Samantha Bolden v Lyndoch Living Inc T/A Lyndoch Warrnambool Inc
[2014] FWC 8649
•12 DECEMBER 2014
| [2014] FWC 8649 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Samantha Bolden
v
Lyndoch Living Inc T/A Lyndoch Warrnambool Inc
(U2013/15240)
COMMISSIONER BISSETT | MELBOURNE, 12 DECEMBER 2014 |
Application for relief from unfair dismissal - Remedy.
[1] Ms Samantha Jane Bolden (the Applicant) was dismissed from her employment with Lyndoch Living Inc (the Respondent) on 2 October 2013. On 23 May 2014 I issued a decision in which I found that she had been unfairly dismissed (the initial decision). 1 I subsequently ordered that she be reinstated ‘by appointing her to another position, not in the high care unit, on terms and conditions no less favourable than those on which she was employed immediately prior to her dismissal.’2
[2] The decision with respect to remedy was subject to appeal by the Respondent. On appeal the Full Bench found:
[50] We are satisfied that the failure to alert the parties, and the Appellant in particular, to the possibility of reinstatement qualified on the basis that the Respondent should not work in a high care area constituted a denial of natural justice and an error of jurisdiction on the part of Commissioner Bissett. As a result we grant permission to appeal, uphold the appeal in this respect and quash the decision of the Commissioner in respect of remedy and set aside the consequential order giving effect to that decision.
[51] As we have not found any other appellable error by the Commissioner nor disturbed her findings, conclusion and decision that the dismissal was unfair, we think the best course is to remit the matter to Commissioner Bissett to hear evidence and submissions on the question of whether reinstatement of the Respondent into a position not involving work in a high care area is appropriate and determine a remedy having regard to such evidence and submissions, together with the evidence and submissions already before her. 3
[3] Following the remittance of the matter back to me I issued directions for the filing of further witness evidence and submissions. As a result of these directions the Respondent made an application that I recuse myself from further considering the matter on the grounds of apprehended bias. On 29 September 2014 I made a decision rejecting the application. 4
[4] In accordance with the directions the parties filed further witness statements and submissions on the matter remitted to me by the Full Bench.
The question to be answered
[5] There is substantial disagreement between the parties as to the extent of the matter remitted to me for determination.
[6] Ms Bolden submits that the Full Bench remitted the narrower issue of whether reinstatement into a position not involving work in a high care area is appropriate.5 In this respect she submits that the matter to be remedied is the lack of procedural fairness in relation to the proposed condition for reinstatement. There is no remit to reconsider the question of remedy at large.
[7] Ms Bolden says that my decision that reinstatement was appropriate still stands. She says that the question to be answered is whether reinstatement into a position not involving work in a high care area is appropriate and only if this is answered in the negative should any other question as to remedy be considered. Ms Bolden therefore says that the questions for the Commission to consider are:
(a) Is reinstatement of the Applicant into a position not involving work in a high care area such as that in which the incident occurred appropriate?
(b) If reinstatement of the Applicant into position not involving work in a high care area is appropriate, on what terms should that reinstatement take place?
(c) If reinstatement of the Applicant into position not involving work in a high care area is not appropriate, should Ms Bolden be awarded compensation?
(d) If Ms Bolden is to be awarded compensation, what should the quantum of that compensation be? 6
[8] Lyndoch submits that the question of remedy at large was remitted by the Full Bench. It submits therefore that the matters to be determined are:
(a) Whether remedy should be ordered at all;
(b) Whether, if a remedy should be ordered that the remedy should be reinstatement taking into account:
(i) All the circumstances including, relevantly, practicability, issues of trust and confidence and the nature of the proposed position into which Ms Bolden could be reinstated; and
(ii) The opinion formed subsequently to a full consideration of the matters in (i) as to whether reinstatement is appropriate within the meaning of the Fair Work Act 2009 (Cth) (the Act);
(c) Whether, if reinstatement is not appropriate, Ms Bolden should be awarded compensation;
(d) The quantum of any compensation, having regard to all of the circumstances including but not limited to the matters set out in section 392 of the Act. 7
[9] This difference of opinion of the parties as to the starting point for my consideration is important as to how I consider the issue.
[10] The Full Bench decision was to:
● Uphold the appeal and quash the decision with respect to remedy (at [50]);
● Remit the matter for me to hear evidence and submissions on reinstatement into a position not in the high care area (at [51]).
[11] Whilst the grounds of appeal went to procedural fairness in relation to the conditions of reinstatement, I am bound by the decision of the Full Bench, not the grounds of appeal. The Full Bench quashed the decision with respect to remedy. 8 Had the Full Bench only quashed that part of my decision which placed some limitation on the area into which Ms Bolden should be reinstated my task would inevitably be different.
[12] Remedy in relation to unfair dismissal is set out in Div 4 of Part 3-2 of the Act. Remedy includes when the Commission may order a remedy (s.390); the grounds for reinstatement (s.391); and, if reinstatement is not appropriate, determination of compensation (s.392).
[13] The remedy I ordered was quashed. This, in my view, consists of all aspects of remedy as contemplated by the Act. It is therefore necessary that I determine remedy afresh. This must include the question of appropriateness of reinstatement.
Structure of Lyndoch and resident assessment
[14] From the evidence given in these proceedings (but not given in the initial proceedings) I understand that Lyndoch consists of the nursing home and the Hostel. The nursing home has two distinct areas: the Audrey Prider Centre (APC) which is a secure facility – in that residents cannot freely exit it – and Lake Lodge. Both have been described in these proceedings as high care facilities. The Hostel is described as a low care facility.
[15] Evidence was given that the recent changes in government regulations have resulted in the removal of the distinction between ‘low care’ and ‘high care’ in residential aged care. Residents however continue to be assessed in terms of their care needs against the aged care funding instrument (ACFI) which considers living needs, behaviours and complexity of care of each resident. The assessment of the resident against ACFI determines the funding received from government.
[16] Despite the change in government regulations a resident must be placed in that part of an aged care establishment that has the appropriate staffing levels to care for and meet the needs of the resident.
[17] Whilst the distinction between low and high care has been removed I understand that this does not mean that a resident, despite their needs, could be placed in any part of Lyndoch. As was put in evidence, on entering Lyndoch a resident:
is assessed on the basis of his or her individual needs and requirements. For example, residents are more likely to be admitted to the hostel if they are not limited in their ability to mobilise or if the require lower levels of personal care assistance...In determining where a resident is ultimately placed, a range of factors must be taken into account, including where they are likely to manage best and where there is a bed available. 9
[18] From the evidence I understand this to also means that a resident with high care behavioural needs or who has cognitive impairment or may wander without regard or awareness of their own safety is more likely to be placed in APC than the Hostel.
Evidence and submissions
Evidence for Ms Bolden
[19] Evidence was given by Ms Bolden and by Mr Peter Birch.
[20] Mr Birch is the Country Industrial Relations Organiser for the Australian Nurses Midwifery Federation (ANMF). He gave evidence in the primary matter. His evidence in this matter was not contested.
[21] Mr Birch gives evidence that the Hostel is not set up to accommodate a large number of high care residents as it does not have the staffing ratios as specified in the Nurses and Midwives (Victorian Public Health Sector) Enterprise Agreement 2012-2016 necessary to care for residents with high care needs. This is in contrast to the staffing ratios in APC and Lake Lodge.
[22] Mr Birch’s uncontested evidence is that APC is a designated area for psychogeriatric care. His evidence is that the residents of APC require high care arising from their dementia and that they may or may not require high care for clinical reasons. Lake Lodge is classified as high care because of the clinical needs of its residents. He says Lake Lodge is not an appropriate facility for residents who may be aggressive and is not set up to manage residents with high care behavioural needs.
[23] Ms Bolden’s evidence is that she has worked in Lake Lodge in the past. It is a high clinical care area and its residents do not generally have high care behavioural or aggressive traits. She says that residents in Lake Lodge havechronic illness or mobility restrictions and that while some have mild dementia they generally do not exhibit violent behaviours. She is comfortable working in Lake Lodge.
[24] Further, Ms Bolden gives evidence that she is happy to perform an Enrolled Nurse (EN) function in the Hostel. She accepts that if she is placed in the Hostel she may not utilise on a daily basis all the skills she uses as a Medication Endorsed Enrolled Nurse (ENME).
[25] Ms Bolden says she is confident of returning to work with the employees of Lyndoch who were involved in the incident and the initial proceedings.
[26] Ms Bolden’s evidence is that she has always completed the minimum professional development hours for an ENME and, if reinstated she would do her best to continue to comply with these requirements. She gives evidence of having completed training in May 2014 in aggression minimisation and restraint delivered by the ANMF.
[27] During cross examination Ms Bolden maintains her evidence from the initial proceedings that she never touched the Resident after leaving the bathroom but says that if she was the Commissioner and ‘didn’t know anybody I would probably come to a similar conclusion’.10 Ms Bolden, whilst accepting that the decision at first instance found a valid reason for her dismissal, says the decision was wrong because she did not touch the resident after the bathroom but that the Commission’s decision was one she had to live with and accept.
Submissions for Ms Bolden
[28] Ms Bolden submits that Lyndoch comprises of two facilities - the nursing home and the Hostel. The nursing home consists of two units - the Audrey Prider Centre (APC) and Lake Lodge. She says that these two units operate independently of each other. The nursing home was a ‘high care’ facility and the Hostel was a ‘low care facility.’ 11 The Hostel has a unit dedicated to patients with dementia (Tomlison) as well as two other units.
[29] APC is a dementia unit that houses residents with behavioural concerns and, as such is a specialist high care unit. Ms Bolden submits that the characteristics of APC are that:
- It admits and accommodates residents with high care needs arising from health conditions including dementia;
- Its residents display challenging behaviours arising from their conditions, including wandering, aggression and violence;
- Its residents often have cognitive difficulties arising from their conditions;
- It is a dynamic and changing environment;
- Care must necessarily be provided by qualified nursing staff, with additional support from personal care attendants. 12
[30] Ms Bolden submits that the incident that lead to her dismissal occurred at the APC and the decision of the Commission that Ms Bolden should not be reinstated into a high care area of the kind she worked in at the time of the incident should be understood to mean that she should not returned to a working environment with residents with the kind of the characteristics of APC.
[31] Ms Bolden is a ENME. She says that it is reasonable that she be reinstated into Lake Lodge as an ENME. She submits Lake Lodge is a high care area but does not generally accommodate residents with dementia or those exhibiting the behavioural issues such as those accommodated in APC. She says that Lake Lodge has a stable and ‘routine based’ environment. It is not a high care area of the kind she worked in at the time of the incident.
[32] Alternatively Ms Bolden says that she should be reinstated to a position as EN in the Hostel. She recognises that an EN position in the Hostel is a step down from an ENME in that they do not perform that work that comes with being ‘medication endorsed’. She also accepts that the ENME positions in the Hostel are a step up from her position as an ENME in the nursing home in that they have a higher level of supervisory responsibilities. She is aware of the differences between the ENME and EN position but is willing and able to take on an EN position in the Hostel.
[33] Ms Bolden says that, were she placed in the Hostel, she (her position) should be subject to the same sunsetting provisions as other EN positions (where ENs are being progressively replaced on vacancy by personal care workers).
[34] Ms Bolden submits that the substance of the change in government regulation is that the previous restriction that high care residents could not be admitted to low care facilities is removed. Even with the changes she submits that facilities retain the right to refuse to accept a high care resident. In these circumstances it does not follow that the nature of Lake Lodge or the Hostel will change. In any event, any change in the profile of residents in areas of Lyndoch must be accompanied by changes in staffing profile to ensure the appropriate care is provided.
[35] Ms Bolden submits that she has a commendable training record, Lyndoch has never taken action to address any concerns about her training and she has completed the training required by the Commission in its Order arising from the initial decision reinstating her.
[36] Whilst rejecting the ability of Lyndoch to re-agitate matters in relation to trust and confidence, Ms Bolden says that she has no prior history of relevant disciplinary issues. The incident that led to her dismissal was a single, isolated incident that took place over the space of three or so minutes. Implicit in the Commission’s finding at first instance that reinstatement was appropriate was a finding that Ms Bolden could undertake her duties ‘faithfully, well and in accordance with the respondent’s policies and procedures and the relevant statutory obligations.’ Ms Bolden submits that reinstatement would not constitute approval of her conduct.
Evidence of Lyndoch
[37] Lyndoch relies on evidence given in the initial hearing of the application and further evidence of Ms Julie Baillie, Ms Cath Porter and Mr Rhys Boyle.
[38] Ms Baillie’s evidence is that prior to July 2014 the Hostel was technically classified as a low care unit and the nursing home as a high care unit. These classifications she says were as a result of government regulations in matter such as staff-resident ratios. Her evidence is that in February 2014 about 60% of the residents in the Hostel were ‘high care’ residents.
[39] Ms Baillie says that the needs of the residents in the Hostel are not as onerous as those in the nursing home although she says that residents in the Hostel can have onerous care needs. For this reason her evidence is that staff working in the Hostel are required to attend to high care patients on a day to day basis.
[40] Ms Baillie’s evidence is that the Hostel consists of 113 beds across three units. The Hostel has one registered nurse on duty on each shift. She says that ENMEs have a management/leadership role and act as clinical leaders. The ENMEs are responsible for managing up to 40 staff, who are predominantly personal care workers but includes a small number of enrolled nurses, and report to the registered nurse.
[41] Ms Baillie says that an ENME in the Hostel is not equivalent to an ENME in the nursing home as the Hostel ENME has greater responsibility. She also says that an EN or personal care worker would be a lower level position compared to the ENME position Ms Bolden holds.
[42] The nursing home consists of two units: APC and Lake Lodge, each with 40-45 beds. Each unit is managed by a registered nurse who manages a ‘large number of ENMEs and ENs’ along with a small number of personal care workers. She says that ENMEs in the nursing home are subject to a much higher level of supervision that those employed in the Hostel.
[43] Ms Porter is the nurse unit manager of APC at Lyndoch. She gives evidence that Lake Lodge has historically been a non-dementia unit. Her evidence is that there is little difference between the behaviours and needs of residents in the APC and Lake Lodge.
[44] Ms Porter gives evidence that residents are assessed according to the aged care funding instrument (ACFI) against their daily living needs, their behaviours and the level of complex care required. The assessment is either ‘high’ ‘medium’ or ‘low’ on each of the three criteria. ‘Living needs’ refers to assistance with showering, dressing, feeding and daily living; ‘behaviours’ refers to physical, verbal and wandering attributes; and ‘complex care’ refers to needs associated with medications, catheter care, wound care etc.
[45] Ms Porter’s evidence is that in APS about 40% of residents are classified as ‘high’ against all three of the criteria while in Lake Lodge only about 10% of residents in are classified as high against all three.13 She says that about 75% of residents in APC would rate ‘high’ in ‘behaviours.’ 14
[46] Ms Porter gives evidence that APC is a secure unit designed to prevent residents from wandering. She says that ‘because of the cognitive impairment if [the residents] were able to leave the unit itself [we] would have fears for their safety.’15
[47] Ms Porter says that the residents of Lake Lodge probably have more onerous needs than those in APC.16 Whilst Ms Porter says that managing behaviours has been extremely onerous in Lake Lodge over the last eight to nine months she agreed under cross examination that this was due to one resident who displayed very serious behaviours resulting in 196 incident reports in relation to that resident.17 She says that despite that resident moving anyone working in Lake Lodge would need to deal with residents with high care needs.
[48] Ms Porter agreed during cross examination that it is possible that, under the new regulations, a resident may not necessarily be placed in their preferred area of Lyndoch and that Lyndoch needs to be satisfied that, wherever a resident is placed, they are given the appropriate level of care.18
[49] Ms Porter had supervised Ms Bolden for three years prior to her dismissal. Whilst she says she had to intervene with Ms Bolden in relation to clinical issues and her overall demeanour and manner within APC it was never such that she required Ms Bolden to undertake training to address any clinical deficiency.19
[50] Mr Boyle is the CEO of Lyndoch. He gave evidence in the initial hearing. His evidence is that about 60% of the residents in the Hostel have high care needs and it would not be possible for an enrolled nurse working in the Hostel not to have contact with such residents. On cross examination he agreed that he was not aware what factors went to making these residents high care without accessing the residents’ files. He agreed however that the current staffing structure in the Hostel is adequate to meet the needs of the residents.
[51] He says that, based on his knowledge and understanding of Ms Bolden’s training and experience he has no confidence in Ms Bolden’s ability to carry out the work of team leader in the Hostel. He says that he looked at a cross section of employee’s professional development and, on this basis, formed the view that Ms Bolden professional development level was low compared to others.20
[52] His evidence is that Ms Bolden has demonstrated that she cannot be trusted to perform the role of caring for the residents in the nursing home. On the basis of a reading of the initial decision his evidence is that he has formed the view that he can no longer have trust and confidence in Ms Bolden. Further, he says that as Ms Bolden has already received training in Lyndoch’s policies and he cannot have confidence that she will comply with them particularly as she has not accepted or acknowledged that her conduct in respect to the Resident was not acceptable.
[53] Mr Boyle gives evidence that issues arise from time to time with staff in relation to behaviour and performance and in such circumstances Lyndoch implements appropriate measures to address the issue which may be on the job, involve counselling, may involve the HR area or may involve further training.21
[54] Mr Boyle says that he is concerned that:
If Ms Bolden came back to work the message that that would send to junior and senior staff would be totally inappropriate and at odds with the Commonwealth’s expectations. I am concerned that if Ms Bolden came back to work it would be we can abuse our elders, we can get away with it, we can come back to work and we would find that good staff would not report because a number of very good staff have actually been put through the mill with this and you know they are feeling very exposed. I am concerned that staff coming forward and reporting inappropriate behaviour may very well dry up, so I think it would clearly send the wrong message right across the organisation. 22
[55] Mr Boyle also says that he continues to believe the version of events given by the witnesses to the incident that lead to the termination of Ms Bolden’s employment.23 His evidence is that all staff involved in the incident were spoken to about the importance of reporting such incidents and thanked for doing so.24 Mr Boyle said staff members have been asked to continue to report and have been doing so. 25 No other staff members beyond Ms Bolden were subject to disciplinary action as a result of the incident. Mr Boyle does not understand Lyndoch’s policies require staff to intervene if they see a breach of policy even if it is safe to do so, but rather to report the breach.
Submissions for Lyndoch
[56] Lyndoch submits that in my initial decision I determined that it was not appropriate for Ms Bolden to work in a high care area such as that where the incident occurred. It says that this finding was not disturbed by the Full Bench on appeal. 26 It submits that it remains inappropriate to reinstate Ms Bolden into a high care area. It also submits that it is inappropriate to reinstate Ms Bolden into the low care area (Hostel) of Lyndoch.
[57] Lyndoch submits that, even in the Hostel, Ms Bolden would come into contact with high care residents.
[58] Further, Lyndoch says that there are no positions within the low care area that could be considered an equivalent position to that previously occupied by Ms Bolden. Ms Bolden is an ENME. It says that there are only three dedicated ENME positions in the Hostel. These positions are Clinical Leaders and are responsible for managing a team of personal care workers employees for their management and leadership skills. Ms Bolden does not have the skills and experience to fulfil such a role.
[59] In addition, Lyndoch also says that since the July 2014 changes to government regulations (after Ms Bolden was dismissed from her employment) have resulted in the facility no longer being technically separated into high and low care areas.
[60] Lyndoch submits that, based on the findings of the Commission in the initial decision, it can no longer have trust and confidence in Ms Bolden as an employee. It says that there ‘is a sound and rational basis for Lyndoch’s loss of trust and confidence.’ It says the employment relationship is ‘irreparable and cannot be restored.’
[61] Lyndoch submits that, on the basis of my findings, Ms Bolden did engage in elder abuse as defined by the World Health Organisation. It says that she breached policies and the Enrolled Nurse Competency Standards by removing private person health records relating to the Resident from the facility.
[62] Lyndoch submits that, in circumstances where Ms Bolden has not admitted any wrong doing on her part, it can have no confidence that she will act in accordance with its policies and state and federal legislation. Further, the CEO (Mr Boyle) has concerns about his ability to assure the Board of Lyndoch and the community that Lyndoch will continue to provide a high standard of care and that staff will act in accordance with policies and other requirements at all times.
[63] Lyndoch submits that if Ms Bolden was reinstated it would amount to condoning her behaviour.
Legislative scheme
The Fair Work Act 2009 (the Act) states:
390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
[64] In Thinh Nguyen & Than Ke v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter27 (Nguyen & Le) the Full Bench of the Commission was considering an appeal by two dismissed employees who had been found to have been unfairly dismissed. The Commission at first instance considered reinstatement inappropriate. The dismissed employees appealed the decision not to reinstatement them.
[65] In considering the provisions of the Act as set out above, the Full Bench said:
[10] Subsection 390(3) underscores the primacy of reinstatement as a remedy for an unfair dismissal as the discretion to order a remedy of compensation may only be exercised if the Commission is satisfied that reinstatement is ‘inappropriate’. Further, one of the objects of Part 3-2 of Chapter 3, in which the unfair dismissal provisions appear, is “to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement”. We would observe that to describe reinstatement as the ‘primary remedy’, is to simply recognise that reinstatement is the first, perhaps even the foremost, remedy under the Act. The relevant question in determining whether to grant the remedy of reinstatement of an employee in relation to a dismissal that is found to have been ‘unfair’ is whether reinstatement is appropriate in the particular case.
[footnotes omitted]
[66] The Full Bench agreed with the observation in Australia Meat Holdings Pty Ltd v McLauchlan28 where the Full Bench in that matter said:
a consideration of the appropriateness of reinstatement involves the assessment of a broader range of factors than practicability...In considering whether to order reinstatement the Commission is not confined to an assessment of the practicability of such an order but rather must decide whether such an order is appropriate.29
[67] The Full Bench in Nguyen and Le observed that while reinstatement may be inappropriate in a range of circumstances the most ‘common argument advanced in support of the proposition that reinstatement is inappropriate is...that there has been a loss of trust and confidence such that it would not be feasible to re-establish the employment relationship.’30
[68] The Full Bench then considered in some detail the effect of the loss of trust and confidence on the practicability of reinstatement. Following the consideration of relevant authorities on the matter, including a recent decision in Colson v Barwon Health, 31the Full Bench concluded:
[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:
● Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
● Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
● An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
● The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
● The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.
[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party. 32
[69] I respectfully adopt the approach outlined by the Full Bench.
Consideration
[70] In determining remedy it is necessary that those matters in s.390 of the Act be considered.
[71] In this case Ms Bolden seeks reinstatement. In the initial decision I found that Ms Bolden is protected from unfair dismissal, 33 that while there was a valid reason for her dismissal34 that dismissal was harsh35 and that she was unfairly dismissed.36 These aspects of the initial decision were not subject to appeal and stand.
[72] In the circumstances of this case where the incident was an isolated one and where there is no history of poor performance in her duties or misconduct I am satisfied that an order for a remedy for the unfair dismissal is warranted.
[73] As Ms Bolden seeks reinstatement I cannot make an order for compensation unless, in all of the circumstances, I consider reinstatement to be inappropriate.
Is reinstatement inappropriate?
[74] In my decision at first instance I found that:
[203] In circumstances where this is a single incident involving inappropriate use of physical contact with the Resident, I am satisfied, subject to the form of orders I propose, that reinstatement is the appropriate remedy.
[75] Lyndoch says that, given the loss of trust and confidence by it in Ms Bolden, reinstatement is no longer appropriate. It makes this submissions based of the additional evidence of Mr Boyle, the evidence of Ms Porter37 and on the basis of the evidence of Ms Bolden. 38
[76] Lyndoch also says that reinstatement is not appropriate because it is not appropriate to reinstate Ms Bolden into a high care area such as that in which the incident of 14 September 2013 took place (i.e. the nursing home)39 or into a position not involving work in the high care area.40
[77] I deal with each of these issues in turn.
Trust and confidence
[78] In addition to his oral evidence Mr Boyle, in his witness statement, says that his
...trust and confidence in Ms Bolden has been significantly affected by the following findings made by Commissioner Bissett in the Decision:
(a) ‘Ms Bolden had some physical contact with the Resident to get her to bed and/or to return her to bed... This contact was unwarranted and was contrary to the policies of the Respondent.’ (at[134]).
(b) ‘Ms Bolden did use physical contact that was not warranted’ (at [179]).
(c) ‘Ms Bolden used a degree of force to move the Resident to bed and to make the Resident stay in bed.’ (at [136]).
(d) ‘Ms Bolden did use force to get the Resident to bed’ (at [175]).
(e) ‘...it may be reasonable that the Resident be encouraged to go to bed but there is no reason for physical contact to give her such encouragement.’ (at [137]).
(f) ‘Ms Bolden did remove [the Riskman report] in relation to the incident on 14 September 2013 from the Respondent premises’ (at [167]).
(g) Ms Bolden ‘may have misled the investigation’ (at [168]).41
[79] Mr Boyle’s representation of statements made in the initial decision are not wrong but they do not represent the totality of the decision made and are, to some extent, repetitive of the same finding. For example, paragraph (b) from Mr Boyle’s statement set out above was in the decision in respect of whether there was a valid reason for dismissal. It is referable back to the finding in his paragraph (a). Likewise paragraph (d) was in the section of the initial decision relating to a valid reason and is referable back to the finding set out above at paragraph (c).
[80] In respect of (f) - the removal of the Riskman report - I found that while Ms Bolden had removed the report ‘I do not consider there to be any transgression on Ms Bolden’s part in keeping a copy of that report.’42
[81] In respect of (g), I found that: 43
I am not satisfied that Ms Bolden lied in the investigation such that it alone would constitute serious misconduct justifying dismissal. Whilst I am satisfied that Ms Bolden denied the allegations, I do not consider it to be of the magnitude contemplated in Streeter v Telstra Corporation Ltd.
[footnote omitted]
[82] Mr Boyle, in my opinion, has been quite selective on those parts of the initial decision to which he has had regard in reaching his view that he has lost trust and confidence in Ms Bolden. He has not had regard to those matters where I did not find the alleged conduct did occur but which formed the basis for the decision by Lyndoch to terminate Ms Bolden’s employment.44
[83] Mr Boyle also says that he continues to believe the staff who were witnesses to the incident and in the initial proceedings even where there are contrary findings in the initial decision. There are findings in the initial decision in relation to the evidence of all witnesses. For some of the witnesses, including other staff who witnessed the incident, I have rejected some of their evidence45 yet Mr Boyle, by his statement, indicates that he continues to prefer their evidence to the findings in the initial decision.
[84] This contradiction in Mr Boyle’s position suggests to me that his view as to his loss of trust and confidence is ‘not rationally and soundly based’ but rather is selective and convenient.
[85] Mr Boyle also says he has lost trust and confidence in Ms Bolden because of findings in the initial decision in respect of the obligations on Lyndoch in respect of protection of residents,46 its need to have confidence in its staff,47 that Ms Bolden has received training48 and that Ms Bolden was aware of the general approach to walk away from distressed residents.49
[86] On these issues Mr Boyle again chooses to accept only those findings that go against Ms Bolden but ignores the findings that suggest that there was, during this incident, a general non-adherence to the policy to walk away by staff (most of the witnesses remained present during the incident and outside the Resident’s bedroom) with none of the witnesses complying with Lyndoch policy or intervening to stop the incident.50
[87] In the initial decision I said that ‘[t}he Respondent must have full confidence in its employees that they will meet the highest standard of care. In this case I do not believe Ms Bolden has done so.’ 51 Whilst I accept that in this incident Mr Boyle had reason to question the confidence he placed in Ms Bolden, it was an isolated incident and one in which I could not make any finding as to the degree of force used but did find that Ms Bolden did not cause the bruising later seen on the Resident’s arm, did not raise her voice or act aggressively and did not stop the Resident leaving her room. Further, there is no history of even vaguely similar misconduct by Ms Bolden.
[88] An analysis of Mr Boyle’s reasons for loss of loss of trust and confidence shows inconsistency and a lack of balance both as to his analysis of the findings in the initial decision and his attitude to all of those involved in the incident.
[89] For these reasons I do not accept that there is a sound basis for Mr Boyle’s loss of trust and confidence in Ms Bolden such that, for this reason, reinstatement should be deemed inappropriate. This is not to say there has not been some breakdown in the relationship but it is, in my view, reparable. In this respect I also note that Mr Boyle will be leaving Lyndoch early in 2015.
[90] Ms Porter also says that she has lost trust and confidence in Ms Bolden. She relies on precisely those parts of my decision to which Mr Boyle refers. 52 For the same reasons I have given above I do not accept the loss of trust and confidence for these reasons to be soundly and rationally based.
[91] Ms Porter also says that, prior to the incident she had a number of concerns in respect to Ms Bolden’s professionalism and performance.53 In cross examination however she says that while she has had to intervene with Ms Bolden in respect of such matters it has never been such that she has required Ms Bolden to undergo additional training to remedy any clinical deficiency.
[92] In my initial decision I found that:
[191] Ms Bolden has worked for the Respondent for 8 years. She has some record of being verbally counselled about conduct at work. These matters are relatively minor, do not demonstrate a pattern of inappropriate conduct and are not of the type of conduct with which this matter is concerned.
[93] In reaching that decision I had regard to all of the evidence, including that of Ms Sheron Cook, now relied on by Ms Porter. Nothing further has been put to me on Ms Bolden’s conduct or performance that would require me to alter my decision in this respect.
[94] It appears from the evidence that the only issues with Ms Bolden’s clinical performance raised with her was in relation to feeding residents early.54 The other matters on which Ms Bolden was subject to performance counselling do not go to clinical performance but are more general in nature (e.g. swapping rosters, her child being in the workplace etc).
[95] I have confidence in Ms Porter’s professionalism such that she would, should she be responsible for the supervision of Ms Bolden, ensure that she was appropriately supervised and provides the proper level of care commensurate with her position. I am also confident Ms Porter and other senior staff at Lyndoch would continue to provide clinical guidance as necessary to Ms Bolden, as I am sure they do with all staff.
[96] For these reasons I do not accept that there is a sound and rational basis for a loss of trust and confidence in Ms Bolden by Ms Porter such that reinstatement is not appropriate.
Reinstatement to particular areas of Lyndoch
[97] In the initial decision I found that:
[204] I am not satisfied, however, that Ms Bolden should be reinstated to the position she occupied prior to the incident in that I do not consider she should work in a high care area such as that in which the incident occurred.
[emphasis added]
[98] The evidence before me in the initial matter was that Ms Bolden worked in APC. It was a very challenging environment and the Resident in particular was challenging. The Resident’s behaviours are well summed up in the evidence in the uncontested background in the initial decision:
[6] The Resident suffers from dementia. She was new to the Respondent’s establishment at the time of the incident and exhibited challenging behaviours. She was described by Ms Parker as ‘extremely violent’ with behaviours that included:
Uncontrolled rage, just kicking, spitting, hitting, everything that, body slamming. I’ve been body slammed by her into the wall with no provocation. She would just charge at other residents, push over furniture for no reason.
[7] The Resident was aggressive on a near daily basis. Ms Runganga gave evidence that, because of this, a decision was made that three staff should attend to the Resident during her ‘hygienes’.
[8] Ms Runganga agreed that the Resident would yell and scream almost every night, in particular ‘where you had to be physically close to her, like changing her hygienes, putting her into her nightdress and things like that.’
[9] These observations are not criticisms of the Resident or given as any excuse for any misconduct by employees, but are necessary to contextualise the incident.
[10] On 14 September 2013 at about 6.30pm the Resident was seen to be flicking bits of her wet continence aid at another resident. The Resident needed to have her continence aid changed and Ms McDowell had attempted to take her bathroom when the Resident kicked Ms McDowell and ran out of the bathroom. On her way out she also kicked Ms Parker.
[footnotes omitted]
[99] Ms Bolden’s evidence in the initial proceedings is that she ‘worked in the high-care nursing home area of the facility, which is called the Audrey Prider Centre (the Centre).The Centre has about forty-five beds for psychogeriatric and dementia residents, as well as residents with psychiatric disorders.’55
[100] The only reference to the ‘high-care’ area in the initial proceedings is to APC. Whilst it was obvious in those proceedings that there were other areas of the facility besides APC these were not described in any way such that it was obvious they were also ‘high care’.
[101] The initial decision needs to be understood in light of the evidence before the Commission at that time.
[102] The ‘high care area such as that in which the incident occurred’ must be understood therefore to be an area dealing with psychogeriatric and dementia residents and those with psychiatric disorders. That is, APC. I do not consider that Lake Lodge and the Hostel are areas ‘such as that in which the incident occurred.’ Whilst they may, at times, have residents with high care behavioural needs they clearly do not primarily have residents with the type of high care needs (ie behavioural) as those in APC.
[103] I accept that Lake Lodge and the Hostel may each have high care residents. The evidence of Ms Porter is clear however that they the high care needs in these areas are not predominantly behavioural as they are in APC.
[104] Lyndoch say that my finding in the initial decision that it is not appropriate for Ms Bolden to work on a high care area such as that in which the incident occurred 56 was not disturbed by the Full Bench and therefore it stands that Ms Bolden should not be reinstated to APC or Lake Lodge (both, on Lyndoch’s submission, being ‘high care’ areas).
[105] I have accepted Lyndoch’s submissions that the Full Bench has remitted the question of remedy at large to me to be determined anew. The Full Bench can only have done so if it overturned my initial decision on remedy. Paragraph [204] of my initial decision clearly goes to remedy (reinstatement). Lyndoch cannot now argue that aspects of my decision on remedy must stand. On remittance I have considered all matters associated with remedy based on the evidence in the initial heating and the evidence in this proceeding. In any event, as I have set out above, the area within which the incident occurred (APC) is clearly distinguishable on the basis of the resident care needs from Lake Lodge and the Hostel.
[106] Whilst I accept that there have been changes to government regulations regarding the placement and movement of residents within a facility such as Lyndoch there is no evidence before me to suggest that there has been any wholesale shift of residents at Lyndoch such that APC is no longer the unit for dealing with the types of residents as described in Ms Bolden’s witness statement.
[107] I do not accept that Ms Bolden cannot work with high care patients. This was not a finding in the initial decision and nothing has been put in these proceedings such that I would form that view now. That there may be high care residents in Lake Lodge or the Hostel is not a reason to not reinstate Ms Bolden to those areas.
[108] Ms Bolden has the skills and qualifications to work in Lake Lodge or the Hostel. In Lake Lodge she would be subject to greater supervision than the Hostel. She accepts that the ENME positions in the Hostel are a step up from her current role and has indicated a willingness to accept an EN position in the Hostel.
[109] I am confident in the professionalism of all staff within Lyndoch and am satisfied that Ms Bolden will be given any appropriate training and guidance to assist her to return successfully to the workplace.
[110] For these reasons I see no barrier to the practicability of reinstatement of Ms Bolden.
Other matters
[111] Lyndoch also raise, as a substantive matter as to why reinstatement is not appropriate, Ms Bolden’s unwillingness to accept the decision of the Commission that she did engage in misconduct. Ms Bolden says she accepts the findings made in the initial decision although maintains she did not touch the Resident after the bathroom.57
[112] Ms Bolden’s analysis of the initial decision of the Commission is not sophisticated. It is wrong to overlay on Ms Bolden’s understanding a forensic and much more nuanced legal analysis and, on this basis, find Ms Bolden’s lack of acceptance as a reason to not reinstate her. I do not read much into Ms Bolden’s inability to respond to questions from the Respondent about what the decision meant at a paragraph by paragraph level.
[113] Ms Bolden has accepted the decision made and has indicated that she will, if confronted with a similar situation in future, take a different approach including walking away and getting the assistance of the RN. I have carefully considered and accept Ms Bolden’s evidence on this point. I have taken into account her demeanour as a witness and the substantial impact the incident has had on her both emotionally and financially. I have taken this evidence into consideration in my decision.
[114] I do not accept that my decision or an order for reinstatement indicates a condonation or acceptance of Ms Bolden’s conduct. There will be circumstances where the Commission finds a valid reason for dismissal yet finds the dismissal harsh, unjust or unreasonable and determines to reinstate the dismissed worker. This can never be seen as the Commission or anyone else condoning the conduct.
[115] Some matters were raised, particularly by Mr Boyle, as to Ms Bolden’s history of training and professional development. Mr Boyle says that Ms Bolden’s ‘average training hours excluding [training for medication endorsement] were 28 hours per annum, which in [his] opinion is quite low and does not demonstrate a commitment to continuous improvement.’58
[116] I do not attach much weight to this evidence. There is no evidence that Ms Bolden has not participated in training required or that she is not meeting some minimum standard set through policies of Lyndoch. If there are deficiencies in her development these should be discussed with her along with a plan as to how she can improve in areas required by Lyndoch.
[117] I do not consider that any of these matters are a barrier to the practicability of reinstatement of Ms Bolden.
Nature of the position to which Ms Bolden could be reinstated
[118] Nothing has been put to me to suggest that there are no available positions to which Ms Bolden could be reinstated. No evidence is given on the reduction in ENME positions and, whilst I appreciate that the EN positions in the Hostel are being phased out, should reinstatement to such a position be appropriate I would expect that the position then occupied by Ms Bolden would be subject to the same phasing out arrangements as all other EN positions in the Hostel.
Conclusion as to reinstatement
[119] On the basis of all of the evidence and my findings in respect to that evidence I consider that reinstatement of Ms Bolden is appropriate.
[120] I do accept that Ms Bolden’s actions have caused a rift between her and those responsible for the running of Lyndoch and the care of the residents. I am however mindful of the circumstances of the incident, how long the incident lasted and my findings in the initial decision. I have also carefully considered the evidence in these proceedings. In these circumstances I am not convinced that it is not possible to restore the employment relationship.
[121] Given the change in government regulations I do not intend to place any restrictions on the area in which Ms Bolden should be reinstated to. I would not wish to remove the flexibility for the employer in determining an equivalent position. As stated above, I did not find in my initial decision or here that Ms Bolden cannot or should not work with high care residents and have accepted her evidence that she has undertaken training and that faced with a similar situation would take a different approach.
[122] As I found in the initial decision Ms Bolden’s actions should not go unpunished. I would therefore recommend that she be issued with an appropriate warning.
[123] I will also recommend that Ms Bolden be provided with any refresher training and reorientation necessary to assist her successful return to the workplace.
Orders
[124] I shall therefore order that Ms Bolden be reinstated.
[125] I will order that Ms Bolden be reinstated by appointing her to another equivalent position on terms and conditions no less favourable than those on which she was employed immediately prior to dismissal (s.391(1)(b)).
[126] In the Order issued on 23 May 2014 arising from the initial decision (the initial Order) I made orders with respect to an amount that Lyndoch should pay to Ms Bolden for part of the period after her employment was terminated and prior to the reinstatement in that Order. As a result of the appeal against the initial decision I understand that Ms Bolden has been receiving pay since 20 June 2014 based on her average hours over the 12 months prior to termination.
[127] Section 391(3) of the Act provides that if an order is made for reinstatement and the Commission considers it appropriate to do so, the Commission may make any order it considers appropriate to cause the employer to pay to the employee an amount for the remuneration lost by the person. In this case I do not consider it appropriate that Ms Bolden receive all remuneration she has lost. Ms Bolden has been in receipt of pay based on her average hours in the previous 12 months since 20 June 2014. I will order that Ms Bolden receive:
i. Payment based on her average hours over the 12 months prior to the termination of her employment (including any penalty rates) plus superannuation less applicable taxation from the date of the Order to the date of her reinstatement; and
ii. A further amount equal to 12 weeks’ pay based on her average hours over the 12 months prior to the termination of her employment (including any penalty rates) plus superannuation less applicable taxation.
[128] In ordering her reinstatement I will order that Ms Bolden’s employment be continuous with the Respondent and the continuity of service be maintained (s.391(2)).
[129] I also recommend:
- that Lyndoch provide to Ms Bolden any refresher training and reorientation necessary to assist her reintegration into the workforce.
- that Ms Bolden be issued with an appropriate warning that recognises the findings in the initial decision with respect to her actions.
COMMISSIONER
Appearances:
S. Keating of Counsel with M. Leikina of Ryan Carlisle Thomas for the Applicant.
J. Tracey of Counsel with Z. Gannon of Minter Ellison Lawyers for the Respondent.
Hearing details:
2014.
Melbourne:
October 21.
1 [2014] FWC 3529.
2 PR550963.
3 [2014] FWCFB 5969.
4 [2014] FWC 6652.
5 [2014] FWCFB 5969, [51].
6 Ms Bolden submissions 17 October 2014, paragraph 11.
7 Lyndoch submissions 1 October 2014, paragraph 10.
8 [2014] FWCFB 5969, [50].
9 Exhibit R8, paragraph 10.
10 Transcript PN760.
11 The classification into low and high care facilities has changed recently following government regulation.
12 Ms Bolden’s submissions 17 October 2014, paragraph 14.
13 Transcript 205-07.
14 Transcript PN206.
15 Transcript PN152.
16 Transcript PN213.
17 Transcript PN218-21.
18 Transcript PN142 and 144.
19 Transcript PN168-4.
20 Transcript PN429.
21 Transcript PN505-11.
22 Transcript PN532.
23 Transcript PN534.
24 Transcript PN541.
25 Transcript PN549-550.
26 Lyndoch submissions 1 October 2014, paragraph 11.
27 [2014] FWCFB 7198.
28 (1998) 84 IR 1.
29 (1998) 84 IR 1 at 17.
30 [2014] FWCFB 7198, [20].
31 [2014] FWCFB 1949.
32 [2014] FWCFB 7198.
33 [2014] FWC 3259, [170].
34 [2014] FWC 3259, [179].
35 [2014] FWC 3259, [200].
36 [2014] FWC 3259, [201].
37 Lyndoch submissions 1 October paragraph 30(c).
38 Transcript PN942 and 946.
39 Lyndoch submissions 1 October 2014, paragraph 30(a).
40 Lyndoch submissions 1 October 2014, paragraph 30(b).
41 Exhibit R9, paragraph 19.
42 [2014] FWC 3259, [184].
43 [2014] FWC 3259, [182].
44 [2014] FWC 3259 [135], [138], [147], [148], [158], [161] and [162].
45 [2014] FWC 3259, [128], [129], [132], [142], [144] and [151].
46 [2014] FWC 3259, [176].
47 [2014] FWC 3259, [180].
48 [2014] FWC 3259, [197].
49 [2014] FWC 3259, [197].
50 [2014] FWC 3259, [130], [192] and [193].
51 [2014] FWC 3259, [180].
52 Exhibit R7, paragraph 8.
53 Exhibit R7, paragraph 10.
54 Exhibit R6, paragraph 48.
55 Exhibit A2, paragraph 9.
56 Lyndoch submissions 1 October 2014, paragraph 48.
57 Transcript PN905-7.
58 Exhibit R9, paragraph 14.
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