Rhianah Wilson v Workpower Incorporated
[2021] FWC 3141
•18 JUNE 2021
| [2021] FWC 3141 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rhianah Wilson
v
Workpower Incorporated
(U2021/936)
DEPUTY PRESIDENT BEAUMONT | PERTH, 18 JUNE 2021 |
Application for an unfair dismissal remedy.
1 Introduction
[1] This decision concerns an application made by Ms Rhianah Wilson (the Applicant) under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy.
[2] The Applicant was a Community Support Officer (CSO) with Workpower Incorporated (the Respondent). In her role, she was required to work with people with a disability to assist them in their recreational activities. Over the course of early January 2021, the Applicant was involved in three incidents involving the care of two clients.
[3] On 5 January 2021, the Applicant took Client A on an excursion. It was said to have been a hot day, and while Client A was returned to her home with severe sunburn, the Applicant did not report the incident to the Respondent. However, the parent of Client A did report the incident to the Respondent, having been distressed by the sight of her daughter. Client A’s parent requested a full investigation into the incident. As the Respondent formed the view that the allegations about the sunburn amounted to neglect, the incident was subsequently reported to the NDIS Quality and Safeguards Commission.
[4] On 9 January 2021, the Respondent received a complaint from Rocky Bay, an accommodation facility. The complaint concerned the support that had been provided to their resident, Client B, over the course of 6 and 7 January 2021. While acknowledging that Client B had enjoyed the excursions over the course of the two days, the Team Leader of Rocky Bay, said she felt that the weather had been too hot for the outdoor excursions, and when Client B returned home on 6 January 2021, she had experienced two seizures, which could have been brought on by heat exposure.
[5] The Applicant was provided with details of the allegations against her. They were, neglecting to fulfil her duty of care responsibilities as a CSO, resulting in physical harm to Client A, distress for Client B, and distress for Client A’s family.
[6] Having considered the evidence, I am of the view that the Applicant’s actions in respect of the first incident, amounted to a breach of the Respondent’s Climatic Heat and Inclement Weather Policy (Climatic Heat Policy), Child Protection and Vulnerable Adults Policy (VAP) and Code of Conduct. Further, in all of the circumstances, the Applicant failed to exercise due care and diligence and did not comply with lawful and reasonable instructions. Regarding the second and third incidents over 6 and 7 January 2021, the Applicant again demonstrated a failure to exercise due care and diligence and comply with lawful and reasonable instructions.
[7] In short, I have concluded that the dismissal of the Applicant by the Respondent was not harsh, unjust or unreasonable, and therefore the application is dismissed. These are my reasons for so concluding.
2 Background
[8] The Applicant commenced employment with the Respondent on 2 July 2015. Whilst she was employed on a casual basis, the Respondent concedes that her employment was on a regular and systematic basis, and there would have been a reasonable expectation of ongoing employment.
[9] The Respondent is a not for profit NDIS registered provider of individualised services to people with a disability, their families and carers, in community-based programs. 1 The Respondent’s services include community inclusion and participation, skill development, education, work experience, in home support and respite. The Respondent seeks to deliver outcomes that include independence, lifelong learning, leisure, general life skills and respite for carers.2
[10] The Respondent’s clients are vulnerable people due to their dependence on another for support. The nature of the client’s disability can be, but not limited to, physical, intellectual or mental illness. The Applicant explained that her specific work was to take clients on outings away from their home environment, and to do this, she would use her own motor vehicle. 3 The Respondent gave evidence that the Applicant generally worked alone while supporting clients, as her role was predominately providing one on one support.4
[11] Ms Edwards, the General Manager of the Respondent, noted that hot weather created a number of risks for the Respondent’s clients. These risks included heat cramps, heat exhaustion, heatstroke and sunburn. It took these risks extremely seriously and, as such, had developed several policies, including the:
a) Climatic Heat and Inclement Weather Policy (Climatic Heat Policy);
b) Risk Management Policy;
c) Risk Management Procedure;
d) Child Protection and Vulnerable Adults Policy; and
e) the Respondent’s Code of Conduct.
[12] Ms Edwards said that the abovementioned policies were provided to all the Respondent’s employees, and employees were instructed that they must abide by them. Ms Edwards referred to the obligation having been set out at page 2 of the Applicant’s employment contract.
[13] However, at hearing, the Applicant advanced that she had never been provided with a copy of her employment contract and objected to the Respondent’s reliance on the same. She observed that her evidence on this point was unchallenged in cross examination and the written employment contract that the Respondent provided, was unsigned by her. On that basis, the Applicant objected to the admission of the employment contract produced by the Respondent.
[14] The Applicant had not signed the document in question, and while signed and dated by the General Manager of Human Resources as of 26 June 2015, he was not called to give evidence on the matter. Ms Edwards, through whom the Respondent sought to tender the employment contract, gave evidence that the contract had been extracted from the Applicant’s personnel file. However, she could not say whether that same contract had been provided to the Applicant. The Respondent thereafter sought not to rely on the terms of the employment contract, and accordingly, I determined not to admit the document into evidence.
[15] Insofar as making the Applicant aware of its policies relating to heat, Ms Edwards said that the Program Manager, Ms Lisa James, emailed the Applicant and others on 12 October 2020, drawing attention to the need to implement the Climatic Heat Policy. 5 The email detailed:
As we are moving into the warmer months, now would be good time to consider who you currently support, and what approach you will take when these warmer days are upon us.
Start thinking about what activities you might do for the day and how we can keep cool and hydrated.
Plan the day a head, to be best prepared.
Some strategies to guide you through from our Climatic Heat & Inclement Weather Policy:
• Check with the customer that they have sunscreen applied before the support and with them for during. A minimum 30+ sunscreen should be regularly applied as per the product direction.
• Wear light, loose clothing if the weather is warm
• Wear a broad brimmed hat outdoors
• Ensure adequate fluids are taken; at least a glass of water every hour;
• If a hot day, avoid unnecessary activity as it increases body heat;
• Stay indoors as much as possible if the weather is too hot for the customer you are supporting…
[16] The Climatic Heat Policy considered ‘hot weather’ to be where the daily maximum temperature is 35 degrees, noting that for some individuals, a temperature of below 30 degrees may be negotiated due to their individual needs. 6 The Climatic Heat Policy provided that the following practices applied when temperatures were 35 degrees:
a) Stay indoors as much as possible
b) Ensure activities are conducted in air conditioned venues where possible
c) No participant is to sit in a parked car
d) Wear light, loose clothing; however ensure that light footwear is secure on feet (to prevent injury)
e) A minimum 30+ sunscreen should be regularly applied as per the product direction
f) Wear a broad brimmed hat outdoors
g) Ensure adequate fluids are taken; at least a glass of water every hour (about 200ml). May be given as one drink or several smaller drinks
h) Have regular nourishing meals
i) Use blinds to block sun
j) Use air conditioners/fans where provided
k) Avoid unnecessary activity as it increases body heat 7
[17] On 4 January 2021, Ms Alwen Jones, the Program Manager of the Respondent and the Applicant’s Line Manager, sent an email to the Applicant titled ‘Severe Heat – Risk Assessment’. It read:
Good Afternoon,
Happy New Year
It is forecast to be extremely hot for the rest of this week.
To ensure the safety of our customer and staff please see attached Risk Assessment with strategies in place to reduce the risk of overheating.
Can you please read and if possible sign, or reply to this email that you agree with the Risk Assessment and strategies put in place. If there is any additional information you feel is required to be added please get in touch. 8
[18] The Risk Assessment referred to in the email dated 4 January 2021, appeared to refer to Client B. The Risk Assessment strategies repeated the strategies in the Climatic Heat Policy for weather where the temperature was over 35 degrees.
[19] According to Ms Edwards, on 5 January 2021, the then General Manager of Customer Experience, Ms Kathy Kelly, emailed the Applicant and others with an overview of the policies and instructions concerning heat, and specifically requested that staff read the Climatic Heat Policy. Ms Edwards added that Ms Kelly also sent a WhatsApp message to the Applicant and other staff on 5 January 2021, 9 which set out:
Due to the hot weather now and in the coming weeks/months I would like to request that each of you to [sic] follow the set process below at the beginning of each shift.
Firstly, please take the time to read through our Climate [sic] Heat and Inclement Weather Policy for some key strategies to keep safe, cook and hydrated.
I would like to request that you take a few minutes at the beginning of each shift to consider the support that you are providing and the importance of being proactive in our approach in supporting our participants to stay cool and safe.
After reading the below if you know of other considerations to review in relation to our customers, contact your Program Manager ASAP to discuss them.
Process:
Our Program Managers have assessed “high risk customers” related to health, age and medical conditions prior to supports and will send you the risk assessment if there is one in place. If you support someone who you feel should be deemed as ‘high risk customer and you haven’t received a risk assessment please contact your manager.
Upon arriving at a customer’s house, check they have everything they need for the day (sun cream, hat, shade, appropriate clothing).
Check to see if there is a risk assessment for an outdoor activity if you are completing one in weather 35’ or above. Contact your Manager if you think there should be one in place.
Ensure activities are conducted in air c… 10
[20] It was Ms Edwards’ evidence that the Applicant had read the WhatsApp mentioned at 11:37 am on 6 January 2021.
[21] In addition to the Climatic Heat Policy, the Respondent had in place the Child Protection and Vulnerable Adults Policy (VAP). The VAP provided:
Workpower takes its duty of care seriously and will aim at all times to provide the safest possible programs and environments for children and vulnerable adults. This will be achieved by identifying and managing risks that may lead to harm…
[22] Further, the Respondent’s Code of Conduct set out the responsibilities of employees, which relevantly included:
Fulfil their responsibilities as employees in accordance with their respective duty statement and with due care and diligence, which includes requesting training to assist/meet job requirements. 11
2.1 First incident
[23] On 5 January 2021, the Applicant collected Client A from her home at approximately 9.00 am, returning her back to her residence at approximately 2.00 pm to 3.00 pm on that same day. During the course of the day, the Applicant took Client A to the South Perth foreshore to catch a ferry, have some lunch and thereafter return. The Applicant acknowledges that Client A was sunburnt when she returned her back to her home, and that she apologised to staff for it. She was purportedly reassured by those same staff (who are not employees of the Respondent) that Client A’s sunburn was ok. 12 Further, the Applicant notes that she did not write an incident report about the matter as she did not know she was required to do so.13
[24] Ms Edwards gave evidence that on 7 January 2021, Ms Jones received a phone call from the mother of Client A who reported that her daughter had suffered sunburn while she was out with the Applicant on 5 January 2021. An email from Client A’s mother was sent to Ms Jones on 8 January 2021, it read: 14
Hi All
Not sure if you have seen Ellen but his [sic] is after a couple of days.
I am so close to crying. She has blisters on her arms and lips also.
This is neglect and bordering on abuse.
This needs to be addressed.
I feel like looking for another provider and also reporting it.
I am NOT HAPPY and very upset.
[25] Ms Edwards said that she believed that the Respondent was obliged to report the complaint made regarding Client A to the Quality and Safeguarding Commission because the allegations made amounted to neglect. 15
2.2 Second and third incident
[26] On each day of 6 and 7 January 2021, the Applicant took Client B on an excursion. On the 6 January 2021, the excursion was to Perth, and on the 7 January 2021, the excursion was to Kent Weir, where the Applicant concedes she left, momentarily, Client B in the car unsupervised whilst collecting Client B’s lunch.
[27] Ms Edwards said that on 9 January 2021, Ms Jones received a complaint from Rocky Bay regarding the support that had been provided to Client B on 6 and 7 January 2021. The complaint read:
Just a little concern I have regarding Client B’s service. This week on Wednesday Client B went out into the City on a bus and then on Thursday she went to the Park. Although Client B likes these activities I feel the weather was really too hot on these days for this type of activity. On Wednesday on her return Client B had two seizures which could have been brought on due to exposure to the heat…
Can you maybe have a word with the support staff supervisor and ask if we can re-think some of Client B’s activities over the next few months. 16
2.3 The temperatures on 5, 6 and 7 January
[28] The parties provided to the Commission a Statement of Agreed Facts (SOAF). In the SOAF, it was agreed that on 26 April 2021, the Applicant had searched the website, ‘timeanddate.com’, for Perth weather observations on 5,6 and 7 January 2021. The Applicant downloaded and printed the information from that website, and that same information was tendered into evidence. The information showed that on 5 January 2021, the temperature purportedly reached 34 degrees by 4.30 pm. On 6 January 2021, the temperature reached 36 degrees at 4.00 pm. On 7 January 2021, the temperature was said to have reached 38 degrees at 4.00 pm.
2.4 Disciplinary process
[29] Ms Edwards said that on 11 January 2021, both her and Ms Jones met with the Applicant and told her that the Respondent would be investigating an allegation that two of the Respondent’s clients had suffered poor health as a result of exposure to extreme heat and sun during their respective support provided by her in the week of 4 January 2021. 17 Ms Edwards said that she informed the Applicant that she would be suspended with pay while the investigation was conducted because of the seriousness of the allegations.18
[30] On 12 January 2021, the Applicant provided an email to Ms Jones outlining her activities with the Respondent’s clients on 5, 6 and 7 January 2021. Ms Edwards requested Ms Jones to compare the Applicant’s written account with the notes that she had taken in the meeting with the Applicant on 11 January 2021. 19
[31] As noted, Ms Jones reviewed the Applicant’s email dated 12 January 2021 and inserted her own recollection of what the Applicant had said in the meeting of 11 January 2021. In respect of client A, Ms Jones noted that the Applicant had checked Client A’s bag after having parked the car prior to catching a ferry (approximately 10.00 am on 5 January 2021). The Applicant reported that she observed that the client did not have any water with her at that time, and her skin felt a bit oily. At a later point in the Applicant’s email dated 12 January 2021, at it is noted that at 11.20 am the Applicant could not find Client A’s water bottle. At 1.15 pm the Applicant noted that Client A looked red on her cheeks and shoulders. The Applicant wrote that she checked Client A’s bag for sunblock, and there was none. The Applicant wrote that she arrived at Client A’s home at 2.20 pm and a staff member at the home observed, in respect of Client A, ‘you look very red’. According to the Applicant, another staff member said that this kind of thing happened all the time as Client A did not want to put cream on.
[32] On 14 January 2021, Ms Edwards met with the Applicant to inform her of the investigation outcome. A letter was also provided at this time, confirming the following outcomes:
a) The customer was sunburnt during your provision of support. This was as a direct result of you not supporting the customer to wear a hat, apply sunscreen, adequately hydrate and seek shade or activities indoors during the period of a 6-hour support on Tuesday 5th January 2021.
b) You did not follow the advice or safety protocols as outlined in the risk assessment provided to you prior to the commencement of your support with the customer.
c) You had not reported this to your line manager in line with Workpower’s safety and risk management system.
d) You contravened Workpower’s climatic heat and inclement heat policy directive by taking a customer to Perth City on Wednesday 6th January and Kent Street Weir on Thursday 7th January 2021 on a day that the temperature exceeded 35 degrees. 20
[33] The Applicant was also informed that she had breached the following:
a) Workpower’s Child Protection and Vulnerable Adults Policy: your actions have resulted in an act of neglect; “Neglect includes an action, or a failure to act, by a person who has care or support responsibilities towards a person with disability; neglect can be a single significant incident where a worker fails to fulfil a duty, resulting in actual harm to a person with disability.” (NDIS Quality and Safeguards Commission June 2019).
b) Workpower’s Climate Heat and Inclement Weather Policy and the heat associated risk assessment; in that you did not comply or adhere to the guidelines and safety protocol when supporting a customer;
c) Workpower’s Code of Conduct; in that you have not taken reasonable care to ensure the safety of others whilst in your immediate care.
d) Workpower’s safety and risk management system; by not submitting an incident form or reporting the sunburn to a customer on Tuesday 5th January you have failed to comply with the accident, incident and near miss management process which requires reporting of the incident within 24 hours to your direct line manager. 21
[34] On 15 January 2021, the Applicant provided an email response regarding the meeting that had been held on 14 January 2021. Amongst other matters referred to in the email, the Applicant states at paragraph 4, ‘Further to this, before I even left to support Client A, I read through the eating plan as well as the heat risk assessment’. 22 However, at hearing, the Applicant conceded that the account she had provided to the Respondent in this respect was not truthful, noting that she thought, to protect herself, it was better to say she had read through the Heat Risk Assessment. When asked whether she had informed the Respondent of this inaccurate account during the investigation until her dismissal, the Applicant conceded she had not.
[35] In the same email of 15 January 2021, the Applicant stated, with regard to Client A, that:
[S]omeone had checked her bag before we left and had not been worried or not noticed the lack of a water bottle, sunblock and hat and because at least two members of staff rifled through the bag I assumed that I would not need to do that [sic] same.
I would like to point out that the temperature did not reach or exceed 35 degrees on Tuesday, Jan 4th. As such the practices required by the heat risk assessment do not apply. Another point is that my shift with Client A was only five hours not six and the document stating the claim has said six hours. I was not made aware of the lack of water bottle, sunblock and hat by home staff, and did not find out myself until after I had left the home. I hadn’t realised some of the items were missing until near the end of the shift even. 23 (italics for emphasis)
[36] In respect of Client B, the Applicant provided a lengthy response in her email dated 15 January 2021, including:
Client B’s outing to the city should not be considered an outdoor activity as we spend almost not time outdoors. Not only that but the temperature for both Wednesday and Thursday got to or above 35 degrees at for both days at the time that we were either in the airconditioned bus riding home on Wednesday or in an airconditioned car driving to pick up her lunch.
…
On both days with Client B, the temperature did not reach it’s [sic] peak until I had left her house. On the Wednesday when I left the temperature was 34 degrees, and on Thursday when I left the temperature was 36 degrees, keeping in mind that before it hit even 35 degrees I was back in my car with Janice. 24
[37] Ms Edwards gave evidence that she considered the actual and potential harm to clients as a result of the Applicant’s actions. Ms Edwards said that the Applicant’s repeated failure to abide by a number of policies put its clients at high risk, although the Applicant had received a number of clear and reasonable directions about heat safety in the day prior. 25 Accordingly, the Applicant was dismissed with immediate effect on the basis of serious misconduct.
3 Consideration
[38] There is no jurisdictional barrier to this unfair dismissal application being considered and determined by the Commission. It is not in contest, and I am satisfied on the evidence before me, that the Applicant was dismissed, she had made her application in time, 26 she was a person protected from unfair dismissal,27 the Respondent was not a small business employer, and the case was not one of genuine redundancy.28
3.1 Was the dismissal harsh, unjust or unreasonable?
[39] The conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd by McHugh and Gummow JJ as follows:
.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases, the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 29
[40] When determining whether an applicant’s dismissal was ‘harsh, unjust or unreasonable’, s 387 of the Act contemplates an overall assessment as to the nature of the dismissal by reference to certain factors. Those factors include:
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.
[41] Therefore, it is convenient to use the various factors of s 387, with reference to the relevant circumstances, to outline my consideration of the matter.
3.2 Valid reason for the dismissal
[42] When determining if a dismissal is unfair, the Commission takes into account whether there was a valid reason for dismissal relating to the employee’s capacity or conduct. 30 I have concluded that there was a valid reason for dismissal for the reasons that follow.
[43] The reasons considered are the employer’s ‘reason(s)’. 31 The Full Bench in B, C, and D v Australia Postal Corporation t/as Australia Post (Australian Postal Corporation) stated:
[34].In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (e.g. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v MacLauchlan (1998) 84 IR 1).
[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.
[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal. 32
[44] In summary, where the reason for termination of employment relates to an employee’s capacity or conduct, it is not the Commission’s function to stand in the shoes of the employer and determine whether the employer’s decision was a decision that the Commission would have made. Instead, the Commission is to assess whether the employer had a valid reason connected with the employee’s capacity or conduct. 33
[45] It appears uncontentious that the Respondent initially relied upon the purported conduct of the Applicant concerning:
a) the incident on 5 January 2021, where a client of the Respondent was said to have been badly sunburned;
b) the incidents on 6 January and 7 January 2021 where there was purported non-compliance with the Respondent’s Climatic Heat Policy regarding the Perth City and Kent Weir excursions; and
c) the failure to report the sunburn of Client A on 5 January 2021.
[46] Whether the reason for dismissal was sound, defensible or well-founded depends in part on the Respondent’s Climatic Heat Policy, Code of Conduct, VAP, and directions provided to the Applicant, and the Applicant’s familiarity with the same.
[47] An employer clearly has the authority to give directions and expect them to be obeyed, subject to such directions being lawful and reasonable. 34 In R v Darling Island Stevedoring and Lighterage Co Ltd; Ex part Halliday,35 (Darling Island Stevedoring) it was held:
If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of services and are reasonable.
[48] The Full Bench in Briggs v AWH 36 stated that the determination of whether an employer’s direction was a reasonable one did not involve an abstract or unconfined assessment as to the justice or merit of the direction. The employer, therefore, is not required to demonstrate that the ‘direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties’.37 Adopting the approach identified in Darling Island Stevedoring, the Full Bench cited Dixon J, quoting:
But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. 38
[49] The directions provided to the Applicant on 12 October 2020 outlined a series of strategies to pre-empt the effects of the impending summer heat. The email highlighted the imminent change in season and temperature, the need to modify activities to cater for the heat and the strategies that would guide the CSOs when providing the service to their customers. That same email referred to the Climatic Heat Policy, albeit the email listed strategies that were not triggered by a certain maximum temperature having been reached. These strategies included wearing a broad brimmed hat outdoors, ensuring adequate consumption of fluids, avoiding unnecessary activity, staying indoors as much as possible, checking with the customer that they have sunscreen applied before the support, and with them during the support.
[50] The Climatic Heat Policy, referred to in the Program Manager’s email dated 12 October 2021, sets out that the ‘…guidelines provide explicit instructions to staff supporting employees and individuals during hot or inclement weather and acknowledge the particular problems, which may be experienced by people with a disability…’. 39 At Part 1a of the Climatic Heat Policy, the following is stated:
Direct support staff will ensure that an assessment occurs for each participant to ascertain if there is any variation of the definitions for the participant in terms of meeting employee/participant need. For example the heat may affect a particular individual over 30 degrees. 40
[51] It was evident that the Applicant considered that the strategies or guidelines of the Climatic Heat Policy were not applicable if the temperature was not 35 degrees or over. This was despite the Climatic Heat Policy catering for lesser temperatures potentially impacting on the individual customer.
[52] The Applicant also appeared to be under the misapprehension that the strategies or guidelines were inapplicable unless the temperature was actually 35 degrees or over. Hence the provision of data from the website ‘timeanddate.com’, and the Applicant’s account that while on the excursions the temperature had not been 35 degrees. This is notwithstanding that the Climatic Heat Policy defines ‘hot weather’ as weather where the daily maximum temperature is 35 degrees. While the temperature may not have reached that height during the course of an excursion, I consider the preferred application of the Climatic Heat Policy is that reference to the daily maximum temperature means that an employee is to check the forecast for the day of work and if the daily maximum temperature is 35 degrees or over, then the strategies or guidelines are applicable. It is not the case that the employee embarks on the day and awaits a temperature of 35 degrees, prior to adopting the strategies.
[53] In my view, the email instructions of 12 October 2020 and the content of the Climatic Heat Policy constituted lawful and reasonable instructions. I consider that the Applicant received further lawful and reasonable instructions in the email of Ms Jones dated 4 January 2021. While the attached Risk Assessment addressed Client B, it was equally applicable to the circumstances of Client A given the strategies proposed were drawn from the Climatic Heat Policy, which is applicable to all customers of the Respondent. The Applicant had been clearly notified that hot weather would ensue for the week.
[54] It was argued that the Applicant had not received training on the Climatic Heat Policy, or for that matter, the Code of Conduct or VAP. However, while the Applicant may claim a lack of training in relation to these documents, I am unpersuaded that the Applicant lacked familiarity with her obligations under the Climatic Heat Policy, Code of Conduct, VAP or the directions that had been provided to the Applicant. I prefer the evidence provided by Ms Edwards that it is general practice to provide employees with the policies on their induction into the Respondent organisation. It appeared to me that Ms Edwards gave an account that was accurate and consistent. Further, in respect of the Climatic Heat Policy, the evidence shows that the Applicant had been referred to that same document on 12 October 2020. In the email of Ms Jones dated 4 January 2021, she had referred the Applicant to the ‘Severe Heat – Risk Assessment’, which had adopted the Climatic Heat Policy.
[55] In her response to her employer, the Applicant acknowledged reading the Climatic Heat Policy, only to recant that evidence in hearing. While the Applicant must be commended for her honesty in admitting she had not read that policy during the hearing, her disclosure does not assist her in respect of her case. The Applicant professed to a lack of awareness, unfamiliarity or knowledge about the strategies to adopt for customers in hot weather. She directed attention to the Respondent having not insisted on her signing the policy documents before she undertook a shift, and ultimately laid responsibility on the Respondent for not having ensured she was familiar with terms of the Code of Conduct, VAP and Climatic Heat Policy in addition to the instructions she had received from both Ms Jones and the Program Manager. I have no hesitation in finding that the Respondent had taken all reasonable steps to alert the Applicant to her responsibilities when caring for vulnerable adults in hot weather and was well positioned to require her to act with due care and diligence in applying those strategies.
[56] I am satisfied that before the incident with Client A, the Applicant had received lawful and reasonable instructions from the Respondent regarding the care of clients when the weather was hot. I have already outlined the strategies that were to be adopted, and when such strategies were applicable. I do not intend to repeat myself in that respect. The Applicant accepted that she should have been more diligent in her care of Client A but holds the view that she should not have been dismissed because considered alone it did not constitute a valid reason for dismissal or was a disproportionate response to the conduct. I disagree. I have quoted the often used line that ‘what is reasonable is not to be determined, so to speak, in vacuo’. 41 The Applicant had a vulnerable adult who was dependent on her for his or her well-being and safety in her care. The Applicant failed to keep Client A safe in accordance with the VAP. As a result, Client A was harmed. It was not a mere oversight that can be brushed aside because the staff at Client A’s home appeared to have purportedly downplayed the seriousness of what had occurred – if the Applicant is to be believed. Client A would not have sustained the harm she did had the Applicant simply exercised due care and diligence or had complied with the lawful and reasonable instructions provided to her; she did not.
[57] Turning to the point about the response of staff at Client A’s home as purported by the Applicant, while they may have sought to alleviate the Applicant of her concerns regarding Client A’s sunburn, this did not excuse her from, at the very least, notifying her team leader or manager of the incident. While I appreciate, the Applicant may not have had an incident report form to hand at the location of Client A’s home, it was incumbent upon her to notify her manager, given she was charged with performing her duties with due care and diligence.
[58] By the time the Applicant took Client B on her excursions, Ms Kelly had emailed the Applicant and others with an overview of the policies and instructions, and specifically requested that staff read the Climatic Heat Policy. Ms Edwards added that Ms Kelly also sent a WhatsApp message to the Applicant and other staff on 5 January 2021, 42 outlining that there was hot weather and that there was a process to follow.
[59] Adopting a conservative approach, I have not referred to the email or ‘whats app’ communications of 5 January 2021 in arriving at my findings concerning the Applicant’s conduct in respect of Client A. I accept that such communication occurred at a time when the Applicant was on the excursion with Client A or was in the vicinity of that time. However, in all of the circumstances, in respect of the Applicant’s conduct regarding Client B, I consider that the Applicant had access to the email and ‘whats app’ message of Ms Kelly dated 5 January 2021, and that it was reasonable for the Respondent to have relied upon the Applicant to have read either or both.
[60] At the times that Client B was taken on her excursions, the Applicant was aware, familiar or had knowledge about the strategies to adopt for customers in hot weather. In taking Client B on two outdoor excursions on these dates, where movement was required, and there was exposure to the heat, the Applicant had failed to comply with lawful and reasonable instructions. The trips were ill advised. Regarding the Perth City and Kent Weir incidents, the Applicant simply states that she did not breach the Respondent’s Climatic Heat Policy. I disagree with her summation and note that she exercised a lack of due care and diligence in performing her duties.
[61] In the circumstances, I am persuaded that the Applicant’s employment was terminated for a valid reason. Her misconduct was manifestly serious, and in clear breach of her duty to exercise due care and diligence in addition to breaches of the lawful and reasonable instructions provided to her.
3.3 Notification of the reason and an opportunity to respond
[62] Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting her job at risk and given an adequate opportunity of defence. 43 However, the process does not require any degree of formality. The requirement is to be applied in a practical way to ensure that the employee is treated fairly.44
[63] It was uncontentious that the Applicant was notified of the valid reason and was provided with the opportunity to respond. I, therefore, consider this to be a neutral factor in my consideration.
3.4 Support person
[64] It is acknowledged by the Applicant that the Respondent did not refuse a support person and therefore again, I consider this to be a neutral factor in my consideration.
3.5 Warnings about unsatisfactory performance
[65] As will be evident from the background material, it was not the case that the Respondent sought to rely upon unsatisfactory performance to justify dismissing the Applicant, but rather misconduct. I am satisfied that the Applicant’s dismissal arose from her failure to comply with lawful and reasonable instructions, and as such, it follows that this factor is not relevant to the assessment required.
3.6 Size of the Respondent’s enterprise and dedicated human resource specialists
[66] The Respondent is of a reasonable size and has access to a human resource specialist. Consequently, there is a certain expectation that the Applicant would have been afforded procedural fairness throughout the disciplinary process. It is apparent that she was, and therefore I consider these factors to be neutral.
3.7 Any other matters considered relevant
[67] Section 387(h) imports a broad discretion upon the Commission to consider any other relevant matters, including the circumstances of the Applicant’s employment and its cessation.
[68] Whether the Applicant’s conduct justified summary dismissal for serious misconduct is a factor relevant for consideration under s 387(h) of the Act. 45 However, the expression ‘summary dismissal’ has a reasonably well understood meaning at law. It refers to a dismissal without notice arising from a breach of an essential term of the employment contract, a serious breach of a non-essential term of the contract, or conduct manifesting an intention not to be bound by the contract in the future on the part of the employee.46
[69] As was observed in Ryman v Thrash Pty Ltd t/a Wisharts Automotive Service (Ryman), 47 the payment of a sum in lieu of notice is not consistent with a summary dismissal, understood in the way explained above. The Full Bench in Ryman said:
such a payment is best characterised as compensation for the remuneration that an employee would have received if the employee had been afforded the period of notice to which he or she was entitled. If the employer has a right to summarily dismiss, there cannot be any entitlement to notice, and no basis therefore for a payment in lieu of notice. 48
[70] The term ‘serious misconduct’ does not operate as a fixed standard for the determination of the type of conduct by the employee which may warrant summary dismissal. 49 In Sharp v BCS Infrastructure Support Pty Limited,50 the Full Bench referred to the decision in Rankin v Marine Power International Pty Ltd in which Gillard J stated that ‘[T]here is no rule of law that defines the degree of misconduct which would justify dismissal without notice’,51 and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship.52
[71] Wilful or deliberate behaviour amounting to serious misconduct is conduct which strikes at the heart of the employment relationship. In North v Television Corporation Ltd, 53it was stated:
It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions.
[72] The decision of Laws v London Chronicle (Indicator Newspapers) Ltd, 54 referred to above, makes it plain that an act of disobedience or misconduct (justifying summary dismissal) requires that the disobedience must be also be ‘wilful’, as observed:
... I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions.
[73] Clearly, the Respondent bears the onus of establishing the serious misconduct. The applicable standard of proof is on the balance of probabilities, but the more serious the allegation, the higher the burden on the employer to prove the allegation. 55
[74] I am satisfied that the Applicant’s misconduct was manifestly serious and in clear breach of her obligations to exercise due care and diligence when providing a service to a vulnerable adult. She had been placed in a privileged position of utmost trust. Her customers or clients were dependent upon her to ensure their safety and well-being. It was not only the customer or client that had placed trust in her, but also the Respondent, and the families of the Clients A and B.
[75] The ordinary relationship between employer and employee at common law is one importing the implied duty of mutual trust. The Respondent clearly trusted the Applicant to uphold its values and comply with its instructions when providing its services. 56
[76] It is, therefore, my conclusion that the ‘trust’ and ‘confidence’ essential to the relationship of employer and employee had been destroyed. There was, in my view, a valid reason for terminating the employment of the Applicant based on her serious misconduct.
[77] In Parmalat Food Products Pty Ltd v Wililo, 57 the Full Bench held:
The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of the termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. 58
[78] The gravity of the Applicant’s conduct was such that there is no issue regarding disproportionality. I have taken in consideration the Applicant’s period of service and have, in addition, observed that whilst no issue was taken with her performance during the remainder of her employment, this does not mitigate the seriousness of her misconduct.
4 Conclusion
[79] Having taken into account each of the matters specified in s 387, I am satisfied that the Respondent had a valid reason for dismissing the Applicant based on her conduct. The Applicant’s dismissal was not ‘harsh, unjust or unreasonable’,within the meaning of s 387 of the Act. It follows that the Applicant’s dismissal was not unfair. Accordingly, I am obliged to dismiss the application and an Order 59 to that effect is being issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
Ms Rhianah Wilson, the Applicant;
Mr Patrick Mullally, of WorkClaims Australia, for the Applicant;
Mr John Theodorsen, of Theodorsen Industrial Relations, for the Respondent;
Ms Melissa Cook, for the Respondent.
Hearing details:
Perth;
June 1;
2021.
Printed by authority of the Commonwealth Government Printer
<PR730350>
1 Witness Statement of Natasha Edwards (Edwards Statement) [7].
2 Ibid.
3 Witness Statement of Rhianah Wilson (Wilson Statement) [5].
4 Edwards Statement [11].
5 Edwards Statement [16].
6 Exhibit A1 Annexure NE3.
7 Exhibit A1 Annexure NE17.
8 Ibid.
9 Exhibit A1 Annexure NE8.
10 Exhibit A1 Annexure NE8.
11 Exhibit A1 Annexure NE7.
12 Exhibit A1 Annexure NE18.
13 Ibid.
14 Exhibit A1 Annexure NE12.
15 Edwards Statement [31].
16 Exhibit A1 Annexure NE13.
17 Edwards Statement [32].
18 Ibid.
19 Exhibit A1 Annexure NE16.
20 Exhibit A1 Annexure NE17a.
21 Exhibit A1 Annexure NE17a.
22 Exhibit A1 Annexure NE18.
23 Ibid.
24 Ibid.
25 Exhibit A1 [42].
26 Fair Work Act 2009 (Cth) s 394(2).
27 Fair Work Act 2009 (Cth) s 382.
28 Fair Work Act 2009 (Cth) s 385(d).
29 (1995) 185 CLR 411, 463.
30 Fair Work Act 2009 (Cth) s 387(a).
31 Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 (‘BCS’), [25], affirming B, C andD vAustralia Postal Corporation t/as Australia Post[2013] FWCFB 6191, [34].
32 [2013] FWCFB 6191.
33 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
34 R v Darling Island Stevedore & Lighterage (1938) 60 CLR 601, 621-2.
35 Ibid.
36 [2013] FWCFB 3316, [8].
37 Ibid.
38 (1938) 60 CLR 601, 622.
39 Exhibit A1 Annexure NE3.
40 Ibid.
41 (1938) 60 CLR 601, 622.
42 Exhibit A1 Annexure NE8.
43 Royal Melbourne Institute of Technology v Asher[2010] FWAFB 1200, [26].
44 Ibid.
45 Adam O'Connell v Wesfarmers Kleenheat Gas Pty Ltd t/a Kleenheat Gas [2015] FWCFB 8205 citing Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033, [32].
46 Rankin v Marine Power International Pty Ltd (2001) 107 IR 117, [237]-[260]; Langer v Robert Quinn t/a Pyrmont Car Store[2014] FWC 7460, [38]; Neil and Chin, The Modern Contract of Employment (Thomson Reuters, 2nd ed, 2017) 11.130; Irving, The Contract of Employment (Lexis Nexis, 2nd ed, 2019) 10.4.
47 [2015] FWCFB 5264 (‘Ryman’) [29].
48 Ibid.
49 BCS [34]; Grandbridge Limited v Mrs Diane Wiburd [2017] FWCFB 6732.
50 BCS [34].
51 (2001) 7 IR 117.
52 BCS [34].
53 (1976) 11 ALR 599, 616.
54 [1959] 2 All ER 285.
55 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
56 Exhibit R3.
57 (2011) 207 IR 243, [24].
58 Ibid.
59 PR730883.
0
19
0