Samantha Bolden v Lyndoch Living Inc T/A Lyndoch Warrnambool Inc
[2014] FWC 3259
•23 MAY 2014
[2014] FWC 3259 [Note: An appeal pursuant to s.604 (C2014/4740) was lodged against this decision - refer to Full Bench decision dated 1 September 2014 [[2014] FWCFB 5969] for result of appeal.] |
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, 23 MAY 2014 |
Application for relief from unfair dismissal.
[1] Ms Samantha Jane Bolden (the Applicant) has made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). Ms Bolden was employed by Lyndoch Living Inc T/A Lyndoch Warrnambool Inc (the Respondent) as an Enrolled Nurse. The Respondent operates an aged care facility that includes a high care area. Following an incident with a Resident 1 of the high care area and a subsequent investigation Ms Bolden was summarily dismissed for reasons of serious misconduct on 2 October 2013.
[2] The application for unfair dismissal was heard in Warrnambool. At the hearing Ms Keating of Counsel appeared with permission for Ms Bolden and Mr Tracey of Counsel appeared with permission for the Respondent.
Witnesses
[3] The following people were witnesses for the Applicant in the proceedings:
- Ms Samantha Bolden (the Applicant) - medication-endorsed Enrolled Nurse;
- Mr Peter Birch - Country Industrial Relations Organiser for the ANMF;
- Ms Bethany Parker - medication-endorsed Enrolled Nurse.
[4] The following people were witnesses for the Respondent in the proceedings:
- Ms Angela Runganga - Registered Nurse;
- Ms Tracey-Ann McDowell - Personal Care Worker;
- Ms Shirley Struth - medication-endorsed Enrolled Nurse;
- Mr Rhys Boyle - CEO for the Respondent;
- Ms Sheron Cook - Human Resources Manager for the Respondent;
- Ms Penelope Iddon - Director Residential Services for the Respondent.
Background
[5] The incident which led to the decision to terminate Ms Bolden’s employment occurred at about 6.30pm on 14 September 2013. There is general agreement on most aspects of what occurred. This is set out below. There are a number of matters that relate to the conduct of Ms Bolden and other staff which are not agreed and are considered separately along with the investigation conducted by management into the incident.
[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. 2
[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’. 3
[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.’ 4
[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.
[11] It is not contentious that the Resident was at this stage agitated. A number of staff heard the Resident yelling and, it seems, went to see what the noise was or to see if assistance was required.
[12] Ms Bolden was one of the staff members who came to assist. Both Ms Bolden and Ms Parker hooked their arms through the Resident’s arms (as they had been trained to do) and encouraged her to walk into her bedroom. At the doorway to her bedroom the Resident bit Ms Bolden on the upper arm. Ms Bolden again hooked her arm with the Resident and, along with Ms Parker, walked the Resident into her bedroom then bathroom. With the assistance of Ms McDowell they changed the Resident’s continence aid and put on her nightie. At this stage Ms Runganga was in the Resident’s bedroom. Ms Parker left the bathroom and bedroom to take the dirty linen out. Ms Bolden ushered the Resident into her bedroom and towards the bed to put her to bed.
[13] Whilst the Resident was being placed into bed Ms Struth and Ms Fleming were outside the Resident’s bedroom door.
[14] Ms Bolden was the last to leave the Resident’s bedroom and closed the door. The staff stood outside the room for a short period of time and then moved away.
[15] Dispute exists as to what occurred between the time the Resident was assisted to the bathroom to the time all staff left the Resident’s bedroom door (the incident). There is no dispute that the incident happened very quickly 5 and took about five or so minutes. About three minutes was spent assisting the Resident to and in the bathroom, about 1 ½ - 2 minutes in the bedroom and another minute outside the bedroom door.6
[16] On Monday 16 September 2013 Ms Struth and Ms Runganga approached Ms Cath Porter (the Nurse Unit Manager) and spoke to her about how Ms Bolden had dealt with the Resident on 14 September 2013. Ms Porter raised the matter with Ms Cook that day who advised Ms Iddon who reported the matter to the Department of Human Services (as is required in such matters).
[17] Ms Bolden denies all of the allegations made against her.
Investigation
[18] On or about 17 September 2013 Mr Boyle, Ms Cook and Ms Iddon decided a formal investigation of the incident was necessary. On 18 September 2013 Ms Bolden was provided with a letter which stated that serious allegations of professional misconduct had been made against her and she was not to access or cause to have access to the premises, staff or property of the Respondent until the matter was resolved. It was said that any breach of the direction would be taken seriously and could result in summary dismissal.
[19] Mr Boyle did not participate in the formal investigation but acted as a sounding board for Ms Cook and Ms Iddon.
[20] Ms Cook, together with Ms Porter, met with Ms Struth on 17 September 2013.
[21] Ms Cook also spoke briefly to Ms Runganga. No note of this meeting was kept.
[22] Over the next few days Ms Cook and Ms Porter spoke briefly to each staff member who had witnessed the incident - Ms Runganga, Ms McDowell, Ms Fleming, Ms Parker and Ms Struth - and asked them to provide a brief written statement. 7 Ms Iddon then met separately with the staff (except Ms Fleming) to clarify aspects of their statements. Ms Iddon took notes in these meetings and had those notes typed up.8
[23] On the basis of the information gathered a letter dated 24 September 2013 was prepared for Ms Bolden which set out three allegations. The letter stated:
The purpose of this letter is to outline the allegations, which if substantiated, may constitute serious misconduct.
The allegations are as follows:
1. Unreasonable use of force
It is alleged that you used an unreasonable degree of force with a resident of Audrey Prider Centre nursing home.
Specifically, it is alleged that at or around 6.30pm on 14 September 2013, whilst on duty, you physically assaulted a resident, [the Resident], by grabbing her arms to forcefully move her towards and onto her bed. It is alleged that the resident was resistive, but you persisted in using force to move her onto her bed. This has resulted in bruising on [the Resident’s] arms.
It is alleged that after this incident you returned to [the Resident’s] room and checked her arms for bruises with a torch.
2. Unreasonable restraint of resident
It is alleged that after the alleged incident outlined at allegation 1 above, you unreasonably restricted [the Resident] to her room.
Specifically, it is alleged that after you put [the Resident] to bed you restricted her to her bedroom, by closing her bedroom door in a manner that did not allow [the Resident] to exit the room. Further, it is alleged that in [the Resident’s] attempt to exit the room by pulling on the door handle, you held onto the door restricting her to the bedroom. This is despite reports that [the Resident] was clearly distressed and wanting to exit her room.
3. Verbal abuse
It is alleged that you raised your voice and were aggressive in your approach to [the Resident] when attempting to change her continence aid and again when you told her to go to bed and stay in her room.
It is alleged that you said to other staff members who were present, words to the effect:
“You have to be firm with her” and
“this works, it worked the other night” 9
[24] The letter also indicated that, if proven, the conduct may be in breach of a number of the Respondent’s policies and nursing standards.
[25] Ms Bolden was provided with copies of the written statements of the staff who had witnessed the event (except for that of Ms Fleming as the Respondent chose not to rely on her evidence) with the names redacted.
[26] A meeting was held with Ms Bolden and her representative on 30 September 2013. At that meeting Ms Bolden was asked about the incident and matters relating to the Resident. Ms Iddon took notes at this meeting. 10 Ms Bolden denied the allegations.
[27] Following the meeting Ms Cook and Ms Iddon met with Mr Boyle and briefed him on Ms Bolden’s response to the allegations and the evidence of the witnesses.
[28] On 1 October 2013 Ms Cook, Ms Iddon and Mr Boyle again met and reviewed the evidence. They agreed that summary dismissal was the most appropriate course of action.
Reason for dismissal
[29] Ms Bolden received a letter of termination dated 2 October 2013. It found the allegations in the letter of 24 September 2013 to be substantiated. She was summarily dismissed. 11
Evidence on matters in contention
[30] There are a number of matters in contention on which it is necessary that I make findings. This is because, to determine if there is a valid reason for the dismissal of Ms Bolden, I must first determine if the conduct allegedly engaged in by her actually occurred. 12 Such a finding will be made on the balance of probabilities.13 I will therefore consider the evidence on each of the relevant matters in turn.
Ms Bolden used force to put Resident to bed
[31] The evidence of Ms Bolden is that, after finishing changing the Resident and putting her nightie on her, she decided to put the Resident to bed.
[32] Ms Bolden says that the Resident came out of the bathroom and that she ‘guided’ her to bed by putting her arm out but without touching her. 14 She says that the Resident ‘threw herself’ onto the bed.15 Ms Bolden says that she, along with Ms Runganga and Ms McDowell then went to exit the room when the Resident got out of bed. Ms Bolden says that she then put her arm out in a manner designed to prompt the Resident to move to the bed.16
[33] Ms Bolden denies that she put her hands on the Resident and pushed her down onto the bed forcefully. 17
[34] Ms Runganga says that she was standing near the bedroom door as Ms Bolden tried to get the Resident into bed. In her witness statement made in preparation for these proceedings Ms Runganga says that the Resident did not want to go to bed but that Ms Bolden ‘used force to get the Resident into bed’ and that she ‘did this by physically escorting the Resident back towards the bed. She then had to push the Resident to get into bed.’ 18 She says that the Resident was ‘visibly distressed and agitated and was being resistant’.19 She then says that Ms Bolden called everyone out of the room and the Resident tried to follow. Ms Bolden then stopped the Resident ‘by holding onto her arms and walking her back to bed.’20
[35] In her statement made on 16 September 2013 Ms Runganga said that Ms Bolden ‘physically guided [the Resident] onto the bed...’ 21 In her interview with Ms Iddon on 20 September 2014 Ms Runganga said that the Resident walked out of the toilet and attempted to exit the room and that Ms Bolden ‘stopped her from leaving by holding onto [the Resident’s] arms.’ Ms Bolden ‘forced [the Resident] onto the bed’ where ‘[Ms Bolden] pulled up the covers and quickly exited.’22
[36] Ms McDowell was also in the bedroom. She was not concerned at the Resident being put to bed at this time. 23 In her witness statement she says that Ms Bolden guided the Resident out of the bathroom and into bed. She says that the resident tried to get up and Ms Bolden ‘put one hand on each of the Resident’s arms and physically pushed the Resident down.’24 She says that the ‘Resident tried to get up another 2 or 3 times, but [Ms Bolden] kept pushing her back down onto the bed.’25 In her statement made on 18 September 2013, four days after the incident, Ms McDowell says she heard Ms Bolden twice say in a loud forceful voice to the Resident to stay in bed but does not mention Ms Bolden using any physical force. In her interview with Ms Iddon on 20 September 2013 Ms McDowell said that she had left the room but she heard ‘the effort of [Ms Bolden] physically holding [the Resident] down.’26
[37] Ms McDowell gave evidence that she did not intervene while Ms Bolden was attempting to get the Resident into bed.
[38] Ms Struth was not in the bedroom whilst Ms Bolden attempted to put the Resident to bed. Her evidence is that she could not see into the bedroom. 27 In her witness statement of 14 February 2014 Ms Struth says that she ‘did not see how the Resident got into bed.’ 28
Bruising on the Resident’s arms
[39] On 17 September 2013 Ms Porter and Ms Cook attended the Resident and found bruising on her arms. In the interview conducted on 30 September 2013 Ms Bolden indicated that she could not explain the bruising. 29
Ms Bolden held the door closed
[40] The evidence of Ms Bolden is that when she left the Resident’s bedroom she shut the door to reduce stimuli. She says that she stood outside the door for 10 20 seconds with her hand resting on the door handle. 30 She says she did not clench the door handle31 and she was not preventing the door from being opened from the inside.32 Her evidence is that the purpose in closing the door was not to restrain the Resident.33
[41] Ms Runganga’s evidence is that once everyone was out of the Resident’s bedroom Ms Bolden closed the door and held it closed. 34 She says that ‘it was clear that [Ms Bolden] was preventing the door from being opened’.35 She says that she ‘made the assumption [that Ms Bolden was stopping the door from being opened] because the Resident follows us...and that is exactly what she was doing when she got directed back to bed twice...’36 Ms Runganga agrees that she did not see the Resident pull the door inwards.37 Ms Runganga says that she was outside the doorway for about a minute when she was called away to another resident. She says Ms Bolden was still holding the door.
[42] Ms McDowell’s evidence is that when she left the Resident’s bedroom Ms Struth, Ms Runganga and Ms Fleming were standing in the passage. In her statement of 19 or 20 September 2013 she makes no mention of Ms Bolden holding the door closed. In her witness statement of 14 February 2014 she says that Ms Bolden left the room and stood ‘facing the door with her hand on the door handle’; 38 although, during cross examination agreed she could not see Ms Bolden’s hand on the door handle39 but assumed this to be the case.40 She says she then ‘saw the Resident’s door open a few inches and [Ms Bolden] quickly pulled it closed.’41 Her evidence is that this happened a few times before it stopped.42
[43] Ms McDowell’s evidence that the Resident often closes her own door and it is the preference of the Resident to have the door to her bedroom closed.
[44] Ms Parker’s evidence is that when she returned to the room from the laundry Ms Bolden was shutting the door and had her hand on the door handle. She says that ‘when we could hear [the Resident] coming toward the door [Ms Bolden] would open it and take her back to bed.’ 43 In her statement written on 19 September 2013 she says that Ms Bolden ‘shut the door and had her hand resting on the door handle waiting for [the Resident] to get back up. [The Resident] got back up several times and [Ms Bolden] opened the door and helped her back to bed.’44 She says that the Resident was not pulling on the door handle45 and if she had been she would have seen the door open46 and it would have opened because Ms Bolden only had her hand resting on the door handle and was not holding it.47
[45] Ms Struth’s evidence is that she was outside the Resident’s bedroom when Ms Bolden came out and shut the door. She says Ms Bolden held the door closed and the Resident was pulling at it from the other side. 48 Her evidence is that she ‘could see that the Resident was pulling on the door from the inside of the bedroom and was trying to get out of her room, but [Ms Bolden] held the door closed. The Resident was able to get the door open a little bit, but each time [Ms Bolden] pulled it shut.’49 She says this continued for a minute or two. She says that she said to Ms Bolden ‘You can’t do that. That’s not right.’50 She then left the area to attend to another resident.
[46] Ms Struth’s evidence is that Ms Bolden was holding the door closed although she is not clear on whether it was with one or both hands. 51
Number of times resident got out of bed
[47] The evidence of the Ms Bolden is that the Resident got out of bed once after she was initially put to bed.
[48] The evidence of Ms Runganga is that, after putting the Resident to bed the first time, the Resident tried to follow Ms Bolden from the room. Ms Bolden then returned the Resident to bed. 52
[49] The evidence of Ms McDowell is that the Resident tried to get up 2-3 times after she was initially put to bed and this occurred whilst Ms McDowell was still in the bedroom. 53
[50] The evidence of Ms Parker is that once everyone was outside the Resident’s bedroom and the door was shut the Resident ‘got back up several times and [Ms Bolden] opened the door and helped her back into bed.’ 54
[51] Ms Fleming, who was outside the bedroom for the entire time, says that the Resident attempted to exit the bedroom once.
Ms Bolden spoke in a raised and aggressive voice.
[52] Ms Bolden’s evidence is that she spoke firmly to the Resident when she came to assist the other staff. She says she continued to speak firmly to her without yelling as she linked arms and walked her into the bathroom. 55
[53] Ms Runganga says that Ms Bolden used a ‘firm, loud tone of voice’ 56 and that her tone was pretty much the same throughout the entire incident and that she would have told Ms Bolden to alter her tone if she was yelling.57
[54] Ms Parker gives evidence that she has never heard Ms Bolden yell but that she has a firm, no-nonsense approach and she was not yelling on the day. 58 Ms Parker agreed that she would not have heard Ms Bolden yelling from the laundry where she took the soiled clothing.59
[55] Ms Parker says that a nurse yelling is an unusual event and that it is a matter that should be reported immediately.60 She says that a nurse just does not yell at a resident. She has seen it occur once before and that person no longer works for the Respondent.61 Ms Parker says she would remember that type of behaviour if she heard it and that, if it did occur, she would approach the staff member and whoever was in charge.62
[56] Ms Struth, who was outside the room during the incident, says that she heard Ms Bolden yell at the Resident that she had to go to bed and wasn’t to come out of her room. 63
[57] Ms McDowell’s evidence is that Ms Bolden’s voice was forceful and firm, that she was shouting and that she could hear her from the hallway. 64
Ms Bolden was aggressive in changing the Resident’s continence aid
[58] Ms Bolden, Ms McDowell and Ms Parker were in the Resident’s bathroom, changed her continence aid and put her nightie on her. Ms McDowell says Ms Bolden and Ms Parker were ‘holding on to the Resident to steady her and to make it easier for me to change her continence aid.’ 65 Ms Runganga said that the Resident left the bathroom independently.
[59] Ms Cook says that no formal allegation was put to Ms Bolden about this matter but that ‘it was more in that she was forcing the resident to do something against her will.’ 66
Ms Bolden returned to the Resident’s room
[60] Ms Bolden asked Ms Runganga to complete a Riskman report for her and for Ms Parker and Ms McDowell (the Riskman report details incidents resulting in injury or near misses and/or behaviours of a resident). At this time Ms Bolden says Ms Runganga asked her if it was worthwhile getting bitten to which she replied that it was not appropriate having the Resident wet the furniture and pick at her continence aid and flick it at other residents. Ms Bolden says that she sensed Ms Runganga thought that she had done something wrong and suggested to Ms Runganga that she call the Nurse Unit Manager (Ms Porter) if this was the case. 67
[61] Ms Bolden then spoke to Ms McDowell who indicated that she had checked the Resident at about 8.00 o’clock. Ms Bolden then went to the Resident’s room, despite having been told by Ms McDowell that the Resident was asleep because there are ‘some things you just have to do’ 68 and she ‘just wanted to make sure [the Resident] was asleep.’69
The Resident was yelling and throwing things around her room after the incident
[62] There is some dispute about how long the Resident was yelling and/or distressed after Ms Bolden and other staff had left the corridor outside her room.
[63] In her interview with Ms Cook on 17 September 2013 Ms Struth says the ‘[the Resident] trashed the room for the next two hours and was too scared to come out.’ 70 In her statement of 14 February 2014 Ms Struth says that after a minute or so the Resident stopped pulling on the handle, that Ms Bolden let go of the door handle and that she (Ms Struth) left the corridor to attend to another resident.71
[64] Ms Struth acknowledges in her handwritten statement made soon after the incident that Ms Bolden told her that at about 8.30pm she checked on the Resident who was asleep and settled. 72
[65] Ms McDowell says in her witness statement that, after the staff moved away for the Resident’s door, she ‘waited outside the Resident’s door for a few minutes before opening the door again to check on her....[and] the Resident was lying on the bed and screamed at me to get out, so I closed the door again.’ 73
[66] Ms Fleming says in her hand written statement made soon after the incident that the ‘Resident continued to curse and yell for ½ hr + but did not leave the bedroom.’ 74
The investigation
[67] The investigation was undertaken by Ms Iddon and Ms Cook.
[68] Ms Iddon says that she accepts the need to undertake a thorough investigation of allegation of the type made against Ms Bolden. 75
[69] Ms Cook gives evidence that she accepts the importance in ensuring accuracy of events and that this is important in ensuring fairness to the employee. She accepts that it is preferable to gather evidence as close as possible to the event and that in carrying out an investigation it is necessary to ask witness all necessary questions. 76
[70] Ms Cook says that Ms Porter rang her and told her the Ms Bolden had turned up for work on the afternoon of 17 September 2013 when she was not rostered on for work but was not made aware during the investigation of why the Ms Bolden had done so.77
[71] Ms Iddon says that the fact that Ms Bolden turned up for work on 17 September 2013 when not rostered to work was a factor taken into account in determining if Ms Bolden had engaged in serious misconduct ‘peripherally’.78 Ms Iddon says she was not aware that Ms Bolden had come into work on 17 September to collect some data to enable her to do some rostering or that she had approached Ms Porter to speak to her about the incident because another staff member told her that a compliant had been made about her.
[72] Ms Cook was satisfied that the bruising she saw on the Resident’s arms was relevant to the allegations against Ms Bolden. Ms Cook however made no enquiries as to how the bruising may have come about.79
[73] Ms Iddon gives evidence identifying a further incident involving the Resident that occurred on 15 September 2013, the day following the day on which the incident subject to these proceedings occurred.80
[74] Ms Iddon gives evidence that arising from her interviews with the witnesses:
- Ms Struth was not able to see into the Resident’s room;81
- Neither Ms Runganga nor Ms McDowell said that Ms Bolden had ‘yelled’ at the Resident;82
- She assumed that the Ms Bolden had closed the door to stop the Resident leaving the bedroom.83
- Ms Fleming said that the staff were verbally firm with the Resident and she recalled the Resident attempting to leave the room only once. This was relevant information for the investigation.
[75] Ms Iddon did not interview Ms Parker or Ms Fleming after each made a written statement as she considered them to be ‘less reliable’. 84
[76] Ms Cook agrees that:
● From the statement of Ms Runganga she could not say how Ms Bolden was holding onto the Resident or how Ms Bolden forced the Resident onto the bed;85
● On the basis of Ms McDowell’s statement she could not tell how Ms Bolden was verbally forceful or what the effort of the Resident trying to get out of bed sounded like;86
● On the basis of the statement of Ms Struth she could not say what the struggle was that was referred to or what the noises were that could be heard;87
● On the basis of the statement of Ms Fleming she could not say which staff were being verbally firm nor could she what they were doing that was verbally firm.88
[77] Ms Iddon says she and Ms Cook met with Ms Bolden on 30 September 2013 and she took some notes of that meeting.89 She accepts that in the situation where the Ms Bolden had been suspended from duty she was unable to speculate on how bruising occurred to the Resident’s arm.90 Ms Iddon agrees that Ms Bolden did tell her that the Resident did get out of bed immediately91 after being put into bed.
[78] Ms Cook said that Ms Bolden was asked why she continually forced the Resident to change the continence aid when the Resident was clearly upset. Ms Cook acknowledges that no formal allegation was put to Ms Bolden about using force to change the continence aid of Ms Bolden and that no allegation of misconduct was made against other staff involved in changing the continence aid.92
[79] Ms Cook acknowledges that one of the factors she took into account was that Ms Bolden could have but did not walk away from the situation and come back later when the Resident had calmed down.
[80] Ms Cook’s evidence is that, apart from Ms Bolden no other staff of the Respondent had been disciplined or been subject to informal counselling in respect to the incident although she understood that Ms Runganga had been spoken to by Ms Porter.93 Ms Cook had no concerns over the conduct of staff other than Ms Bolden and Ms Runganga. 94
[81] Ms Cook maintains that she did not form a view as to the guilt or otherwise of Ms Bolden prior to the completion of the investigation and that it took her until the last day after all of the evidence was gathered to form that view.95
[82] Ms Cook considers the conduct more serious such that a lesser disciplinary action was not appropriate and that she has a duty of care obligation to residents such that termination of Ms Bolden’s employment was the appropriate course.
[83] In reaching a conclusion as to Ms Bolden’s conduct, Ms Cook’s evidence is that:
Ms Bolden had given a very different version of events in relation to the whole incident. Ms Bolden denied all of the allegations against her and had said that the Resident had gone to bed willingly and wasn’t that distressed. This was inconsistent with the accounts of the other witnesses. We considered the fact that Ms Bolden had gone to the Resident’s room to check for bruising. This suggested that Ms Bolden had used unreasonable force when dealing with the Resident. We also considered Ms Struth’s evidence about the comments that Ms Bolden had made the following days and the fact that Ms Bolden had come into work on 17 September 2013 when she was not rostered on to talk to Ms Porter about the incident. We formed the view that, on the balance of probabilities, Ms Bolden had engaged in the conduct alleged. 96
Ms Bolden inappropriately accessed confidential records
[84] Ms Bolden attached to her witness statement filed in these proceedings some handwritten notes. Ms Bolden agrees that these are copies of progress notes made in relation to the Resident by staff which are kept in a blue folder and kept on the desk at work. 97 Ms Bolden agrees that the notes contain symptoms of the Resident’s dementia.98 She also agrees that the notes are private and confidential.99
[85] Ms Bolden says that these notes were given to her by another staff member who brought them around to her house but could not recall if this occurred before or after the termination of her employment. 100
[86] Ms Bolden also attached to her witness statement the Riskman report completed by Ms Runganga with respect to the Resident biting Ms Bolden. Ms Bolden says that a lot of staff ‘[print] off our own Riskmans when we had to complete one because they had a habit of disappearing off the system.’ 101
Policies of the Respondent
[87] The Respondent has two policies in particular that are relevant to the allegations made against Ms Bolden.
[88] The Respondent has a restraint free policy. The procedures relevant to the policy defines a range of forms of restraint, these include:
- Direct carers physically holding a resident no matter how “gentle” the hands on is.
- Any commands or threats that are used to limit the resident’s movement.
- Any measure that creates a belief that acts to limit a resident’s movement.
- Locked doors where it is not necessary.
- Limiting a resident to a particular area such as confining to a bedroom.
- Preventing a resident from leaving the premises. 102
Person to person restraint
Environmental restraint
[89] The Respondent has zero tolerance for elder abuse. It has a policy and related procedures which define different types of assault and detail the procedure to be followed.
[90] The policy and procedure are in accordance with the Aged Care Act 1997 (Cth) and Department of Human Services reporting requirements.
[91] The Respondent says that the Code of Professional Conduct for Nurses and the National Competency Standards for Nurses are also relevant.
[92] The Respondent says that Ms Bolden was aware of these policies and codes, she has been trained in them and knew she needs to comply with these in performing her duties.
Submissions
[93] I do not repeat the totality of the submissions made by the parties. I have, however, had regard to what has been put to me by Ms Bolden and the Respondent.
Ms Bolden
Investigation
[94] Ms Bolden raises serious concerns as to the manner in which the investigation was undertaken by Ms Iddon and Ms Cook.
[95] First Ms Bolden submits that it was not clear who was in charge of the investigation. Second she submits it is remarkable that detailed notes were not taken of interviews with witnesses and with Ms Bolden. Ms Bolden says that the lack of written records and the repetition in discussion of the allegations, ‘solidified in the minds of the decision-makers without any objective documentary basis to determine what was said’. 103
[96] Third, Ms Bolden submits that the decision-makers formed a view at an early stage of the investigation that Ms Bolden was guilty of the allegations and that this infected their approach to the investigation. In this respect Ms Bolden says the decision-makers did not clearly articulate to Ms Bolden what was alleged against her, therefore did not give her an a real opportunity to respond to the conduct and then reached a final conclusion based on unsatisfactory evidence that then bolstered the view formed at the commencement of the investigation.
[97] Ms Bolden submits that the flawed process infected the investigation to the point where the credibility of witnesses ‘has been diminished to the point where the tribunal can’t be satisfied of the Briginshaw standard that Ms Bolden did engage in any form of misconduct.’ 104
Dealing with residents
[98] Ms Bolden submits that the evidence shows that nursing staff are operating in a dynamic environment where they must make judgement calls based on the interactions with any resident at the particular time. In this case the Resident was unpredictable and, at times, violent.
[99] Up until the Resident left the bathroom Ms Bolden submits the events were ‘wholly orthodox, wholly ordinary and wholly consistent with the Respondent’s own policies and procedures.’ 105 Ms Bolden submits that no-one involved in the incident formed any adverse view about Ms Bolden or any other staff involved in walking the Resident into the bathroom and changing her continence aid. Further the Respondent did not form any adverse view about the conduct of any employee except for that of Ms Bolden.
The incident took five minutes
[100] Ms Bolden submits that the incident took about five minutes in total. Between two and three minutes were taken in changing the incontinence aid leaving a minute and a half to two minutes in which time the bulk of the incident to which the allegations relate took place.
[101] In that short period Ms Bolden submits that there is a lack of specificity in the chronology of events and further that it is not possible for Ms Bolden to have done every single thing alleged against her in that short period of time.
[102] Ms Bolden submits that the incident was one continuous event which occurred over a very short period of time. She submits that it is not unusual for people’s recollection as to what happened in that period of time to vary but there needs to be a degree of precision as to which narrative is believed and the allegations put to Ms Bolden.
[103] In this respect it is necessary, Ms Bolden submits, for the Commission to make clear findings as to the chronology of events in order to determine if Ms Bolden engaged in the conduct as alleged.
Bruises
[104] Ms Bolden submits that no reliable conclusion can be reached about the cause of the bruising. Conclusions were made as to how those bruising occurred without the input of a medical practitioner and no inquiry was made as to how else the bruising may have occurred (including knowledge of an incident involving the Resident the following day). The photographs of the bruising are of no probative value as there was no proper inquiry of the cause of the bruising.
Consciousness of guilt
[105] Ms Bolden submits that, based on the evidence of the decisions makers, there are possibly two matters that go to ‘consciousness of guilt’. The evidence of the two investigators is that they took these into account in making their decision that Ms Bolden engaged in misconduct.
[106] The first of these is that Ms Bolden returned to the Resident’s room later on the day of the incident for the purpose of checking for bruises on the Resident’s arms. The second is that Ms Bolden attended for work on 17 September 2013 when she was not rostered on.
[107] Ms Bolden submits that consciousness of guilt points should only be made when there is no explanation for the actions other than guilt. For each of these incidents there are plausible alternative explanations. Of the first incident it is reasonable that Ms Bolden wanted to check on the Resident to enable her to properly complete the Riskman report or that, knowing that Ms Runganga had some concern as to what had occurred, she sought to satisfy herself of the Resident’s condition. Of the second matter, Ms Bolden attended work to gather material to enable her to do the rostering. Having become aware of the complaint she then sought to discuss it with the relevant manager.
[108] These two incidents are not evidence of consciousness of guilt but are highly reasonable and explicable actions of Ms Bolden.
Reluctance of witnesses
[109] Contrary to the Respondent, Ms Bolden submits that there is no evidence of any reluctance on the part of employees of the Respondent to give evidence against their colleagues. She submits that the evidence of the initial written statements of those who witnessed the incident does not indicate any reluctance on their part. Ms Bolden therefore submits that no weight should be given to any submission of reluctance on behalf of the witnesses, particularly at the early stages of the investigation and what may flow from such a submission.
Allegations
[110] Ms Bolden has made detailed submissions in which she says that the evidence does not support the findings made against her with respect of each of the allegations.
The Respondent
Commission inquiry
[111] The Respondent submits that it is the role of the Commission is to determine if the conduct did occur. It is not the role of the Commission to determine if, on the material available to the Respondent, it was reasonably open to the Respondent to dismiss Ms Bolden. In this respect the Respondent warns the Commission against undertaking a ‘judicial review’ of the process of the Respondent.
[112] The Respondent says that the investigation that did occur was a sound investigation, it did not involve a pre-emptive decision being taken and Ms Bolden was notified of the allegations against her and given an opportunity to respond.
Consciousness of guilt
[113] The Respondent submits that there are three pieces of evidence which go to consciousness of guilt.
[114] Firstly, it says that Ms Bolden said to Ms Struth ‘I haven’t slept a wink; I was so scared you and Angela were going to report me and I would be sent to gaol’ and ‘you better not report me’. 106 Second, it submits that Ms Bolden checked the Resident for bruising in circumstances where it was not at all necessary to do so and third, that Ms Bolden said to Ms McDowell ‘she’s going to report me’ in reference to Ms Runganga.
[115] The Respondent submits that there is no other explanation for the each of these matters other than the guilt of Ms Bolden.
Evidence
[116] The Respondent submits that the evidence of Ms Runganga, Ms McDowell and Ms Struth is exact as concerns the three fundamental elements of Ms Bolden’s alleged conduct - assaulting the resident, abusive language and restraining the Resident in her room. Whilst there may be different emphasis in the evidence it submits that this is all on the periphery.
Reluctance
[117] The Respondent submits that there is clear evidence from Mr Boyle of a reluctance of employees to make allegations of misconduct against other employees.
Findings on the conduct
[118] In making my findings with respect to the conduct of Ms Bolden I have not dismissed the credibility of witnesses based on the conduct of the investigation. Any flaws in the investigation process are not such as to damage the credibility of the witnesses to the incident.
[119] There is no evidence of sustained chatter amongst the witnesses either between themselves, with other staff or with the investigators at any time since the incident to support a finding that the investigation process itself has infected the evidence to the extent where the credit of witnesses is in question.
[120] I am mindful that, as part of the investigation process, the witnesses were not asked to set out in detail the entire sequence of events and everything they saw and heard during the incident. This is not their fault. It is inevitable that, once lawyers are engaged, they may seek out more detail of the witnesses in preparing statements for the Commission. This is not a criticism. Given the paucity of detail in a number of the earlier statements made it is not surprising that greater detail has been provided in statements prepared for these proceedings. Any changes in statements needs to be weighed and may go to the credit of witnesses if the changes warrant such a finding. Where it is necessary I have made such findings.
[121] Ms Bolden has said that I need to determine the sequence of events or a coherent narrative of the incident.
[122] To the extent that it is necessary in relation to my findings below I am satisfied that Ms Bolden put the Resident into bed, that the Resident got out of bed and tried to follow the staff out of the room and that Ms Bolden took her back to bed.
[123] Once the staff exited the bedroom and the door was closed I do not accept that anyone re-entered the bedroom to put the Resident back to bed. To the extent that anyone not in the room saw the Resident try and exit the bedroom I find that this was when the Resident sought to follow the staff from the bedroom.
[124] I do not find evidence of any reluctance on the part of employees to give evidence against Ms Bolden during the internal investigation or the hearing of this application. Any deficiencies in the earlier statements of witnesses may be attributable to the information asked of them rather than any reluctance on their part.
[125] In determining if the conduct occurred it is accepted that the standard of proof is that in Briginshaw v Briginshaw:
The standard of proof remains the balance of probabilities but ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’ and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.’ 107
[footnotes omitted]
[126] I have considered below each matter on which the Respondent relies.
Ms Bolden physically assaulted the Resident by grabbing her by the arms to forcefully move her towards and onto the bed
[127] Ms Bolden denies any contact with the Resident in the bedroom.
[128] Ms Runganga’s evidence has been consistent. From her first statement she has maintained that there was physical contact by Ms Bolden on the Resident in the process of getting the Resident to bed.
[129] Whilst Ms McDowell’s earlier statements makes no mention of any force being used by Ms Bolden on the Resident, her witness statement and evidence in these proceedings is that there was physical contact and force on multiple occasions.
[130] Neither Ms Runganga nor Ms McDowell intervened when they saw physical contact between Ms Bolden and the Resident which suggests that the contact was not of such force as to be of immediate concern to them.
[131] In making my finding I have had regard to Ms Bolden’s comment to Ms McDowell that she thought Ms Runganga was going to report her over the incident. I have also considered Ms Bolden’s actions in returning to check on the Resident in circumstances where she knew the Resident was asleep. I consider that at least part of the reason for returning was to determine if there were any injuries on the Resident.
[132] I have not had any regard to the evidence of Ms Struth on this issue. Ms Struth made a number of unsubstantiated comments during the investigation (that Ms Bolden was ‘guilty,’ that Ms Bolden ‘steals’ from another resident and her comments as to the Resident throwing things around her room for two hours after the incident) that call into doubt the reliability and accuracy of the statements she has made.
[133] I have, on this matter, accepted the evidence of Ms Runganga and Ms McDowell in preference to the evidence of Ms Bolden.
[134] After carefully weighing the evidence I am satisfied that Ms Bolden did have some physical contact with the Resident to get her to bed and/or to return her to bed. This occurred when Ms Bolden says she ‘guided’ the Resident to bed. I am satisfied the contact occurred on each of the occasions she guided the Resident to bed. This contact was unwarranted and was contrary to the policies of the Respondent.
[135] I am not satisfied that there is evidence to allow me to find, on the balance of probabilities, that Ms Bolden pushed the Resident down a number of times once she was in bed.
[136] I therefore find that Ms Bolden used a degree of force to move the Resident to bed and to make the Resident stay in bed. It is not possible to determine the degree of force used, that is, whether it was a push or nudge or enough to leave bruising on the Resident.
[137] I am satisfied that the Resident did not want to go to bed. That she attempted to exit the bedroom after leaving the bathroom and after she was first put to bed is reasonable evidence of this. In such circumstances 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.
The actions of Ms Bolden left bruising on the Resident’s arms
[138] On the basis of the evidence, and in particular the evidence of a further incident with the Resident on 15 September 2013 108 (not involving Ms Bolden), I cannot be satisfied that the actions of Ms Bolden caused bruising on the Resident’s arms.
[139] That Ms Bolden could not explain the bruising on the Resident’s arms in her meeting with Ms Iddon and Ms Cook is no more than a statement that she did not know how they got there and cannot be taken as an admission that she caused it in some way.
Ms Bolden unreasonably restricted the Resident to her room by closing the door in a manner that did not allow the Resident to exit the room. Further, in the Resident’s attempts to leave the room by pulling on the door handle, you held onto the door to ensure she could not leave.
[140] I consider this as an allegation that Ms Bolden closed the bedroom door and prevented the Resident from leaving the room by holding onto the door handle.
[141] I accept that on exiting the room Ms Bolden did close the bedroom door.
[142] I do not accept the evidence of Ms Struth that she said to Ms Bolden ‘you can’t do that’ in reference to Ms Bolden allegedly holding the door closed. At no time prior to the making of her statement filed in these proceedings in February 2014 did Ms Struth tell anyone she said this to Ms Bolden. No-one else standing at the doorway to the Resident’s room report Ms Struth as having said it. If Ms Struth was convinced Ms Bolden was holding the door and it was not right to do so it is inexplicable that she then walked away.
[143] In her statement to Ms Iddon on 20 September 2013 Ms Struth said that both she and Ms Runganga said to Ms Bolden that she had gone too far while they were standing outside the Resident’s bedroom but this was not in any of the statements made by Ms Runganga nor in her evidence in these proceedings. I do not accept this evidence of Ms Struth as being reliable.
[144] Ms Runganga’s evidence is based on her assumption of the behaviour of the Resident. Ultimately she agrees that she did not see the Resident pull the door inwards. Ms McDowell’s various statements vary on the significant detail that the Resident pulled the door open a few times and Ms Bolden pulled it closed.
[145] The evidence of Ms Parker has been consistent from the time of her written statement that she saw Ms Bolden’s hand resting on the door handle.
[146] The lack of consistency in any of the evidence of this particular matter makes it impossible for me to be satisfied that Ms Bolden held the door closed. The critical detail as to the Resident attempting to open the door and Ms Bolden continuing to pull it closed was only raised by Ms Struth at the time of reporting the incident. The remaining witnesses raised it later or assumed that was why Ms Bolden had her hand on the door handle.
[147] I therefore find that Ms Bolden closed the door. On the balance of probabilities I do not find that she held the door closed to stop the Resident exiting the room. This conclusion is supported by the evidence that the staff were at the door for a minute at most and, once the staff left, the Resident was checked on and she was lying on her bed.
The Resident was clearly distressed and wanting to leave her room
[148] Consistent with my finding above I do not find, on the balance of probabilities that the Resident was trying to exit her bedroom except when she first sought to follow the staff out of the bedroom. Whilst she may not have wanted to go to bed there is no evidence that she attempted to exit and was stopped from doing so beyond Ms Bolden moving the Resident back to bed after she got out of bed the first time.
[149] The evidence of most witnesses is that at the time Ms Bolden came out of the bedroom and closed the door the Resident was yelling. This behaviour was apparently not unusual from the Resident.109
[150] There is no basis however on which I could find that the Resident’s language or behaviour was any different to what she normally exhibited at bed time.
[151] There is no evidence other than that given by Ms Struth to support the view that the Resident threw things around the room for the next two hours and was too scared to come out. Apart from anything else Ms Struth agrees that she did not check on the Resident herself after the incident.110
[152] On this matter I prefer the evidence of Ms McDowell and accept the statement of Ms Fleming that the Resident continued to ‘curse and yell’ for half an hour or so in preference to that of Ms Struth.
[153] I cannot find, on the balance of probabilities, that the Resident was clearly distressed beyond behaviours she normally exhibited around the times she was put to bed.
Ms Bolden used a raised voice
[154] The evidence supports a finding that Ms Bolden was speaking forcefully to the Resident. It is understandable, in circumstances where the Resident exhibits challenging behaviour and was, herself, yelling that Ms Bolden used a firm voice.
[155] Ms Runganga says she would have intervened had she thought Ms Bolden’s tone was inappropriate. That she did not suggests that Ms Bolden was not yelling at the Resident.
[156] I accept the evidence of Ms Runganga, Ms McDowell, Ms Parker and Ms Fleming on this point.
[157] The conclusion of Ms Iddon and Ms Cook that a number of the staff said Ms Bolden was yelling is just not supportable on the basis of the written statements and evidence of those who witnessed the incident.
[158] On the balance of probabilities I find that Ms Bolden did speak forcefully to the Resident at a point in time but that, generally, she kept up a stream of chatter to the resident in a firm voice. There is no evidence on which to conclude that Ms Bolden spoke aggressively or with an inappropriately raised voice at any time during the incident to the Resident.
Ms Bolden was aggressive in her approach to the Resident when changing her continence aid
[159] It is not clear how this allegation came arose. It was not raised by any staff member in their written or oral statements to Ms Cook or Ms Iddon.
[160] That the continence aid of the Resident needed changing is not in dispute. Ms McDowell had attempted to do so but could not perform the task alone. Ultimately Ms McDowell changed the continence aid whilst Ms Bolden and Ms Parker held the Resident steady.
[161] I find that there is no evidence to support a finding that Ms Bolden was aggressive to the Resident in changing her continence aid.
Ms Bolden was aggressive in approach when she told the Resident to go to bed and stay in her room
[162] Given my findings above with the respect to the use of a raised voice by Ms Bolden I cannot conclude that she was aggressive in her approach when she told the Resident to go to bed and stay in her room. I am satisfied she used the same tone of voice throughout the incident.
Consciousness of guilt
[163] Ms Bolden did say to Ms McDowell that she thought Ms Runganga might report her. She also said to Ms Runganga that if she was concerned about the conduct she should report the matter to the Nurse Unit Manager (Ms Porter). These comments cannot be taken as Ms Bolden accepting she had done something wrong but rather an apprehension by her that Ms Runganga thought she had done something wrong. I do not consider Ms Bolden’s comments in this respect as evidence of consciousness of guilt.
[164] I am not satisfied that Ms Bolden said to Ms Struth in the days following that she ‘hadn’t slept a wink’ or was concerned she ‘would be sent to gaol’ or that Ms Struth should not report her as claimed by Ms Struth. It is denied by Ms Bolden. I have found above that Ms Struth made unsubstantiated comments in the course of the investigation. For this reason I prefer the evidence of Ms Bolden as to whether or not these comments were made by her.
[165] I do not find the comments made by Ms Bolden constitute consciousness of guilt.
Removal of confidential information from Respondent’s premises
[166] I am not satisfied that Ms Bolden ‘removed’ confidential patient records from the Respondent. It is evident that this was done by another person and the documents given to Ms Bolden by that person.
[167] As to the Riskman report I find that Ms Bolden did remove that report in relation to the incident on 14 September 2013 from the Respondent premises. She printed it out on the evening of 14 September 2013 and removed it that day.
Lying during an investigation
[168] To the extent that I have found conduct did occur and to the extent that Ms Bolden did not admit to that conduct she may have misled the investigation.
Unfair dismissal
[169] On the basis of my findings above I now turn to consider if Ms Bolden was unfairly dismissed.
[170] I find that Ms Bolden is protected from unfair dismissal. She was dismissed, this is not a matter of redundancy, and the Small Business Fair Dismissal Code does not apply.
[171] It is therefore necessary to determine if the dismissal was harsh, unjust or unreasonable.
[172] Section 387 of the Act states:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
(a) was there a valid reason
[173] For a reason to be valid it must be ‘sound, defensible and well founded’. 111
[174] In this case Ms Bolden’s employment was terminated because she engaged in serious misconduct as outlined above.
[175] I have found that Ms Bolden did use force to get the Resident to bed but that I cannot know the degree of force used. To this extent I am satisfied the incident did not occur as put by the Respondent to Ms Bolden or in its reasons for termination of her employment.
[176] The Respondent has a clear obligation under its policies and state and federal legislation to protect its residents from abuse.
[177] Using force on a Resident in a nursing home may constitute a valid reason for dismissal.
[178] The circumstances of this case are not, however, clear cut. Ms Bolden did have contact with the Resident on a number of occasions during the incident including walking her to the bedroom (the nursing staff linked arms with the Resident as they had been taught in training), changing her continence aid (where it is accepted that three staff should do that task) and in the process of putting the Resident to bed. Whilst three days after the incident there was bruising on the Resident’s arm it cannot be found that the conduct of Ms Bolden caused that bruising.
[179] However, I am satisfied that the Resident did not want to go to bed. Whilst it would be reasonable for Ms Bolden to coax or encourage the Resident to go to bed, once she got out of bed she should not have been moved back to bed with any physical contact. To this extent, having accepted that Ms Bolden did use physical contact that was not warranted I find that there was a valid reason for the dismissal of Ms Bolden.
[180] The Respondent must have full confidence in its employees that they will meet the highest standard of care. In this case I do not believe that Ms Bolden has done so.
[181] The Respondent says that, in addition to the allegations that led to the termination of her employment Ms Bolden was also dishonest in her answers given during the investigation of the incident and that she removed confidential health information from the Respondent’s premises contrary to a lawful direction given to her and contrary to the Privacy and Confidentiality Policy of the Respondent. The Respondent says that each of these constitutes serious misconduct.
[182] 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. 112
[183] Ms Bolden did not remove the notes on the Resident from the Respondent’s premises although I accept that, once they came into her possession, she did not return them. I do not consider that this action constitutes a valid reason for the dismissal of Ms Bolden.
[184] I accept that Ms Bolden did remove a Riskman report. This was an incident report relating to an injury she had sustained when bitten by the Resident. Whilst the report tangentially mentions the Resident I do not consider there to be any transgression on Ms Bolden’s part in keeping a copy of that report. The removal of the Riskman report does not constitute a valid reason for the dismissal of Ms Bolden.
(b) notified of the reason
[185] I am satisfied that Ms Bolden was notified of the reason for her dismissal. She received the allegations on 24 September 2013, well before the decision to terminate her employment was taken.
[186] Whilst Ms Bolden may not agree with the allegations put to her this does not mean she was not notified of the reason for her dismissal by the Respondent.
(c) opportunity to respond
[187] I am satisfied that Ms Bolden had an opportunity to respond to the reasons for her dismissal prior to the decision to terminate her employment having been taken.
(d) support person
[188] I am satisfied that the Respondent allowed Ms Bolden to have a support person present, and that her support person attended and made submissions on her behalf.
(e) unsatisfactory performance
[189] This is not a relevant consideration
(f)& (g) the size of the employers undertaking
[190] This is not a matter on which any submissions have been made. It is a neutral matter in my considerations.
(h) any other matters
[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.
[192] It is noteworthy that neither Ms Iddon nor Ms Cook (nor Mr Boyle) considered the conduct of any other employee during the incident to warrant an investigation or any disciplinary action. If the Respondent was correct and Ms Bolden had engaged in the behaviour it alleges I find it inexplicable that no-one thought the action of other staff in allowing the conduct of Ms Bolden to continue without intervention to be acceptable and to not warrant some further consideration.
[193] It is of some concern to me that a number of employees of the Respondent stood and observed what they considered to be inappropriate conduct of Ms Bolden and did not intervene. It is also of concern that during the incident none of the employees considered or suggested walking away from the Resident and returning when she had calmed down. To this extent it would appear that the Respondent’s training in this area requires reinforcing with employees.
Harsh, unjust or unreasonable
[194] Ms Bolden submits that the dismissal was harsh because the conduct did not take place and because of its adverse effects on the economic, personal and professional circumstances of Ms Bolden. I accept that it has had the effects she outlines.
[195] The Respondent relies on this being a case of elder abuse. It submits that Ms Bolden’s conduct at the time of the incident and immediately following the incident evidence is consciousness of guilt.
[196] On the basis of the findings I have made I am not convinced that Ms Bolden’s conduct warrants summary dismissal. A more thorough investigation by the Respondent, fewer assumptions by the investigators of the reasons for Ms Bolden’s conduct and a better analysis of the evidence it had gathered would, perhaps, have led it to this conclusion.
[197] Ms Bolden’s conduct is not to be condoned in any way. She is an experienced enrolled nurse with extensive experience in the industry. She is experienced in the high care area of the Respondent’s business and has been trained in its policies. She is cognisant of demands made by, and means of dealing with, the residents. To this end I accept that she was aware that the general approach with distressed residents is to walk away and come back to them later.
[198] This must be balanced against the substantial impact of the termination of employment on Ms Bolden and the positive consideration by the Respondent that no investigation was required into the conduct of any other employee involved in the incident.
[199] I have carefully considered all of my findings including that no action has been taken against any other person involved in the incident. If the actions of Ms Bolden were so egregious that summary dismissal was warranted, there is no explanation as to why the Respondent did not consider the need to investigate the actions of the other employees. That it did not consider such action necessary must weigh in Ms Bolden’s favour. I have also taken into account that the degree of force with which Ms Bolden moved the Resident back to her bed cannot be determined. There is no evidence that Ms Bolden caused any bruising to the Resident. To this extent the level of touching of the Resident may have been no more than was used to guide her to the bathroom or to hold her steady in the bathroom.
[200] In these circumstances I find, on balance, that the termination was harsh.
[201] For all of these reasons I find Ms Bolden to have been unfairly dismissed.
Remedy
[202] Ms Bolden seeks reinstatement in accordance with s.390 and s.391 of the Act.
[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.
[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.
[205] I will order that Ms Bolden be appointed to an equivalent position but not in the high care unit of the Respondent’s business. She should be placed in an appropriate position where the demands of the residents are not as onerous as in the unit in which she was working when the incident occurred. Her terms and conditions of employment should be no less favourable then they were prior to her dismissal.
[206] I will order that Ms Bolden undergo immediate training in Elder Abuse and Restraint Free policies and the Code of Professional Conduct for Nurses. Such training is to be organised and completed within four weeks of the making of the order. Ms Bolden will not be able to return to work until such training is satisfactorily completed. Should she fail to satisfactorily complete the training the Respondent may apply for the order I make to be varied on the grounds that reinstatement is no longer an appropriate remedy.
[207] I shall also order that Ms Bolden be issued with a first and final warning for her conduct.
[208] Ms Bolden was dismissed on 2 October 2013. She has been without work for almost seven months. Ms Bolden has not earned any income since the time of the termination of her employment. In deciding to order the reinstatement of Ms Bolden I will also order that the Respondent pay to Ms Bolden an amount equal to 12 weeks’ ordinary remuneration (that is what she would ordinarily have earned not including public holidays), less tax, plus superannuation. I am mindful that Ms Bolden’s conduct has contributed to the loss of her employment and for this reason I do not consider the Respondent should be required to pay her all of her remuneration lost since her dismissal.
[209] In ordering her reinstatement I will order that Ms Bolden’s employment be continuous with the Respondent and the continuity of service be maintained.
Conclusion
[210] I have found that Ms Bolden was unfairly dismissed. An Order reflecting my decision will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
S. Keating of Counsel with M. Leikina of Ryan Carlisle Thomas for the Applicant.
J. Tracey of Counsel with A. Prpich of Minter Ellison Lawyers for the Respondent.
Hearing details:
2014.
Warrnambool:
February 26, 27.
April 15.
1 For privacy reasons the name of the Resident in question is not used in the decision. Where the resident’s name has been used in the transcript or documents cited in this decision the name has been replaced.
2 Transcript PN1096.
3 Transcript PN2725.
4 Transcript PN2752.
5 Transcript PN 765, 2824.
6 Transcript PN2847, 2501-6.
7 Exhibit R6, attachment SLC-4.
8 Exhibit R5, paragraphs 33-34, attachment PAI-5.
9 Exhibit R1, attachment RRB-2.
10 Exhibit R5, attachment PAI-7.
11 Exhibit R1, attachment RRB-3.
12 Edwards v Giudice (1999) 94 FCR 561 [6]‒[7].
13 Briginshaw v Briginshaw (1938) 60 CLR 336.
14 Exhibit A2, paragraph 64; Transcript PN2869.
15 Exhibit A2, paragraph 64.
16 Transcript PN783.
17 Transcript PN770-1, 785.
18 Exhibit R4, paragraph 36.
19 Ibid.
20 Exhibit R4, paragraph 37.
21 Exhibit R4, attachment AR-7.
22 Exhibit R5, attachment PAI-5.
23 Transcript PN2405.
24 Exhibit R3, paragraph 29.
25 Ibid.
26 Exhibit R5, attachment PAI-5.
27 Transcript PN2092.
28 Exhibit R2, paragraph 26.
29 Exhibit R5, attachment PAI-7.
30 Transcript PN402.
31 Transcript PN411.
32 Transcript PN324.
33 Transcript PN409.
34 Transcript PN2928.
35 Exhibit R4, paragraphs 37-38.
36 Transcript PN2935.
37 Transcript PN2941-2.
38 Exhibit R3, paragraph 30.
39 Transcript PN2467.
40 Transcript PN2473.
41 Exhibit R3, paragraph 31
42 Transcript PN2480.
43 Transcript PN1146.
44 Exhibit R6, attachment SLC-4.
45 Transcript PN1229.
46 Transcript PN1231.
47 Transcript PN1224-6.
48 Exhibit R2, attachment SJS-1.
49 Exhibit R2, paragraph 28.
50 Ibid.
51 Transcript PN2115-8.
52 Transcript PN2876, 2882.
53 Exhibit R3, paragraph 29.
54 Transcript PN1223.
55 Exhibit A2, paragraphs 55-6.
56 Transcript PN2837, 2839.
57 Transcript PN2842-4.
58 Transcript PN1135-6, 1138-9.
59 Transcript PN1214.
60 Transcript PN2687-91.
61 Transcript PN1122-5.
62 Transcript PN1130-1.
63 Transcript PN2065-71.
64 Transcript PN2436-7.
65 Exhibit R3, paragraph 26.
66 Transcript PN3614.
67 Exhibit A2, paragraphs 79-80.
68 Transcript PN914.
69 Transcript PN916.
70 Exhibit R6, attachment SL-1.
71 Exhibit R2, paragraphs 28-29.
72 Exhibit R2, attachment SJS-1.
73 Exhibit R3, paragraph 32.
74 Exhibit R6, attachment SLC-4.
75 Transcript PN3191.
76 Transcript PN3460.
77 Transcript PN3514, 3518.
78 Transcript PN3217-21.
79 Transcript PN3506, 3521.
80 Transcript PN3153-73.
81 Transcript PN3252.
82 Transcript PN3254-6.
83 Transcript PN3270.
84 Exhibit R5, paragraphs 35-6.
85 Transcript PN3560-2.
86 Transcript PN3566-8.
87 Transcript PN3578-9.
88 Transcript PN3584-5
89 Exhibit R5, attachment PAI-7.
90 Transcript PN3323.
91 Transcript PN3326.
92 Transcript PN3613-8.
93 Transcript PN3428-30.
94 Transcript PN3431.
95 Transcript PN3596.
96 Exhibit R6, paragraph 40. Note that the reference to ‘we’ is evidence of Ms Cook’s state of mind and not that of Ms Iddon and Mr Boyle.
97 Transcript PN613-7.
98 Transcript PN652.
99 Transcript PN654.
100 Transcript PN633-9.
101 Transcript PN679.
102 Exhibit R6, attachment SLC-6.
103 Transcript PN3700.
104 Transcript PN3670.
105 Transcript PN3687.
106 Transcript PN3778-9. See also exhibit R2, paragraphs 30-31.
107 (1938) 60 CLR 336, 362-3.
108 Exhibit A5.
109 Exhibit A2, paragraph 66. Transcript PN2750, PN2478.
110 Transcript PN2137.
111 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
112 (2008) 170 IR 1.
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