by Mr Emery that it be in writing. Ms Bozich is a relative of one of the staff and she no longer works at the hostel. At the time of the alleged incident Ms Bozich was employed as a casual kitchenhand. In her letter Ms Bozich states that the Mrs Nikoloska said to Ms E.M. “sit” in a raised voice. Ms Bozich said that Ms E.M. seemed confused. Ms E.M. suffers from dementia. Ms Bozich said that Mrs Nikoloska then said “sit please sit! Just 5 minutes!”. Mr Bumback another resident was present at the time. Ms Bozich said that Mrs Nikoloska could not see her because Ms Bozich was behind a pillar at the time. Ms Bozich had never spoken to Mrs Nikoloska before and did not raise the matter with Mrs Nikoloska but reported it to the administrator.
Ms Dillon is a consultant to the hostel and her position was to assist the supervisor in relation to standards of care that at the time of her appointment in May 1994 were substandard.
Ms Dillon counselled Mrs Nikoloska on 23 September 1994 in relation to this incident. Exhibit F - Record of Staff Interview - records what occurred during the counselling session. Mrs Nikoloska gave evidence that she cannot read English very well however her English language skills as I observed them were excellent. At the interview Ms Dillon and Mrs Nikoloska were present. Ms Dillon gave Mrs Nikoloska the letter of Ms Bozich to read. It is clear to this Court that Mrs Nikoloska could not read the letter in its entirety. Ms Dillon did not interview either Ms Bozich or Ms E.M. I do not accept Ms Dillon’s evidence that she gave Mrs Nikoloska a verbal formal warning. Ms Dillon did not investigate the allegation and had merely entered into a discussion with Mrs Nikoloska. There was before me neither conclusive or persuasive evidence that Mrs Nikoloska was advised that she was being formally warned or that her job may be in jeopardy. If as Ms Dillon suggested Mrs Nikoloska was “quite eager” to sign the record it is consistent with Mrs Nikoloska’s evidence that she did not see it as a formal warning. Furthermore Ms Dillon has not used the “formal warning form” and when asked why she had not she said “I could not prove that she had been in the wrong”. There is no proof that Mrs Nikoloska had misconducted herself on this occasion. The incident in relation to Ms E.M. resulted in no more than a counselling session.
Mr P. incident
Mrs Nikoloska was counselled by Ms Dillon in or about August or September 1994 in relation to a incident where it was alleged a resident who is a diabetic, Mr P., had been given extra food by Mrs Nikoloska. Mrs Nikoloska agreed that she had given Mr P. extra food. Mr P. asked her at lunchtime for extra food. Mrs Nikoloska asked the cook, the cook said yes and so she gave Mr P. an extra meal which she said was a piece of meat and spaghetti. She denied giving Mr P. a sweet. Mrs Nikoloska said that she knew Mr P. was a diabetic but said that she often gave an extra meal to anyone who asked and that no one ever told her not to give an extra meal and other staff gave extra meals. Ms Rigoli and Ms Good, other carers at the hostel corroborated Mrs Nikoloska. Mrs Nikoloska said she had seen the care plan for Mr P. but that it did not say anything in relation to food and this was also corroborated by Ms Good.
In relation to this episode Mrs Nikoloska was called to the office the next day. Ms Dillon and Ms Galea were present (Ms Galea was not called to give evidence). Mrs Nikoloska’s evidence was that she was accused of giving Mr P. extra sweets. Mrs Nikoloska denied this. Ms Dillon’s evidence was that she had not accused Mrs Nikoloska of giving Mr P. sweets but that it was the extra meal that was in issue. Ms Dillon said that it was dangerous for Mr P.’s health to give him extra food and Ms Dillon said that she told Mrs Nikoloska “do you realise more food for Mr P. could kill him?”. It is not believable to the Court that it was ever said to Mrs Nikoloska that extra food would kill Mr P., nor is it believable that knowing this Mrs Nikoloska would give Mr P. extra food. The Respondent did not present a care plan or a day sheet or any documentation to the Court nor was the cook called or any agency staff called to corroborate the story of Ms Dillon. However Ms Good and Ms Rigoli corroborated the evidence of Mrs Nikoloska. Ms Rigoli gave evidence that Mr P. would be given an extra meal however because he was diabetic he would not be given sweets. Ms Good said that there was a care plan for Mr P. which said nothing about food “only that he is a diabetic and no sweets”. Ms Good said that it was common for Mr P. to have extra food and that she had seen other staff give it to him.
Mrs Nikoloska refused to sign the record of staff interview (Exhibit MFI E) which is undated. I accept her evidence that she believed she was being accused of giving Mr P. a sweet and that she was not happy about the allegation. Ms Dillon said that if she would not sign it then she should go away for an hour and think about it. On her return Mrs Nikoloska still refused to sign it. I accept Ms Dillon’s evidence that upon Mrs Nikoloska’s refusal to sign the record of interview Mrs Nikoloska was terminated. Her actions in going home, and telephoning her union representative are indicative of that. Ms Reimers from the union represented Mrs Nikoloska at a meeting which resulted in Mrs Nikoloska being returned to the roster. Ms Dillon explained that Mrs Nikoloska was not terminated for giving Mr P. the extra food but for failing to co-operate at the interview. Given the seriousness of the allegation, that is, putting at risk the health of a resident, the Respondent has a duty to thoroughly investigate the allegation and to make it clear to the employee what she is accused of. I accept the evidence of Mrs Nikoloska that she believed that she was being accused of giving Mr P. a sweet. Her “wilfulness” and determination not to sign the record of interview persuade me that Mrs Nikoloska was very unhappy about the allegations and on that basis refused to sign a document she believed would admit a wrong doing that she had not committed. I accept that the Respondent had terminated Mrs Nikoloska’s employment on this occasion and when the union became involved it had reinstated Mrs Nikoloska and Mrs Nikoloska agreed to work as a team.
Ms Dillon relied upon her record of interview which is undated but is apparently written on the date Ms Reimers attended. This again is not a formal warning form and states the points discussed as “insubordination, lack of knowledge of care issues, home life impacting on ability to function in job”.
I find that there was confusion as to what Ms Dillon was accusing Mrs Nikoloska. I accept that in Ms Dillon’s view Mrs Nikoloska was wilful however Ms Dillon did not make her position clear to Mrs Nikoloska. Ms Dillon had stated that the standard of care at the hostel was substandard when she started in May 1994 however in about August or September 1994 there seems to be confusion with care plans and the supervisory role of agency staff. The onus is on the employer to satisfy the Court that it has a valid reason and on this occasion I accept that reinstatement of Mrs Nikoloska was due to a more reasonable approach being taken by the employer once the union had become involved.
Mr D. incident
On 4 January 1994 Mrs Nikoloska received a “Third Formal Warning”. Although the warning is dated 1994 I believe it should be 1995 as Ms Jumeaux, the author of the warning, did not commence with the Respondent until 24 October 1994.
The warning is detailed in Exhibit G and it sets out a complaint by Ms Petrovska to Mr Emery where it was alleged that Ms Petrovska overheard a conversation where Mrs Nikoloska had been inappropriately joking with Mr D. a resident. Nothing was done about this complaint until Mrs Nikoloska approached Mrs Jumeaux and complained of her excessive workload. When Mrs Nikoloska approached Mrs Jumeaux, Mrs Jumeaux said that she had been meaning to talk to her and raise the complaint of Mr D. Mrs Nikoloska responded that she was only joking and Mrs Jumeaux responded that it was not a joke it was “elderly abuse”. When Mrs Jumeaux spoke to Mr Emery the next day Mr Emery said that that was her third warning and it was written out and read to her. Mrs Nikoloska refused to sign it.
In her evidence Mrs Nikoloska said that a meeting was scheduled for 5 January 1995 and that another matter had arisen relating to a resident Mr C.O. jnr.
Meeting on 5 January 1995
Mr Emery and Mrs Jumeaux attended with Mrs Nikoloska. Mr Emery went through the other warnings but did not go into any great details. At the conclusion of the meeting Mrs Nikoloska was suspended and a further meeting was scheduled.
Mr C.O. jnr incident
The Respondent sought to call a resident who I will call Mr C.O. jnr to given evidence. Mr C.O. jnr entered the witness box with a Macedonian interpreter. Mr C.O. jnr has down syndrome. Seemingly overwhelmed by the Court room I called his father into the witness box with him. Mr C.O. jnr was however unable to speak. At Mr Robertson’s request he was sent home and given an opportunity on the following morning to given evidence. Mr C.O. jnr was again unable to speak and his father told the Court “he doesn’t understand anything”. I made a ruling pursuant to s.13(4) of the Evidence Act (Commonwealth) 1995 that Mr C.O. jnr lacked the capacity to give evidence to the Court. Mr Robertson sought to proceed in the absence of Mr C.O. jnr’s evidence.
The incident in relation to Mr C.O. jnr is the catalyst for the termination of employment and it is the Respondent’s case that after three formal warnings the episode with Mr C.O. jnr was the fourth episode and the reason for termination of Mrs Nikoloska.
At the meeting on 9 January 1995 Mrs Nikoloska attended with Ms Reimers from the union. A volume of paperwork was handed to Ms Reimers who commented that she was overwhelmed by the quantity of papers and that Mr Emery said “Jackie (Mrs Nikoloska) has had three warnings and therefore she was out”. Mr Emery identified the warnings as (1) Ms E.M. episode; (2) Mr P. episode; and (3) Mr D. episode (Exhibit MFI 3). Mr Emery detailed the allegations in relation to Mr C.O. jnr and said that Mrs Nikoloska had received a formal warning in relation to that allegation. Mr Emery did not make a final decision to terminate the employment of Mrs Nikoloska on this occasion and the meeting concluded with Mr Emery seeking advice from the Chamber of Commerce. Upon receipt of that advice Mr Emery telephoned Mrs Nikoloska to advise her that her employment was terminated and a letter of termination was sent to her on 25 January 1995 (Exhibit D).
Mrs Nikoloska was paid two weeks’ pay in lieu of notice and the reason for the termination was stated to be “complaints from residents of physical and verbal abuse”.
Valid reason
The Respondent has not discharged its burden of proving to the Court that it had a valid reason for terminating Mrs Nikoloska’s employment. There is nothing before me which proves that Mrs Nikoloska physically or verbally abused any resident. Mrs Nikoloska’s manner may be misinterpreted. She has a loud voice and a matter of fact manner but I am satisfied that she did not either physically or verbally abuse the residents.
Mr Kelly relied on the decision of Parkinson JR in AWU FIME Amalgamated Union & Joseph Patrick Farrell v Conagra Wool Pty Ltd wherein the Judicial Registrar stated:
“For the employer in these circumstances to be able to establish he had a valid reason for the termination of the employment, it is necessary for it to satisfy the Court that the facts relied upon by the employer which resulted in the terminations were true.”
Mr Robertson for the Respondent has not satisfied the Court that the facts relief upon by his client were true.
I find that the termination of employment was not for a valid reason.
Section 170DC
I find that the Respondent has breached the Act in not investigating the incidents thoroughly and in not providing Mrs Nikoloska with an adequate opportunity to defend herself in relation to all incidents. Even with Ms Reimers present it seems both Mrs Nikoloska and Ms Reimers were overwhelmed by the paperwork at the critical meeting of 9 January 1995 and were given no adequate opportunity to consider each episode in detail.
Remedy
Mr Kelly submitted that reinstatement was practicable and that Mrs Nikoloska’s chances of finding employment in the industry are “extraordinarily remote”. I do not agree that Mrs Nikoloska’s future employment prospects are so bleak and given how she presents as a hard working and enthusiastic employee I consider her chances of re-employment to be very good. I am also satisfied that given the demeanour of Ms Dillon in the witness box it is this Court’s view that the employment relationship has broken down irretrievably and to the extent that it is impracticable to reinstate her.
I propose to order compensation in the maximum amount of 26 weeks which amounts to $9,647. As Mrs Nikoloska was paid her notice I make no award for damages. In relation to payment I have made an order giving the Respondent liberty to apply to the Court. Mr Robertson sought an opportunity to address the Court on the payment of compensation if there is an order made. Accordingly the effect of this order will enable the Respondent to apply to the Court if necessary.
The Order of the Court
That the Respondent pay to the Applicant the sum of $9,647 in
compensation.
That the Respondent have 21 days in which to pay.
That the Respondent have liberty to apply.
MINUTES OF ORDERS
THE COURT ORDERS:
That the Respondent pay to the Applicant the sum of $9,647 in
compensation.
That the Respondent have 21 days in which to pay.
That the Respondent have liberty to apply.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court
Rules.
I certify that this and the preceding twelve (12) pages are a true copy of the reasons for judgment of Judicial Registrar Fleming.
Associate:
Dated: 3 October 1995
Representatives for the Applicant: Mr David Kelly
Hospitality & Miscellaneous
Workers Union
Representatives for the Respondent: Mr P.G. Robertson
Chamber of Commerce & Industry
of Western Australia (Inc)
Date of hearing: 26, 27 & 28 July 1995
Date of judgment: 3 October 1995
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