Radhika Patel v Villa Maria Society
[2014] FWC 3505
•16 MAY 2014
[2014] FWC 3505 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Radhika Patel
v
Villa Maria Society
(U2013/14167)
COMMISSIONER BISSETT | MELBOURNE, 16 MAY 2014 |
Application for relief from unfair dismissal - misconduct.
[1] Ms Radhika Patel (the Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking relief from unfair dismissal. The Applicant was employed by the Villa Maria Society (the Respondent) as a disability support worker at its Taylors Lakes house. She commenced employment with the Respondent on 30 August 2009. Her employment was terminated for misconduct on 19 September 2013.
[2] At the hearing of the application Mr Dirks appeared with permission for the Applicant and Mr Millar of Counsel appeared with permission for the Respondent.
Witnesses
[3] Witness for the Applicant are:
- Ms Radhika Patel (the Applicant);
- Ms Tyne Campbell.
[4] Witness for the Respondent are:
- Ms Kristy Bodenko;
- Ms Louise Slater;
- Ms Trish Cooper.
Background
[5] The Respondent provides a range of community services including residential services for people with disabilities. The Taylors Lakes house accommodates five residents. The residents have a range of disabilities and are all non-verbal.
[6] The Applicant worked a roster at the house of both night and day shifts.
[7] In April 2013 the Applicant was stood down pending an investigation into seven allegations of misconduct. Following an investigation three of the complaints were substantiated and the remaining not substantiated.
[8] On 13 June 2013, as a result of the substantiation of some allegations, The Applicant was issued with a first and final warning with respect to her conduct. That warning stated, in part:
...we have reviewed the decision and because of the extent of the performance issues found to be proven we confirm that the first and final warning will stand, ending on 30 May 2014.
Radhika, your responses convinced us that you understood the seriousness of the issues and that you are committed to improving your performance to the standards required to support the residents in their own home.
...
To support you in the required behaviour around not yelling, not swearing and not dictating to the residents what they should do and when, we decided to move you to the only other local SSA for a short period...[but the] decision has...been made that you will return to work at Taylors Lakes. 1
[9] On 19 June 2013 the Applicant returned to work from being stood down. On 23 June 2013 she lodged an incident report with respect to the conduct of another employee at the house.
[10] On 25 July 2013 the Applicant received a phone call from Ms Lue Slater, the accommodation manager for the Respondent who advised the Applicant that an allegation had been made against her and she was to be stood down. The allegations related to an incident on 22 June 2013 involving a resident of the house (the Resident 2). The allegations were put to the Applicant in writing on 25 July 2013.
[11] Specifically the allegations were that, on 22 June 2013, the Applicant:
- Neglected a person in her care (she left the Resident in the bath unsupervised for over an hour. The Resident fell asleep in the bath);
- Engaged in inappropriate work practices (raised the height of the commode so that the Resident’s feet did not touch the floor and left him unsupervised); and
- Failed to follow a person centred approach (left the bathroom door open when residents were in the bath or on the toilet). 3
[12] The allegations arose from an incident report made by Ms Katrina Ellis, Staffing and Systems Coordinator for the Respondent, following a report made to her by Ms Marian Bathan on 24 July 2013. Ms Bathan had worked a ‘shadow shift’ (a training shift) at the house on 22 June 2013.
[13] An investigation into the allegations was carried out by Ms Trish Cooper, Senior Employee Relations Consultant for the Respondent.
[14] On 9 August 2013 the Applicant provided a written response to the allegations. A meeting was held with the Applicant and her representative on 20 August 2013. During that meeting the Applicant was advised that the allegation with respect to leaving the bathroom door open had been withdrawn.
[15] As a result of the investigation the remaining allegations against the Applicant were found to be proven. The Applicant was advised on 19 September 2013 that her employment was terminated. The reasons for the termination of her employment were that she:
- Neglected a person in her care (she left the Resident in the bath unsupervised for over an hour. The Resident fell asleep in the bath. The Applicant was advised of this but did not respond in a timely manner);
- Engaged in inappropriate work practices (raised the height of the commode so that the Resident’s feet did not touch the floor and left him unsupervised); and
- Failed to follow a person centred approach (raised her voice around residents and staff). 4
Evidence
Resident in the bath
[16] The Applicant agrees that residents of the house need to be checked regularly when they are in the bath. She says this does not mean that you need to be in the bathroom with the resident at all times but they should be checked. How regularly they are checked on would depend on the situation at the time including how many other residents were being bathed or toileted at the time. 5
[17] Whilst the Applicant is sceptical of the Resident’s diagnosis as epileptic she agrees that a resident suffering from epilepsy would require extra care. The Applicant considers that she can leave the Resident in the bath for 10 minutes without checking on him. She says that the Resident is not left for more than 10 minutes without checking because he ‘can get out of the bath to get into things...[in] a split second.’6
[18] On 22 June 2013 the Applicant commenced her shift at 8.00am. Ms Bathan was on a shadow shift at the house and was with the Applicant. The Applicant spent the first half hour of the shift receiving a handover from the night shift staff. She then toileted the Resident and then put him into the bath just before 9.00am. Ms Campbell arrived at work at about 9.00am and the Applicant, Ms Campbell and Ms Bathan sat in the front living room of the house while the Applicant provided a handover to Ms Campbell and they discussed what they would do for the day.
[19] Whilst the Resident was in the bath the Applicant says she was sorting out clothes in the front living room of the house. This room was only a few steps from the bathroom. During this time she says she saw Ms Bathan walking around with another resident.
[20] The Applicant says that at no time did Ms Bathan say to her that the Resident had fallen asleep in the bath. She says that if she was told this she ‘would be running and...would be doing something about it’. 7 The Applicant says that the Resident relaxes in the bath and can look like he is asleep when he actually isn’t.8
[21] The Applicant says that she checked on the Resident while he was in the bath every 5 to 10 minutes. 9 In her written response to the allegations dated 9 August 2013 she says she checked the Resident 6 to 7 times.10
[22] In her written witness statement in these proceedings the Applicant said that the Resident was ‘in the bath for 40 to 50 minutes.’ 11 She confirmed this under cross examination.12
[23] In her witness statement the Applicant says that they ‘could smell the neighbours having a barbeque and decided it would be a good idea’ 13 to do the same for the residents’ lunch. The Applicant says that she left the house to go shopping at about 11.45am. At this time she says the Resident was still in the bath.14 When she returned from shopping the Resident was out of the bath and in his room.
[24] The Applicant says that a person in the office next to the bathroom would not necessarily hear the bath being filled (or topped up) with water, would not be able to see into the bathroom and would not see the Applicant go into the bathroom unless they came out of the office.
[25] Ms Campbell’s’ evidence is that she has ‘an exact recollection of what happened that day, but timing, it's very hard to ask you what you've done a year ago.’ 15
[26] Ms Campbell’s evidence is that the Resident likes a long bath and that she checked on him during this period although she does not recall seeing the Applicant check on him. The Resident was in the bath when the Applicant left to go shopping 16 and Ms Campbell took the Resident out of the bath at about that time. She says this was around 12 o’clock. She says that the Applicant was not there when she got the Resident out of the bath.17
[27] Ms Bathan says that on 22 June 2013 the Applicant filled the bath and the Resident settled into it. She says she then spoke to the Applicant and Ms Campbell for about 10 minutes. She was then told she should go to the office and read some lifestyle plans.
[28] She says that from the office she could see if anyone went into the bathroom. She says that when she was in the office it was about 30 minutes since the Resident had been put in the bath and no-one had been in to check on him. 18 Ms Bathan agrees however that you could get to the bathroom without having to walk past the office door19 but says she would have heard the Applicant because she could hear her voice throughout the house whilst she was in the office.20
[29] Ms Bathan says that another resident came and took her hand and walked her around the house. When they got to the bathroom they went in. The resident holding her hand made a noise and the Resident jerked up in the bath. She says she could tell the Resident was asleep by the way he jerked up in surprise and the dazed look on his face.
[30] Ms Bathan says she found the Applicant and told her the Resident was asleep to which the Applicant responded, ‘Yes, he’s OK in the bath, it is Saturday, he can laze around.’ 21
[31] As she walked around Ms Bathan says she checked on the Resident each time she walked past the bathroom but she never saw Ms Campbell or the Applicant check on him at any time.
[32] Ms Bathan says she was around the front of the house in the living room and the hallway for a total of about 30 or 40 minutes with the other resident. 22 They walked past the bathroom a number of times as she tried to keep the resident, who wanted to go to McDonalds, away from the front door.23 She says that she and the other resident did not stay in one spot for very long.24
[33] Ms Bathan says she then went back to the office and read some more care plans for about 5 minutes. 25 She says that by this time the Resident was out of the bath.
[34] Ms Bathan says that after the Resident had finished his bath and was dressed she was seated in the kitchen with the Applicant and Ms Campbell where they discussed what to do for lunch. She says that the Resident was with them while they were having this discussion. He then left and went to his room and the Applicant went shopping. 26
[35] Ms Bodenko gave uncontested evidence that it is uncommon to ask another staff member to assist with toileting or bathing a resident.
Shopping
[36] The Applicant says that when she went shopping she made purchases on the Villa Maria credit card (which is in Ms Campbell’s name) and that Ms Campbell gave her the PIN for the card.
[37] The Applicant says that when she left the house at about 11:45am or 12 noon. 27 She says:
I went to Coles and I went to Woollies. Coles I went to Caroline Springs. Woollies I went to Watervale. I went to Water Gardens - butcher at Water Gardens and I didn't find what I was looking for so I moved on to Watervale at the butchers there and they didn't have what I was looking for, so I went to Woollies, did a small purchase there and then I did a small purchase at Coles because next to Coles they have a very big butcher as well. 28
[38] In her oral evidence the Applicant says that she went via Water Gardens shopping centre where she had trouble finding a parking spot. 29
[39] The documentary evidence of the shopping receipts shows that the Applicant was at Coles at Caroline Springs where she bought some goods at 1:17pm. 30 From there she went to Watervale shopping centre where she made some more purchases at Woolworths at 1:32pm.31
[40] The Applicant says that she was away shopping for about one hour. 32 When she returned she gave the receipts and credit card back to Ms Campbell who filled in and signed the housekeeping expenditure statement.33
[41] Ms Campbell agrees that she told the Applicant to go shopping. She agrees that she gave the Applicant the Villa Maria credit card issued in Ms Campbell’s name and gave her the PIN. She did not consider anything wrong with this. She says that she often signs off the purchases in the housekeeping expenditure statement even when she is not the one making the purchases. Ms Campbell believes the Applicant was absent shopping for about an hour. 34
Commode
[42] The Applicant gives evidence that, on 22 June 2013, she was aware that the height to which the commode was being adjusted was a matter of concern and she was aware of the need to be careful with the height and to make sure the commode was operated safely. 35 She says that the height of the commode anywhere more than 2 to 3 centimetres above the height shown in photograph E36 would be unsafe.37
[43] The Applicant says that on 22 June 2013 she did not raise the commode to an unsafe height with the Resident on it. She cannot recall there being urine on the bathroom floor. She agrees however that when she and Ms Bathan returned to the bathroom the Resident had got off the commode himself and was walking around.
[44] In her written response to the allegations dated 9 August 2013 the Applicant says she did not raise the height of the commode either before or after the Resident got on it. 38
[45] Ms Bodenko gives evidence that, with respect to the Resident, the commode is raised to halfway to encourage the Resident to stay on it. She says that she has never seen the Applicant do anything different with the commode. 39
[46] Ms Bathan says that she saw the Applicant put the Resident on the commode and then raise the commode to about one metre above the height of the toilet. She considered the height to be dangerous. She then says that the Applicant left the Resident unsupervised. 40 Ms Bathan demonstrated the height of the commode and said it came up to just below her shoulder and she is 1.58 metres tall.41
A person centred approach
[47] The Applicant agrees that a ‘person centred approach’ means that the care of residents and respect for the residents’ dignity is at the centre of staff expectations.
[48] The Applicant says that she is a naturally loud person. Ms Campbell’s evidence is that the Applicant is naturally loud. 42 Ms Campbell also gave evidence that she has not heard the Applicant raise her voice inappropriately to staff or residents of the house.43
[49] The Applicant agrees that, following a first and final warning given to her over previous conduct she was aware that she needed to change her behaviour and not yell, swear or dictate to the residents.
The shadow shift
[50] Ms Bathan says that she understood she was in the care of the Applicant whilst on the shadow shift.
[51] The Applicant says she did not provide any direction to Ms Bathan on what she should do for the day on 22 June 2013. She says that Ms Campbell was responsible for Ms Bathan while she was on the ‘shadow shift’. Ms Cooper however, in her investigation (see below), found that the Applicant was responsible for supervision of Ms Bathan during the shadow shift.
[52] Ms Campbell says that both staff on duty take responsibility for a person on a shadow shift. She says she had a discussion with Ms Bathan at the end of the shift and when she asked Ms Bathan if she had any questions and Ms Bathan replied ‘no’.
[53] Ms Bathan says that she did not raise any concern with Ms Campbell at the end of her shift about what had happened during the shift.
Investigation
[54] Ms Bathan says that she told Ms Ellis in late July 2013 that she was concerned that the Resident had been sleeping in the bath on 22 June 2013. Ms Bathan then sent an email to Ms Ellis outlining her concerns. 44 Ms Ellis then submitted an incident report
[55] Ms Cooper undertook an investigation into the conduct of the Applicant at the request of the Respondent. She was provided with a copy of the incident report completed by Ms Ellis.
[56] As part of the investigation the Applicant was provided with a letter detailing the allegations made against her and a meeting was scheduled with her. 45 The Applicant also provided a detailed written response to the allegations on 9 August 2013.46 A meeting was held with Ms Cooper, the Applicant and her representative on 20 August 2013.
[57] As part of her investigation Ms Cooper says she interviewed nine employees who work at the Taylors Lakes house including the Applicant.
[58] Ms Cooper’s evidence is that at the meeting the Applicant said she did not believe the Resident would fall asleep in the bath and she did not recall Ms Bathan telling her the Resident had fallen asleep in the bath. The Applicant also told Ms Cooper that the Resident had got off the commode on 22 June 2013.
[59] Ms Cooper produced a report as a result of the investigation. In that report Ms Cooper found that:
- All staff [interviewed] indicated that none of personal care support needs of the residents requires two staff... This means that the individual staff member who is assisting a resident with toileting, for example, will generally initiate, supervise and conclude the support with any intervention of assistance from another staff member.
- The Resident’s lifestyle plan states that:
- Staff indicated that once the Resident is settled in the bath he can be left but he needs to be checked every five minutes.
- For his health reasons it is generally accepted that the Resident finish his bath after an hour.
- In regard to the Resident’s toileting he should be checked every 2-5 minutes. The commode is not to be raised beyond halfway.
- The allocation of tasks takes place at the commencement of the shift and if the needs of the residents change reallocation occurs through discussion. 47
I require full support in showering or bathing. I can get out of the bath myself but I could slip or fall over. I need constant supervision when I am in the toilet or bathroom because I may pick up paper or plastic to ingest.
[60] As a result of her interviews Ms Cooper concluded that:
(a) Ms Patel was responsible for assisting [the Resident] with bathing and toileting on 22 June 2013;
(b) [The Resident] has multiple disabilities and requires regular supervision, at least every five minutes, while he is in the bath;
(c) Ms Patel failed to adequately supervise the Resident in the bath on 22 June 2013;
(d) Ms Patel’s claim that she checked [the Resident] 7 or 8 times while he was in the bath was untrue,
(e) [The Resident] fell asleep in the bath on the morning of 22 June 2013;
(f) Ms Bathan told Ms Patel that she found [the Resident] asleep in the bath and Ms Patel did not respond in a timely and appropriate manner;
(g) Ms Patel raised the commode to an unsafe height whilst the Resident was seated on it then left it raised at that height while she left him unsupervised;
(h) [The Resident] required to be seated in the toilet commode while undertaking toileting and the commode should not be raised above the halfway point;
(i) It is common practice to leave the bathroom door ajar when any of the residents are in the bath or on the toilet;
(j) Ms Patel failed to follow the person centred approach at all times whilst working at Taylors Lakes, specifically, she continued to raise her voice or yell despite a previous warning and counselling in relation to that issue. 48
[61] Ms Cooper’s evidence is that neither the Applicant nor Ms Campbell told her during their respective interviews that the Applicant had gone to the supermarket while the Resident was still in the bath and the Applicant did not mention this in her written response to the allegations. Further, the Applicant did not say that she had handed over care of the Resident to Ms Campbell. 49
[62] The Applicant says that the transcript of her interview with Ms Cooper is not complete. 50 While she agrees she told Ms Cooper she doesn’t swear anymore but is naturally loud and feels picked on, she says she also told Ms Cooper that she had done everything Villa Maria required of her.
Submissions
The Applicant
[63] The Applicant submits that, on the basis of the evidence before the Commission, there was no misconduct. The Applicant relies on the decision of Deputy President Sams in De Leon v Spice Temple 51. She says that misconduct is different to mere negligence or a mistake in judgement.
[64] The Applicant says that if I do accept the evidence of Ms Bathan and find that the Resident was asleep in the bath, once he was woken this became a past event and continuing to leave the Resident in the bath would not necessarily endanger his health and safety or the reputation of the business such that I could find there was serious misconduct as specified in the Fair Work Regulations 2009.
[65] The Applicant says that the method of supervising the Resident can be discerned from the unsworn statement made by Ms Khadur to Ms Cooper during her investigation. In that statement Ms Khadur says that the Resident is given privacy while toileting though does need to be checked every few minutes. She agrees, however, that Ms Khadur’s statement on supervision deals with toileting and not bathing.
[66] The Applicant submits that there is no evidence that the employees of the Respondent have any right to give direction to the residents of the household, such as when to get out of the bath. In any event she submits that the evidence before Ms Cooper in undertaking the investigation is that the Resident was capable of getting out of the bath himself.
[67] The Applicant says that the evidence of Ms Bathan cannot be relied on as she was a stranger to the house and could not possibly know what was normal behaviour. Further, she submits that Ms Bathan was either in the office or in the front room with the other resident and that there were walls between her and the bathroom and she was distracted by the other resident to be fully aware of the comings and goings in the bathroom. On the other hand she submits that the evidence of Ms Campbell should be given some weight as she chose to give evidence against the interests of the Respondent.
[68] The Applicant submits that it is established that the Resident likes a long bath. That the Resident was in the bath for an extended period is normal and cannot be found to be misconduct.
[69] The Applicant submits that the differential treatment between her and Ms Campbell is a relevant consideration. If the Applicant is guilty of misconduct in leaving the Resident in the bath then there needs to be consideration that Ms Campbell is also guilty of misconduct. In this respect she says that, given Ms Campbell’s longer period of service; that she was allocated a credit card and that the Applicant had a warning on her file leads to the inference that if anyone was more senior on the day it was Ms Campbell. The Applicant relies on the decision in Candido v Hi Fi Supermarkets 52 as to the relevance of differential treatment in making any decision as to the fairness of the dismissal.
[70] The Applicant also submits that the Commission should take into account the fact that Ms Bathan made no complaint about any activity in the house on the day she worked the shadow shift and did not raise any concerns until a month after the incident. Further, she submits that an adverse inference should be drawn on the basis that Ms Bathan did not put to Ms Ellis (and hence it was not included in Ms Ellis’ incident report) all those things that she says occurred on the day that were included in her evidence before the Commission.
[71] On other matters the Applicant submits that:
- The Commission cannot rely on non-adherence to the Epilepsy Management Procedure as a basis for dismissal;
- The commode height was not included in the incident report made by Ms Ellis and there is no evidence that it was at an incorrect height;
- There is no issue with respect to her being loud;
- The use by her of the credit card issued in Ms Campbell’s name does not provide grounds for dismissal.
[72] The Applicant distinguishes the circumstances of this case from that in Streeter v Telstra Corporation Ltd 53 (Streeter) on the basis of differing facts involved. The Applicant submits that to draw a conclusion of the type drawn in Streeter requires more than a conclusion that one set off evidence is preferred over another. It requires a conclusion that there was an obvious lack of candour, truthfulness and cooperation.
Respondent
[73] The Respondent says that the Applicant’s evidence as to how to how long the Resident was in the bath and who had responsibility for him lacks credibility.
[74] The Respondent submits that the evidence of Ms Bathan was clear. The demeanour of Ms Bathan was frank and she had no reason to fabricate her account of what she saw. It says that Ms Bathan spent much of the time the Resident was in the bath in the hallway with another resident and as such her evidence of how often the resident was checked on should be relied on.
[75] The Respondent submits that if the Resident was in the bath for a shorter period of time then the checking on him should be considered in that context. If he was in the bath for a longer period of time then the regularity of checking becomes a bigger issue.
[76] In addition the Respondent submits that the Resident’s epilepsy required that he be given appropriate care and this did not occur.
[77] The Respondent submits that the Applicant’s evidence of how long the Resident was in the bath and how often she checked on him and how this ties in with the shopping trip sounds of something ‘invented in the witness box in order to accommodate the documentary evidence’ of the shopping receipts. 54 In this respect the Respondent says it is clear that a Streeter point arises. The Respondent says that if the Applicant cannot be truthful about the level of care extended to the Resident then there is still a valid reason for termination based on her dishonesty.
[78] The Respondent highlights other inconsistencies in the Applicant’s evidence including differences between her sworn written evidence and her oral evidence as to what time of the day the Resident was bathed. Her oral evidence that the Resident was bathed again in the afternoon is not supported by the evidence of Ms Campbell.
[79] Ultimately the Respondent submits that the Resident was in the bath for about one hour.
[80] The Respondent submits, in regards to the differential treatment between Ms Campbell and the Applicant, the role of Ms Campbell was peripheral to that of the Applicant and her role only assumes any significance in the account given by the Applicant. Ms Campbell’s conduct on the day, work history and account of the incident was different to the Applicant explaining why Ms Campbell was treated differently to the Applicant.
[81] The Respondent says that nothing can be taken from a failure of the Respondent to call Ms Khadur as a witness as she was not present on the day. Likewise Ms Ellis did no more than lodge an incident report and did not witness the incident herself.
[82] The Respondent says that Ms Bathan’s account of what she saw with the commode is credible in that she saw something that was unsafe. The critical issue is whether there was proper diligence by the Applicant in ensuring the safety of the Resident.
[83] The Respondent submits that the Applicant’s response when asked if she had stopped swearing and raising her voice at work cannot give the Commission any comfort that she has stopped raising her voice. Ms Cooper’s evidence that the Applicant was yelling at this time further supports a conclusion that she has not stopped raising her voice at work.
[84] The Respondent submits that each of the three reasons given for termination provides a valid reason for the termination of employment of the Applicant. If more is required the Respondent submits that the lack of candour, lack of cooperation and dishonesty during the investigation provide an additional valid reason for termination based on Streeter. Further, it submits that misuse of the credit card provides a valid reason for dismissal on the basis of the principles in Lane v Arrowcrest. 55
Findings
[85] There are a number of matters in contention on which it is necessary that I make findings as to the conduct of the Applicant. This is because, to determine if there is a valid reason for the dismissal of the Applicant, I must determine if the conduct actually occurred. 56 Such a finding will be made on the balance of probabilities.57 A finding on each of the matters below will assist in determining if the conduct did, in fact, occur.
Who was responsible for care of the Resident
[86] It is of concern that neither the Applicant nor Ms Campbell was clear as to who was responsible for supervising the Resident while he was in the bath, particularly in circumstances where the Resident is epileptic and, in accordance with the Epilepsy Management Procedure58 and his lifestyle plan, should be supervised in the bath at all times. Regardless, there was still no clear indication as to who was responsible for the Resident while he was bathing. There is no evidence that, having placed the Resident in the bath, the Applicant handed over care of him to Ms Campbell. Whilst they may work well together, responsibility must reside with one of them.
[87] The evidence from Ms Cooper’s investigation report is clear that a staff member who initiates an activity with a resident takes responsibility for all aspects of that activity. The Applicant commenced the bathing of the Resident. She gives no evidence that she specifically asked Ms Campbell to take over his care. The Applicant was responsible for supervision and completion of that care. The suggestion that Ms Campbell somehow assumed responsibility or that there was an acknowledged shared responsibility appears to be no more than a thinly disguised attempt to blame shift.
[88] On the balance of probabilities I find that the Applicant was responsible for the care of the Resident with respect to his bathing on 22 June 2013. I do not accept any shift of this responsibility to Ms Campbell.
How long the Resident was in the bath and how often was he checked
[89] There is conflicting evidence as to how long the Resident was left in the bath.
[90] The Applicant says the Resident was put in the bath at about 9.00am (although in her written witness statement she says she filled the bath for him in the afternoon). 59
[91] The Applicant says in her oral evidence that the Resident was still in the bath when she went shopping just before noon. If that is correct the Resident was in the bath for at least three hours. In her written witness statement the Applicant says the Resident was in the bath for 40 to 50 minutes 60 and in her written response to Ms Cooper she says he normally stays in the bath for around an hour.61
[92] Ms Campbell says the Resident was in the bath when the Applicant went shopping around noon which suggests he was in the bath for about three hours. I note however Ms Campbell’s equivocation as to the accuracy of her memory, in particular times, on that day.
[93] Ms Bathan says the Resident was placed in the bath at about 9.00am. She spent about 20 minutes 62 reading care plans and 30-40 minutes walking around with another resident and then another 5 minutes reading. At the end of this she says the Resident was out of the bath. This would mean he was in the bath for slightly more than one hour.
[94] The Applicant says she checked the Resident 6 to 7 times in her written statement to Ms Cooper. If he was in the bath for three hours this means she checked him every 25 minutes or so.
[95] Ms Campbell says that she was in and out of the bathroom all morning but did not see the Applicant check the Resident.
[96] Ms Bathan says she did not see or hear anyone checking on the Resident but she checked as she went past the bathroom. Whilst I understand that Ms Bathan may not have seen the Applicant enter the bathroom to check on the Resident I accept that she would not necessarily be aware of all of those going in and out of the bathroom when she was in the office or in other parts of the house. I do not reject her evidence however that she did not see anyone check on the Resident for an extended period of time.
[97] When I consider how long the Resident was in the bath in conjunction with the number of times the Applicant says she checked on him, I must either find:
- The Resident was in the bath for 3 hours and checked by the Applicant at best every 25 minutes; or
- The Resident was in the bath for a bit over an hour and checked by the Applicant every 5-10 minutes.
[98] The Applicant either did not afford the Resident the level of supervision and care even she says is necessary or she has misled the Commission under oath with her evidence as to how long the Resident was in the bath. Either situation has serious implications for the Applicant.
[99] In this case I prefer the evidence of Ms Bathan as to how long the Resident was in the bath. She was forthright and clear in her evidence and did not change it during the course of the proceedings.
[100] The Applicant’s oral evidence cannot be believed and varies from what she has at various times put in writing. I also reject the evidence of Ms Campbell who says that Resident did not get out of the bath until the Applicant had left to do the shopping.
[101] For these reasons I find that the Resident was put in the bath at about 9.00am and was in the bath for about one hour. I therefore find he was checked by the Applicant every 5-10 minutes. On this basis the level of supervision of the Resident was, in all likelihood, adequate in terms of its frequency and his requirements.
[102] Based on this finding I also find that the Applicant was not honest in her evidence on this matter. This raises legitimated questions as to her credibility in other aspects of her evidence.
Did the Resident fall asleep in the bath
[103] On the balance of probabilities I cannot find that the Resident was asleep in the bath. It is reasonable that he may have had his eyes closed and it is not disputed he was listening to music. His surprise could be attributed to him being relaxed and listening to his music and does not necessarily mean he was asleep.
[104] Whilst I have found that the Resident was not asleep in the bath I should say that if I had found he was, the Applicant’s submission that once he was awake he was no longer in danger and the reputation of the Respondent was no longer under threat does not militate against the seriousness of not supervising him to the extent that he could fall asleep in the bath. The submissions of the Applicant in this respect have no moral grounding.
Height of the commode
[105] Ms Bathan says the commode was raised to about one metre above the toilet seat and that the Resident got off the commode by himself. If Ms Bathan is right the commode was about 1.4 metres above the floor when the Resident was on it.
[106] The Applicant says she did not raise the commode at all on 22 June 2013. This was her considered statement made in responding in writing to the allegations against her. In her interview with Ms Cooper she says that the Resident has learnt how to operate the commode and that he will get off the commode if he wants to. The Applicant also told Ms Cooper she had missed a staff meeting where it was said the commode was to go no more than halfway up.
[107] I found Ms Bathan to be forthright in giving her evidence. I prefer her evidence to that of the Applicant which I do not consider reliable. The Applicant, in her only evidence on the height of the commode says she did not raise it that day 63 although suggests that it does need to be raised when the Resident is toileting to be able to see into the toilet bowl. There was no-one else in the house at the time this incident occurred (it was before Ms Campbell arrived). Whilst Ms Bodenko gave evidence that she has not seen the Applicant raise the toilet seat above halfway, she was not in the house on 22 June 2013.
[108] On balance I find that the commode was raised with the Resident on it to a height that was unsafe. The Applicant’s explanation as to the height of the commode in her written response to Ms Cooper makes no sense. I accept that the Resident could operate the commode as suggested by the Applicant such that if it was raised too high he could have lowered it to get off so that he would not necessarily have injured himself on getting off. This does not lessen the seriousness of raising the commode too high in the first instance.
[109] I do not specifically find that the commode seat was raised to 1.4 metres. This does seem incredibly high and, on any view, would be extremely unsafe. I do, however, accept that the height was unsafe to Ms Bathan’s eye. On balance I am satisfied that the commode was raised to an unsafe height and not in accordance with policy.
The Applicant continued to use a raised voice
[110] It is not disputed that, as a result of an earlier investigation, the Applicant was issued with a first and final warning and specifically counselled that she was not to yell or swear at other staff or residents.
[111] During her interview with Ms Cooper the Applicant, in response to a specific question, states that she ‘doesn’t swear anymore at work. I am a loud person, that’s just me.’ She said this in a raised voice.
[112] Whilst I accept this is not a positive admission by the Applicant that she does continue to use a raised voice at work, she was asked directly if she had stopped swearing and raising her voice, was given an opportunity to say that she had stopped using a raised voice at work and, by virtue of her statement, failed to do so. Rather she responded to only part of the question asked of her knowing that she had a first and final warning that went to both swearing and using a raised voice.
[113] On the basis of the answer she provided to Ms Cooper and her evidence I find, on the balance of probabilities, that the Applicant, following the warning, continued to use a raised voice at work.
How long did the shopping take?
[114] The Applicant says she left before 12 noon to go shopping. Ms Campbell says she was gone for about an hour. The evidence shows she was at the Caroline Springs Coles supermarket at 1:17pm where she bought some food for the barbeque. The evidence also shows that she was at the Watervale Woolworths supermarket at 1:32pm where she bought some more food.
[115] On this evidence it took her between one and one and a half hour to get from the house to the Coles supermarket at Caroline Springs. Even if she did stop at Watergardens shopping centre on the way to Coles at Caroline Springs this does not adequately explain the time it took for the Applicant to make her first purchase. I also note that to get from Watergardens to Caroline Springs the Applicant would have gone past the Watervale shopping centre that she then returned to.
[116] The Applicant’s explanation as to why she took so long to get from the house to the point of her first purchase is disingenuous. The lack of a coherent explanation raises serious issues as to the reliability of her evidence that the Applicant was gone for about one hour, not just on this issue but on all other matters that day. Ms Campbell’s evidence is just not acceptable on the facts.
[117] Whilst it is not necessary to make a finding on this issue, my finding does go to issues of credit of the Applicant as a witness in these proceedings
Unfair dismissal
[118] On the basis of my findings above I now turn to consider if the Applicant was unfairly dismissed.
[119] I find that the Applicant is protected from unfair dismissal. She was dismissed, this is not a matter of redundancy, and the Small Business Fair Dismissal Code does not apply.
[120] It is therefore necessary to determine if the dismissal was harsh, unjust or unreasonable.
[121] Section 387 of the Act states:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
(a) was there a valid reason
[122] For a reason to be valid it must be ‘sound, defensible and well founded’ 64
[123] The Applicant’s employment was terminated because:
- She left the Resident in the bath unsupervised for an extended period of time. He fell asleep in the bath and she failed to respond in a timely manner.
- She raised the commode to an unsafe height with the Resident on it and failed to supervise him;
- When she returned to work after being disciplined she continued to raise her voice around residents and staff and continued to direct residents in a manner inconsistent with a person centred approach.
[124] I am not satisfied that the Applicant left the Resident in the bath unsupervised for an extended period of time or that he fell asleep in the bath. I am satisfied and find that the Applicant did raise the commode to an unsafe height and continued to use a raised voice.
[125] If I am wrong with respect to how long the Resident was in the bath and he was, in fact, in the bath for three hours then the periodicity of checking the Resident was such that I would have to conclude the level of care provided to him was inadequate. Only checking on the Resident every 25 minutes or so is not appropriate and is a dereliction of duty. This would provide a valid reason for the termination of the Applicant’s employment.
[126] The Applicant was on a first and final warning for a period of 12 months from 13 June 2013. 65 At the time of the incident subject to these proceedings she had returned to work only 3 or 4 days earlier.
[127] Raising the commode to an unsafe level while a resident is on the commode is an inherently unsafe thing to do. The residents of the house are vulnerable and in need of supervision and care. To place any resident in a position where his or her safety is jeopardised raises serious issues about a care worker’s suitability to carry out their role with due diligence.
[128] The Applicant is aware that using a raised voice at work is not acceptable. Her reasoning that she is just a loud person appears to confirm that she still uses a raised voice but is not an acceptable explanation for the continued conduct. In this respect I note that the Applicant’s first and final warning did relate, in part, to how she had interacted with the residents of the house.
[129] In these circumstances I am satisfied that there is a valid reason for the termination of the Applicant’s employment.
[130] Whilst the raising of the Applicant’s voice alone might not provide a valid reason this, in conjunction with the actions in raising the commode and with the first and final warning of 13 June 2013, do.
[131] The Respondent also seeks to rely on the alleged misuse of the credit card by the Applicant issued by the Respondent to Ms Campbell. I do not consider that this constitutes a valid reason for the dismissal of the Applicant.
(b) whether the person was notified
[132] I am satisfied that the Applicant was notified of the reason for her dismissal. This was conveyed to her in a letter dated 19 September 2013.
(c) opportunity to respond
[133] I am satisfied that the Applicant was advised in writing of the allegations in relation to the commode in July 2013. On this matter there is no question that she was given an opportunity to respond. She availed herself of this opportunity.
[134] On the matter of raising her voice I am satisfied that this was raised as an issue with the Applicant in her meeting with Ms Cooper on 20 August 2013. The Applicant knew she was on a warning with respect to this behaviour. She was given an opportunity to respond to whether or not she continued to swear and raise her voice.
(d) support person
[135] The Applicant was not denied the opportunity to have a support person present in meetings with the Respondent and had her representative present.
(e) unsatisfactory performance
[136] This is not a relevant consideration.
(f)& (g) the size of the employers undertaking
[137] The Applicant suggests that she was not accorded a fair go in the dismissal, despite the involvement of specialist human resource staff. In particular she relies on the decision to terminate her employment the day after a separate dispute with respect to the issue of the first and final warning was subject to conciliation in the Commission. I do not accept the submissions on this point. Nothing was put to suggest that any undertakings were given in the dispute process or that no further action would be taken against the Applicant.
(h) any other matters
[138] I have found above that the Applicant was dishonest in her evidence under oath of the period of time that the Resident spent in the bath. This is a serious issue and does go to the heart of the confidence that the Respondent could have in her in the future. This is not a case of preferring the evidence of one party over another. Rather, it appears to me to be a deliberate lack of honesty by the Applicant in her evidence.
[139] The motivation for doing so is not clear except for a need by the Applicant to link the period of the bath with the time she left to go shopping. Had she maintained the evidence in her witness statement that the Resident was in the bath for 40-50 minutes this would have been a moot point, and her evidence of checking on the Resident would have been grounded, but she did not.
[140] In Streeter the Full Bench of the Australian Industrial Relations Commission found that:
...We think Ms Streeter needed to be honest with Telstra during the investigation, notwithstanding the inherently personal nature of her activities, so that Telstra could determine and take appropriate action to deal with the difficulties. Ms Streeter’s dishonesty during the investigation meant Telstra could not be confident Ms Streeter would be honest with it in the future. The relationship of trust and confidence between Telstra and Ms Streeter was, thereby, destroyed. 66
[141] The Applicant’s dishonesty was not given as a reason for her dismissal by the Respondent. That dishonesty was not found until she gave evidence in the proceedings before the Commission. Her dishonesty under oath raises serious questions as to her credibility generally. It also raises issues as to her response during both the investigation undertaken by the Respondent and in these proceedings. I have taken this into account in my decision.
[142] The Applicant was on a first and final warning for conduct that involved her interactions with residents, her language and raising her voice and for taking excessive breaks. As I mentioned above she had been back at work for three or four days following that investigation and outcome when the incidents leading to the termination of her employment occurred. The existence of the warning and the recent nature of it are highly relevant to the decision I am required to make and have been taken into account.
[143] It has been put that the Applicant was treated differently to Ms Campbell, who the Applicant suggests, may have a higher level of responsibility than the Applicant. I do not find that to be the case. Whilst it is curious that no allegations have been put to Ms Campbell (although she was stood down for a period of time), at the time of the investigation an incident report had been lodged with respect to the conduct of the Applicant. At no time did the Applicant raise with Ms Cooper or anyone else that Ms Campbell held joint responsibility for the decisions taken with respect to the Resident. Further, Ms Campbell was not present at the time the Resident was on the commode and there is no allegation against her about raising her voice. I also note that Ms Campbell is not on a first and final warning with respect to her conduct.
[144] I find the attempt by the Applicant to shift responsibility for what happened that day to Ms Campbell as self serving. It does not improve the Applicant’s credibility and suggests she takes no responsibility for the events of that day.
[145] The reasoning in Candido was based on other employees who had engaged in the same misconduct as the applicant in that matter but being treated differently. In this case I am satisfied that the Applicant was responsible for the care of the Resident. There is no ground on which to conclude that Ms Campbell was more than or equally culpable in the matter with the Applicant. To suggest she had a greater degree of responsibility is another attempt by the Applicant to deflect attention from the responsibility she had. Given the Applicant commenced the bathing of the Resident she maintained responsibility to see it through. I do not consider Candido relevant in this matter.
Harsh, unjust or unreasonable
[146] A dismissal may be:
- Unjust because the employee was not guilty of the alleged misconduct;
- Unreasonable because the evidence or material before the employer did not support the conclusion;
- Harsh on the employee due to the economic and personal consequences resulting from being dismissed, or;
- Harsh because the outcome is disproportionate to the gravity of the misconduct (the punishment does not fit the crime). 67
[147] The Applicant engaged in unsafe work practices, failed to heed a specific caution in her first and final warning and did not display the honesty expected of a witness under oath in a matter before the Commission. A valid reason exists for the termination of her employment and her claim for unfair dismissal is not improved by the evidence she gave.
[148] Whilst I accept that the Applicant has not found alternative employment and that the dismissal has had economic consequences for her, firstly such consequences are not totally unexpected but, second, they do not outweigh the other matters that I must consider.
[149] I have made substantial findings in relation to these matters above. I do not intend to repeat them here but do rely on them. In all of the circumstances I am satisfied that the dismissal of the Applicant was not unjust or unreasonable.
Conclusion
[150] For all of the reasons given above I am not satisfied that the Applicant was unfairly dismissed. Her application for relief from unfair dismissal is therefore dismissed. An order to this effect shall be issued in conjunction with this decision.
COMMISSIONER
Appearances:
G. Dircks for the Applicant.
R. Millar of Counsel with D. Hartnett for the Respondent.
Hearing details:
2014.
Melbourne:
March 19.
May 2.
1 Exhibit R3, attachment TC-10. The move to another house did not eventuate for a range of reasons.
2 To protect the privacy of the resident he is referred to as the Resident throughout this decision.
3 Exhibit R3, attachment TC-2.
4 Exhibit R3, attachment TC-8.
5 Transcript PN116.
6 Transcript PN128.
7 Transcript PN238.
8 Transcript PN 224.
9 Transcript PN371.
10 Exhibit R3, attachment TC-1.
11 Exhibit A1, paragraph 52.
12 Transcript PN296.
13 Exhibit A1, paragraph 57.
14 Transcript PN272-4 and 307.
15 Transcript PN595.
16 Transcript PN547.
17 Transcript PN603.
18 Exhibit R7, paragraph 5.
19 Transcript PN1120.
20 Transcript PN1127.
21 Exhibit R7, paragraph 7.
22 Transcript PN1159-60.
23 Transcript PN1161.
24 Transcript PN1171.
25 Exhibit R7, paragraph 9.
26 Transcript PN1174.
27 Transcript PN272.
28 Transcript PN326.
29 Transcript PN360.
30 Exhibit R5, attachment LS-1. The receipt is marked ‘D’ and has a time stamp of 13:17.
31 Exhibit R5, attachment LS-1. The receipt is marked ‘C’ and has a time stamp of 13:32.
32 Exhibit A1, paragraph 57.
33 Exhibit R5, attachment LS-1.
34 Transcript PN610-1.
35 Transcript PN152-3.
36 Exhibit R2.
37 Transcript PN382-9.
38 Exhibit R3, attachment TC-4.
39 Transcript PN832-3.
40 Exhibit R7, paragraph 3.
41 Transcript PN1073-1081.
42 Transcript PN649.
43 Transcript PN531.
44 Transcript PN1015-1058.The email forms part of the incident report made by Ms Ellis. See Exhibit R3, attachment TC-1.
45 Exhibit R3, attachment TC-2.
46 Exhibit R3, attachment TC-4.
47 Exhibit R3, attachment TC-7.
48 Exhibit R3, paragraph 24.
49 Exhibit R3, paragraph 39.
50 Transcript PN424-427.
51 [2010] FWA 3497.
52 PR935645.
53 (2008) 170 IR 1.
54 Transcript PN1363.
55 (1990) 27 FCR 427.
56 Edwards v Giudice (1999) 94 FCR 561 [6]‒[7].
57 Briginshaw v Briginshaw (1938) 60 CLR 336.
58 Exhibit R6.
59 Exhibit A1, paragraph 56.
60 Exhibit A1.
61 Exhibit R3, attachment TC-4.
62 Ms Bathan says that she was in the office reading and it was about 30 minutes since the Resident was put in the bath. After putting the Resident in the bath she was in the front living room with the Applicant and Ms Campbell for about 10 minutes, leaving a further 20 minutes in the office before the other resident took her by the hand.
63 Exhibit R3, attachment TC-4, paragraph 13.
64 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
65 Exhibit R5, attachment TC-10.
66 [2008] AIRCFB 15, [23].
67 Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.
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