Rosemary Schnell v Retirement Care Australia Operations (2) Pty Ltd T/A Regis Group
[2012] FWA 3400
•1 JUNE 2012
[2012] FWA 3400 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rosemary Schnell
v
Retirement Care Australia Operations (2) Pty Ltd T/A Regis Group
(U2011/4892)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 1 JUNE 2012 |
Application for unfair dismissal remedy; alleged serious misconduct.
[1] Ms Rosemary Schnell (the applicant) filed an application on 9 February 2011 for an unfair dismissal remedy in relation to the termination of her employment by Retirement Care Australia Operations (2) Pty Ltd (the respondent) on 28 January 2011. A conciliation conference was held in March 2011 but did not resolve the matter. The application was initially listed to be heard in July 2011. It was however adjourned, while related criminal proceedings took place, and was eventually heard on 19 and 20 February 2012.
[2] Ms Schnell was employed as an Assistant in Nursing at Regis’s Wentworth Manor aged care facility in Rose Bay, New South Wales. She was dismissed because on 22 January 2011 she allegedly assaulted a resident, Mr David Throsby. Mr Throsby suffers from dementia and is confined to a wheelchair. The allegation was made by Ms Alice Tooth; a private carer employed to look after another resident at the facility. There is no issue that if the applicant did commit the alleged conduct it would constitute a valid reason for dismissal.
[3] Ms Schnell was subsequently charged with common assault. She was found not guilty and the charge was dismissed by the Local Court on 16 February 2012. The civil standard of proof applies in unfair dismissal proceedings and FWA must determine for itself whether on the balance of probabilities, the conduct as alleged occurred, having regard to the evidence. 1
[4] Because of the very serious nature of the allegations made against the applicant, and the potentially grave consequences of an adverse finding made against her by this tribunal, this is in my opinion a case where an application of the ‘Briginshaw’ principle is appropriate. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Mason CJ, Brennan, Deane and Gaudron JJ reviewed the authorities to provide a clear statement of the‘Briginshaw’principle:
‘The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.’
[5] The respondent filed a sworn statement by Ms Tooth. 2 According to this statement Ms Tooth first met the applicant when she started working at the home in September 2010. She did not know her well and they only ‘really ever said hello to each other.’ During the time that they both worked at Regis she had never had an argument with the applicant.3
[6] According to Ms Tooth’s statement she was on the ground floor waiting to take the lift at 7:30pm on Saturday 22 January 2011 when she heard a voice behind her.
‘The voice was saying "David! David!" When I heard the voice I turned around and I saw Ms Schnell. She was in room number 24, which is directly opposite the lift well. At this time, room 24 was Mr Charles David Throsby's room.
From where I was standing by the lift I could see directly into Mr Throsby's room. His door was wide open. I saw that Mr Throsby was sitting in his wheelchair about three metres from me, just inside the doorway. He was facing the wall with the doorway on his left. I could also see Ms Schnell standing directly behind him and facing in the same direction. At this time, Ms Schnell did not acknowledge me. I do not think that she knew I was standing outside Mr Throsby's room. If she did, she did not say or do anything at that time that showed that she knew I was standing there.
As I looked into Mr Throsby's room I saw Ms Schnell raise her right hand and slap Mr Throsby twice very hard on his right shoulder with an open hand. She then slapped him twice on his right cheek, also with an open hand. Ms Schnell was hitting Mr Throsby hard and I could hear the sound of the slap each time she struck him, both on his shoulder and on his cheek.
I saw Mr Throsby's reaction to being hit. He was groaning and was aggressively jerking forward in his chair to try to get away. Ms Schnell was pulling him back by the shoulders and was holding him back with a right hand against the wheelchair.
When the lift opened on the ground floor, Ms Schnell looked up. I believe that she then saw me standing at the lift well. We made eye contact but did not say anything to one another. When she saw me she had a very surprised look on her face. I then turned and took Mrs Tate into the lift. I am not sure whether Mrs Tate saw what happened but because Mrs Tate suffers dementia, she would not have understood what was going on. When I got into the lift and when the doors had closed I checked my watch. It said 7:30 pm.’ 4
[7] On Tuesday, 25 January 2011 at around 3:30 pm Ms Schnell went to the office of the then Residential Services Manager Ms Kiri McKenzie to report the alleged incident. Ms Debra Heagney, the then General Manager NSW was also present. During her cross-examination Ms Schnell gave evidence that she told them that she had seen Ms Schnell slap Mr Throsby across the face, twice in the shoulder and twice on his cheek. 5 She was quite adamant on this point and indicated that she demonstrated to the two managers exactly what happened.6
[8] On 12 February 2011 Ms Tooth gave a signed statement to the New South Wales Police. 7 In this statement, Ms Tooth described how she saw Ms Schnell and Mr Throsby while she was waiting for the lift at around 7:30 pm on 22 January 2011.
‘David was trying to move forward like he wanted to get out of the wheelchair and Rosemary was trying to pull the wheelchair backwards. Rosemary was saying, "David. David" as she was doing this. She said this quite loud.
As this happened I then saw Rosemary's right hand come back to above her right shoulder and then her arm swung down and her right hand slapped David on the front of the right shoulder. This slap made a noise which I heard very clearly from where I was standing and it appeared to be a deliberate slap. When Rosemary did this David made a screaming noise which sounded like he was scared. Straight after this Rosemary's right-hand came up again above right shoulder and then it swung down and this time her right hand slapped David across the right cheek of his face which made a noise. When this happened David made the same screaming noise which also sounded like he was scared.
From where I was standing I would estimate that I was about 8 steps away from David's doorway and Rosemary and David were about 3 steps inside the doorway. I had a very clear view of both Rosemary and David at this time....’
[9] During cross-examination Ms Tooth agreed that she had told the police officer that she had only seen one slap to the shoulder and one slap to the face. 8 She was unable to account for the discrepancy between what she was now telling FWA (and what she said she had told the two managers) and what she had told the police.
[10] Ms Tooth denied that when she had seen Ms McKenzie and Ms Heagney she had only told them there had been one slap to the face. She was then taken to a statement she had signed on 25 January 2011 in front of Ms McKenzie. 9 In that statement she said that she had seen Ms Schnell slap the resident across the face using her right hand. There was no reference to any slap to the shoulder (let alone four separate slaps, two to the shoulder and two to the face, as contained in her statement to FWA). She could not explain this further discrepancy.10 She maintained that she had told Ms McKenzie and Ms Heagney that there had been more than one slap.11
[11] Ms McKenzie gave a statement to the tribunal. 12 In that statement she said that Ms Tooth had told her at the meeting on 25 January 2011 that she had seen Ms Schnell slap Mr Throsby with her right hand. The statement made no reference to a slap across the shoulder, nor indeed to there being four separate slaps. During cross-examination Ms McKenzie confirmed that Ms Tooth had described Ms Schnell striking Mr Throsby once only. Indeed she indicated that Ms Tooth had clearly demonstrated how Ms Schnell had struck Mr Throsby.13
[12] Ms Heagney also gave a statement to the tribunal. 14 Her evidence was consistent with that given by Ms McKenzie. In particular she indicated that Ms Tooth had told her that Ms Schnell had slapped Mr Throsby once across the face very hard.15 During her cross-examination she said that she had no recollection of Ms Tooth indicating that Ms Schnell had slapped Mr Throsby on four occasions, nor that she had slapped him twice to the shoulder, nor twice to the face.16
[13] In her statement, Ms Tooth said that there was no Registered Nurse around at the time of the incident. She decided to report the incident to Ms McKenzie ‘because I did not want something like this to happen again.’ Ms McKenzie was not at work at this time. Ms Tooth finished her shift at 8 pm and went home. According to Ms Tooth's statement she went to Ms McKenzie's office twice on Monday, 24 January 2011 to try and report the incident, but she could not see Ms McKenzie because she was too busy. She eventually was able to see Ms McKenzie at around 3:30 pm on Tuesday 25 January.
[14] In her written statement 17 Ms Schnell gave her version of what occurred on the evening of 22 January 2011.
‘On 22 January 2011 I commenced my shift at Regis at 2:30 pm and one of the residents in my care that day/evening was Mr David Throsby. That afternoon/evening until 7:30 pm I was partnered to work with James Kanuya. I took my break at about 7 pm and returned from that break at approximately 7:30 pm. I spent my break outside the building so that I could relax and have a cigarette. When I returned from my break at about 7:30 pm I saw that Room 8 was buzzing. I attended that room and changed the pad of the resident in that room. This was the room of Pepa Rosa. At about 7:45pm I walked past the cinema room and noticed that Mr Throsby was not in the cinema room. I then went to Mr Throsby's room (Room 28) and noticed that Mr Throsby was sitting in his wheelchair alone in his room. This was unusual as Mr Throsby is supposed to be taken to the cinema room around about 7:30pm and I expected that James Kanuya would have taken Mr Throsby to the cinema room before James finished his shift at 7:30pm. Having noticed Mr Throsby in his room in his wheelchair, I went into Mr Throsby’s room and wheeled him to the cinema room. I wheeled Mr Throsby past the nurses’ station which is very close to Mr Throsby's room annexed to the cinema room and noticed the registered nurse, Richa Regmi, was at the nurses’ desk. I said words to Richa Regmi to the effect: "James left Mr Throsby in his room and he should have been taken to the cinema room."’
[15] During cross-examination Ms Schnell said that when she went and saw Mr Throsby on 22 January, he was trying to get out of his chair. 18
[16] The registered nurse on duty on the ground floor at the time of the alleged incident, Ms Richa Regmi, was called as a witness by the respondent. In her written statement 19 she said that she knew Ms Schnell fairly well in that she would chat to her at work from time to time, but they did not associate with each other outside of work hours. Her evidence included the following:
‘3. On Saturday, 22 January 2011, I was rostered to work at Wentworth Manor from 3:00 p.m. to 10:30 p.m. It has been my experience since working at Regis that on weekends there are two Registered Nurses on duty during each shift. Each Registered Nurse who is on duty is stationed at one of Wentworth Manor’s two nurses’ stations, which are on the ground floor and the first floor.
4. The ground floor nurses’ station is at the northern end of the facility and is opposite the lift well, which leads to the first floor of the facility. One side of the nurses’ station is the residents’ cinema room, while on the other side of the nurses’ station and opposite the lift well is room number 24. On 22 January 2011, Mr Charles David Throsby resided in room 24....
5. Mr Throsby suffers from dementia and was confined to a wheelchair when he was at Wentworth Manor. Due to his condition he was highly confused and had limited mobility. While he could walk a short distance, he could not do this unassisted because he had a risk of falls. Due to this, he was kept in a wheelchair most of the time.
6. I remember Mr Throsby as a pleasant resident, but he would also become agitated and restless and would try to move from his wheelchair up to three times per day. This generally wasn't a problem during the day as he had a private carer who looked after him. However, when the carer finished at 7:00pm we routinely put Mr Throsby in the cinema room so that we could supervise him. The cinema room has glass walls and can be seen from most points along the corridor. This allows you to keep an eye on the residents in the cinema room whilst attending to other residents.
7. Sometime between 6:10pm and 6:15pm on 22 January 2011 I completed the residents’ medication rounds. I then spent the next hour checking up on the residents, cleaning the medication trolley, making special notes of anything that happened that day and preparing for the second lot of medication rounds which needed to be carried out at 8:00pm that evening.
8. I then went on my half-hour dinner break at 7:15pm. I routinely take my dinner break at this time as it means that I am back in time to do the next lot of medication rounds which take place at 8:00pm. I also know that I took my break at this time because I remember that on returning to the ground floor nurses’ station, that the time showing on the clock was 7:45 pm.
9. When I went on my break, I went directly to the ground floor staff room and I remained there until I finished my break 30 minutes later. As is routine procedure when Registered Nurses at Wentworth Manor take breaks, the Registered Nurse on the first floor remained upstairs but was ‘on call’ to attend to residents on the ground floor. It is therefore likely that the ground floor nurses’ station was unattended during the period 7:15pm to 7:45pm while I was on my break.
10. After my break I left the staff room and walked back down the hall towards the ground floor nurses’ station. I recall that as I was walking past the lift, I saw Ms Schnell just ahead of me wheeling Mr Throsby in his wheelchair towards the cinema room. This occurred at 7:45pm. I do not recall anyone else apart from Ms Schnell and Mr Throsby being in the corridor at this time...
11. Right after Ms Schnell had put Mr Throsby in the cinema room, she walked over to the nurses’ station (where I was standing by that time). Ms Schnell then said words to the effect of "James [Kanuya] took Mr Throsby back to his room early and left him on his own so I brought him back into the cinema room." As stated above, it was routine procedure that Mr Throsby was placed in the cinema room until he went to bed at around 9:00pm so that we could keep an eye on him.
12. After this conversation I carried out the medication rounds at 8:00pm....’
[17] During cross-examination Ms Regmi indicated that she gave Mr Throsby his medication during the 8:00pm round. She gave him a pill that she had to place in his mouth which would have involved looking in his face. She said that she saw nothing unusual about his face. There was no redness and no breaks in the skin. This was despite his skin being fragile. She also had to put a liquid substance in his mouth and saw nothing unusual to suggest any recent trauma. 20
[18] In response to a question from the bench, Ms Regmi said that Ms Schnell was very friendly with Mr Throsby. She had never seen Ms Schnell use any force, either with Mr Throsby or any of the other patients. 21
[19] Following their meeting with Ms Tooth on 25 January 2011, Ms McKenzie and Ms Heagney agreed that Ms Schnell should be stood down while Ms McKenzie investigated the allegation. 22 Ms Heagney wrote to Ms Schnell outlining the allegations against her and informing her of the investigation process. The letter concluded with the following:
‘It is expected that you will treat this matter as confidential and not discuss or approach any Regis employee , resident, or any other external supplier of Regis about it. Any contact with any staff, supplier or resident will be viewed seriously and may be subject to separate disciplinary action.’ 23
[20] Both managers met with Ms Schnell on 28 January 2011. Ms McKenzie conducted the meeting and Ms Heagney took notes. A copy of Ms Heagney's notes was attached to her statement. 24 According to these notes, Ms Schnell completely denied the allegation that she had slapped Mr Throsby. When asked why the allegation may have been made she said that she had no idea, though she did suggest that someone had a vendetta against her. She asked who made the allegation and Ms McKenzie replied ‘A credible witness. It wasn't another staff member.’ Ms Schnell responded ‘Who made the complaint? The carer in Room 45 annoys other staff.’ After some further dialogue Ms McKenzie told Ms Schnell that the allegation had been made by Alice Tooth. Ms Schnell then said:
‘That's the carer in Room 45. She’s a friend of Marian Murphy. She's a carer who doesn't pay taxes so why is her word better than mine. Marian wants me out before she returns from leave in March. I think it's disgusting that Marian can do this.’
[21] Ms Schnell's evidence during cross-examination was that she had been told by Ms Heagney that the allegation had been made by Ms Tooth before she herself made any reference to ‘the carer in Room 45.’ 25
[22] Shortly after this meeting, the respondent advised Ms Schnell that her employment was being terminated with immediate effect on the grounds of serious misconduct. 26
[23] Ms Heagney also gave evidence concerning a dispute in late 2010 between the applicant and Ms Marian Murphy. She had found that both of them had verbally abused the other Ms Murphy is Filipino and Ms Murphy had alleged that Ms Schnell had made racist remarks. 27 Ms Murphy was on leave at the time of the alleged incident involving Mr Throsby.
[24] Ms McKenzie gave evidence that on the evening of 25 January 2011 she received a telephone call from Mr Throsby's daughter who told her that Ms Schnell had phoned Mr Throsby's wife to deny that she had hit her husband. Mr Throsby's daughter told her that Ms Schnell had become friends with her mother. Mr Throsby's daughter asked Ms McKenzie not to refer to Ms Schnell's contact with her mother with Ms Schnell.
[25] Ms Schnell confirmed during her cross-examination that she had spoken with Mrs Throsby and told her the allegation was untrue. She said that she was friends with Mrs Throsby, that she had been to her home and had known her for quite a few months. 28 While she agreed that she had been told to keep the matter confidential she said that she had no idea she was not supposed to ring Mrs Throsby as she was not a staff member and did not work at Regis.29 She said that she had contacted Mrs Throsby because she was a friend of hers and because she felt ‘sick to my stomach to think that [Regis] could notify her and led to think that I slapped her husband across the face. It made me sick to my stomach, because they were a very nice family.’30
[26] After Ms Schnell's termination, Ms Regmi signed a reference for her, along with a number of other staff. This was in spite of being aware of the allegation against Ms Schnell in relation to Mr Throsby. The reference included the following:
‘Rosemary is a very good hearted and caring and empathic person who constantly thinks of other people including fellow staff members and the residents she cares for. For years, staff and residents have held her in very high regard. Staff (the undersigned) and residents love and trust her.
Rosemary always acts carefully, thoughtfully and professionally. We have no hesitation in recommending her for her ability to perform tasks in an efficient and thoughtful manner. Her communication between herself and staff members and residents is always positive and open.
[27] Everyone who has signed below has no hesitation in recommending Rosemary as a person of excellent character.’ 31
Consideration
[28] Section 387 of the Fair Work Act 2009 (the Act) provides that in considering whether a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.’
[29] It is not in dispute that if the applicant committed the assault alleged against her, then the respondent had a valid reason for her dismissal. The respondent also relies on the fact that during the investigation the applicant contacted the resident’s family after it had directed her to treat the matter confidentially. The respondent submitted that this was a refusal to obey a reasonable and lawful direction of her employer and constitutes a separate valid reason for the dismissal.
[30] The two key witnesses in this matter are the applicant and Ms Tooth. The applicant was far from a perfect witness and contradicted herself on a number of minor points, for example the precise time she was told that Ms Tooth was the complainant. Nevertheless, on the central issue - whether she assaulted Mr Throsby - she has been entirely consistent in denying that any such incident ever took place. I found Ms Tooth's evidence much more troubling. She has adamantly maintained that Ms Schnell hit Mr Throsby once across the face (in her interview with the two managers), once across the shoulder and once across the face (to the Police), and twice across the shoulder and twice across the face (to this tribunal). Ms Tooth was completely unable to explain these discrepancies to the tribunal. Nor is there any evidence to corroborate her allegations. No other person heard Mr Throsby cry out, despite her evidence that he had screamed. Moreover, when Ms Regmi had to administer Mr Throsby's medication only minutes after the alleged assault took place she saw no sign that Mr Throsby had been struck, despite the fact that he has very fragile skin and that she had to look at his face while administering the medicine. I have also had regard to Ms Regmi’s evidence concerning the applicant’s general behaviour towards Mr Throsby. This is in the context where Ms Regmi was called as a witness by the respondent.
[31] There is no clear evidence as to why Ms Tooth may have made a false allegation against the applicant. There was clearly a degree of bad feeling between Ms Schnell and some of the other staff. While I am unable to conclude that Ms Tooth colluded with any other staff members to make the allegation against the applicant such a possibility cannot be ruled out.
[32] Having regard to all of the evidence put before me, I am satisfied, on the balance of probabilities, that Ms Schnell did not assault Mr Throsby. Moreover, I do not consider that Ms Schnell's contacting Mrs Throsby constituted a valid reason for her dismissal. The letter she was given by Ms Heagney quite specifically referred to not discussing the matter with ‘any Regis employee, resident, or external supplier of Regis’. Mrs Throsby does not fall within any of those categories. In any case, given their friendship, I find it entirely understandable and reasonable that Ms Schnell would wish to contact Mrs Throsby to deny the false allegation that had been made against her concerning Mrs Throsby’s husband.
[33] Given my finding that there was no valid reason for the dismissal I do not consider it necessary to discuss in any detail the other factors referred to in S.387. I will note however that I am satisfied that the applicant was notified of the reason for her dismissal, was given an opportunity to respond, and was not denied the presence of a support person. The respondent is a fairly large organisation and has access to specialised human resources staff.
[34] I find that the applicant’s dismissal by the respondent was unfair.
Remedy
[35] Given my finding that Ms Schnell's dismissal was unfair it is appropriate for FWA to make an order either to reinstate her or for her to be paid compensation. On the last day of the hearing, her representative indicated that she was not seeking reinstatement. In the circumstances, I do not consider that reinstatement would be appropriate. However I do consider that I should make an order for payment of compensation. In particular, Ms Schnell should receive compensation for the time she was unemployed following the termination of her employment by the respondent. I was not presented during the hearing with sufficient evidence to calculate the exact amount that would be appropriate. Accordingly, I direct the representatives of the two parties to consult with each other to try and reach an agreement on an appropriate order of compensation. If they are unable to reach an agreement I will relist the matter to deal with the issue of remedy.
SENIOR DEPUTY PRESIDENT
Appearances:
J Galluzo, with T Sullivan, for the applicant
J Darams, with P Mitchem, for the respondent
Hearing details:
SYDNEY
19, 20 April 2012
1 Brinks Australia Pty Ltd v Transport Workers’ Union of Australia [2002] AIRC 1137; King v Freshmore (Vic) Pty Ltd Print S4213,17 March 2000, per Ross VP, Williams SDP and Hingley C.
2 Exhibit R1
3 Ibid paragraph 2
4 Ibid, paragraphs 4 - 8
5 PN1026
6 PM1027-1104
7 Exhibit S2, paragraphs 7-8
8 PN1148
9 Attachment DH-1 to Exhibit R2
10 PN1187-1194
11
12 Exhibit R4
13 PN1761 - 1770
14 Exhibit R2
15 Ibid paragraph 7
16 PN1454-6
17 Exhibit S2, paragraph 7
18 PN444
19 Exhibit R3
20 PN1620-1649
21 PN1658-1660
22 Exhibit R2, paragraph 13
23 Exhibit R4, attachment KM-6
24 Exhibit R2, DH-4
25 PN550-7
26 Exhibit R2 paragraph 28
27 Ibid, paragraphs 32-34
28 PN270-9
29 PN285-6
30 PN301
31 Exhibit S3
Printed by authority of the Commonwealth Government Printer
<Price code C, PR522654>
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