Samadi v Frenchmans Lodge Nursing Home Pty Limited

[2010] FWA 4352

[2010] FWA 4352

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996

s.643—Application for unfair dismissal remedy

Samadi
v
Frenchmans Lodge Nursing Home Pty Limited
(U2008/5324)

COMMISSIONER DEEGAN CANBERRA, 10 JUNE 2010

Termination of employment.

[1] This matter arises from an application for unfair dismissal remedy filed on 24 July 2008 pursuant to s.643 of the Workplace Relations Act 1996 (the Act) by Mr Ramezan (Jeffrey) Samadi (the applicant) in relation to the termination of his employment by Frenchmans Lodge Nursing Home Pty Ltd (the respondent ).

[2] As the termination of employment occurred on 4 July 2008 and before 1 July 2009, the relevant provisions of the Workplace Relations Act 1996 continue to apply pursuant to Item 11 of Schedule 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[3] The matter was unsuccessfully conciliated on 20 November 2009 after criminal proceedings against the applicant had been concluded.

[4] The matter was heard on 19 March 2010. At the hearing, Mr A Neal of counsel appeared on behalf of the applicant and Mr B Miles of counsel appeared for the respondent.

Background

[5] The respondent is an accredited aged care facility, situated in Randwick, New South Wales, providing residential care to residents who may be frail or have other special needs. Frenchmans Lodge (the Lodge) is run by Summit Health Care.

[6] The applicant, who held the position of Assistant in Nursing, had been employed by the respondent as a casual since 8 September 2005 before becoming permanent part-time on 10 March 2006.

[7] On 23 May 2008, it is alleged that the applicant used excessive force and rough conduct to move a patient, Mrs D, into a bed. Bruising was later discovered on the patient’s torso. This incident led to criminal charges against the applicant, which were subsequently dismissed.

[8] It is also alleged that on 23 May 2008, the incident was witnessed by Mr Anthony Northcote, Registered Nurse, and that Mr Northcote approached the applicant about his conduct with the patient. A heated verbal confrontation between Mr Northcote and the applicant ensued.

[9] On the morning of 26 May 2008, the applicant was suspended on full pay pending an investigation of the alleged conduct with the patient and the allegations of inappropriate and unprofessional behaviour towards Mr Northcote. The applicant was directed by the respondent to maintain confidentiality during the investigation and not to make any contact with the patient’s family.

[10] On 13 June 2008, while at Souths Juniors Rugby League Club (the Club), the applicant had an interaction with the husband of the patient.

[11] On 4 July 2008, the applicant’s employment was terminated as a result of the incidents of 23 May 2008 and the breach of confidentiality on 13 June 2008. Prior to his suspension the applicant had been working between 66–75 hours per fortnight.

The applicant’s evidence

[12] The applicant filed a statement of his evidence, expanded on the statement orally and was cross-examined.

[13] It was also the evidence of the applicant that Mr Northcote had been working at the Lodge through an agency, for about four months. The applicant stated that Mr Northcote had not liked him and had told another nurse that he, the applicant, had been sitting in a patient’s room during his shift. That incident had occurred about two weeks prior 23 May 2008. On the afternoon of 23 May 2008 the applicant had confronted Mr Northcote about what he had told the other nurse, explaining that he had been on his break. According to the applicant, Mr Northcote had been angry with him for raising the matter.

[14] The applicant denied that he had been rough with the patient, Mrs D, as alleged by Mr Northcote. He claimed that he had merely taken the patient by the arm and led her back to the bed. It was his evidence that the patient could be aggressive and would wander around the ward at night, entering other patients’ rooms and disturbing them. He had initially tried to remove Mrs D’s glasses while she was in the corridor in case she broke them and Mr Northcote had accused him of pulling the patient’s hair. He had then explained what he was doing and led Mrs D back to her bedroom and put her to bed. Mr Northcote had come into the bedroom and screamed at him, asking him what he was doing. He had tried to explain but Mr Northcote had told him many times to “Shut the fuck up”. The argument had continued in the corridor when the applicant had told Mr Northcote he could not speak to him like that and Mr Northcote had replied that he could.

[15] According to the applicant on 13 June 2008 he had been at the Club when he had been approached by the patient’s husband, Mr D. Mr D had approached him and accused him of hurting his wife. The applicant had denied the claim. Mr D had then replied “then why did Tony tell me you did it …?” 1

[16] PAYG Payment Summaries 2 tendered through the applicant showed his earnings for the financial year 2007-2008 and his earnings for the next financial year following the termination of his employment on 4 July 2008.

[17] Evidence was also led to the effect that, arising from the allegation of his conduct in relation to Mrs D, the applicant had been charged with “assault occasioning actual bodily harm” and was acquitted of that charge in the magistrates court on 31 March 2009.

[18] Under cross-examination the applicant acknowledged that he had signed a confidentiality agreement with the respondent and recognised that patient confidentiality was very important, and was aware that he had to obtain permission before he could discuss patient information, even with the patient’s family. He had attended training courses which had reinforced the need for confidentiality. The applicant also agreed that he had attended training courses related to “mandatory reporting” and was aware that any allegations that a patient had been mistreated had to be reported.

[19] When questioned about the patient, Mrs D, the applicant agreed that she needed help for basic tasks and did not speak. He claimed that she was at times aggressive and would resist being dressed or showered, pushing and hitting those attempting to perform the tasks. When asked if he had reported this behaviour to anybody the applicant said that everybody knew the patient was usually like that.

[20] It was the applicant’s evidence that on the occasion of the incident with Mrs D he had linked arms with the patient to lead her to her room and she had not resisted as she was tired. He had put the patient to bed when Mr Northcote came into the room and took her from the bed. According to the applicant Mr Northcote had raised his voice at the time.

[21] The applicant agreed that the following Monday he received a telephone call to advise him that he had been suspended from his employment as a result of the incident with Mrs D and understood that he was not able to return to work until a decision had been made about the incident. He also understood that he was not to talk to other staff or to the patient’s family (including the patient’s husband) about the incident.

[22] It was agreed by the applicant that he had attended for an interview with Ms Valencia, the Executive Manager of the respondent, at the Lodge on 29 May 2008 and the interview had been rescheduled so that an interpreter could be arranged. On 6 June the applicant attended for the interview. The applicant conceded that he knew that the matter he was being interviewed about was serious and that he might lose his job. At that interview the applicant explained his account of the incident on 23 May and told Ms Valencia that Mr Northcote did not like him. In relation to the earlier complaint about being in a patient’s room while on his break the applicant agreed that he had been sitting in a patient’s room, at times watching television, and claimed that it was good for the patients for him to have this communication with them.

[23] The applicant agreed further that he had also attended for another interview with Ms Valencia on 4 July 2008 and that an interpreter had been available on the telephone for that interview. It was his evidence that he had been handed a letter terminating his employment at that interview and had, shortly afterward, been paid his outstanding annual leave and four weeks pay in lieu of notice.

[24] So far as the statements that had been filed on behalf of the respondent were concerned, the applicant agreed that he had seen Ms Valencia’s statement and had been advised of the contents of the statement made by Mr Northcote. He stated that he was aware that it had been alleged that he had pushed Mrs D onto the bed by the shoulders, rolled her and thrust her down. The applicant stated that the allegation was not true. He agreed with the respondent’s representative that a patient like Mrs D needed to be treated gently, like a child, even if the patient was aggressive.

[25] It was the applicant’s evidence that Mr Northcote entered the room and asked him why he was putting Mrs D to bed. The applicant had tried to explain that Mrs D was wandering, trying to get out of the ward and was tired, but Mr Northcote had told him to “shut up”. He denied that Mr Northcote had told him to stop pushing Mrs D or that he had told Mr Northcote that she was aggressive. He agreed that Mr Northcote had said that Mrs D was all right and to let her wander.

[26] When asked if he had raised his voice to Mr Northcote the applicant replied that he had been upset and had told him that he was not allowed to talk to him like that. When Mr Northcote disagreed with that proposition the applicant claimed that he had replied “Shut up” but did not raise his voice.

[27] The applicant was then questioned about the incident that occurred with the patient’s husband, Mr D. He agreed that he was not a friend of Mr D and would not normally see him in a social setting, and when he saw him at the Club it was the first time he had seen him other than at the Lodge. When it was put to the applicant that Mr D had claimed that the applicant approached him at the Club the applicant replied:

“Exactly I told you what happened. When I came there, I reserve table near the stage dancing - the stage. After I went in there, played the poker machine because no staff was there. I was there earlier. When I was going to toilet, he’s sitting like that with chair. I have to go this way. I have to go this way in the bathroom. I was - somebody looking at me like that, I was thinking, “Who is it? It’s not my friend. Who is it?” Too many friends in the club. Usually I go another club, not that club. But I was going - like he was sitting there. He told me, “Hello.” I told, “Hello.” He was sitting like that but I was sit another chair. He told me, “Are you Jeff?” I told, “Yes.” He like that, “Why you bruise my wife?” He (indistinct) my hand like that.” 3

[28] According to the applicant he had told Mr D that he did not do what he was being accused of but Mr D had then asked “who did it” and “why did Tony say you did”. He had also told Mr D that Ms Valencia had told him he was not to talk to anybody about the matter. The applicant claimed that he thought Mr D was going to attack him, that he was afraid and that Mr D had pulled him five metres.

[29] The applicant agreed that he had then left Mr D to go to the bathroom. It was also his evidence that despite believing that Mr D blamed him for his wife’s bruises and being afraid that he might attack him, on his return from the bathroom he invited Mr D to sit at his table. When further questioned about this the applicant stated that he was less afraid by that time as other Lodge staff had arrived and there were witnesses. The applicant reiterated that he told Mr D many times that he was not allowed to talk about Mrs D with him.

[30] The applicant agreed that he had phoned Ms Valencia on the Monday and explained to her about meeting Mr D, and that he had told Mr D he was not allowed to speak to him about the incident.

[31] Cross-examination then turned to the number of hours the applicant had been working at the Lodge prior to the termination of his employment. It was the applicant’s evidence that although employed on a part-time basis at the Lodge he worked (with overtime) an average of 105 hours per fortnight. He also worked for another company part-time for 52 hours per fortnight. When further questioned the applicant stated that he “sometimes” worked 105 hours in a fortnight at the Lodge. He also conceded that in December 2008 he increased his hours with his other employer to 65 hours per fortnight and then 73 per fortnight in January 2009. The applicant was then shown documents produced by his current employer, 4 showing the hours he had worked in the period following the termination of his employment with the respondent, and it was put to him that there had been a number of periods when he had worked in excess of 73 hours in a fortnight. The applicant agreed that, on a few occasions, if someone was sick he had worked additional hours and that he had been made full-time in January 2010.

[32] When re-examined by Mr Neal the applicant agreed that while working for the respondent he worked 75 rostered hours and an average of 30 hours overtime each fortnight, although the overtime varied and was 20 or 25 hours at times. Payslips for the applicant’s employment with the respondent for the period 3 April 2008 to 29 May 2008 were tendered. 5

The respondent’s evidence

[33] Evidence was given for the respondent by:

• Mr Anthony Northcote—a Registered Nurse (RN) working at the Lodge at the relevant time



• Ms Maria Zubcakova—an assistant employed at the Lodge



• Mr D—the husband of the patient Mrs D, and



• Ms Carla Valencia— the Executive Manager of the Lodge.

[34] Mr Northcote has been a Registered Nurse since 1981 and worked at the Lodge through an agency from January 2008 until January 2009 on an intermittent basis.

[35] According to the witness 6, during the afternoon of 23 May 2008 he was approached by the applicant, who indicated his displeasure at Mr Northcote for speaking to him some days earlier in relation to the applicant sleeping in a resident’s room during his shift. About 8.15 pm the same day he observed the applicant approach a patient, Mrs D, who was wandering in the hall, “grab” her by the arms and lead her back to her room. He stated he heard the patient making “whimpering sounds” and went to investigate. He then saw the applicant “push (the patient) onto her bed by the shoulders, roll her and then thrust her down”. He yelled at the applicant to stop and asked him what he was doing. The applicant responded that he wasn’t doing anything and that the patient “was aggressive”. Mr Northcote assisted the patient to sit up and then he and the applicant argued in the corridor. It was the witness’s evidence that he removed himself from the situation and after speaking to the RN in charge during that shift, filed an incident report concerning the applicant’s conduct and also prepared a memorandum about it for Ms Valencia, the Managing Director of the Lodge.

[36] On 26 May 2008 Mr Northcote was advised that he was required for an interview with the police that afternoon. He took part in that interview.

[37] Mr Northcote’s evidence was that he did not recall telling Mr D that the applicant had hurt or bruised his wife. He did recall Mr D drawing his attention to bruises on Mrs D on 26 May 2008 and was present when Ms Valencia photographed the bruises. The witness was called as a prosecution witness in magistrates court proceedings against the applicant in relation to the incident of 23 May 2008.

[38] When cross-examined Mr Northcote indicated that he had worked several shifts with the applicant prior to 23 May 2008. He stated that only some days before the incident with Mrs D he had discovered the applicant asleep in a chair in a patient’s room and had told him that his conduct was inappropriate. The applicant had responded that he was on a break. He also agreed that he was not impressed with the applicant’s performance and “found him abrupt with the residents”. He also conceded that he had expressed some dissatisfaction with the applicant’s work performance to other registered nurses at the Lodge prior to 23 May 2008 but denied that he “didn’t like” the applicant.

[39] So far as the patient, Mrs D, was concerned, the witness agreed that he had cared for her and was familiar with her condition. He conceded that the applicant had friable skin which could tear easily and could also bruise. He did not agree that the patient was physically and verbally aggressive. At this point the applicant’s representative produced and tendered a document 7 completed upon the second day of the patient’s admission to the Lodge which had boxes ticked which indicated that Mrs D was “verbally disruptive” on a “weekly” basis and “physically aggressive” on a “daily” basis.

[40] Under cross-examination Mr Northcote also conceded that when he said in his statement that he observed the applicant “grab” Mrs D by the arms and lead her back to her room he had not intended to imply that the applicant had behaved in an inappropriate manner. He had not been concerned until he heard distressed sounds from Mrs D and at that stage had gone to her room to investigate. He agreed that the lights were off in the room and, as he stood in the doorway, the applicant was standing between him and the patient. When it was put to him that the applicant had not used excessive force when putting Mrs D to bed, Mr Northcote disagreed. He also disagreed with a suggestion that he could not see clearly what was occurring.

[41] Mr Northcote stated that he had had a heated exchange with the applicant in the corridor outside Mrs D’s room but denied using the words attributed to him by the applicant. He claimed that the applicant had said that Mrs D was aggressive and that he had responded that the applicant’s aggression was not an appropriate response. The applicant claimed he had done nothing wrong. It was the witness’s evidence that he ended the argument when it was apparent that it was causing agitation to the residents.

[42] Mr Northcote reiterated that Mrs D’s bruises had been brought to his attention by Mr D at the commencement of his shift on Monday 26 May 2008. He denied telling Mr D that the applicant had caused the bruises. He agreed that it was possible, although unlikely, that the bruises to Mrs D had occurred after the incident on 23 May.

[43] When re-examined Mr Northcote stated that Mrs D would become agitated on occasions if staff rushed or gave too many commands when attending to her personal care needs.

[44] Ms Maria Zubcakova, an assistant employed at the Lodge, was called to give evidence for the respondent. Both the applicant and Mr Northcote were known to the witness. Her evidence was that on the evening of 23 May 2008 she overheard the end of a conversation between the applicant and Mr Northcote. She heard the applicant say “shut up” and then Mr Northcote say “You shut up, you don’t know what this job is about”. She did not hear any swearing or talk about anyone being aggressive.

[45] Mr D, the husband of the patient Mrs D, gave evidence by witness statement and orally. According to his statement, Mr D visited his wife at the Lodge almost every morning after her admission in April 2008. On 26 May 2008 he was assisting his wife to drink when some liquid spilled onto her shirt. As he changed her shirt he noticed bruising on her upper body. He then notified Mr Northcote and took him to his wife’s room to show him the bruising. Ms Valencia was contacted and took photographs of the bruising. It was his recollection that Mr Northcote had mentioned the name “Jeffrey” during a conversation about the bruising.

[46] On 13 June Mr D was at the Club, sitting alone, when he was approached by a man he did not recognise. The man asked him if he knew who he was and then told him his name was Jeffrey Samadi and that he worked at the Lodge. According to Mr D he then said to the applicant “You are the one who hurt my wife” and the applicant denied it, later asking “who told you? Tony?” Mr D confirmed that “Tony” had told him.

[47] Under cross-examination by Mr Neal, Mr D stated that when he had shown the bruises on his wife’s body to Mr Northcote, Mr Northcote had told him that it was Jeffrey (the applicant) who had injured his wife.

[48] Mr D recalled meeting the applicant at the Club on the evening of 13 June 2008 but denied that he was angry at the time. He reiterated his evidence that the applicant had approached him at the Club and that he had not approached the applicant as he did not know who he was. Mr D also repeated his evidence that he had asked the applicant why he had bruised Mrs D and that the applicant had denied it. Mr D had then asked who did it and the applicant said he didn’t know. When the applicant had asked him whether “Tony” had told him, Mr D had replied that he had. Mr D agreed that he had asked the applicant to ring Tony and to go to the Lodge with him in his car. Mr D did not recall the applicant saying that he was not allowed to talk with him about the matter. He denied pulling the applicant.

[49] Ms Carla Valencia, the Executive Manager of the Lodge, filed a statement of evidence and was cross-examined. She noted that she had held her position on a permanent basis since February 2008, having previously acted in the position. Ms Valencia’s evidence included background detail about the operations of the Lodge, the manner in which it is staffed and the policies which apply in the workplace. In particular she noted that staff members are required to be familiar with the Resident’s Handbook and policies including the Verbal or Physical Resident and Staff Abuse Policy, the Compulsory Reporting Policy and the Critical Incident Management Policy. Ms Valencia also described the procedures in place for investigating allegations, undertaking disciplinary action and terminating the employment of staff.

[50] Ms Valencia outlined the applicant’s work history with the respondent and noted that prior to the incident of 23 May 2008 he had signed both a Confidentiality Agreement and a Privacy Statement and Consent Form. It was also noted that the applicant had attended a number of training courses dealing with privacy, confidentiality, accidents and incidents, the care management system and mandatory reporting.

[51] In relation to the incident on 23 May 2008 the witness stated that she became aware of it upon reading Mr Northcote’s memorandum on 26 May 2008. She noted that at the time of the incident Mr Northcote and the applicant had worked together on nine shifts at the Lodge without any issue between them coming to her attention. After contacting Mr Northcote, Ms Valencia completed the required administrative tasks relating to the incident including completing a critical incident investigation form and notifying the relevant bodies, including the local police, required under the Mandatory Reporting Guidelines. She then notified the applicant that he was suspended on full pay pending the outcome of an investigation. A letter outlining the allegations and confirming his suspension was sent to the applicant.

[52] Ms Valencia was present when Mr Northcote was interviewed by the police about the incident. She also informed Mr D about the incident and advised him that an investigation was being undertaken. On 26 May 2008, when informed by Mr Northcote of the bruises on Mrs D’s body, Ms Valencia viewed and photographed the bruises.

[53] According to Ms Valencia, having arranged for an interpreter to be present to ensure the applicant understood the matters put to him, the applicant was interviewed about the allegations on 6 June. It was her evidence that at the interview the applicant had explained that on 23 May 2008 “Tony” had raised an issue about him watching television in a patient’s room and had then “exploded” and acted strangely towards him. The applicant also described later leading Mrs D to her bed because she was wandering. He claimed that he had been putting her to bed when Tony had come into the room and yelled at him to stop. According to Ms Valencia the applicant had said that he explained to Tony that Mrs D was aggressive and Tony had yelled at him to shut up. At the interview the applicant claimed that Mr Northcote had been looking for fault in him. At the completion of the interview the applicant was informed that the meeting was confidential and he was not to come to, or contact, the Lodge.

[54] Ms Valencia also interviewed Mr Northcote about the incident. In the interview Mr Northcote explained that he thought the applicant used excessive force to put Mrs D to bed. Mr Northcote said that the applicant had said that Mrs D was aggressive but that he believed she was distressed rather than aggressive. Ms Valencia also interviewed Ms Zubcakova, who told her of the argument she had heard between the applicant and Mr Northcote at the relevant time.

[55] On 16 June Mr D requested to meet with Ms Valencia. Mr D informed Ms Valencia of his meeting with the applicant at the Club the previous Friday. Some time later Mr D signed a statement Ms Valencia had prepared setting out his version of the incident at the Club. A copy of that statement was attached to Mr D’s witness statement. Mr D had claimed that the applicant had approached him at the Club. Later that day the applicant had phoned her and given her his account of the same meeting, claiming that Mr D had initiated the conversation.

[56] Finally Ms Valencia gave evidence about the meeting on 4 July 2008 when the applicant was informed his employment would be terminated. She stated that while initially a decision had been taken to give the applicant a written warning in relation to the incident on 23 May 2008, when it was discovered that he had breached his duty of confidentiality by discussing the incident with Mr D, it was determined that his employment would be terminated. She noted that privacy and confidentiality were of paramount importance. The applicant had been directed both verbally and in writing to maintain the confidentiality of the investigation and warned that a failure to do so could result in the termination of his employment.

[57] The applicant’s employment was terminated and he was provided with four weeks’ pay in lieu of notice. Later, Ms Valencia became aware that Mr D had decided to press criminal charges against the applicant in relation to his treatment of his wife.

[58] When cross-examined Ms Valencia agreed that apart from meeting with Mr D on 16 June and 23 June 2008 and her telephone conversation with the applicant on 16 June, she did not conduct any further investigation into the allegation concerning the breach of confidentiality.

[59] Ms Valencia was also asked about notes 8 she had made of a telephone conversation she had with a policeman on 2 July 2008. She conceded that during that conversation she had informed the policeman that she intended to meet with the applicant on 4 July to inform him that he would be returning to work on 7 July 2008, working Monday to Friday day shifts with supervision.

[60] The witness also conceded that at the meeting on 4 July the applicant’s employment was terminated and that the reason given for the termination was the applicant’s breach of her direction not to discuss the investigation. She also agreed that her notes stated that a decision had been taken to give the applicant a warning in relation to the 23 May incident but that this decision was revised when the respondent became aware that the applicant had discussed the incident with Mr D, and the decision taken to terminate the applicant’s employment instead. Ms Valencia conceded, however, that she had been aware of the discussion between the applicant and Mr D since 16 June 2008 and was aware of it at the time of her telephone conversation with the policeman on 2 July. According to her evidence Ms Valencia realised that the applicant had breached his duty of confidentiality and that it was grounds for termination of his employment between her discussion with the policeman on 2 July and her meeting with the applicant on 4 July. 9 She denied that the applicant was not given an opportunity to respond to that allegation, stating that he had been given that opportunity at the meeting on 4 July. She also denied wanting to “get rid” of the applicant but agreed his employment was terminated.

[61] When re-examined Ms Valencia confirmed she held nursing qualifications. She stated that she had observed the patient, Mrs D, noting that she had moderate to severe dementia and required a significant level of care. She did not observe any aggressive behaviour from Mrs D and stated that even if a patient were physically aggressive that would not justify a staff member pushing her down onto her bed.

[62] Finally it was Ms Valencia’s evidence that before terminating the applicant’s employment she discussed the matter with the respondent’s Chief Executive Officer.

Submissions for the applicant

[63] It was put for the applicant that in the letter of 4 July 2008 three matters were traversed. In relation to the first, the alleged conduct of the applicant towards Mrs D on 23 May, it was argued that this was not relied upon as a reason for the termination. Further it was submitted that the allegation was not proved and that no causal connection had been made out between the alleged incident and the bruising on Mrs D’s “friable” skin.

[64] So far as the discussion between the applicant and Mr D at the Club on 13 June 2008 was concerned, it was put that the allegation remained unsubstantiated. The evidence was not conclusive and, in any event, there was no evidence of serious misconduct and the applicant’s employment should not have been terminated for a technical breach of a policy.

[65] In relation to the allegation concerning the breach of the policy it was contended that the evidence revealed a change of mind by Ms Valencia between 2 and 4 July. Her evidence was that, having learned of the discussion between the applicant and Mr D, Ms Valencia decided to terminate the applicant’s employment because he had breached his duty of confidentiality. It was put that Ms Valencia was aware of that “breach” on 16 June and during her telephone conversation with Constable Wells on 2 July 2008. It was also submitted that there was a failure to notify the applicant that his conversation with Mr D was a reason, or a potential reason, for the termination of his employment and a similar failure to give him an opportunity to respond to that allegation.

[66] So far as the other matter mentioned in the letter of 4 July was concerned, the conversation between the applicant and Mr Northcote outside Mrs D’s room on 23 May 2008, it was argued that the respondent’s evidence remained unsubstantiated and that the evidence of Ms Zubcakova was equivocal, at best.

[67] It was put that the applicant was seeking compensation not reinstatement. There was evidence that the applicant’s earnings were $33,000 less in the 2008–2009 financial year than for the 2007/2008 financial year.

Submissions for the respondent

[68] So far as remedy was concerned the respondent noted that there was no evidence from the applicant about any effort he may have made to mitigate his loss. It had been the applicant’s evidence that prior to the termination of his employment he was working two part-time jobs totalling some 157 hours per fortnight, more than double the hours worked by a full-time employee. It was put that to mitigate his losses, it was incumbent upon the applicant to seek other employment, not merely maintain his hours at his other job, but there was no evidence that he did so. It was also put that the tribunal should conclude that the hours that the applicant claimed to have been working were not sustainable and he chose to cease working them for reasons other than the termination of his employment.

[69] It was submitted that another relevant factor was the length of the employee’s service, which was from September 2005 until the beginning of July 2008, a period of less than three years. Additionally it was submitted that the applicant had been paid four weeks’ wages in lieu of notice despite that fact that there was no legal requirement for the notice to be paid.

[70] The respondent was making no claim regarding the effect any order might have on the viability of the employer’s enterprise.

[71] In relation to the merits of the application the respondent relied on the written submissions that had been filed, but emphasised that it was not incumbent on the tribunal when determining whether there had been a valid reason for the termination to rely solely on the reason given by the employer in the letter of termination, but to examine the conduct of the employee.

[72] It was submitted for the respondent that the applicant had not been a witness of truth in the proceedings. It was put that the evidence of Mr D and of Mr Northcote should be preferred to that of the applicant. According to the respondent’s submissions the fact that the applicant had not told the truth about his meeting with Mr D was a matter that went to his overall credit in the proceedings and also to the matter of trust which is inherent in the employment relationship. On the basis of the decision in Streeter v Telstra Corporation it was argued that an employee had an obligation to be truthful not only during the course of the employment but also during the course of the investigation. 10 As the applicant had been shown to have been untruthful that in itself constituted a valid reason for termination.

[73] So far as the treatment of Mrs D was concerned it was put that even if Mrs D had been aggressive as was alleged, there was no claim that she had been aggressive at the time the applicant had allegedly pushed her onto the bed. Additionally it was put that even had she been aggressive at the time that would not have justified the applicant’s actions. In this regard it was put that Mr Northcote’s account of the events should be accepted over those of the applicant as there was no reason for him not to tell the truth.

[74] It was submitted on the respondent’s behalf that any failure to put to the applicant Mr D’s version of the events that occurred at the Club, and to allow the applicant to respond, would not have changed the overall outcome. There was nothing of substance in the different versions of events given to Ms Valencia by Mr D and by the applicant. Further it was contended that the applicant’s version of the events was not credible. He was under instructions not to talk to the family of Mrs D and he understood those instructions. The fact that the applicant telephoned Ms Valencia to report the incident was an indication that he knew that he was not permitted to talk to Mr D about the incident and that he did. It was contended that this action on the applicant’s behalf was not a “technical breach” of the policy but a clear contravention of a direct instruction. In addition, the respondent argued that the applicant then lied about the incident at the Club.

[75] So far as the bruising to Mrs D was concerned it was noted that there are significant differences between the matter for determination in the magistrates court and the matter for determination in this tribunal. It was only necessary for the tribunal to consider whether the applicant pushed Mrs D onto the bed in a manner that was inappropriate, and whether he told the truth to his employer in the investigation of that allegation. It was put that the photographs of the bruising were evidence consistent with the account put forward by Mr Northcote.

[76] A thorough investigation was conducted into the incident on 23 May because the respondent has a legal obligation to investigate in a particular way and to report to the Department of Health and Ageing all allegations of abuse of patients. There was no requirement for an investigation at the same level of the conversation between the applicant and Mr D at the Club.

[77] It was submitted that Ms Valencia had indicated that, in relation to the incident on 23 May, the respondent was prepared to give the applicant a final warning but maintain his employment. It was also the evidence of Ms Valencia that what had changed her mind had been the incident at the Club. She rejected the applicant’s account of that incident. Her rejection was indicative of the breakdown of the respondent’s trust and confidence in the applicant.

Applicant’s submissions in response

[78] It was argued for the applicant that he had mitigated his loss by seeking additional hours at his other job when they were available.

[79] It was submitted that the claim that Mrs D was aggressive was not put as anything other than a possible reason for the bruising which was discovered on 26 May 2008.

[80] Further it was contended that, as the reason for the termination of the applicant’s employment was the conversation between the applicant and Mr D at the Club, then it was necessary for the applicant to be given a chance to respond to Mr D’s claim that it was he, not Mr D, who initiated the conversation.

[81] It was the applicant’s argument that there was evidence to account for Mr Northcote’s motivation for making the allegations about the applicant given his prior dissatisfaction with the applicant’s performance. This was supported by Mr D’s evidence that Mr Northcote had told him that the applicant had caused the bruising to Mrs D.

[82] Finally, Ms Valencia had given evidence that where a breach of policy occurred at the Lodge, an investigation was undertaken. In relation to the alleged breach of the confidentiality agreement and her directive, her evidence was that no such investigation took place.

Legislation

[83] Section 652(3) of the Act sets out those matters to which I must have regard to when determining whether the termination of an applicant’s employment was harsh unjust or unreasonable. The section states:

“652 Arbitration

(1) If:

(a) the Commission has issued a certificate under subsection 650(2) regarding conciliation of an application relating to a termination of employment; and

(b) the applicant has made an election under subsection 651(1), (2), (3) or (5) to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable; the Commission may so proceed to arbitrate the matter.

(2) Neither the making of an election under subsection 651(1), (2), (3) or (5) to proceed to arbitration nor the commencement of that arbitration prevents further conciliation of the matter being attempted, or the parties from settling the matter, at any time before an order is made under section 654.

(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:

(a) whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the employee was notified of that reason; and

(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and

(d) if the termination related to unsatisfactory performance by the employee—whether the employee had been warned about that unsatisfactory performance before the termination; and

(e) the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and

(f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and

(g) any other matters that the Commission considers relevant.”

Consideration

[84] I have considered the circumstances of this application in light of the matters set out in s.652(3).

Valid reason

[85] The letter of termination handed to the applicant on 4 July 2008 does not set out in clear terms the reason for the termination of the applicant’s employment. It refers to the allegations made by Mr Northcote, stating that no other witnesses were able to substantiate these but noting the bruising to Mrs D’s body as being “consistent with the report” and referring to Ms Zubcakova as substantiating the applicant’s confrontational manner to Mr Northcote. The letter also refers to the conversation that occurred between Mr D and the applicant at the Club and the applicant’s admission in this regard. It is noted that Ms Valencia accepted Mr D’s version of the events as she had formed the view that Mr D could not have been aware of the applicant’s connection to the incident concerning his wife. The letter concludes by stating that “as a result of (the applicant’s) misconduct it has been decided to terminate the applicant’s employment immediately”.

[86] It appears, but is not completely clear, from the letter that the applicant’s “misconduct” consists of the treatment of Mrs D, the attitude to Mr Northcote and the initiation of the conversation with Mr D at the Club.

[87] If the respondent had concluded that Mr Northcote’s allegations about the applicant’s treatment of Mrs D were true and had terminated the applicant’s performance as a consequence I would have considered that there had been a valid reason for the termination, particularly given the respondent’s duty of care to its patients. On the evidence it is clear that the respondent did not consider the applicant’s conduct in this regard sufficient to warrant dismissal and the intention was to issue the applicant with a warning.

[88] Clearly the applicant’s confrontational manner towards Mr Northcote following the incident with Mrs D (even if Mr Northcote’s evidence in this regard is accepted in full) did not, of itself, constitute a valid reason for the termination of the applicant’s employment.

[89] If it is accepted that the applicant approached Mr D at the Club in order to discuss with him the incident that was alleged to have occurred with Mrs D this, in my view, would constitute a valid reason for the termination of the applicant’s employment. For him to knowingly disobey a clear direction not to discuss the matter while the investigation proceeded would provide an adequate justification for his dismissal. This is particularly so if the approach could be interpreted as an attempt to interfere with the progress of the investigation. Such conduct could even, in some circumstances, have exposed the employer to action for breach of privacy.

Notification

[90] There is clear evidence that the applicant was notified of the allegations concerning the incident with Mrs D and the subsequent argument with Mr Northcote. He was not notified of Mr D’s allegation concerning the conversation at the Club. At the time the applicant reported the conversation to Ms Valencia, he was not advised that Mr D had provided a different version of events.

Opportunity to respond

[91] The applicant was afforded an opportunity to respond to the allegations concerning his conduct on the evening of 23 May 2008. A meeting was arranged on 6 June 2008 and the applicant was invited to bring a representative or support person. Additionally the employer arranged for a translator to be present to ensure that the applicant was not disadvantaged by his level of English language skills. Ms Valencia’s evidence that she initially intended to warn the applicant concerning his conduct supports a conclusion that the applicant’s response to the allegations was given full consideration.

[92] The applicant was not given an opportunity to respond to Mr D’s allegation about the approach made at the Club on 16 June. The evidence was that the applicant would have become aware of Mr D’s version of the events on 4 July when he was provided with the letter of termination. Had the applicant been given an opportunity to fully respond to Mr D’s allegations he may have been able to satisfy Ms Valencia that it was Mr D not he that initiated the conversation, given that the evidence was that Mr D had learned of the applicant’s identity from Mr Northcote and the applicant was made aware of this by Mr D during the incident.

Unsatisfactory performance

[93] There was no evidence that the applicant’s employment was terminated on the ground of unsatisfactory performance.

Size of employer and impact of human resources expertise

[94] The employer is a large organisation with dedicated human resources personnel. The size of the employer is not a factor that has any impact on the outcome in this matter.

Other matters

[95] I accept the evidence of Mr Northcote that he observed the applicant treat the patient Mrs D more roughly then he, Mr Northcote, considered appropriate and that, in the circumstances, it was necessary to both remonstrate with the applicant and report his observation. While, on the evidence before me, I am unable to conclude that the applicant caused the bruising to Mrs D, I am satisfied that his conduct was such as to justify Mr Northcote’s concerns, the suspension of the applicant’s employment and the subsequent investigation.

[96] It is necessary to note that it was the evidence of Ms Valencia that the respondent initially decided that the termination of the applicant’s employment was not warranted despite the respondent being aware of the allegations of Mr Northcote, the applicant’s response and the conversation which took place between the applicant and Mr D at the Club.

[97] The respondent’s position altered in early July. Clearly Ms Valencia’s position changed after she had spoken to the policeman on 2 July. Her notes of that conversation 11 indicate that the respondent’s attitude to the applicant’s continued employment would be affected by the information she received from the policeman that Mr D was considering taking out an Apprehended Violence Order against the applicant. This aspect of her evidence was not explored in any great detail with Ms Valencia and she maintained that it was the incident at the Club which prompted the dismissal despite the fact that she was aware of that incident prior to 2 July 2008.

Conclusion

[98] Although I am unable to determine conclusively whether the applicant or Mr D initiated the interaction at the Club, I prefer the evidence of Mr D as to the substance of the conversation which ensued and the manner in which it was conducted. I am satisfied that the applicant disobeyed the direction from his employer that he not discuss the incident of 23 May 2008. It was that breach of confidentiality which the respondent claims led to the decision to terminate the applicant’s employment rather than issue him with a warning. It is also apparent from the letter of termination that the respondent took the decision to dismiss the applicant because it accepted the evidence of Mr D that the applicant initiated the conversation with him. Ms Valencia preferred the version of events put forward by Mr D because she was under a misapprehension 12 that Mr D did not know the identity of the employee accused of bruising his wife.

[99] As the conversation between the applicant and Mr D at the Club was pivotal to the respondent’s decision to terminate I must conclude that the failure by the respondent to investigate that matter more fully and to allow the applicant a proper opportunity to respond to Mr D’s claim that it was the applicant who initiated the conversation, made the dismissal unfair. Had Ms Valencia been informed by Mr D that Mr Northcote had given him the applicant’s name in connection with the bruising to his wife she may have reached a different conclusion about the incident at the Club and the decision to dismiss may not have been taken.

[100] If it was not the incident at the Club that convinced the respondent to take the decision to dismiss the applicant (as was claimed) then it may have been a result of the information Ms Valencia received from the police concerning Mr D’s consideration of an AVO against the applicant. In either case the applicant was not given a proper opportunity to respond to the claims made by Mr D. By the meeting of 4 July the decision to terminate had been taken and despite the applicant’s attempts to provide his version of the events at the Club the respondent refused to consider the matter further. 13

[101] In those circumstances I conclude that the dismissal of the applicant was unfair.

Remedy

[102] The applicant does not seek reinstatement.

[103] Section 393(2) of the Act sets out the criteria that must be taken into account in determining an amount of compensation.

[104] There was no claim that any order I might make would affect the viability of the employer’s business. 14

[105] The applicant was employed by the respondent on a permanent basis for just 27 months (and an additional six months on a casual basis). 15

[106] It is difficult to determine the amount of remuneration the applicant would have received had his employment not been terminated. There was evidence that he was working up to 150 hours each fortnight at two supposedly part-time jobs. Since his employment with the respondent was terminated he has worked additional hours at the second job but has not taken on other employment. There was no evidence of any attempt to find other employment. I must conclude that the hours the applicant was working prior to the termination of his employment were not sustainable and would not have continued at the same level had his employment not been terminated.

[107] The applicant earned additional remuneration from increasing his hours in his other position following the termination of his employment. There is no reason to believe that the applicant’s earnings will alter significantly between the making of any order for compensation and the actual compensation.

[108] Noting the relatively short period of the applicant’s employment, the fact that the applicant’s loss has been reduced by his increase in hours in his other employment and given that there is no evidence of any attempt by him to further mitigate his loss by obtaining other employment, I intended to order that the applicant be compensated in the payment of an amount equivalent to his earnings from his position with the respondent for the 12 weeks immediately preceding 26 May 2008. It is my view however that the amount of compensation should be reduced by four weeks as, on the evidence, I am satisfied that the applicant’s misconduct (i.e. the incident of 23 May 2008 and his failure to obey the employer’s direction not to discuss that incident) contributed to the employer’s decision to dismiss him. 16

[109] An order that the respondent pay to the applicant an amount equal to the remuneration earned from his position with the respondent in the eight weeks immediately prior to the suspension of his employment on 26 May 2008 is published separately.

 1   Exhibit S1 at paragraph 10.

 2   Exhibits S2 and S3.

 3   Transcript at para 862

 4   Exhibit F1.

 5   Exhibit S5.

 6   Exhibit F2.

 7   Exhibit S6.

 8   Exhibit F4, Annexure 18.

 9   Transcript at para 1669.

 10   [2008] AIRCFB 15

 11   Exhibit F4, Annexure 18.

 12   Transcript at para 1505.

 13   Exhibit F4, Annexure 20.

 14   Fair Work Act 2009 at s. 392(2)(a).

 15   Ibid., at s. 392(2) (b).

 16   ibid., at s. 392(3).

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