Peter Hamhougias v DPG Services Pty Ltd
[2023] FWC 1290
•31 MAY 2023
| [2023] FWC 1290 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter Hamhougias
v
DPG Services Pty Ltd
(U2022/12302)
| COMMISSIONER YILMAZ | MELBOURNE, 31 MAY 2023 |
Application for an unfair dismissal remedy.
On 26 December 2022, Mr Peter Hamhougias (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with DPG Services Pty Ltd T/A Opal HealthCare (DPG). He seeks a remedy of reinstatement and/or compensation.
It is not in dispute that:
· the application satisfies the requirement of minimum employment period and coverage under an enterprise agreement pursuant to s.382 of the Fair Work Act 2009 (Cth) (the Act).
· DPG is not a small employer and therefore not covered by the Small Business Unfair Dismissal Code.
Mr Hamhougias’ employment was terminated for the reason of serious misconduct on 5 December 2022. The termination of employment was due to five substantiated allegations and non-alignment of his actions against the Code of Conduct and Opal Healthcare values.
There were no jurisdictional matters raised.
At the hearing, Mr Hamhougias gave oral evidence and DPG called four witnesses:
· Ms Karenne Hall, People and Culture Business Manager
· Ms Gurdesh Kaur (Sonia) Singh, General Manager
· Mr Jerome Raymond Jordan, Regional General Manager
· Ms Linda Thorley, Home Care Manager and Registered Nurse.
I received substantial documentary and oral evidence from both parties.
In the course of proceedings names of residents were revealed and due to the sensitive nature of the information, a request was made by DPG on 30 March 2023 for me to issue an order restricting the publication of the names of the former residents. I ordered that the names of residents were to remain confidential and not disclosed in transcript or in any publicly available material. I observe that this approach was not contested by the parties.
Both parties were self-represented.
Background
Mr Hamhougias commenced employment on 29 August 2019 as a full-time Personal Care Assistant (PCA) working mostly on night duty and on weekends at Opal Mornington Bay Care Community Home (the Home), an aged care residential service. His employment was terminated on 5 December 2022 with notice paid in lieu.
DPG assert that following an incident at the Home, Mr Hamhougias conducted himself in breach of its Code of Conduct and Opal HealthCare values. They assert that Mr Hamhougias:
· Failed to follow a lawful and reasonable direction,
· In discussions with the family of a resident, he acted outside the scope of his position,
· He engaged in inappropriate and intimidating language towards his manager,
· He made serious and vexatious allegations against Opal Healthcare and,
· He accessed and challenged inappropriately the clinical notes made by the Registered Nurse on duty on the night of the incident.
DPG assert that this conduct was serious in nature resulting in a stand down, investigations, a show cause process and ultimately a dismissal with valid reason and a process that it says was fair.
Mr Hamhougias submits that his dismissal was unfair on the basis that he was dismissed for breach of policies and procedures, yet when he reported a number of “serious” incidents to management there were no such repercussions for those involved. He submits that the various reports that he made were not addressed appropriately and insufficient action was taken. Further he submits that following the incident, no one checked in with him about his wellbeing and he criticises management and staff around how the matter was handled. Mr Hamhougias disputes that the reasons for dismissal were substantiated against him and submits his dismissal was unfair.
Submissions of the Applicant
Mr Hamhougias submits that his immediate dismissal on 5 December 2022 was unfair. He cites a range of incidents involving staff during his employment to demonstrate that his dismissal by DPG was unfair and disproportionate to its own actions in enforcing its Code of Conduct and values.
Mr Hamhougias raised a range of incidents he described as “serious” that he submits that DPG failed to properly respond to and acknowledge, report or reply to him, these “serious incidents” relate to:
1. A complaint on 17 March 2020 regarding a distressed resident about his bed.[1] A follow-up complaint on 4 April 2022 to which he says he did not receive any response.[2] A further follow-up email on 16 May 2022 referring to his email of 4 April stating that he is upset and confused about a lack of response. This email copied in Regional General Manager Mr Jordan, the Chief Operating Officer and General Manager Ms Singh.[3]
2. A related complaint to the Care Manager on 17 March 2020 about another PCA that did not change the resident’s soiled sheets.[4]
3. A complaint to the Care Manager about a fault code on the fire panel on 9 May 2022.[5]
Mr Hamhougias’ submissions further refer to an email he received from the Ms Singh about his allegations of bullying to the Aged Care Quality Safety Commission (ACQSC) Assessor where she sought further particulars from him on 26 May 2022. He submits that he provided a response to Ms Singh on 29 May 2022. The response does not provide any specific details of alleged bullying but names a registered nurse and states that he may have no option but to go to the media. He submits that this email led to an invitation to meet with Mr Jordan on 3 June 2022.[6] Mr Hamhougias states that Mr Jordan ignored his concerns however, his mention of the media prompted interest from senior management.[7] Mr Hamhougias states “I suggested that if I was given Opal’s blessing to conduct an investigation and still no action was taken, I would expose the cover-up to the media. Of course, I would not have done that. It was merely a way of trying to get the culture of bullying in my workplace dismantled.” Mr Hamhougias further states that bullying is an open secret at Opal Mt Martha.[8]
Mr Hamhougias attended the meeting of 3 June 2022 and says that he was chastised for slouching in his chair and for “running around the ACQSC assessors” “like I was trying to bring the company down.” He took offence to the discussion at the meeting because he says that he does his job, adheres to the values, policies and procedures and protects the “souls [he] was there to protect”.[9]
Following the meeting of 3 June 2022, Mr Jordan wrote to Mr Hamhougias noting his passion about residents’ care. He proposed that Mr Hamhougias move forward by reporting any clinical care matters to the Registered Nurse on duty. If necessary those concerns could then be referred in writing to the General Manager, Ms Singh. Mr Jordan proposed that Mr Hamhougias not report directly to the Centre Manager, that instead he will investigate and explore why the Care Manager had not responded to his emails in the past and further to the ACQSC audit review, any concerns are to be addressed with management locally in the first instance. The letter further refers Mr Hamhougias to the Opal values reminding him that derogatory statements to the media “will be met with appropriate action.”[10] Mr Hamhougias is critical of the correspondence on the basis that the focus shifted to communication issues with the Care Manager instead of the alleged failure to respond to a “serious incident report”.[11]
On 19 August 2022, Mr Hamhougias wrote to Mr Jordan indicating the length of time since the meeting of 3 June 2022 and that he was yet to receive a response to his earlier queries and he describes the alleged failure to respond to him is “disgusting”, “rude, unprofessional, dismissive, arrogant practice of knowingly and purposefully ignoring my emails (bullying)”.[12] In the same letter he informs Mr Jordan of an application to the Commission and seeks agreement for the Commission to provide assistance.
Mr Jordan responded on 23 August 2022 providing further information including the statement that he had met with the Centre Manager about his concerns and her “perspective did not align” with his feedback.[13] Mr Hamhougias found this correspondence offensive describing it as condescending and arrogant, further noting that Mr Jordan did not conduct any further investigation.
Mr Hamhougias followed up with further correspondence on 24 August 2022, this time including the Chief Operations Officer (COO) seeking responses to a range of questions.[14] On the same day the COO wrote noting Mr Hamhougias’ dissatisfaction with DPG’s response so a further review of his concerns would be undertaken. A series of emails with Mr Burge, the COO followed, each revealing Mr Hamhougias’ dissatisfaction with being asked to clarify his concerns and his view that his concerns including his questions were being ignored. He describes these emails as “mind games, these word games, this strategy really is energy sapping”.[15] Further correspondence followed which ultimately led to Mr Hamhougias lodging a bullying complaint with the Commission.[16]
Mr Hamhougias further raises a disagreement that occurred on 26 May 2020 that resulted in a warning on his personnel file which was the subject of a dispute lodged with the Commission.[17]
In relation to the incident on 14 November 2022 that led to his dismissal, Mr Hamhougias described his recollection of the details concerning the incident and events following.[18] Briefly, Mr Hamhougias noted the parties present, his reaction during the incident and his feelings after the resident passed away, his interactions with management including the allegations made against him and the process of termination of employment. Mr Hamhougias contends that rather than DPG addressing his concerns relating to the incident, his conduct was criticised and resulted in termination of employment. He submits that his dismissal was disproportionate having been a victim of bullying, discrimination and victimisation over 2020 to 2022.[19] He further raises serious issue that the allegation that he acted outside of the scope of his position in speaking with the family could be substantiated when he was not given any particulars of who he spoke to, what he said, what day he said it and what time did the conversation occur.
Submissions of the Respondent
DPG submit that while Mr Hamhougias had a history of raising issues which he described as “serious incidents” the reason for dismissal was due to his conduct following the incident of 14 November 2022. It contends that the conduct was serious misconduct substantiated through the investigation process, Mr Hamhougias was given a fair process to respond to the allegations and he was given an opportunity to show cause as to why he should not be dismissed. Even though Mr Hamhougias determined there was no need to proceed with show cause correspondence, DPG contends that the dismissal was overall proportionate.
DPG tendered in evidence Mr Hamhougias’ contract of employment, his position description and the Code of Conduct which details Opal Values, noting the express example of behaviours of “communicating in an offensive, insulting or inappropriate manner, and engaging in behaviours that are not aligned to the expected behaviours of one or more of the Opal Values,” as a breach of the Code of Conduct.[20]
DPG submit it had a valid reason for dismissal and the process was fair. The conduct found to be substantiated and the reasons for dismissal were:
Refusing to comply with reasonable and lawful instruction to disclose the details of a conversation with the family of the resident.
Making inappropriate, disrespectful and offensive statements in an email to the General Manager.
Making inappropriate, offensive, unfounded and highly vexatious claims against DPG to the General Manager with other managers copied in.
Acting outside the scope of the position by providing clinical opinions on the incident to the family and separately questioning the clinical notes recorded by the Registered Nurse in a manner that was accusatory and inappropriate.
Witnesses for DPG gave evidence that the role of the PCA is to provide quality personal care and support. The role of the Registered Nurse (RN) however is to make clinical assessments, provide clinical updates and comment on clinical incidents. The RN is a trained and licensed health care professional providing medical care for specific clinical conditions according to clinical care standards, while the PCA is trained to provide quality personal care that may include aiding basic hygiene, preparing meals, administering medication, maintaining or providing reports for the medical professionals and the like. It is contended that Mr Hamhougias acted outside the scope of his position when he communicated with the family of the resident about her medical incident. Having done so, it is contended that Mr Hamhougias’ conduct potentially harmed DPG’s reputation and relationship with the family by conveying misinformation.
DPG submit that Mr Hamhougias had a duty to cooperate in the investigation into his conduct with the family. It contends Mr Hamhougias was given a reasonable and lawful direction to provide information and failure to follow such directions and dishonesty are serious matters constituting a valid reason for dismissal.[21] Having been informed of information provided by Mr Hamhougias to the family, DPG required disclosure of what was said to the family. Mr Hamhougias not only refused to comply with the direction, but his written communication to his General Manager was also inappropriate and intimidating.[22] DPG submit that Mr Hamhougias did apologise for his conduct, but he asserted that he did not have a conversation with the resident’s family that transgressed his scope of authority. Without the disclosure of the conversation, confirming that Mr Hamhougias was the only male PCA caring for the resident on the night and only the family’s report to rely on, DPG formed the view that the family was not dishonest in their report.
Mr Hamhougias’ email of 18 November 2022 to Ms Singh with four additional managers copied in, was viewed as inappropriate, intimidating, and disrespectful. Further, it says that the allegations were inappropriate, vexatious and in the circumstances unfounded and defamatory.[23] Given the language used by Mr Hamhougias and the sensitive matters, it is not appropriate to repeat the messages in this decision. Mr Hamhougias complained to the ACQSC, which conducted an investigation and closed the complaint with no further investigation required.
Further, DPG submit that despite the email apology, Mr Hamhougias in his written outline of submissions[24] and during proceedings showed little contrition as he continued to promulgate the serious and false allegations of negligence, so much so that the employment relationship is untenable with the destruction of trust and confidence between the parties.
Ms Karenne Hall, People and Culture Business Manager gave evidence concerning the allegations, the standdown and the process leading to a meeting she held on 1 December 2022 with Mr Hamhougias, his support person from the Health Workers’ Union together with the General Manager.[25] She further gave evidence of the decision-making process regarding the decision to dismiss and the outcome meeting of 5 December 2022 she arranged with Mr Hamhougias, his support person and the General Manager present. She gave evidence that Mr Hamhougias advised that he did not wish to proceed to a show cause letter process, so it was determined by DPG to terminate the employment as of 5 December 2022 with four weeks in lieu of notice.
Ms Singh, General Manager gave evidence of her clinical investigation into Mr Hamhougias’ email regarding the incident of 14 November 2022 which she and the Home Care Manager, Ms Linda Thorley took seriously. She details the extent of the investigation.[26] Ms Singh also gave evidence of the ACQSC complaint and its resolution. On 16 November 2022 the Home Care Manager reported to Ms Singh that the resident’s family reported a conversation with Mr Hamhougias concerning the incident. While Mr Hamhougias was not mentioned by name, it was reported that a male PCA was looking after the resident on the night in question. Mr Hamhougias was the only male PCA on shift that night. Ms Singh was alarmed that Mr Hamhougias appeared to have conveyed to the family clinical information which was misinformed. Consequently, she made direct inquiries of Mr Hamhougias and instead of disclosing the relevant information, she felt insulted and attacked.[27] Ms Singh concluded that Mr Hamhougias was disrespectful to her and failed to follow a lawful and reasonable direction. She also concluded that he undermined and accused the Registered Nurse on duty of serious conduct, accessed clinical information improperly and that he discussed clinical matters with the family. Ms Singh reported her concerns to Human Resources.[28]
Mr Jordan Regional General Manager gave evidence of his understanding of the investigation into Mr Hamhougias’ conduct and ultimately gave his authority to the General Manager to suspend and terminate employment. In addition, during cross examination Mr Jordan spoke to the report from the ACQSC regarding Mr Hamhougias’ conduct during the audit and his invitation to him to meet in person to find a way forward.
Ms Thorley Home Care Manager and Registered Nurse gave evidence of her understanding of Mr Hamhougias’ concerns about the incident and her investigation jointly with Ms Singh. She further gave evidence of her meeting with the family and her involvement with the ACQSC investigation.[29] During the hearing Ms Thorley provided evidence of the role of a registered nurse and how the standards define serious incidents.
Having considered each of the initial matters, I am required to consider the merits of Mr Hamhougias’ application.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides that, ‘in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, I 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 Commission considers relevant.’
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[30]
Consideration
Was there a valid reason for the dismissal related to conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well-founded.”[31] Further it is the role of the Commission to consider the employer’s reasoning to determine whether that reasoning is valid.[32]
The witness evidence for DPG was consistent and compelling in terms of the seriousness of the conduct.
The four reasons for dismissal were subject to examination in the course of the hearing. I am satisfied that the reasons were valid.
Refusing to comply with reasonable and lawful instruction to disclose the contents of a conversation with the family of the resident
Mr Hamhougias contends that the discussion that he had with the family was “deeply personal and private” and in “honour of a grieving family’s right to privacy”. He contends that he was unaware of what he was required to disclose as the conversation was personal about a family member and he says nothing to do with the “investigation”.[33] He further submits that the request for information was improper and his discussion with the family was not related to DPG’s ill-founded allegation that he discussed matters of a clinical nature.[34] In the course of the hearing, Mr Hamhougias focussed on the fact that DPG could not detail what was allegedly said by him and to whom in the family to substantiate the allegation that he acted outside the scope of his position.[35] However, the evidence of Ms Thorley and in particular Ms Singh was clear that the son informed Ms Thorley of a conversation with the family by a male PCA where it appeared that information conveyed to the family regarding the resident’s medical incident differed from what was reported by senior staff of the Home. Both witnesses revealed that the information from the family could only have been revealed by someone with knowledge of what occurred on the night. Ms Singh reasonably requested from Mr Hamhougias information about his discussion with the family, as the son that reported the matter advised he did not wish to disclose further information so as to not get the PCA in trouble. Under the circumstances, Mr Hamhougias had a requirement to disclose his conversation.
Ms Singh wrote to Mr Hamhougias seeking his assistance in her investigation as General Manager to disclose the detail of his discussion with the family. As Mr Hamhougias refused to disclose any information, and responded aggressively, DPG formed the reasonable view that on a balance of probability that Mr Hamhougias likely discussed clinical matters with the family. This in DPG’s view and on the evidence, is outside the scope of the role of a PCA and had the serious potential to harm the employer and others.
Further the view held by Mr Hamhougias that his discussions with family or residents are “personal and/ or private” was deeply concerning to his employer as the evidence of Mr Jordan was compelling in this regard. This is particularly in the context of a paid staff member in a facility funded to provide caring services to vulnerable aged residents, often at or close to end of life. There was no personal relationship or personal service between Mr Hamhougias and the resident or their family in law and by admission by Mr Hamhougias.[36] Mr Hamhougias was employed and paid under a contract of employment to provide services of a PCA. In addition to his express duties of his job description he also had his common law duties to perform his role with skill and care and with fidelity. These duties did not provide for any private or confidential arrangements with residents or their family. On any reasonable assessment any private or confidential arrangements would be in conflict with the role of a PCA where the employer has direct legal obligations to provide legal standards of care in the facility for the resident and is accountable to not only the resident, but the family and the ACQSC amongst others.
The request for particulars of the conversation with the family was reasonable and lawful. Mr Hamhougias failed to comply with a reasonable and lawful direction and given the particulars of the incident and the employer’s obligations to the family, its staff and the ACQSC, DPG had every right to expect its staff to comply with such directions. I find there was no justification for Mr Hamhougias to conceal any information from his employer.
Mr Hamhougias in his case relies on alleged past conduct of his employer to justify his conduct in relation to the reasons for his dismissal. While I do not accept his reasons for his conduct, I do consider it necessary to address the matter in this decision and I do so in paragraphs [63]-[66].
Making inappropriate, disrespectful and offensive statements in an email to the General Manager
In his Outline of submissions, Mr Hamhougias describes his email which the General Manager found offensive, as “brutally honest”, that he was right in what he was expressing and while DPG were uncomfortable with the “facts” he says that the words negligence, in-actions, dare, detracts, left to die, coroner and dereliction of duty does not make them a source of misconduct.[37] I also observe that in the Statement of evidence, Mr Hamhougias refers to his letter of apology to Ms Singh.[38] Both the email of 18 November 2022 to Ms Singh[39] in response to her request for information of the discussion with family and the apology[40] for his language were subject to scrutiny during proceedings. In the letter of apology Mr Hamhougias admits to using “intense and emotionally charged language”, admits having been “totally out of line” “very harsh and confrontational” as well as “embarrassed”, “unprofessional, unjustified and uncalled for”. Despite the language in the apology which he says was due to his genuine concern for the resident during a traumatic episode he mistakenly allowed his emotions to get the better of him at the time that he wrote the email of 18 November 2022. During the hearing in March 2023, Mr Hamhougias was inconsistent in his evidence. Initially he appeared to be remorseful for his email of 18 November 2022, but this was not maintained as he became quite adamant that his words were brutally honest.
On any reasonable view the correspondence to Ms Singh was out of order, offensive and so inappropriate to be considered insubordinate. Not only are the contents misconceived, the accusatory content and demands for answers were highly inappropriate. In context, Mr Hamhougias was employed as a PCA, his skills and training did not reasonably give him scope to assess the medical care decisions regarding the resident, nor was it his role. Further as the PCA it was not within his authority to demand that the General Manager report to him what decisions were made and their basis, and to further accuse more senior staff of serious breaches and alleged negligence was inflammatory and inappropriate. I do accept the evidence of both Ms Thorley and Ms Singh in terms of their assessment of the medical situation and the decisions made. Further I note that the ACQSC assessed the situation and determined no wrongdoing. It is not the role of the Commission to review the decision of the ACQSC and there is no evidence to suspect the ACQSC had not taken appropriate steps to investigate a complaint by Mr Hamhougias. For Mr Hamhougias to continue to maintain that not only had management acted to cover up wrongdoing, but also that the ACQSC had done the same, put simply as he did not like the outcome. I cannot accept such statements to hold any credibility. Consequently, I do consider that the evidence weighs in favour of this reason for dismissal.
Making inappropriate, offensive, unfounded and highly vexatious claims against the Respondent to the General Manager with other managers copied in
In respect to this reason for dismissal my reasoning is as per the earlier valid reason. I do not consider it necessary to list the evidence in relation to these two reasons as there was voluminous written evidence and oral evidence. The witness evidence of Mr Jordan, Ms Singh[41] and Ms Thorley was consistent, reasoned and compelling. Mr Hamhougias has in his written and oral evidence been somewhat inconsistent, except for the inflammatory and accusatory statements without the production of credible evidence against the weight of evidence from DPG. The gravity of the allegations consistently made by Mr Hamhougias are evident in the witness evidence of Mr Jordan. Mr Jordan invited Mr Hamhougias to meet with him after being informed by the ACQSC was concerned over Mr Hamhougias’ conduct during the audit process. The following extract from transcript illustrates the point:[42]
‘*** JEROME RAYMOND JORDAN XXN MR HAMHOUGIAS
PN1315
MR HAMHOUGIAS: Sorry?---You’ve got registered nurses that work every shift. We run a registered nurse led model. Every shift you are working with registered nurses, registered with APRA, and yet you feel the need, constantly, to go out of the Care Community, any time you see, from your own - I mean no disrespect, as an unregistered health care worker, you’re not registered, you’re a personal care worker, you make assumptions, diagnoses, you make allegations of concern, and you don’t utilise the very expertise that we have on site to - - -
PN1316
Really?--- - - - to assist you with your understanding or concerns. You know, you took that matter that you raised to the quality - that you raised to the regulator, you also took that matter to the ACQSC.
PN1317
Yes, I did?---Then they, in turn, asked us to go through our obligations and, once again, found no breach. This is another pattern that - you use the word ‘pattern’, in relation to going to the ACQSC on the matter that occurred in December, which is why we’re here. So you - one or two things, or many more we don’t understand, and that is when you’ve got genuine concerns as a carer, and that’s wonderful, that’s why I acknowledged that, with your passion and so forth, I wrote to you, in writing, and said, ‘I want to work with you and the team want’s to work with you. We want to try and manage your expectations’. You always go outside of the Care Community because obviously you have no confidence in the number of registered nurses that work here, the care manager, the general manager, and, you know, we are constantly on this sort of, you know, what’s next, what’s next, what’s next? And every time you go the regulator, this is twice in a row that I’m aware of, twice we have been shown, by the regulator, which is independent, to not be in breach. When a regulator says to me, on site, for three days they were there, Mr Hamhougias, that’s the national program that the government runs, because we’re Commonwealth funded, to your point of concerns of negligence and the concerns that you kept going to them, the lead assessor approached me.
PN1318
It was my duty of care?---But why was the lead assessor so concerned about you? This is a Commonwealth representative, concerned about a person like yourself, that is, a personal care worker, in the Care Community, having concerns about the running of the home, yet they’re there to do their job.
PN1319
That concerns me too, to be honest?---They’re there to do their job, that’s what the taxpayer funds the government to do, is to qualify whether Care Communities are operating clinically, financially, and holistically, in the manner dictated by the Aged Care Act 1997. You seem to appear to be thinking otherwise, correct. Is that correct, Mr Hamhougias?’
I do consider the evidence to weigh in favour of this valid reason.
Acting outside the scope of the position by providing clinical opinions on the incident to the family and separately questioning the clinical notes recorded by the Registered Nurse in a manner that was accusatory and inappropriate
Mr Hamhougias strongly contended in oral evidence that he did not check the Registered Nurse notes other than what was visible on the screen on the opening page for a resident which staff, including the PCA is required to access to record behaviours, routines and activities of daily living. He submits that the notes on the opening page contained the notes which he objected to, stating that they were “unimaginably incomplete” and therefore his checking and questioning the notes was not misconduct.
Ms Singh gave evidence of what is visible on the opening page of a resident’s screen.[43] Mr Hamhougias sent to Ms Singh an email dated 18 November 2022[44] in which he admits to going through the nurse’s notes. The detail provided in the email was not possible had Mr Hamhougias only observed the first page as he contended during proceedings. Mr Hamhougias did not dispute the evidence of Ms Singh regarding what is visible and accessible in a resident’s electronic file. On this basis I do consider that Mr Hamhougias was disingenuous in his responses regarding this reason during proceedings. This email patently demonstrates that Mr Hamhougias not only accessed the notes but that he questioned them in a manner that was accusatory and inappropriate. I do consider the weight of the evidence in favour of a valid reason for dismissal.
Was Hamhougias notified of the valid reason?
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[45] in explicit[46] and plain and clear terms.[47]
I am satisfied that Mr Hamhougias was notified of the reason for his dismissal and further given an opportunity to respond.[48] The notification of reason was in writing and in clear unambiguous terms.
Was he given an opportunity to respond to any valid reason raised in relation to his conduct?
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[49]
The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[50] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[51]
Mr Hamhougias was given this opportunity and he does not contest this evidence.
Did DPG unreasonably refuse to allow the Applicant to have a support person present?
DPG did not unreasonably refuse to allow a support person. Mr Hamhougias had a support person for the meeting on 1 December 2022 when the allegations were put to him including the outcome meeting scheduled for 5 December 2022 where he elected to not proceed to a show cause process.
Was he warned about unsatisfactory performance before the dismissal?
Performance is not a consideration in this matter.
To what degree would the size of the enterprise and degree of human resource expertise be likely to impact on the procedures followed in effecting the dismissal?
DPG is not a small employer.
For the size of the enterprise, I consider this consideration does not weigh against DPG. In respect to the process there is no evidence of any unfairness, nor does Mr Hamhougias contest the process. Further he did not contest the evidence that he informed DPG that the show cause process was unnecessary. Mr Hamhougias has contested his dismissal on the basis of valid reason.
The only issue that DPG should have addressed during Mr Hamhougias’ employment was his wellbeing after witnessing the medical incident. Mr Hamhougias was evidently disturbed by what he saw and how he had to attend to a resident he cared for. While DPG referred him to their external provider for support, perhaps more could have been done to assist him. However, despite this matter, the impact on procedures would not have been impacted and I find no criticism of the procedure adopted by DPG.
What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
Mr Hamhougias is aggrieved by his dismissal, he described in his tendered materials and oral evidence that he loved his job. DPG described Mr Hamhougias as a passionate and hardworking employee and I have no reasons to doubt this view on the evidence. However, Mr Hamhougias considered that his role was to protect vulnerable souls.[52] While his duties required care of the residents, unfortunately Mr Hamhougias was suspicious and distrustful of management, assuming that many staff members were largely avoiding duties, mismanaging, or failing to account for their actions. The language used to describe these suspicions was very strong and inflammatory using words such as negligence, in-actions, dare, detracts, left to die, coroner and dereliction of duty.[53] There was no evidence to substantiate these suspicions and mistrust held by Mr Hamhougias. During proceedings he often appeared quite focussed and emotional to the point he did not hear or comprehend what was being said. A case in point is following the detailed responses given by Mr Jordan, that Mr Hamhougias did not listen to, Mr Hamhougias would return the same questions in an accusatory manner.[54] Mr Hamhougias contends that he was ignored and bullied, but the evidence suggests that in fact he was responded to but not in the way he expected. This caused him concern and to doubt the genuineness of management and in response his correspondence was inappropriate and aggressive. Sadly, while Mr Hamhougias did love his job, his steadfastness in this approach was to his ultimate detriment.
I cannot disregard the compelling witness evidence for DPG, particularly oral evidence which revealed that Mr Hamhougias was confrontational and lacked confidence in management or the nurses. His conduct during proceedings demonstrated that he sincerely believed that only he had genuine care for residents. He further identified certain conduct which he characterised as serious incidents which he submits were covered up.
On assessment of the evidence, I found Mr Hamhougias’ concerns lacked substance and I prefer the evidence of Ms Thorley, Ms Singh and Mr Jordan. It became apparent during proceedings that Mr Hamhougias lacked clinical expertise and he would quickly form mistaken opinions about events without understanding or appreciating the role of well qualified nursing staff, including the three witnesses who all have extensive nursing, caring and management expertise. For instance, Mr Hamhougias submits that he raised a serious incident on 17 March 2020[55] and as he remained dissatisfied with the outcome, he persistently agitated Ms Thorley and others to respond to emails containing vast accusatory questions two years later.[56] Ms Thorley accepted the complaint in 2020 and promptly made her inquiries as Home Care Manager. She gave evidence that she did convey what she could without disclosing confidential information to Mr Hamhougias orally in 2020. She submits that she did not respond to the emails some two years later as she had dealt with the matter previously. For Mr Hamhougias a discussion was unsatisfactory even two years after the event. In his opinion a written response was required detailing what report was given to the family, how it was reported to the authority and what action was taken in regard to the staff member involved. This expectation is unrealistic and improper. When pressed, Ms Thorley disclosed during the hearing that the staff member was directed to take her break given the issue of skeleton staff requiring sequential breaks even though Mr Hamhougias inaccurately determined that the staff member was lazy and negligent.[57] Mr Hamhougias also formed the view because the resident was upset that he was treated poorly, yet he was not cognisant of the clinical condition manifesting in aggressive behaviour towards the staff member which required her to take steps for her own safety and seek out support.
Other examples of Mr Hamhougias jumping to quick, ill-informed conclusions and his unreasonable demands for action to satisfy him were raised in oral evidence. Mr Jordan also gave evidence that despite his effort to connect with Mr Hamhougias to capture his passion and move forward, he became the subject of a bullying complaint.[58] This to Mr Hamhougias’ displeasure resulted in ceasing all further communications and the COO stepping in. This in Mr Hamhougias’ view was a further example of bullying, i.e. Mr Jordan not responding to his emails. This pattern of aggressive correspondence where he is not responded to was the source of his allegations of bullying, victimisation and all the other adjectives used to describe his grievance. None of this evidence supported Mr Hamhougias’ application for unfair dismissal and it certainly did not justify his own conduct in response. Unfortunately, Mr Hamhougias could not overcome his distrust and doubt, instead his suspicions perpetuated his grievances and resulted in the loss of his job that he very much enjoyed. A loss to both himself and DPG and its residents, but an untenable situation to maintain.
Harsh, unjust or unreasonable?
I have considered each matter specified in s.387, against the evidence before me, I have considered whether the dismissal was harsh, unjust or unreasonable. I have weighed up all of the circumstances of the case.
I have found that DPG had a valid reason, the conduct was serious, warranting disciplinary action. There was no evidence that DPG unfairly dismissed Mr Hamhougias. The evidence in respect of each of the requirements under s.387 did not weigh in Mr Hamhougias’ favour. Notable was the evidence of Mr Hamhougias insisting on his serious allegations, despite the ACQSC finding no reason for action against DPG or any of its staff. I also note the failure of Mr Hamhougias to appreciate the seriousness of his allegations and language to express his concerns which are unfounded.
I am satisfied that all of the circumstances do not weigh in favour of finding that the dismissal was harsh, unjust or unreasonable.
Conclusion
Having considered all the relevant factors, I am not satisfied that the dismissal was harsh, unjust or unreasonable. I am not satisfied that Mr Hamhougias was unfairly dismissed within the meaning of s.385 of the Act.
As the dismissal was not unfair, I am not required to consider remedy.
For these reasons, I will issue an order separate to this decision, that the application be dismissed.[59]
COMMISSIONER
Appearances:
Mr P. Hamhougias on his own behalf.
Ms K. Hall for the Respondent
Hearing details:
Monday 27 - Wednesday 29 March 2023
Melbourne
Fair Work Commission
[1] Attachment PH002 to Applicant’s statement of evidence.
[2] Attachment PH004 to Applicant’s statement of evidence.
[3] Attachment PH006 to Applicant’s statement of evidence.
[4] Attachment PH002 to Applicant’s statement of evidence.
[5] Attachment PH005 to Applicant’s statement of evidence.
[6] Attachment PH009 to Applicant’s statement of evidence.
[7] Applicant’s statement of evidence at 14.
[8] Ibid.
[9] Ibid at 16.
[10] Attachment PH011 to Applicant’s statement of evidence.
[11] Applicant’s statement of evidence at 17.
[12] Attachment PH012 to the Applicant’s statement of evidence.
[13] Attachment PH013 to Applicant’s statement of evidence.
[14] Attachment PH014 to Applicant’s statement of evidence.
[15] Attachment PH014-PH020 to Applicant’s statement of evidence.
[16] Attachments PH021 – PH025 to Applicant’s statement of evidence.
[17] Attachments PH026 – PH032 to Applicant’s statement of evidence.
[18] Applicant’s statement of evidence at 44 – 70 and attachments PH033 – PH041.
[19] Applicant’s closing submissions.
[20] Respondent’s outline of submissions at 15-16.
[21] Respondent’s outline of submissions at 24-25.
[22] Respondent’s outline of submissions at 28 and witness statement of Ms Singh at 32.
[23] Respondent’s outline of submissions at 34 - 35.
[24] Applicant’s outline of submissions at 4c.
[25] Witness statement of Ms Hall and oral evidence.
[26] Witness statement of Ms Singh at 12-15.
[27] Ibid at 30-33.
[28] Ibid at 36.
[29] Witness statement of Ms Thorley.
[30] Sayer v Melsteel Pty Ltd (2011) FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 [2002] AIRC 317, [69].
[31] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[32] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[33] Applicant’s statement of evidence at 66.
[34] Applicant’s outline of submissions at 4c.
[35] See also Applicant’s statement of evidence at 67.
[36] Transcript at PN99-PN105
[37] Applicant’s outline of submissions at 4c.
[38] Applicant’s statement of evidence at 68.
[39] Attachment PH010 to Applicant’s statement of evidence and Attachment SS-6 to Witness statement of Ms Singh.
[40] Attachment PH040.
[41] Transcript at PN2596 – PN2602.
[42] Noting also a sample from transcript PN1352 - PN1353, PN1373 - PN1374, PN1380, PN1746 - PN1749.
[43] Transcript at PN2784 – PN2796.
[44] Attachment SS-2 to Witness statement of Ms Singh.
[45] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[46] Previsic v Australian Quarantine Inspection Services Print Q3730 [1998] AIRC 1371.
[47] Ibid.
[48] Attachments KH-4 and KH-6 to Witness statement of Ms Hall.
[49] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 75.
[50] RMIT v Asher (2010) 194 IR 1, 14-15.
[51] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[52] Applicant’s statement of evidence at 16.
[53] Attachment PH006 to Applicant’s statement of evidence.
[54] Transcript at PN1352-PN1356
[55] Attachment PH002 to Applicant’s statement of evidence.
[56] Attachments PH003, PH004 and PH006 to Applicant’s statement of evidence.
[57] Transcript at PN2201.
[58] Ibid at PN1236-PN1238
[59] PR762691
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