Saminda Malaarachchi v UnitingCare NSW.ACT T/A UnitingCare NSW.ACT

[2014] FWC 7944

[2014] FWC 7944

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394–Application for unfair dismissal remedy

Saminda Malaarachchi
v
UnitingCare NSW.ACT T/A UnitingCare NSW.ACT
(U2014/71)

DEPUTY PRESIDENT BOOTH SYDNEY, 13 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] Mr Sam Malaarachchi was employed as a casual Assistant in Nursing in a residential aged care facility called Woodfield from 24 January 2011. He became a permanent part-time employee in July 2011. Woodfield is owned by Uniting Care NSW.ACT.

[2] Mr Malaarachchi’s employment was terminated by Uniting Care on 20 December 2013. Uniting Care gave the reason for the dismissal in a show cause letter dated 4 December 2013. The reason given was that Uniting Care “deemed the employment relationship to be irrevocably damaged in that you have exhibited a pattern of behaviour that has resulted in a serious loss of trust and confidence by senior management in your abilities to work with residents and staff in accordance with our duty of care as an aged care provider.”

[3] Mr Malaarachchi says his dismissal was unfair and he has lodged an application pursuant to s.394 of the Fair Work Act 2009 seeking a remedy for unfair dismissal. He says he did not conduct himself in the manner alleged. He also says he was not treated fairly in the process of his dismissal.

[4] There are initial matters contained in s.396 of the Act which I must consider before the merits of the case may be heard. I have considered these. I conclude that there is no reason that the case cannot proceed. Further, with regard to s.385:

a) There is no dispute that Mr Malaarachchi was dismissed so s.385(a) of the Act is satisfied.

b) Uniting Care is not a small business employer and therefore s.385(c) is not relevant.

c) There is no contention that this is a case of genuine redundancy so s.385(d) does not apply.

[5] Therefore, in determining whether Mr Malaarachchi was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable. 1 In so doing, I must consider the following:

a) whether Uniting Care had a valid reason or reasons for dismissing him; 2 and

b) whether he was afforded procedural fairness 3 and in relation to this, the impact of the size of the business and its human resource capability;4 and

c) any other relevant considerations. 5

Did Uniting Care have a valid reason or reasons for dismissing Malaarachchi?

[6] In addressing this question I am guided by the following principles that are pertinent to this case:

a) A valid reason is one that is sound, defensible or well founded in the context of the employee’s capacity or conduct based upon the operational requirements of the employer’s business. 6

b) The Act requires an examination of whether there was a valid reason for dismissal, not whether the reason/s given to the employee for the dismissal were valid. 7

c) When the reason is the conduct of the employee, the Commission must determine whether the alleged conduct occurred and what it involved before considering whether it constituted a valid reason for the dismissal. 8

[7] Uniting Care concluded that it could no longer trust Mr Malaarachchi’s ability to work with residents and staff in accordance with its duty of care as an aged care provider. In coming to this conclusion they considered a number of incidents concerning his behaviour with residents and staff. Mr Malaarachchi either denied that these incidents occurred or denied that they occurred in the way described by Uniting Care.

[8] The last of these incidents was the allegation that Mr Malaarachchi hit a resident, Mr Walker. This was a serious allegation the subject of police investigation. I consider it so serious, that if it happened, this incident on its own would constitute a valid reason for dismissal. I consider that the operational requirements of a residential aged care provider include the requirement to have complete confidence that their staff will treat aged and vulnerable residents with total respect. In this context, loss of trust and confidence that an employee meets this standard would be a valid reason for dismissal.

[9] I will first consider whether, on the balance of probabilities, the incident with Mr Walker occurred.

Did the incident Walker complained about actually happen?

[10] Both the police and Uniting Care investigated Mr Walker’s complaint. Mr Walker died on 10 February 2014, prior to the hearing of his matter. He was interviewed on video by the police on 15 November 2013 and the video was shown in the Commission hearing.

[11] Mr Walker had an Extended Care Plan created on 13 October 2013. On the front page under the heading “Special Needs/Diagnosis” it stated “Legally Blind, Type 2 Diabetic, ETOH, HT, Falls, Progressive supranclear palsy, Swallowing difficulties, Mobility, Slurred Speech.” 9

[12] The video interview with Mr Walker shows that Mr Walker understood the questions he was being asked and was decisive in his responses. He did not speak on more than a couple of occasions, however when he did, in most instances the words could be discerned.

[13] He mainly used his hands in communication. When he was asked questions he raised his thumb of his right hand for “yes” and pointed down with his index finger of his left hand for “no”. A support person was present. That support person was Ms Guevara, Manager of the facility. She was seen seated in the right hand corner of the video and was silent, and in the main, remained still during the interview. Mr Walker was observed to be lying on his bed with his head facing the interviewer at all times. Mr Walker’s Extended Care Plan states that he cannot move his eyes unless he moves his head. He did not move his head during the interview and I observed that he took no cue or guidance from the support person in answering the questions.

[14] Mr Malaarachchi contends that Mr Walker’s complaint could not be relied on because of his condition. That is, he was legally blind and had a “history of dementia, reduced cognition, confusion, forgetfulness, difficulty following instructions, and difficulties with orientation to his environment.” 10 The evidence was mixed in relation to these contentions with witnesses for Mr Malaarachchi tending to agree with this description and witnesses for Uniting Care tending to disagree with this description. I note that there were references to the features Mr Malaarachchi relies upon in sections of the Extended Care Plan. I have relied upon my own observation of Mr Walker in the recorded interview and I conclude that at the time of the interview Mr Walker was a man who was determined and decisive in his communication.

[15] The evidence before me discloses that:

a) On the morning of 14 November 2013 Mr Malaarachchi was working at Woodfield and one of the residents he was caring for was Mr Walker.

b) Mr Malaarachchi concluded his shift and left the premises around 2.30pm.

c) Ms Rabacal, a co-worker of Mr Malaarachchi’s, commenced work at 2.30pm and attended Mr Walker several times throughout the afternoon. At or around 7.30pm Mr Walker told Ms Rabacal that he had been hit by “Sam”.

d) Ms Rabacal identified “Sam” as Mr Malaarachchi as there was only one Sam working at the facility at the time.

e) Ms Rabacal reported Mr Walker’s allegation to Ms Franczak, the registered nurse in charge of the facility at night.

f) When Ms Franczak went to Mr Walker’s room to provide him with his “peg feed”, she had a conversation with him in which, unprompted, Mr Walker repeated his allegation. He told Ms Franczak that Mr Malaarachchi hit him when he was giving him a shave and that he was rough with him. He gestured towards his forehead when she asked where Mr Malaarachchi hit him. Ms Franczak assumed that the incident had occurred on the morning of the same day, but Mr Walker did not tell her this.

g) Shortly afterwards Ms Franczak telephoned Ms Guevara, the Manager, however she did not reach her. She then telephoned Ms Walton, the Deputy Manager, who asked her to complete a MIRA (incident report) and return to check Mr Walker’s skin. She did so and found no evidence of an injury.

h) Around 9pm Ms Walton telephoned Ms Guevara. At the direction of Ms Guevara she telephoned Ms Thomas, Residential Operations Manager, who told her that she should contact Mr Malaarachchi to tell him he will be suspended whilst an investigation takes place and that the Department of Social Services and the police will need to be called in the morning as they need to be notified within 24 hours. Ms Walton contacted Mr Malaarachchi and advised him that an allegation had been made and would be investigated.

i) Ms Guevara contacted the Department of Social Services and the police. The police arrived at the facility at around 9.10am on 15 November and interviewed Ms Guevara, Ms Walton and Mr Walker. The police requested permission to conduct a videotaped interview with Mr Walker. He consented and the interview was conducted at around 3pm that day.

j) In this videotaped interview, Mr Walker communicated that he was hit on the forehead by “Sam” while being shaved in his room. He said that Sam was shaving him roughly and he asked him not to be so rough. He communicated that Sam told him to shut up and it was after this that Sam hit him. He clearly identified that he could recognise Sam when he was close to him and by his voice. He identified the time of the incident as “yesterday”, “in the morning” and “after breakfast”.

k) Ms Walton completed a Uniting Care Reportable Assault Investigation Report dated 19 November 2013 and she gave evidence about it. The report recorded that at approximately 9.30am on 15 November Ms Guevara and Ms Walton spoke to Mr Walker but Ms Walton’s evidence was that the exchange reported as having occurred between them did not occur. It occurred in the initial police interview of Mr Walker and Ms Walton was an observer in that interview. The report also stated that “The alleged assault occurred on 14/11/13, after breakfast, in the bathroom closest to the resident’s room in room 14 in Woodfield Nursing Home”. There was no evidence that the alleged assault occurred in the bathroom. Mr Walker said the incident occurred in the bedroom after breakfast while he was being shaved.

[16] Mr Malaarachchi denies the allegation. He says that he did not shave Mr Walker on 14 November but says he did shave Mr Walker on 13 November. He points to the inconsistencies in the account of the incident during the investigation, in particular the time and place, as undermining Mr Walker’s credibility.

[17] Mr Malaarachchi also says that Mr Walker’s condition and characteristics (Mr Malaarachchi says that Mr Walker had a history of agitation, aggression and threatening behaviour) make it more probable that Mr Walker either invented the allegation, was mistaken about it or had been encouraged to make a false allegation by an unknown person. 11

[18] I think that it is improbable that Mr Walker was mistaken about the incident. The videotaped interview was consistent with Mr Walker’s verbal complaints to nursing staff about the incident. I do not doubt that he may have been mistaken about the date (13 or 14 November 2013) and location (bedroom or bathroom) of the incident, but these inconsistencies do not derogate from his clear, consistent and definite communication that the incident occurred while he was being shaved. This leaves only the suggestions that Mr Walker invented it or had been encouraged to make a false allegation by an unknown person. There is no evidence of any motivation Mr Walker would have had for inventing or making a false allegation about the incident. There is no evidence of any co-conspirators. Considering the evidence that is before me I consider that this scenario is less probable than the likelihood that the incident occurred as reported.

[19] I find that it is more probable than not that the incident occurred. In this circumstance, I do not intend to review Mr Malaarachchi’s history in order to establish whether the earlier warnings he received were well founded or whether the pattern of behaviour cited by Uniting Care is apparent. It is sufficient to have concluded that the incident occurred and that such conduct constitutes a valid reason for Uniting Care dismissing Mr Malaarachchi.

Was Malaarachchi afforded procedural fairness?

[20] The provisions of the Act that I am required to consider to answer this question go to the heart of procedural fairness in a termination of employment.

[21] I have concluded that Mr Malaarachchi was afforded procedural fairness in the way in which he was dismissed.

[22] The questions I have considered in coming to this conclusion are:

Was Malaarachchi notified of the reason for his dismissal? 12

[23] Mr Malaarachchi was notified of the reason for his dismissal in two letters from Mr Buhagiar, Director, Residential and Health Care Services. The first was dated 4 December 2013 with subject heading “Notice of Intention to Terminate”. The second was dated 17 December 2013 with the subject heading “Notice of Termination”. I am satisfied that Mr Malaarachchi notified of the reason for his dismissal.

Was Malaarachchi given an opportunity to respond to this reason as it related to his conduct? 13

[24] Mr Malaarachchi says that because the reasons given to him did not include that Uniting Care found the allegation concerning Mr Walker to be substantiated, he was denied the opportunity of responding to this reason. I don’t accept this submission. Uniting Care wrote to Mr Malaarachchi on 15 November 2013 setting out the allegation concerning Mr Walker and asking him to attend a meeting on 18 November. The meeting took place on 19 November and Mr Malaarachchi attended with a solicitor. Another meeting was held on 12 December, after the letter of 4 December had been received by Mr Malaarachchi. Mr Malaarachchi attended this meeting with a solicitor. During this meeting an opportunity was given to Mr Malaarachchi to address the reason for dismissal, including the incident with Mr Walker. I am satisfied that Mr Malaarachchi was given an opportunity to respond to the reason as it related to his conduct.

Was Malaarachchi unreasonably refused a support person at any discussions relating to his dismissal? 14

[25] Mr Malaarachchi was accompanied by a solicitor in both meetings. I am satisfied that he was not unreasonably refused a support person at any discussions relating to his dismissal.

To the extent that the dismissal related to unsatisfactory performance, had Malaarachchi been warned about this before the dismissal? 15

[26] The dismissal related to Mr Malaarachchi’s conduct and Uniting Care’s conclusion that he could not be trusted to work with residents and staff in its aged care facilities. His dismissal does not relate to his capability in the performance of his nursing duties, it relates to his behaviour while carrying them out. It could be said that this factor is, therefore, not relevant. However it is worth mentioning that Mr Malaarachchi had been the subject of warnings about his behaviour with staff and he was the subject of one investigation in relation to allegedly hitting a resident, but this allegation was not substantiated. Although he denies Uniting Care’s description of the behaviour complained about with co-workers, there is no doubt that he was aware of Uniting Care’s concerns about his behaviour. Uniting Care took his history into account in coming to its conclusion, but I have not. Having come to the conclusion that Mr Malaarachchi did hit Mr Walker, I have decided that this conduct alone was a valid reason for dismissal. That being said, I am satisfied that Mr Malaarachchi was warned prior to his dismissal.

Did the size of Uniting Care impact the procedures followed in dismissing Malaarachchi? 16

[27] Uniting Care is a very large not for profit provider of aged care and other community services to the Australian community. The procedures adopted in the dismissal were consistent with procedures I would expect to be followed by an employer of this size.

Did Uniting Care have a dedicated human resource management specialist or specialists and if not did this impact the procedures followed in dismissing Malaarachchi? 17

[28] Uniting Care have a specialist human resource function and expertise. The procedures adopted in the dismissal were consistent with the exercise of the expertise of this function.

Are there any other relevant considerations in determining whether Malaarachchi’s dismissal was unfair?

[29] Mr Malaarachchi was employed by Uniting Care for nearly three years. He gave evidence that he was committed to a nursing career and was undertaking further study. He has not found new permanent employment. I accept that he has suffered financially, and potentially professionally, from the termination of his employment.

[30] Residents in aged care are amongst the most dependent and vulnerable citizens in our community. For this reason, aged care providers are heavily regulated and have reporting obligations that reflect our society’s expectations that they will care for and protect their residents.

[31] In weighing the competing considerations between the impact on Mr Malaarachchi of his dismissal and the reason for the dismissal in this context, I am not persuaded that the impact on Mr Malaarachchi renders the dismissal harsh.

Conclusion

[32] I have found that Uniting Care had a valid reason for dismissing Mr Malaarachchi. I find that the dismissal was not harsh, unjust, or unreasonable, and accordingly, not unfair. I order that Mr Malaarachchi’s application is dismissed.

DEPUTY PRESIDENT

Appearances:

J. Kennedy, solicitor,appearing for Saminda Malaarachchi.

D. Stewart of counsel appearingfor UnitingCare NSW.ACT T/A UnitingCare NSW.ACT.

Hearing details:

2014.

Sydney:

June 11;

July 15, 16, 17.

Final written submissions:

Mr Malaarachchi: 1 October 2014 and 17 October 2014.

Uniting Care NSW.ACT: 10 October 2014.

 1 Section 385(b) Fair Work Act 2009.

 2 Section 387(a) Fair Work Act 2009.

 3 Section 387(b) - (e) Fair Work Act 2009.

 4 Section 387(f) - (g) Fair Work Act 2009.

 5 Section 387(h) Fair Work Act 2009.

 6   Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333.

 7   MM Cables (A Division of Metal Manufacturers) v Victor Zammit - S8106 [2000] AIRC 61.

 8   Edwards v Giudice and Others (1999) 169 ALR 89.

 9   Exhibit K1.

 10   Applicant’s closing submissions, 1 October 2014.

 11   Applicant’s closing submissions, 1 October 2014, paragraph 40.

 12  Section 387(b) Fair Work Act 2009.

 13 Section 387(c) Fair Work Act 2009.

 14 Section 387(d) Fair Work Act 2009.

 15   Section 387(e) Fair Work Act 2009.

 16 Section 387(f) Fair Work Act 2009.

 17 Section 387(g) Fair Work Act 2009.

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