Rebecca Chmielewski v Arcare Pty Ltd T/A Arcare Greenhill

[2014] FWC 3076

[2014] FWC 3076

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Chmielewski
v
Arcare Pty Ltd T/A Arcare Greenhill
(U2013/14596)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 9 MAY 2014

Application for relief from unfair dismissal — whether dismissal was harsh, unjust or unreasonable — dismissal not harsh, unjust or unreasonable — application dismissed.

[1] On 25 October 2013 Mrs Rebecca Chmielewski (the Applicant) filed an application under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by Arcare Pty Ltd T/A Arcare Greenhill (Arcare — the Respondent) on 17 October 2013 was harsh, unjust or unreasonable.

[2] The application was heard on 20 March 2014, with Mrs Chmielewski represented by her husband, Mr Jerzy Chmielewski, and Arcare represented by Ms Jenny Fraumano, who appeared with permission.

[3] Mr Chmielewski gave evidence for the Applicant, while Ms Karen Carey, Arcare’s Regional Manager for North East (Victoria) at the time of Mrs Chmielewski’s dismissal, gave evidence for Arcare.

[4] I have found that Mrs Chmielewski’s dismissal was not harsh, unjust or unreasonable and therefore dismiss the application.

Background

[5] Arcare operates a number of aged care facilities in Victoria, including Arcare Greenhill. Arcare Greenhill is a 120 bed high-care facility which includes a sensitive care unit that provides care to residents with dementia. 1

[6] Mrs Chmielewski commenced her employment with Arcare in June 2009. It was not disputed that she was protected from unfair dismissal at the time she was dismissed. Mrs Chmielewski was employed as a Personal Care Worker which involved feeding, toileting, showering and dressing residents, ensuring that the care plan applicable to any particular resident was adhered to and that residents’ health and safety was assured. 2

There were a number of issues which arose during 2013 reflecting difficulties in the employment relationship between Arcare and Mrs Chmielewski. In her application, Mrs Chmielewski described these as including: unresolved conflict between staff regarding the duty list in Casuarina (one of the units at Arcare Greenhill); and, roster changes that saw Mrs Chmielewski’s hours of work reduced and her transferred to Banksia, a high-care unit at Arcare Greenhill, which Mrs Chmielewski considered was a response to her commenting about and questioning management at the facility. 3

[7] Mrs Chmielewski had received a final written warning on 26 July 2013, 4 as a result of a complaint by a family member of a resident regarding the non-provision of food and fluid,5 a failure to follow the resident’s care plan, showing no compassion towards the resident and a separate issue of dealing and attending to elders in an inappropriate and unacceptable manner. The complaint had been upheld following an investigation by Arcare which included discussions with Mrs Chmielewski and her support persons on 26 July 2013. In conjunction with the final written warning, a Performance Management Plan (PMP) was also put in place for Mrs Chmielewski.6 The PMP involved a number of elements, including that Mrs Chmielewski would “Buddy Shift with the Learning and Development Manager and follow instructions”.7

[8] A further complaint was received from another resident and her daughter on 6 August 2013. 8 The complaint alleged a failure to provide breakfast to the resident on 5 August 2013. It was this further complaint that ultimately resulted in Mrs Chmielewski’s dismissal.

The Applicant’s submissions

[9] Mrs Chmielewski submitted that her dismissal was “harsh, unjust and unjustified”, 9 primarily on the basis that there was a lack of proof regarding the allegations against her. Mrs Chmielewski’s submissions also traversed the issues mentioned at paragraph 7 above.10 Key aspects of the Applicant’s oral submissions were that:

(a) the employment relationship appeared to sour during 2013;

(b) on 19 July 2013 she received a call from her unit manager advising that a complaint had been made against her by a resident/family member alleging that she had not provided food or fluid to a resident;

(c) she subsequently received a disciplinary investigation letter, 11 the letter did not identify the name of the complainant and indicated that she would be stood down on full pay pending an investigation;
(d) a meeting, chaired by Ms Carey, was held on 26 July 2013 at which she had an opportunity to respond to the allegation - Mrs Chmielewski was accompanied by Ms Milne, an organiser with the Australian Nursing and Midwifery Federation (ANMF), and her husband;

(e) immediately prior to that meeting, she met with Ms Milne who showed her a copy of the complaint;

(f) Ms Carey was unable to provide evidence at that meeting that the resident had not been provided with food or fluid;

(g) the investigation of the complaint had failed to examine security camera footage from the dining room where Mrs Chmielewski asserted the resident had been provided with/taken food and fluid;

(h) Ms Carey undertook to find out about certain issues raised by her at the meeting, but later that day called her to come and see her at which time she was asked to sign the PMP;

(i) she subsequently discovered the document she signed had attached to it a final written warning;

(j) she had not been counselled prior to the being issued with the final written warning on 26 July 2013;

(k) a further complaint from a resident and her daughter was made on 6 August 2013 and resulted in the disciplinary investigation letter of 8 August 2013;

(l) again, that letter did not provide the name of the complainant, which made it difficult for her to respond to the allegation;

(m) as a result of the stress and anxiety associated with events, she proceeded on sick leave from early August until 9 October 2013;

(n) she provided a written response to the most recent complaint on 10 October 2013 — among other things the response indicated that Ms Milne had informed her that Arcare was planning to terminate her employment;

(o) she met with Arcare on 14 October 2013 to discuss the complaint; and

(p) she was dismissed on 17 October 2013.

[10] As to remedy, Mrs Chmielewski’s preference was to be reinstated. However, in the absence of reinstatement, the Applicant submitted that compensation equivalent to six months’ wages was appropriate. In response to questions from the Fair Work Commission (the Commission), it was submitted that Mrs Chmielewski had unsuccessfully applied for around ten positions since her dismissal and since August 2013 had earned $6,500.46 as a result of working for an agency.

The Applicant’s evidence

[11] Mrs Chmielewski’s did not give evidence in the matter, but her husband did.

[12] Mr Chmielewski’s evidence was based on his attendance, as a support person for his wife, at the meetings with Arcare on 26 July 2013 and 14 October 2013. Mr Chmielewski attested that the investigation which resulted in the final written warning being issued to his wife on 26 July 2013 was flawed as there was no evidence to support the allegation against her. He also stated that at the meeting of 26 July 2013, to discuss the first complaint, Mr Calabro, the Human Resource Manager at Arcare Greenhill, was rude and sought to intimidate and pressure his wife.

[13] In respect of the 14 October 2013 meeting, Mr Chmielewski attested that Arcare placed considerable importance on his wife not delivering a food tray and recording in the documentation that food had been provided to the relevant resident. He further stated that he considered it the case that Arcare’s Greenhill Facility Manager, Ms Magro, had been seeking to identify “any small reasons and mistakes” to justify the dismissal of his wife. 12

[14] Under cross examination Mr Chmielewski:

(a) stated that Mrs Chmielewski had not been counselled prior to the meeting of 26 July 2013, which led to her being issued with a final written warning;

(b) confirmed that Mrs Chmielewski had received a phone call from her unit manager at Arcare on 19 July 2013 to discuss performance related issues;

(c) reiterated the view that Mr Calabro had demonstrated bad manners at the 26 July 2013 meeting;

(d) indicated that at the 14 October 2013 meeting Mrs Chmielewski had understood the complaint against her but did not know who the resident involved was; and

(e) confirmed that he and Mrs Chmielewski had at that meeting been provided with a copy of the relevant resident’s food and fluid chart, but that he could not recall if it showed the resident’s name.

Arcare’s submissions

[15] Arcare submitted that the application should be dismissed as the dismissal was not harsh, unjust or unreasonable. In its submissions, 13 Arcare set out the events leading up to Mrs Chmielewski’s dismissal. In short, Arcare had received a complaint on 6 August 2013 from a resident and her daughter regarding a failure to provide breakfast to the resident.14 As required by the Aged Care Act 1997 (Cth), Arcare investigated the complaint. On 8 August 2013 Arcare wrote to Mrs Chmielewski setting out the allegations and indicated that she would be given an opportunity to respond to the allegations at a meeting planned for 14 August 2013. The letter invited Mrs Chmielewski to bring a support person of her choice to that meeting and outlined that she would be stood down on full pay during the investigation.

[16] As events transpired, that meeting was postponed following advice received from Ms Milne that Mrs Chmielewski would not be attending the planned meeting and would be making a WorkCover claim. Mrs Chmielewski’s WorkCover claim was rejected on 7 October 2013. The letter of 8 August 2013 was then reissued on 9 October 2013. Mrs Chmielewski provided a written response on 10 October 2013 in which she denied the allegation and made a number of assertions regarding a number of other issues. The complaint was discussed at a meeting between Arcare and Mr and Mrs Chmielewski on 14 October 2013. After taking into account Mrs Chmielewski’s response, Arcare dismissed Mrs Chmielewski on 17 October 2013.

[17] Arcare further submitted that if the Commission were to find that the dismissal was harsh, unjust or unreasonable that reinstatement was not appropriate, primarily as Arcare could have no confidence that similar incidents would not reoccur. Arcare made no submission on the issue of compensation, other than to note that an employee’s behaviour is a relevant consideration.

Arcare’s evidence

[18] Ms Carey attested, inter alia, that:

(a) the changes to rosters affected all employees at Arcare Greenhill and that following discussions with Mrs Chmielewski regarding the proposed roster her hours were increased by 20 hours per week; 15

(b) she had transferred Mrs Chmielewski to the Banksia Unit, a high-care unit with few dementia patients, after being “very alarmed as to the way [Mrs Chmielewski] was communicating” with a resident with dementia; 16

(c) there was no connection between these events and Mrs Chmielewski’s dismissal; 17

(d) there were a number of previous concerns regarding Mrs Chmielewski’s performance which were dealt with by counselling her; 18

(e) at the meeting of 26 July 2013 to discuss the initial complaint made against Mrs Chmielewski, the Applicant showed no insight at all into the concerns and was aggressive and argumentative; 19

(f) as a result, a final written warning was issued to Mrs Chmielewski and a PMP put in place; 20
(g) the warning was not challenged by Ms Milne, one of Mrs Chmielewski’s support persons at that meeting; 21

(h) in investigating the second complaint, closed circuit television (CCTV) footage had been examined and showed neither Mrs Chmielewski nor her buddy entering the room; 22

(i) prior to sending the second disciplinary investigation letter, she had contacted Ms Milne to discuss her availability to attend the proposed meeting with Mrs Chmielewski to discuss the complaint; 23

(j) Ms Milne had rung her on 13 August 2013 to advise that Mrs Chmielewski would not be attending the meeting and would be lodging a WorkCover claim; 24

(k) the second disciplinary investigation letter was reissued on 9 October 2013, after Mrs Chmielewski’s WorkCover claim had been rejected on 7 October 2013;

(l) Mrs Chmielewski’s written response to the second complaint was provided on 10 October 2013 — the response stated, among other things, that Mrs Chmielewski had removed food from the resident’s room and that she did not know who completed the resident’s food and fluid chart; 25

(m) at the meeting on 14 October 2013, Mrs Chmielewski was shown the food and fluid chart, which clearly indicated who the resident was. Mrs Chmielewski denied she completed the chart, however, Mr Chmielewski confirmed the handwriting on the chart was Mrs Chmielewski’s;

(n) in addition, at the 14 October 2013 meeting, Mrs Chmielewski was argumentative, showed no remorse or insight into Arcare’s concerns, and requested that Ms Carey confirm the identity of the complainant, which she did with the relevant unit manager; 26

(o) having reviewed the information gathered as part of the investigation, including Mrs Chmielewski’s written response, her comments at the 14 October 2013 meeting and the CCTV footage, she concluded that Mrs Chmielewski had not given breakfast to the resident but had documented that she had done so; 27 and

(p) on 17 October 2013 Mrs Chmielewski was dismissed for serious misconduct. 28

[19] Under cross-examination Ms Carey:

(a) stated that Mr Calabro had not behaved aggressively or inappropriately towards Mrs Chmielewski at the meeting of 26 July 2013, describing his behaviour as very professional;

(b) confirmed that immediately prior to the meeting of 26 July 2013, a copy of the complaint and the questions asked of the resident’s daughter were provided to Mrs Chmielewski via Ms Milne who attended as a support person;

(c) decided to issue a first and final warning to Mrs Chmielewski in view of the lack of insight she demonstrated at the meeting as to the seriousness of failing to provide food and fluid to the resident;

(d) indicated that prior to sending the second disciplinary investigation letter she had spoken to Ms Milne to discuss her availability to attend a meeting to discuss the second complaint but at no stage indicated that the termination of Mrs Chmielewski‘s employment was being contemplated;

(e) as a result of confusion on Mrs Chmielewski’s part at the meeting of 14 October 2013 as to who the complainant was, Ms Carey undertook to confirm this with the relevant unit manager — the unit manager confirmed that the complainant was the person Ms Carey had identified;

(f) at the meeting of 14 October 2013 Mrs Chmielewski reiterated that she did not complete the food and fluid chart, however her husband stated that it was her handwriting on the chart;

(g) she had reviewed CCTV footage of the complainant’s room which indicated that no one had entered the room during the breakfast service (which was a tray service for that particular resident);

(h) in respect of the investigation of the first complaint against Mrs Chmielewski, she had discussed the complaint with the resident’s daughter and Mrs Chmielewski — she had not discussed the complaint with other staff as Mrs Chmielewski was the only staff member named in the complaint; and

(i) as to the second complaint investigation, spoke with the resident (who Ms Carey described as cognitively aware enough to provide information), the resident’s daughter and Mrs Chmielewski.

The statutory framework

[20] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that the Applicant is a person who is protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss. 385 and 387 which read as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

...

387 Criteria for considering harshness etc.

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

[21] There is no dispute that the Applicant was dismissed, so s.385(a) of the Act is satisfied. The Applicant contends that her dismissal was harsh, unjust or unreasonable, so s.385(b) is relevant. The Respondent is not a small business employer; therefore s.385(c) is not relevant. The dismissal was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether the Applicant was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b).

Was the dismissal harsh, unjust or unreasonable?

[22] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. I will address each of those criteria separately.

(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)

[23] In Rode v Burwood Mitsubishi (Rode’s Case), 29a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd.30 The following is an extract from the Full Bench’s decision in Rode’s Case:

“[17] In relation to the meaning of ‘valid reason’the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant's submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”

[24] The issue of whether there was a valid reason for dismissal in circumstances where the dismissal relates to the conduct of an employee was canvassed by a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd (King’s Case). 31 In its decision in King’s Case the Full Bench, drawing on Moore J’s comments in Edwards v Guidice,32 stated:

“[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[25] Accordingly, the threshold issue which I need to decide in this matter is whether the alleged conduct took place. If I find that the conduct did occur, I then need to determine whether there was a valid reason for the dismissal. Consistent with King’s Case, the threshold issue needs to “be determined by the Commission on the basis of the evidence in the proceedings before it”.

[26] The evidence in this matter is that:

(a) CCTV footage shows no one entering or leaving the complainant’s room at the time of the breakfast service on 5 August 2013;

(b) the resident who made the complaint confirming to Ms Carey that they were not provided with breakfast on that day;

(c) Mrs Chmielewski’s written response of 10 October 2013 stated that after unsuccessfully encouraging the resident to eat more she removed the breakfast tray from the room and disposed of it into the bin; 33

(d) that response also stated that Mrs Chmielewski did not know who completed the resident’s food and fluid chart; 34 and

(e) at the meeting of 14 October 2013 Mr Chmielewski identified Mrs Chmielewski’s handwriting on the resident’s food and fluid chart for 5 August 2013.

[27] With regard to the assertions made by Mrs Chmielewski in her written response of 10 October 2013 and referred to at (c) and (d) above, the CCTV footage referred to at (a) discredits the assertion at (c), while (e) contradicts (d). It was not disputed at the hearing that the CCTV footage showed no one entering or leaving the resident’s room or that Mr Chmielewski had indentified his wife’s handwriting on the resident’s food and fluid chart.

[28] Taken together, the evidence supports a finding that the conduct, i.e. a failure to provide breakfast to the resident, did occur.

[29] I now turn to whether the conduct was a valid reason for Mrs Chmielewski’s dismissal.

[30] Aged care residents are frequently heavily or totally reliant on the staff of aged care facilities for the things many of us take for granted, e.g. feeding, toileting, showering and dressing. This undoubtedly places a high degree of responsibility on aged care workers, particularly as the consequences of a failure to provide proper care can be very serious, and potentially fatal in a worst case scenario. The provision of food and fluid to residents is undoubtedly a basic requirement of proper care. Beyond this, under the Aged Care Act 1997, a failure to provide appropriate care and services to residents has potentially significant implications for the operators of aged care facilities. These include the imposition of sanctions, including a revocation or suspension of an approved provider's approval under the Aged Care Act 1997 as a provider of aged care services. 35

[31] As noted above, Ms Carey attested that Mrs Chmielewski was dismissed for serious misconduct as her action in failing to provide food and fluid to a resident put the resident and the reputation of the facility at risk. 36 In this regard, Arcare relied on Regulation 1.07 of the Fair Work Regulations 2009 which defines serious misconduct as follows:

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.”

[Emphasis added]

[32] Further, it is particularly relevant that Mrs Chmielewski had previously received a final written warning for a similar incident just several weeks before the complaint of 6 August 2013 was made. That written warning stated:

“In the event that any other serious breach of a similar [sic nature] occurs, further disciplinary action will be taken including the possible termination of your employment at Arcare.” 37

[33] Against that background, the reoccurrence of the behaviour, i.e. not providing food and fluid to a resident, supports a finding that Mrs Chmielewski’s conduct constitutes a valid reason for her dismissal.

(b) Whether the person was notified of that reason

[34] The disciplinary investigation letter of 8 August 2013, which was reissued on 9 October 2013, sets out the details of the allegations made against Mrs Chmielewski. Specifically, the letter states: 38

“The details of the allegation are:

1. You have failed to provide adequate food and fluid to a resident
2. Not following the direction of the Lifestyle plan
3. Swapped without authorisation Tuesday 6.8.12 [sic 13]

...

The meeting is convened to provide you the opportunity to present any verbal information that may be relevant to the investigation.

...

Following conclusion of the investigation, Arcare will determine whether any disciplinary action is required; this action would not exclude termination of your employment if the matter is deemed to be serious misconduct”.

[35] The dismissal letter of 17 October 2013 from Ms Magro to Mrs Chmielewski states: 39

“I have reviewed your response to the allegations raised in correspondence 9/10/13 and now wish to inform you of the outcome after having completed the investigation process.

Having considered all the relevant information and your passed [sic past] performance involving similar incidents, it has been resolved to terminate your employment relationship with Arcare.”

[36] While the dismissal letter arguably could have been somewhat more explicit as to the reason, the references in the letter to “your response to the allegations raised in correspondence 9/10/13” and “passed [sic past] performance involving similar incidents” go to the reason for her dismissal.

[37] Also relevant in this regard is the final written warning issued to Mrs Chmielewski on 26 July 2013. That warning states:

“Further to the investigation meeting held today to consider your response to the allegations made against you as described in the previous correspondence dated 19 July 2013, I confirm the following.

Having considered all the information gathered, and in particular, the residents, the family members statement, and your own response and employment history with Arcare, I’m satisfied that the events as described by the resident family member on all probability did occur.

Your behaviour and actions on this occasion is in breach of Arcare’s Good Working Relationship Policy, Charter of Resident Rights and Responsibilities and your Position Description. It was evident from your response that you lacked personal insight as to how you come across to others, in particular, towards the resident and their relative. It was also evident you showed no remorse for your actions.

Therefore, given the seriousness of the incident and the implications on the health and safety of resident a final written warning is being issued. In the event that any other serious breach of a similar [sic nature] occurs, further disciplinary action will be taken including the possible termination of your employment at Arcare.” 40

[38] Given the similarity of the issue at the heart of that initial complaint, it is particularly relevant that the written warning makes clear Arcare’s expectations, the reason underpinning the warning and the implications of a reoccurrence of such an incident.

[39] Taken together, the documents support a finding that Mrs Chmielewski was notified of the reason for her dismissal.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[40] As noted above, the disciplinary letter of 8 August 2013 sets out the details of the allegations made against Mrs Chmielewski and requested that she attend a meeting to discuss the allegation.

[41] Mrs Chmielewski submitted that the absence of any indication as to the identity of the resident that made the complaint made it difficult for her to respond to the allegation. On the other hand, Arcare indicated that privacy considerations precluded it from including the resident’s identity in the disciplinary investigation letter of 8 August 2014. Nevertheless, Mrs Chmielewski submitted a written response to the complaint on 10 October 2013. 41 The complaint was also discussed at the meeting of 14 October 2014. It is not disputed that Mrs Chmielewski was shown the food and fluid chart for the particular resident at that meeting and that the identity of the complainant was confirmed by Ms Carey during the course of the meeting. The meeting itself was another opportunity for Mrs Chmielewski to respond to the complaint.

[42] Together, these factors support a finding that Mrs Chmielewski was given an opportunity to respond to the allegations made against her.

(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

[43] The disciplinary investigation letter of 8 August 2013 expressly invited Mrs Chmielewski to “bring representation of your choice to the meeting.” Mr Chmielewski attended the meeting with Arcare, which was held on 14 October 2014, as his wife’s support person.

(e) If the dismissal related to unsatisfactory performance by the person — whether the person had been warned about that unsatisfactory performance before the dismissal

[44] While Mr Chmielewski submitted that his wife had not been counselled prior to the 26 July 2013 meeting, Ms Carey attested that there were a number of previous concerns regarding Mrs Chmielewski’s performance which were dealt with by counselling (see paragraph 19(d), above). Ms Carey’s evidence was supported by a Counselling File Note dated 30 May 2013 which indicated that Mrs Chmielewski was counselled by Ms Greenwood, the Dementia Strategy Manager, regarding a private conversation she had with another staff member in a lounge area and for ignoring residents who needed assistance. 42 A number of documents were tendered by the Applicant. They included a Counselling File Note dated 19 July 2013 relating to counselling provided to Mrs Chmielewski by Harman (surname illegible), NUM. The counselling concerned a complaint from a resident’s family on 1 July 2013 regarding rough handling and a failure to complete documentation on 15 July 2013.43

[45] Further, the previously cited extract from the final warning issued to Mrs Chmielewski on 26 July 2013 indicates that she had earlier been warned about the behaviours that eventually lead to her dismissal, i.e. the failure to provide food and fluid, and the implications of a reoccurrence of such behaviour.

(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

[46] Arcare has an in-house human resource function and submitted that, as such, the size of the enterprise was not a relevant consideration in this matter.

(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

[47] As noted above, Arcare has an in-house human resource function.

(h) Any other matters that FWC considers relevant

[48] Mrs Chmielewski’s submissions raised concerns about the thoroughness of the investigation into the 19 July 2013 complaint against her which resulted in the final warning being issued to her on 26 July 2013. However, based on the material before me, it does not appear that either the investigation or the final warning was questioned until at least the meeting of 14 October 2013. Further, Ms Carey’s evidence that Ms Milne of the ANMF did not challenge the warning is telling. That evidence was not challenged by Mr Chmielewski. No evidence was lead which brought into doubt the finding of the investigation of the initial complaint against Mrs Chmielewski.

[49] As noted at paragraph 7 above, Mrs Chmielewski contended that her transfer to the Banksia unit was a response to her commenting about and questioning management at the facility. In a similar vein, as mentioned at paragraph 14 above, Mr Chmielewski attested that he considered it the case that Ms Magro had been seeking to identify “any small reasons and mistakes” to justify the dismissal of his wife. However, no probative evidence was led to substantiate either of these contentions. Accordingly, I attach no weight to these contentions.

Conclusion

[50] Drawing on the above analysis, I find that there was a valid reason for Mrs Chmielewski’s dismissal, that Mrs Chmielewski was notified of the reason and was given an opportunity to respond, that Mrs Chmielewski was able to and did seek the assistance of a support person and that there are no other relevant matters.

[51] For all these reasons I do not consider that Mrs Chmielewski’s dismissal was harsh, unjust or unreasonable. Accordingly, I dismiss the application. An order to this effect will issue as PR550456.

DEPUTY PRESIDENT

Appearances:

J Chmielewski for the Applicant

J Fraumano for the Respondent

Hearing details:

2014.

Melbourne:

20 March.

 1   Exhibit F2, at paras 1-2.

 2   Ibid, at para 6.

 3   Form F2 - Application for unfair dismissal remedy, at item 3.

 4   Exhibit F1, at attachment KC6.

 5   Ibid, at attachment KC4.

 6   Ibid, at attachment KC7.

 7   Exhibit M1.

 8   Exhibit F1, at attachment KC8.

 9   Applicant’s outline of submissions (also included as part of Exhibit M1).

 10   Ibid.

 11   Exhibit M1, at attachment B.

 12   Exhibit M2.

 13   Exhibit F2.

 14   Exhibit F2, at para 3 incorrectly states that the complaint was received on 16 July 2013.

 15   Exhibit F1, at paras 4 and 6.

 16   Ibid, at para 6.

 17   Ibid, at para 6.

 18   Ibid, at para 8 and attachment KC3.

 19   Ibid, at para 9.

 20   Ibid, at para 9.

 21   Ibid, at para 9.

 22   Ibid, at para 15.

 23   Ibid, at para 18.

 24   Ibid, at para 20.

 25   Ibid, at paras 21-23.

 26   Ibid, at paras 24-25.

 27   Ibid, at para 27.

 28   Ibid, at para 29.

 29   Print R4471.

 30 (1995) 62 IR 371.

 31   Print S4213.

 32 (1999) 94 FCR 561, 565 per Moore J.

 33   Exhibit M1, at attachment A.

 34   Ibid.

 35 See ss.64.1 and 66.1 of the Aged Care Act 1997.

 36   Exhibit F1, at paras 28-29.

 37   Ibid, at attachment KC12.

 38   Ibid, at attachment KC12.

 39   Ibid at Attachment KC15

 40   Exhibit F1 at Attachment KC6

 41   Exhibit M1, at attachment D.

 42   Ibid, at attachment KC3.

 43   Exhibit M1.

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