Rhonda Golding v Menarock Aged Care Services (Templestowe) Pty Ltd T/A Salisbury House Private Nursing Home

[2015] FWC 7054

[2015] FWC 7054

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rhonda Golding
v
Menarock Aged Care Services (Templestowe) Pty Ltd T/A Salisbury House Private Nursing Home
(U2015/4652)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 14 OCTOBER 2015

Application for relief from unfair dismissal.

[1] Ms Rhonda Golding was employed by Menarock Aged Care Services (Templestowe) Pty Ltd from 1 October 2007. She says her employment was terminated unfairly on 1 April 2015. Menarock Aged Care said that Ms Golding was not dismissed and she remains an employee albeit on leave without pay.

[2] Issues to be determined are:

1. Was Ms Golding dismissed on 1 April 2015?

2. If the answer to that question is yes, then was the dismissal harsh, unjust or unreasonable?

3. If the answer to that question is yes, what compensation should be paid to Ms Golding as she does not seek reinstatement?

Was Ms Golding dismissed on 1 April 2015?

[3] On 1 April 2015, Ms Golding was called to a meeting with Ms Sharon Nicholls, the Group Quality Manager for Menarock Aged Care and Ms Zenia Raval, the Critical Care Coordinator.

[4] That meeting was called to discuss two main issues, namely Ms Golding swapping some of her shifts with other workers without permission and some complaints received by Ms Nicholls about the treatment of residents by Ms Golding.

[5] Ms Nicholls gave evidence that at the meeting she told Ms Golding of the complaints she had received and told her that she would be suspended and placed on paid leave whilst an investigation took place. Ms Nicholls said she told Ms Golding she would receive a letter advising her of the time of the meeting and she would be required to attend and respond to the allegations. She was told she could bring a support person to the meeting. She denied terminating Ms Golding’s employment at the meeting.

[6] Ms Golding gave evidence that she attended the meeting and whilst Ms Nicholls told her she was suspended, she said she was not told she would have to attend a meeting nor was she told she could have a support person. She said that after Ms Nicholls told her about the first complaint, namely the roster swaps, Ms Nicholls said she would need to be suspended for 3-4 days. She said that after Ms Nicholls addressed the third complaint, she said “I have had enough you are terminated as of now.” She told Ms Raval to escort her from the premises.

[7] On that night, Ms Golding rang Ms Theresa Black and told her she had been sacked. She also sent a text message to Ms Lynette Twitchett and told her she would not be in again because of a complaint from a fellow worker. The next day Ms Golding registered at Centrelink for Newstart benefits.

[8] Ms Raval prepared a witness statement in which she stated that Ms Nicholls told Ms Golding that she would be suspended on full pay and that Ms Golding would have the opportunity to respond to the allegations and she would be sent a letter notifying her of that meeting.

[9] Ms Raval in answer to the question “did Ms Nicholls tell Ms Golding after telling her about the allegations and that she would be suspended on full pay so the matter could be investigated and she would be given an opportunity to respond, that her employment was terminated” said “yes I believe so.” Ms Raval also agreed that she was told to escort Ms Golding from the premises.

[10] Ms Nicholls sent Ms Golding a letter the next day but because Ms Nicholls did not send the letter to the correct address, Ms Golding did not receive the letter until it was emailed to her on 7 April 2015. That letter advised Ms Golding that she was to attend a meeting on 9 April 2015 to respond to the allegations. By that time Ms Golding had consulted an industrial relations consultant who she described as a lawyer who lodged an unfair dismissal application on her behalf. Ms Golding sought his advice and he advised her not to attend the meeting. This is most unfortunate because at that time the relationship may have been able to be repaired and Ms Golding may have been able to return to a position she enjoyed. Again on 13 April 2015 Ms Nichols sent Ms Golding another letter advising that they would reschedule the meeting and she was placed on leave without pay pending a response. Ms Golding was advised that if no response was received her employment would be terminated. Ms Golding did not attend any meeting but according to Ms Nicholls her employment was not terminated.

[11] Ms Nicholls submitted that Ms Raval and Ms Golding were mistaken about what happened on 1 April 2015. She accepted that she told Ms Golding that one of the possible outcomes was termination but said she did not terminate her employment then. She said she was aware of the proper procedures to be followed when dealing with complaints and she followed that procedure.

[12] Ms Golding submitted that I should believe her evidence as her story had not changed and her evidence was supported by Ms Raval. Further Ms Golding’s evidence is consistent with her conduct immediately post employment. She rang Ms Black on 1 April 2015 in tears because she said she had been dismissed. She spoke to Ms Twitchett on the same day about her dismissal. Further she registered with Centrelink the next day and filed her unfair dismissal application on 7 April 2015. None of this is consistent with her being suspended.

[13] I prefer Ms Golding’s and Ms Raval’s evidence in this matter. Ms Golding’s recollection of what occurred has not changed over time. Ms Raval was called by Menarock Aged Care and she was very reluctant to answer the questions about what happened in the meeting and was extremely distressed at being required to answer these questions. I accept her evidence that Ms Nichols told Ms Golding her employment was terminated. Her use of the words “I think so” did not come from any uncertainty about what was said but in my view came from her reluctance to give evidence contrary to her employer’s interests.

[14] Further, while Ms Nicholls said she was aware of the proper procedures to follow in these situations this is not supported by the document dated 27 March 2015 which is headed “Allegations against Rhonda Golding: for further investigation”. It has a paragraph headed “Investigation conclusions”. Those conclusions were made before Ms Golding was interviewed.

[15] While it may be that both Ms Golding and Ms Ravel misunderstood Ms Nicholls on the balance of probabilities, I find that Ms Nicholls did terminate Ms Golding’s employment in the meeting.

1. Was the dismissal harsh, unjust or unreasonable?

[16] In deciding the answer to this question, I must consider the following criteria:

s387(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);

[17] I find that there was not a valid reason for the termination of Ms Golding’s employment. Despite the view expressed in Attachment 1 to Ms Nicholls’ statement, that Ms Golding’s conduct was gross misconduct, Ms Nicholls gave evidence at the hearing that Ms Golding’s employment would not have been terminated and she may have received a warning and some training.

[18] At the hearing only one person gave direct evidence of any inappropriate conduct by Ms Golding. Ms Twitchett however was unable to state when the incidents occurred and the incidents were not reported at the time. Ms Golding denied ever making inappropriate comments to a resident or behaving in an inappropriate way. Even if I accepted that Ms Golding made the comments, I agree with Ms Nicholls that the conduct warranted a warning and retraining but it was not of itself a valid reason for the termination of Ms Golding’s employment.

[19] In relation to the other allegation, I only have Ms Golding’s evidence about what occurred and in those circumstances I accept her evidence that she did not do as alleged.

s387(b) whether Ms Golding was notified of that reason;

[20] As there were no valid reason, Ms Golding could not have been notified of the reason for her dismissal before the decision to terminate her was made.

s387(c) whether Ms Golding was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[21] Attached to Ms Nicholls’ statement was a document dated 27 March 2015. It sets out the allegations made against Ms Golding. It has investigation conclusions which state that Ms Golding was guilty of gross misconduct. It is difficult to see how this finding could have been made because at that time Ms Golding had not been provided with an opportunity to respond to the allegations.

[22] Ms Golding was not given an opportunity to respond to the allegations before the decision to terminate her employment was taken.

s387(d) any unreasonable refusal by the employer to allow Ms Golding to have a support person present to assist at any discussions relating to dismissal;

[23] Ms Golding did not ask to have a support person present.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Ms Golding had been warned about that unsatisfactory performance before the dismissal;

[24] There was no evidence that Ms Golding had been warned about any unsatisfactory performance.

s387(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;

[25] No submissions were made on this criterion.

s387(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;

[26] No submissions were made on this criteria though I note that Ms Nicholls said at the hearing that she had extensive human resources experience and she understands the appropriate procedure.

s387(h) any other matters that FWC considers relevant.

[27] No submissions were made that there were other matters that were relevant.

Conclusion

[28] I have found that Ms Golding was dismissed. She was dismissed summarily without payment of notice or her accrued entitlements. She was not afforded procedural fairness. I find that the dismissal was harsh, unjust and unreasonable.

Remedy

[29] Ms Golding is not seeking reinstatement of her employment.

[30] In assessing any amount in lieu of reinstatement, the Fair Work Commission is required to have regard to the following:

(a) the effect of the order on the viability of the employer’s enterprise;

[31] No submissions were made on this criterion.

(b) the length of the person’s service with the employer;

[32] Ms Golding had been employed for a long period of time.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;

[33] Ms Golding would have received $58,746.98 annually including superannuation had she not been dismissed.

[34] Had Ms Golding not been dismissed she would have been required to attend a meeting to discuss the complaints and she may have faced disciplinary action. However I note Ms Nicholls’ advice that this would not have led to the termination of her employment. I consider it would be reasonable to assume that as a result of the disciplinary action Ms Golding would have continued in employment for a significant period of time.

[35] From 15 May 2015, Ms Golding has been unfit to work due to her chronic back and neck pain. It was Ms Golding’s submission that had she remained at work she would have been able to continue with her chiropractic treatment and would have remained fit to work. Her chiropractor’s medical statement advised that Ms Golding reported being injured at work in November 2012 and she attended the clinic on seven occasions when she discontinued care due to financial issues. While Ms Golding stated that her injury in 2012 was a work related injury she did not lodge a workers compensation claim at that time or at any time afterwards. It appears that this became an issue when Ms Nicholls told her she needed to work in accordance with the roster and Ms Golding took the view that she would not work in the dementia ward until she was compensated for her injury.

[36] Ms Golding accepted that she did not have any personal leave which she could have used to cover her absence due to being unfit for work.

[37] I therefore conclude that had Ms Golding not been dismissed she would have earned $58,746.98 annually.

[38] I have discounted this amount by 30% to take account both the possibility that even with regular treatment Ms Golding’s condition may have deteriorated and she may have become unfit for work or would have had to work reduced hours and the possibility that Ms Golding may have been dismissed or resigned her employment for other reasons.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;

[39] Ms Golding applied for two jobs between the date of her dismissal and in May 2015 when she was declared unfit for work. I do not consider that Ms Golding took sufficient steps to mitigate her loss immediately after the termination of her employment. I will discount the compensation to be awarded by 20%.

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation;

[40] Ms Golding had not earned any remuneration from employment.

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation;

[41] Ms Golding is not likely to earn any income until she is fit for work.

(g) any other matter that FWC considers relevant.

[42] Ms Golding was not paid notice or her outstanding entitlements upon termination.

[43] I have considered whether any amount should be deducted for misconduct. I am unable on the evidence before me to conclude that Ms Golding was guilty of misconduct and therefore I do not propose to make any deduction for misconduct.

Conclusion

[44] The compensation cap for Ms Golding is $29,373.49 being the amount of remuneration she received in the 26 weeks prior to her dismissal. As this amount is less than $32,898.30 that Ms Golding would have earned had she continued in employment for another year, less the amounts deducted as set out above, I will order that Menarock Aged Care pay $26,825.10 subject to deduction for taxation in accordance with law to Ms Golding and $2548.39 to Ms Golding’s superannuation fund within 21 days of the order in this matter.

DEPUTY PRESIDENT

Appearances:

R. Golding and T. Black for the Applicant.

S. Nicholls for the Respondent.

Hearing details:

2015.

Melbourne:

17 September.

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