Savita Sharma v Acts Care Limited
[2023] FWC 1927
•3 AUGUST 2023
| [2023] FWC 1927 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Savita Sharma
v
Acts Care Limited
(U2022/8941)
| COMMISSIONER SPENCER | BRISBANE, 3 AUGUST 2023 |
Application for relief from unfair dismissal – interaction with manager - strict compliance with procedures required in accordance with nature of business – medication policy – NDIS – copying and sharing confidential patient information – non-attendance at meeting – lawful and reasonable direction – valid reason –matters of procedural fairness – harsh, unjust, unreasonable.
INTRODUCTION
Mrs Savita Sharma (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy pursuant to section 392 of the Act, alleging that she had been unfairly dismissed from her employment with Acts Care Limited (the Respondent/Employer). The Applicant sought reinstatement and compensation for lost wages.
The Applicant was employed with the Respondent as a Disability Support Worker, for more than 3 years on a permanent part time basis at various facilities of the Respondent. The Applicant’s dismissal was due to conduct regarding: her exchange with a staff member, failure to follow the medication policy, c0pying and sharing confidential patient information with an unauthorised person and failing to follow a lawful and reasonable direction to attend a meeting with the employer to discuss the alleged conduct. The Applicant was paid two weeks in lieu of notice. She argued that her dismissal was harsh, unjust or unreasonable. The Respondent submitted that the Application for unfair dismissal remedy should be dismissed, on the basis that there was a valid reason for the dismissal, and the Applicant was notified of the reasons and was provided with opportunities to respond. The Respondent stated that the material provided in response on behalf of the Applicant was taken into consideration.
Relevant legislative provisions
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
Each of these criteria in section 387 are assessed according to the factual circumstances of this matter.[1]
Section 390 of the Act provides that the Commission may order a remedy if the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed and the Applicant has been unfairly dismissed.
Furthermore, section 392 of the Act provides:
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and(g) any other matter that the FWC considers relevant.
Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a)the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b)one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
The Applicant was employed by the Respondent under the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award).
In accordance with section 396 of the Act, it must next be determined:
(a)whether the application was made within the period required in subsection 394(2);
(b)whether the person was protected from unfair dismissal;
(c)whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
(d)whether the dismissal was a case of genuine redundancy.
The parties agreed that the application was filed in the Commission, within the statutory 21-day period. It was not in dispute between the parties that the Respondent was not a small business employer, nor that this dismissal was a termination of employment and not a case of genuine redundancy. I am satisfied that the Applicant was a person protected in terms of the unfair dismissal provisions.
Permission to appear
Both the Applicant and the Respondent sought to be represented before the Commission. The Applicant was represented by the Australian Workers Union (AWU), and the Respondent sought to be legally represented. It was set out that the Respondent had no dedicated human resources personnel and the two in house management personnel were appearing as witnesses. The managers also did not have experience in advocacy before the Commission and the Applicant was represented by an experienced Industrial Officer of the AWU. Further to the filing of submissions on legal representation, permission was granted pursuant to section 596 (2)(a) for the Respondent to be legally represented as this would enable the matter to be dealt with more efficiently, considering the complexity of the matter.
Accordingly, at the hearing, the Applicant was represented by Mr Aaron Santelises and Ms Cheri Taylor, both of the AWU and the Respondent was represented by Mr Cameron Niven, Lawyer of NB Employment Lawyers.
The matter was originally set down to be heard at the Toowoomba courthouse. A series of delays with the Hearing occurred when the Respondent’s Manager-Operations officer (the instructing party) broke her leg and then experienced significant complications which required a period of hospitalisation. Difficulties then arose with being able to book the courthouse. The Hearing by consent, on the officer’s return to work was subsequently conducted by Microsoft Teams. The parties sought to file final written submissions, with Directions set by consent of the parties. An agreed further extension was provided as a result of a change in legal representative to Mr Chen for the Respondent.
BACKGROUND
In summary terms, the Applicant set out that she attended work on 23 July 2022 at the Mary Street facility of the Respondent. The Applicant stated whilst working her shift she witnessed a client of the Respondent drop his medication between the boards of the veranda, and the client started yelling at her. She submitted she attempted to call 13HEALTH twice but was not able to speak with anyone.[2] She subsequently completed an incident report about the medication issue and the client’s behaviour.[3] There was no documentation of these attempts to contact 13-HEALTH. The Applicant submitted she was then informed that a client at the facility had tested positive for COVID-19. The Applicant informed the Respondent she felt unsafe to continue working there as she was pregnant. The Respondent arranged coverage for the Applicant, so she could leave the workplace at Mary Street. She completed her shift at another of the premises of the Respondent.[4]
The Respondent refuted the assertion that the Applicant had contacted 13HEALTH as required, in breach of their policies,[5] and emphasised that there had been no required documentation of this. The Respondent submitted that due to the risk to their business, in terms of an alleged breach of this important policy, they determined to speak to the Applicant about this.[6] Ms Carlita Rose, Operations Manager of the Respondent sought to schedule a meeting with the Applicant in 2 days. Matters had also arisen regarding a complaint in terms of the manner, in which the Applicant had spoken to a manager.
A day later the AWU, on behalf of the Applicant sought to reschedule this meeting due to representative unavailability. The Respondent responded seeking other suitable dates for the meeting, that aligned with the Applicant’s rostered shifts.
On Thursday 4 August 2022 the Respondent requested the Applicant attend the meeting to respond to several allegations and set out those allegations. The meeting was proposed for Friday 5 August 2022 or Monday 8 August 2022. The allegations to be discussed were set out in an email to the Applicant from Ms Carlita Rose, Operations Manager of the Respondent, as follows:
“Dear Savita,
DISCIPLINARY MEETING/ PERFORMANCE COUNSELLING
Apologies for not going into details in the prior invitation, and also in the delay for this email – please see below details for our meeting.
I am concerned about various aspect(s) of your performance. In particular, I am concerned that:
(a) On 20/7/2022 you failed to follow policies and procedures in relation to – that you were instructed to speak with myself and continued to complain to the manager XXXX using a rude tone and argued that it was not fair, saying it is a “you people problem” instructing “you people – to do more buddy shift.” Not speaking respectfully to others or following reasonable work instruction. You failed to comply with company guidelines by discussing internal queries and concerns with manager XXXX instead of myself.
(b) On 23/7/2022 you allegedly neglected to follow internal policies and procedures in relation to Participant missing medication. Your documentation does not show the policy and procedure, nor a duty of care, as per relevant training.
(c) You have been requested to submit certificates for your certificate 3 and 4 in Disability and to date have not provided such evidence.
I would like to discuss these concerns with you in a formal counselling meeting. During the meeting I will provide you with any further details about my concerns and I will also provide you with an opportunity to respond to them.
Accordingly, I would like you to attend a meeting with me at 148 Campbell Street on 5/08/2022 at 1pm or 08/08/2022 at 9am – please confirm at your earliest convenience.
You may bring a support person with you to this meeting, please note your support person is there to support you and be a witness, not to speak on your behalf.
If you have any questions, or if you would like to propose a different time, please do not hesitate to contact me.”[7]
The Applicant replied, on receipt of the email, confirming her attendance on Thursday 4 August 2022 at 12:20pm for the Monday 8 August 2022 meeting time.[8]
The AWU then responded to this email correspondence the same day at 12:54pm, seeking the evidence the Respondent was intending to rely on in the investigation of these matters, and stated the meeting may need to be deferred if the information was not provided in a reasonable timeframe before the meeting:
“Good afternoon Carlita,
In order for Savita to have a fair opportunity to respond to the concerns you have raised I request that we be provided with any evidence that will be supplied during the meeting or used in the investigation of this matter by 5pm this afternoon.
Should you be unable to provide the requested information by then a new time later in the week will need to be provided so that Savita has a reasonable amount of time to prepare for the meeting.[9]”
The Applicant clearly had an awareness of the matters to be addressed at the meeting, based on her knowledge of the events, the information provided, and had accepted the meeting accordingly. On Friday 5 August 2022, as requested, the Respondent provided further particulars of the allegations for the meeting and sought confirmation of attendance by 5:00pm the same day, for the Monday 8 August 2022 meeting. The Applicant submitted that she did not see this email until after 6:00pm that day.[10] The further particularised allegations provided were set out as follows:
“Dear Savita
DISCIPLINARY MEETING/ PERFORMANCE COUNSELLING
ActsCare has concerns regarding your conduct and adherence to workplace policies and procedures. We would like to address this with you to ensure there is no confusion about our expectations and what is expected of you during your employment. We provide the following:
Allegation 1
It is alleged that:a.On 20 July 2022 it is alleged that you have been disrespectful to another staff member, being [redacted]; (when asked to change shift location)
b.It is alleged you have used a rude tone and been insubordinate in your conduct by stating:
i. An issue was a “you people problem”; and
ii. “You people – to do more buddy shift”
The above alleged conduct was received as being unprofessional and demonstrating a lack of respect towards your colleagues, peers, and management. Your position provides the opportunity to express yourself freely. However, this freedom does not extend to being knowingly rude to your colleagues.
Allegation 2
It is alleged that:a.On 23 July 2023, an NDA Participant forced their medication through the flooring on a balcony;
b.You were aware of the conduct within a. above;
c.You did not contact anyone or take any steps in respect of a. above;
d.You have completed ActsCare’s medication training which directs you to contact 13 HEALTH in circumstances where a patient misses, or does not take necessary medication under their NDIS participant’s care plan;
e.In contravention of ActsCare’s Essentials B policy, section Unit 2, last paragraph, you failed to record, or note appropriate procedure in regard to the missing medication;
f.In response to the above, ActsCare sought to better understand your training and qualifications by providing you with a lawful and reasonable direction to provide your Certificates III and IV in Disability Support. It is noted you have provided incomplete documents which are not compliant and do not appear to be a certificate of completion
g.In contravention of the above, you have failed to provide the certificates in a reasonable period of time[11].
Your position requires you to meet a specific standard of care, specifically for, and when treating NDIS Participants. Crucial to this obligation is the management of drugs and other pharmaceuticals which are used within ActsCare as per health directions and NDIS Participant’s care plans. Your conduct, if substantiated, demonstrates an intention not to be legally bound by the terms of your employment contract, particularly in circumstances where you have failed to comply with a lawful and reasonable direction. This conduct can be categorised as serious misconduct under the Fair Work Regulations 2009 (Cth).
Further, your conduct has the potential to expose ActsCare to a significant liability regarding the potential breach of duty of care of an NDIS Participant. This is serious matter to ActsCare given the nature of our business.
Given the above, we direct you to attend a workplace meeting for the purpose of providing responses to the above. Should you require further information, and this information is reasonably necessary for you to understand the nature of our concerns, this will be provided. Please note, ActsCare will not disclose the names of persons who have raised their concerns about you. For this reason, you are directed to attend 148 Campbell Street on 8 August 2022 at 9:00 am.
You may bring a support person with you to this meeting, please note your support person is there to support you and be a witness, not to speak on your behalf.
Given the nature of the above allegations, you are welcome to respond in writing with confirmation of same to be sent to the ActsCare not later than 5pm - 5 August 2022.
The above allegations are serious, and if substantiated ActsCare will consider what, if any, disciplinary action is necessary.
If you have any questions, or if you would like to propose a different time, please do not hesitate to contact me.
Yours sincerely
Carlita Rose[12]”
The meeting notice and further details required confirmation of attendance.
On Sunday 7 August 2022, before the Monday meeting, the AWU emailed the Respondent seeking postponement of the meeting to ensure a fair process and proposed an alternative meeting time or that the Applicant be allowed a further 7 days to respond in writing.
On Monday 8 August 2022, prior to the scheduled 9:00am meeting, between 6:36am and 9:52am, several emails were exchanged between the Applicant’s representative and the Respondent. The AWU’s proposal for a further changed meeting time for the Applicant to consider the allegations and give her written response was denied. Ms Carlita Rose in the response emails was clear that the Applicant was notified at an early time of the meeting, the Applicant understood the matters being referred to, and the Applicant accepted the meeting on that basis. However, when the Union later requested further details, these were provided. Ms Rose set out in her witness statement that there were no dedicated HR personnel for the Respondent, and she was unwilling to reschedule the meeting any further.[13] Those emails are set out below:
Ms Carlita Rose to Mr Reed-Banyard at 6:36am:
“Good morning Nelson,
I regards to this morning meeting – I have given plenty of notice as you have requested multiple times for this.
Savita has already accepted this morning’s meeting. Would you like to join via video?
I decline your proposal to change the date, nor Savita respond in writing as this has dragged out far too long.”
Mr Reed-Banyard to Ms Carlita Rose at 8:01am:
“Good Morning Carlita,Savita had accepted this morning’s meeting disciplinary meeting before you had provided more information in regard to the investigation. In my prior email on Thursday 04/08/2022 I also requested if there is additional information and evidence for Savita to consider prior to this meeting that it be rescheduled for later in the week.
I also acknowledge you provided Savita less than 3 hours to produce a response in writing on Friday 5/08/2022.
Should you prevent Savita from having the opportunity to a fair and reasonable response, as is her right under the Fair Work Act, I will have no choice but to seek a resolution to this matter in the Fair Work Commission.
I strongly recommend you reconsider.”
Ms Carlita Rose to Mr Reed-Banyard at 8:54am:
“Respectfully – there is no further information in this amendment.
This has no workability and is extremely impact to the business.
I would like your seniors contact details please?”
Mr Reed-Banyard to Ms Carlita Rose at 9:52am:
“Good Morning Carlita,I have CC’ed Craig Downie the AWU South Western District secretary into this email.
I have 2 things to note:
1. The number of allegations changed from 2 to 3 and the nature of allegation 2 has changed significantly.
2. If there has been no further information provided or changed, why has it been submitted as an amendment (see below).
“Amendment” – noun
A minor change or addition designed to improve a text, piece of legislation etc.
…[14]”
(Emphasis added)
It appears that the Applicant in conjunction with her representative, surmised (in the absence of any confirmation of the cancellation of the meeting), that given the exchange of emails on the morning of the meeting, that extended past the meeting time, she considered that the meeting would not proceed. The Applicant did not attend the meeting as scheduled and as she had previously confirmed.[15] The Respondent was of the clear view that the meeting was proceeding, as the Applicant’s shifts had previously been accommodated, as had her requests for additional information.
It was argued on behalf of the Respondent that given the attempts by Ms Rose to manage this matter, and in the absence of justified reasons for the Applicant’s non-attendance, that the matters to be discussed were clearly set out, and there was no reason for the Applicant not to attend the meeting. Therefore, the Respondent considered, based on all the steps taken, that the matter had not progressed, and that additional assistance was required in managing these matters. They therefore had Mr Cameron Niven, their legal representative, write to the Applicant’s representative stating he now acted for the Respondent. This correspondence went on to state that the Applicant had been afforded a reasonable opportunity to respond, but had chosen not to engage with the disciplinary process and that the Respondent would therefore consider the material available, regarding the substantiation of the allegations:
“Dear Mr Reed-Banyard
RE: Meeting with Savita Sharma
We act for ActsCare (Client).
We refer to the Australian Workers’ Union’s (AWU) emails dated 7 August 2022 and two (2) emails dated 8 August 2022.
Preliminary
1.We understand Ms Savita Sharma (Ms Sharma) was directed to attend a meeting with our Client at 148 Campbell Street at 9:00 am today (Meeting). The purpose of the Meeting was to provide Ms Sharma with an opportunity to respond to allegations which had been put to her in previous correspondence.
2.The direction to attend the Meeting a reasonable and lawful direction consistent with Ms Sharma’s employment obligations and was necessary for the purposes of reasonable management action.
3.Despite our Client receiving correspondence affirming Ms Sharma’s attendance, Ms Sharma has not attended the Meeting.
Correspondence
7 August 20224.In respect of the AWU’s 7 August 2022 email, Ms Sharma was provided with a reasonable opportunity to respond. In this regard, the purpose of the Meeting was not to impose disciplinary action against Ms Sharma.
5.Instead, it was to obtain any responses which she wishes to provide before our Client made any decision regarding Ms Sharma’s ongoing employment.
6.Ms Sharma not attending the Meeting does not give rise to a circumstance wherein there has been no opportunity to respond. In this regard, we provide the matter of Siriwardana Dissanayake v Busways Blacktown Pty Ltd [2011] FWAFB 6487 (Siriwardana). Siriwardana stands for the proposition that a failure to cooperate with a disciplinary process does not result in a failure to provide an opportunity to respond.
7.Ms Sharma has been provided with an opportunity to respond. In this regard, we note Ms Sharma received the allegations letter on Friday 5 August 2022, which provided her with two (2) full days to consider the allegation and what material, if any, could be provided in response. Instead of attending the Meeting as directed, it appears Ms Sharma has instructed the AWU to seek an extension of time to respond and in doing so has not provided the reason for the request.
8.Given the above, it appears Ms Sharma has been afforded a reasonable opportunity to respond and instead of engaging with the disciplinary process has chosen to avoid conversations regarding her performance and conduct. This is unfortunate.
8 August 2022
9.In respect of the AWU’s first email on 8 August 2022 email, we note the correspondence which included a direction to attend the meeting contains details of the allegations and their particulars. Given this, the comment "Savita had accepted this morning’s meeting disciplinary meeting before you had provided more information in regard to the investigation" is misguided.
10.The allegation has not been amended. Rather, it has been clarified for Ms Sharma’s benefit. Irrespective of these matters, there does not appear to be any prejudice caused to Ms Sharma as the substantive allegation remains intact, albeit more clearly particularised and defined. It goes without saying we consider it inappropriate to request better and further information within the particulars, while concomitantly complaining regarding same.
11.In respect of the AWU’s second email on 8 August 2022, our Client is not obliged to provide further information regarding why the allegations were further particularised. Suffice to say it was off the back of the AWU’s request.
12.Regarding the threat to refer this matter to the Fair Work Commission. We take no issue in this and Ms Sharma is welcome to do so. Notwithstanding the AWU has failed to particularise the nature of its concerns, we view it is likely the AWU intends to lodge a stop bullying application. On this basis, we note the conduct of this matter to date has been reasonable insofar as Ms Sharma has been provided with clarified particulars which draw her attention to our Client’s concerns well enough to provide response. The AWU will appreciate reasonable management action need not be perfect.
13.Moving forward, it would be appreciated if the AWU could not send Google search results to our Client. It is inconsistent with the otherwise good work the AWU undertakes.
Moving Forward
Our Client will consider the nature of the allegations and whether they are capable of being substantiated based on the material presently available. Further, our Client will consider how to address Ms Sharma’s failure to comply with a lawful and reasonable direction in not attending the Meeting.Should you have any further questions or queries please do not hesitate to contact Cameron Niven, Senior Lawyer, on …[16]”
On 10 August 2022, the Applicant received an outcome letter regarding the allegations, which informed her they were substantiated and issued a formal warning:
“Dear Mr Reed-Banyard
RE: Outcome of Show Cause and other matters
We act for ActsCare (Client).
We refer to our Client’s previous correspondence dated 5 August 2022 (Allegation Letter) and our previous correspondence dated 8 August 2022 (Correspondence).
Position
1.Within the Correspondence, we addressed Ms Savita Sharma (Ms Sharma) had failed to attend a workplace meeting on 8 August 2022 (Meeting). The purpose of the Meeting was to obtain Ms Sharma’s response to allegations put to her within the Allegation Letter. Our Client wished to ensure Ms Sharma was afforded an opportunity to respond to the particulars within the Allegation Letter.
2.For unknown reasons, Ms Sharma did not attend the Meeting. This is despite representations being made that Ms Sharma would attend the Meeting.
3.Within the Correspondence, we advised in circumstances where Ms Sharma had failed to respond to the Allegation Letter in not attending the Meeting, it would be required for our Client to consider the materials available and determine, on the balance of probabilities, if the allegations were capable of being substantiated.
Allegation 1
4.Our Client received a complaint from a long-standing employee. We understand this complaint to have been credibly provided and that it arose in circumstances which lead our Client to believe the complaint to be genuine. Our Client understands Ms Sharma became heated with another employee.
5.In lieu of the above and noting Ms Sharma has not denied the allegation or provided any material which would suggest it is untrue or not capable of being substantiated, our Client views the allegation is, on the balance of probabilities, capable of being substantiated.
Allegation 2
6.Our Client understands Ms Sharma has failed to report an NDIS Participants’ conduct in circumstances where her skills, experience, and qualifications lead to a conclusion she knew, or ought to have known, that it was reasonably necessary for her to take steps to report the conduct and to seek further guidance.
7.In lieu of the above and noting Ms Sharma has not denied the allegation or provided any material which would suggest it is untrue or not capable of being substantiated, our Client views the allegation is, on the balance of probabilities, capable of being substantiated.
8.Further, and in addition to the above, Ms Sharma has not yet provided her Certificates III and IV in Disability Support to our Client. Given this, it is determined Ms Sharma has failed to comply with a lawful and reasonable direction.
Formal Warning
9.Our Client has had regard to the nature of the substantiated conduct and the result an adverse finding will have on Ms Sharma’s ongoing employment. Our Client has also considered the seriousness of the conduct, which is coloured by elements of negligence and a failure to use and rely upon systems of work correctly, and a failure to exercise due care, skill, and attention. Our Client has weighed the likelihood of the conduct not occurring against the likelihood of it occurring and reached the view it is appropriate to impose a formal warning against Ms Sharma in respect of each of the above substantiated allegations.
10.Our Client will maintain a copy of this correspondence on Ms Sharma’s personnel records as a confirmation that a formal warning has been imposed. A previously issued formal warning may be relied upon for any subsequent disciplinary matters.
11.Moving forward, Ms Sharma will not be placed on a performance improvement plan. However, it is expected that she adheres to our Client’s policies and procedures, particularly concerning patient safety and treatment
12.In the circumstances, the direction to Ms Sharma to provide her Certificate IV in Disability Support is re-issued. To be clear, Ms Sharma must provide her Certificate IV in Disability Support on or before Monday, 15 August 2022. We understand the Certificate III was provided on 5 June 2022.
13.Our Client appreciates Ms Sharma may be upset by the Allegation Letter and its contents and being provided with a formal warning for her conduct. Particularly as it was her colleague who took steps to identify her conduct to our Client. In these circumstances, any retaliatory or retributory conduct by Ms Sharma will not be entertained and will result in disciplinary action up to and potentially including termination of her employment.
Moving Forward
This correspondence does not address our Client’s position on Ms Sharma’s failure to attend the Meeting. We confirm this is a separate and distinct matter from the matters addressed within the Allegation Letter.
Further, our Client looks forward to receipt of Ms Sharma’s Certificate III and IV in Disability Services, which will be provided on or before Monday, 15 August 2022. This direction is a lawful and reasonable direction, as received from our Client.
Should you have any further questions or queries, please do not hesitate to contact Cameron Niven, Senior Lawyer, on …[17]”
(Original emphasis)
The Applicant’s representative wrote to the Respondent to appeal the formal warning outcome on 12 August 2022. The correspondence noted the apparent lack of procedural fairness thus far and provided a response to the allegations on behalf of the Applicant, including attaching screenshots of the incident report filed by the Applicant on 23 July 2022 to support the assertion that the Applicant had followed the policies and procedures of the Respondent.
…
Allegation 1
See attached recollection of events from Ms Sharma.“I discussed the same thing with Carlita on the very second day, when she called on Mary street about a new staff buddy shift. I didn’t use any rude language to any of the house lead. I was talking in a normal way. The ‘buddy shift’ was only the concern and I requested for buddy shifts for more staff after the house lead requested me to do swap the shift for more times as she couldn’t put any other staff as they were not been provided the buddy shifts in other houses. It was my suggestion after she told me all this. Told me the concern and I gave the suggestion and before we got the email from the office that if staff had any concerns they should follow the chain contact -first to house lead-supervisor-office-Annette. I did the same contacted house lead first and had a chat with Carlita on the second day.”
While I appreciate the credibly provided by the original complainant, I presume the same credibility afforded to Ms Savita Sharma. Taking into consideration her track record for performance reviews, professional conduct in the workplace and anecdotes from her colleagues.
Allegation 2
It is alleged that:a)On 23 July 2022, an NDIS Participant forced their medication through the flooring of a balcony;
b)You were aware of the conduct within a. above;
c)You did not contact anyone or take any steps in respect of a. above;
Attached are two separate Incident reports (Appendix 1+2) Ms Sharma had submitted on 23/07/2022 pertaining to the incident mentioned and the behaviour of the client while Ms Sharma was writing the first report. These reports were also supplied to her Supervisor and [office email address]. Savita also attempted to contact 13Health twice as all staff are instructed to when subject to situations where clients do not take their medication.
It should be noted that during this situation Ms Sharma had assessed one of the clients to be presenting COVID-like symptoms and managed to isolate them until a test could be taken. This Client went on to test positive to COVID. Ms Sharma should be commended for the way she conducted herself during this circumstance, remaining professional and providing exceptional care in a highly
stressful situation.The Australian Workers Union, upon consideration of all evidence provided, believes that neither allegation can be substantiated on the balance of probabilities. The Australian Workers Union views the punishment provided by Actscare as unjust.
Moving Forward
On behalf of Ms Savita Sharma, I request that:
1.Evidence of requirement for a Certificate IV in Disability Care be provided by Actscare. The AWU reminds Actscare that someone employed under the “Social, Community, Home Care and Disability Services Industry (SCHCADS) Award 2010” and performing the duties paid at pay point 2.1 (Social and Community Services Employees) only requires a certificate III in Disability Care. ActsCare’s other employees completing the same duties as Ms Sharma have not been requested to provide a Certificate IV nor does the job posting on Indeed (updated 19 days ago) require a Certificate IV to apply or presumably be successful in the application process.
2.IF a Certificate IV in Disability Care is proven to be necessary for Ms Sharma’s employment, her pay be increased in accordance with the SCHADS award 2010. Is Ms Sharma’s Diploma in Disability Care adequate in lieu of her being able to provide a Certificate I, given that her Diploma is of equal or greater certification?
In order for ActsCare to provide a suitable response the AWU proposes a response be made within 14 days (no later than the 25th of August 2022). The AWU proposes the due date for Ms Savita Sharma to provide her Certificate IV be postponed until Actscare have responded with the requested information.
Should you have any questions about this letter or the attached request, please do not hesitate to contact Nelson Reed-Banyard on…[18]”
On 19 August 2022, the Applicant received further allegations from the Respondent due to her inclusion of the photographs of the Applicant’s 23 July 2022 incident reports:
“Dear Savita
RE: Allegations of misconduct
We act for your employer, ActsCare (Client).
On 10 August 2022, you were provided with an outcome letter concerning two (2) allegations (Outcome Letter) which were put to you for a response. We do not propose to provide a comprehensive background of these matters. The Outcome Letter imposed a Formal Warning against you as a consequence of your failure to treat your colleagues with respect and a failure to comply with our Client’s policies and procedures.
However, the Outcome Letter further advises the purpose of the correspondence was not to address your alleged failure to attend a workplace meeting which you were lawfully and reasonably directed to attend. Instead, it informed you its purpose was to address the two (2) allegations which had been put to you.
Given the finalisation of the previous discipline process, our Client now wishes to address your alleged poor conduct during the previous discipline process. In this regard, while progressing through a disciplinary process, you are still obliged to adhere to lawful and reasonable directions. To be clear, inappropriate or insubordinate behaviour is not excused because you may be progressing through a disciplinary process. Our Client is entitled to expect complete compliance with its lawful and reasonable directions.
Given the above, our Client has concerns you may have demonstrated further behaviour which is inconsistent with your employment obligations and have surreptitiously obtained information in contravention of your ongoing confidentiality obligations. We provide the following regarding our Client’s concerns:
Allegations
Allegation 1:
1.It is alleged that:
a.On 4 August 2022, our Client directed you to confirm your attendance at a workplace meeting (Meeting) for the purposes of discussing concerns regarding performance and conduct in the workplace;
b.On 5 August 2022, you confirmed your attendance at the Meeting;
c.You wilfully and deliberately failed to attend the Meeting and have not provided a reason for same; and
d.The direction to attend the Meeting was lawful and reasonable, and necessary management action.
2.Our Client considers the alleged conduct amounts to a failure to comply with a lawful and reasonable direction.
3.We understand the Meeting was to provide you with an opportunity to respond to two (2) allegations that had been put to you in correspondence. Your alleged non-attendance is not excused by the finalisation of the disciplinary process through which you were progressing. Instead, if substantiated, our Client considers the alleged conduct will amount to a further instance of failing to adhere to lawful and reasonable direction given to you in the workplace.
Allegation 2:
4.It is alleged that:
a. During your employment, you are provided access to our Client’s internal computer systems and the confidential information within;
b. On 21 August 2019, you signed our Client’s Privacy and Confidentiality Memorandum which confirms you acknowledge:
i.Employees are not permitted to take photos and/or videos of Client’s suppliers, employees, contractor or any associated parties without consent; and
ii.Any photo or videos must only be taken for work purposes and be approved before being taken.
(Confidentiality Memo)
c. On 19 March 2021, you agreed to our Client’s Privacy and Confidentiality Agreement which stipulates you agrees [sic]:
i.To maintain the confidence of confidential information and prevent unauthorised disclosure [sic] or use by any other person;
ii.To only use confidential information for the purpose of carrying out your duties;
iii.To not remove any part of the confidential information from our Client’s business premises; and
iv.To not copy or in any manner reproduce the confidential information
(Confidentiality Agreement)
d. On 12 August 2022, Mr Nelson Reed-Banyard (Mr Reed-Banyard) responded (as your appointed representative) to the Outcome Letter and sought to “appeal” the finding under the Social, Community, Home Care and Disability Services Industry Award 2010 (Award), section 9 (Appeal Request);
e. Within the Appeal Request, Mr Reed-Banyard disclosed four (4) images which relate specifically to an NDIS participant’s [sic] treatment and are our Client’s confidential information;
f. Given the above, it is alleged you have taken four (4) photos of confidential information within your employment, in contravention of the Confidentiality Memo, the Confidentiality Agreement and your Employment Contract’s requirements; and
g. Have inappropriately disclosed the confidential information for an improper purpose without our Client’s consent to Mr Reed-Banyard
5.Our Client considers it reasonable to suggest it was not required for you to take photos of its confidential information. Instead, it was appropriate to merely reference the documents. In this regard, we note you have not sought authorisation to take photos of our Client’s confidential information. To be clear, it appears you have acted in a manner which is expressly prohibited by the Confidentiality Agreement and Confidentiality Memo.
6.The alleged conduct is particularly concerning to our Client given you were not present in the workplace when the Appeal Request was sent to our office. Given this, it appears you may have sought a colleague to take the photos on your behalf. Should this be the case, we consider it would be highly inappropriate to request another employee be complicit in your alleged contraventions of our Client’s policies and procedures.
Opportunity to Respond
7.Given the above, we direct you to respond to the above allegations in writing by no later than 5:00 pm, Friday 26 August 2022. Should you require further information, and this information is reasonably necessary for you to understand the nature of our Client’s concerns, this will be provided.
8.The above allegations are serious, and if substantiated, our Client will consider what, if any, disciplinary action is necessary.
Moving Forward
In the interests of clarity, we note the Award, section 9 does not provide you with rights of appeal as this provision is intended to deal with disputes which arise out of the Award, or which relate to the National Employment Standards (NES). A workplace discipline process is neither of these.
Should you have any further questions or queries please do not hesitate to contact Cameron Niven, Senior Lawyer, on ...”[19]
The correspondence from the Respondent’s representative did not set out that the termination would be undertaken ‘on the papers’ only, without a meeting of the parties. On 26 August 2022, the AWU briefly responded to the allegations on behalf of the Applicant as set out below:
“Re: Allegations of misconduct, AWU Member Ms Savita Sharma
We act on behalf of our member, Ms Savita Sharma in responding to your correspondence of 19 August 2022.
Allegation 1:
It is alleged that our member wilfully or deliberately failed to attend a workplace meeting for the purposes of discussing concerns regarding her performance and conduct in the workplace; have not provided a reason for this non-attendance and that this alleged conduct amounts to a failure to comply with a lawful and reasonable direction.The reason for Ms Sharma’s non-attendance at this meeting was due to a miscommunication between the parties as to the status of this meeting and the concerns to be discussed at same.
As such, it is not open to your client to determine that our member wilfully and deliberately failed to attend the meeting as directed.
Allegation 2:
It is alleged that our member took four (4) photos of confidential information in contravention of your Client’s Confidentiality Memo and Agreement; and that she inappropriately disclosed the information for an improper purpose to the AWU’s Mr Reed-Banyard.We understand that Ms Sharma took the photographs in question (of two incident reports) at the time of completing these reports. We further understand that the only reason our member did so was for her own protection in the event that the NDIS Participant raised concerns about her carrying out her duties.
Evidence of qualification:
Please find attached evidence of Ms Sharma’s qualification, a Diploma in Community Services.
…[20]”
The Respondent, having considered these responses and the range of breaches of policy and conduct, forwarded the letter notifying of the termination of her employment due to the further substantiation of the 19 August 2022 allegations:
“Dear Craig and Savita
RE: Termination of your employment
We act for your employer, ActsCare (Client).
Background
1.We provide the relevant background as follows:
a.On 4 August 2022, our Client put two (2) allegations (Allegations) to you regarding your performance of your position’s duties and your workplace conduct (Allegations Letter);
b.On 5 August 2022, the Allegations were clarified and further particularised to ensure you were able to understand the nature of our Client’s concerns;
c.On same day, you confirmed your attendance at a workplace meeting to be held on 8 August 2022 (Meeting);
d.On 10 August 2022, you were provided with an outcome regarding the Allegations within the Allegations Letter (Outcome Letter);
e.The Outcome Letter substantiated the Allegations against you were substantiated, and you were issued with a formal warning in respect of each of the Allegations (Formal Warning(s));
f.On 12 August 2022, following the conclusion of the matter, Mr Nelson Reed-Banyard (Mr Reed-Banyard) of the Australian Workers’ Union (AWU) requested further information regarding the Allegations and concomitantly provided your responses to same. Additionally, Mr Reed-Banyard sought to rely upon dispute resolution provision within the Social, Community, Home Care and Disability Services Industry Award 2010 (Award), which does not apply to your employment;
g.On 19 August 2022, our Client put two (2) further allegations to you regarding your compliance with lawful and reasonable directions and adherence to our Client’s policies and procedures (Further Allegations Letter); and On 26 August 2022, Mr Craig Downie (Mr Downie) of the AWU responded (Response) to the Further Allegations Letter.
2.The purpose of this correspondence is to address your Response to the Further Allegations Letter. We provide the following.
Allegations
Allegation 1
3.On 4 August 2022, you were directed to confirm your attendance at the Meeting. On the same day, you confirmed your attendance. The purpose of the Meeting was to have conversations regarding your performance and conduct in the workplace.
4.Within the Response, the AWU stipulates the reason for your non-attendance was a miscommunication. However, Mr Downie does not state the cause or reason of the miscommunication and asserts it is not open for our Client to determine you have wilfully and deliberately failed to attend the Meeting as directed.
5.Our Client disagrees. In the circumstances, our Client is entitled to expect complete compliance from you in completing lawful and reasonable directions within the workplace. We consider, and no information is provided by the AWU to this point, that you have agreed to attend the Meeting and have sought advice from the AWU.
6.Thereafter, we presume the AWU has likely advised you not to attend the Meeting until further information was provided by our Client. However, in the course of the AWU representing you, it appears they may have failed to advise our Client you would not be attending the Meeting. The AWU’s failure does not excuse your attendance or provide you with a reasonable excuse not to attend the Meeting. In the circumstances, a more appropriate course of action would have been for a representative of the AWU to attend the Meeting with you and to request further information or otherwise act as a support person.
7.Instead, we understand you have not attended the Meeting or provided any reason for your non-attendance to our Client at this time.
8.Our Client has no issue in the AWU’s involvement in these matters and has no regard to any advice you have received from them. To this point, we note the allegation against you is that you have failed to attend the Meeting. This is the basis of our Client’s concerns. It is not that you have contacted the AWU, which of course, you are entitled to do and our Client has no concern with.
9.Within the Response, there is nothing which demonstrates a reason for non-attendance a the Meeting, for example, a family emergency or pressing necessity which could not be avoided. Should this have been brought to our Client’s attention, we consider the Meeting would have been rescheduled. Instead, our Client has been ‘left in the dark’.
10.Given the information within the Response, we consider it is open to confirm you have failed to comply with a lawful and reasonable direction, and on this basis, the allegation is capable of being substantiated.
Allegation 2
11.Allegation 2 centres around the capture and collection of our Client’s confidential information and information regarding NDIS Participants.
12.The Response stipulates the reason you have taken four (4) photographs was for your “own protection” in the event an NDIS Participant raised concerns about the nature in which you complete your duties.
13.Our Client does not see the utility in this argument and considers in circumstances where an NDIS Participant took issue with the manner of your treatment, the incident reports which you have taken photographs of would be available within our Client’s database. In practical terms, we do not consider the Response provides substantial reasons which would allow you to contravene our Client’s policies and procedures.
14.In addition to the above, the Response does not outline in what way you have not contravened the policies and procedures which it is alleged you have contravened. Instead, it appears the AWU, as your representatives, has admitted to the conduct and provided an excuse for same.
15.It was highlighted within the Further Allegations Letter that our Client takes these matters seriously and on this basis, we considered you would direct the AWU to provide substantial reasons for your alleged conduct. Instead, it appears the AWU has dealt with these matters as if they were trivial. This is unfortunate.
16.Given the information within the Response, which we consider includes an admission of the alleged conduct, we consider the allegation is capable of being substantiated.
Discipline
17.Our Client has had regard to the nature of the substantiated conduct and the result an adverse finding will have on your ongoing employment. Our Client has also considered the seriousness of the conduct. Our Client has weighed the likelihood of the conduct not occurring against the likelihood of it occurring and reached the view it is appropriate to terminate your employment for the above substantiated allegations and substantiated allegations within the Outcome Letter.
18.Within the Further Allegations Letter, you were advised these matters were serious. Given this, and considering the admissions within the Response in respect of Allegation 2 above, we considered it necessary for the Response to outline matters which weigh in favour of no discipline action being taken against you.
19.However, the Response does not outline items which would ordinarily weigh in your favour. In the circumstances, our Client considers your age, qualifications, ability to obtain further employment, and availability of work. Our Client does not consider these items weigh in favour of a decision to maintain your ongoing employment, and for this reason, and those set out above, your employment will be terminated effective the date of this correspondence.
Next Steps
20.Following the termination of your employment, you will be paid:
a.The applicable notice period;
b.Your accrued but untaken statutory annual leave entitlements; and
c.Unpaid wages at the date of this letter.
21.These amounts will be subject to taxation at preferential rates, and the final amount will be paid into your bank account in due course together with applicable superannuation.
Post-Employment Obligations
22.As you are aware, you are required to comply with your ongoing obligations to our Client regarding privacy and confidentiality under the relevant law, and your employment contract. In these circumstances, our Client directs you to destroy or otherwise delete any further photographs of confidential information within your possession.
Property
23.It is requested that you return all our Client’s property currently in your possession, including:
a.Any documents;
b.Any keys and access cards; and
c.Any other property that remains in your possession.
A Way Forward
Should you have any further questions or queries please do not hesitate to contact Cameron Niven, Senior Lawyer, on …[21]”
The Union and the Applicant were taken by surprise when the Respondent’s representative moved to terminate the Applicant’s employment without notification of this process, on the basis of the Union’s short response.
Witnesses
The Applicant provided her evidence and Ms Annette Rose, Director and Ms Carlita Rose, Operations Manager provided evidence on behalf of the Respondent. All witnesses were cross examined at the hearing.
Submissions
Prior to the hearing, directions had been set for the filing of evidence and submissions. Accordingly, the parties filed their material. By consent, directions were set for written final submissions after the hearing, and a further extension was sought and granted by consent, to accommodate a change of personnel in the Respondent’s representative.
SUMMARY OF THE EVIDENCE AND SUBMISSIONS
Further to the matters set out in the background above, parties made the following submissions.
Threshold issue – Allegations leading to termination
The Applicant submitted firstly that the allegations the Respondent should be allowed to rely on for her termination were only twofold, outlined in the show cause letter of 19 August 2022 and the termination letter of 31 August 2022 as:
a.‘wilfully or deliberately failed to attend the Meeting and have not provided a reason for same’ (‘non-attendance at meeting’)
b.‘having inappropriately disclosed the confidential information for an improper purpose without our Client’s consent to Mr Reed-Banyard’ (‘disclosing confidential information’)
The Respondent confirmed that the termination of employment was based on the prior allegations and warning issued on 10 August 2022, in addition to the allegations set out in the Show Cause and termination letters. The prior warning was issued for:
a.[being] disrespectful to another staff member, used a rude tone and were insubordinate in your conduct (‘inappropriate interaction’).
b.fail[ing] to report a NDIS Participants’ conduct in accordance with the Respondent’s policies (‘medication incident’)
The Respondent submitted that they had determined to issue a warning in response to the Applicant’s serious misconduct, as the most appropriate outcome instead of termination of the Applicant’s employment. The Respondent resiled from the termination due to the circumstances of the Applicant’s pregnancy.[22] The Respondent further set out that disclosing confidential information was a significantly serious breach of company policy. The policy was in place to protect the clients and the business and compliance with which was mandatory. The Respondent also set out that non-attendance at the meeting on its own was not sufficient to justify termination, however, when viewed collectively with the issue of the breach of confidentiality, and in consideration of the matters relevant to the prior warning, the situation justified the termination of the Applicant’s employment.[23]
The Applicant argued that the inappropriate interaction with the manager, and the medication incident leading to the warning, had not been referred to as further allegations in the Show Cause process leading to the termination in the Respondent’s correspondence of 19 August 2022 or 31 August 2022, merely as ‘background’ leading to the termination. It was submitted that they could not be relied on in the valid reasons for termination. The Applicant submitted that these allegations could not be re-enlivened to provide more reasons for termination, when the matter had already been determined, and a warning issued.[24] However it was clear that all of the disciplinary matters were relevant, as referred to in the further Show Cause correspondence, and all of the allegations had been addressed in both parties’ materials for the unfair dismissal hearing.
At the hearing, parties made oral submissions on this issue of the reliance on prior warnings, to ensure clarity in how the proceedings progressed. Reference was made to the case of Newton v Toll Transport[25] and parties were provided a short adjournment to consider the case and applicability to these facts.
Upon further submissions of both parties, it was confirmed that the aggregate of the allegations including the prior conduct was relevant to the termination and would be dealt with accordingly. Further, it was determined that this clarification did not provide any prejudice as the parties had addressed all of these disciplinary matters in terms of the fairness of the termination.
SUMMARY OF APPLICANT’S SUBMISSIONS AND EVIDENCE
In addition to the matters set out above, in relation to her application for an unfair dismissal remedy, the Applicant with her representative, provided evidence and written submissions, which outlined the chronology of events leading to termination. The Applicant alleged her dismissal was unfair because it was not for a valid reason and was disproportionate to the conduct alleged. Further, it was argued that the dismissal was harsh because of her economic and personal circumstances being 6 months pregnant at the time of dismissal. The Applicant submitted that very little, if any consideration was given to the mitigating circumstances that she informed the Respondent of, and that her personal circumstances, of her pregnancy, made the dismissal harsh.
With regard to the allegation that she had failed to follow a lawful and reasonable direction in not attending the meeting on 8 August 2022, the Applicant submitted her conduct was not ‘wilful or deliberate’ as alleged, but the result of a miscommunication and lack of clarity in the correspondence between her AWU representative and Ms Carlita Rose of the Respondent on the morning in question.[26] The Applicant argued it could not therefore be considered serious misconduct without the requisite intent.[27] The Applicant stated that the reason for her non-attendance was formally provided to the Respondent in correspondence on her behalf (from the AWU) on 26 August 2022. However, the Respondent ought also to have been aware of the mitigating circumstances through the email correspondence prior to and on the morning of 8 August 2022, up to and proceeding past the scheduled meeting time.[28]
The Applicant submitted as further mitigating circumstances, that when the Respondent’s alleged lack of procedural fairness was raised with the Respondent during the disciplinary process it was not responded to or considered, in determining her dismissal.[29] The Respondent stated all of the circumstances were considered when determining the matter.
With regard to the allegation of sharing confidential client information, the Applicant submitted that the entire factual matrix of the matter must be considered,[30] so that her actions are contextualised. The Applicant submitted she took the photographs of the incident report, as she was concerned the NDIS client might make a complaint, and she wanted her own copy of the record made contemporaneously. When the Respondent alleged that she had not followed their policies and procedures leading to the incident report and the submission of such, she provided the photographs to the AWU, for their assistance to provide a response.[31]
The Applicant referred to the case of Ariana Goss v Health Generation Pty Ltd[32] (‘Goss’) and drew points of comparison to her case. Specifically, in that case it was found that during a disciplinary process, a small circle of individuals including close family and those whom advice was sought from (including legal representatives), may be aware of the subject matter and process.[33] Deputy President Clancy in that case went on to suggest that to expect otherwise is not reasonable. Whilst this case is acknowledged, it does not justify a breach of policy in copying documents without permission.
The Applicant submitted the photographs were in her possession only. However, she does set out that they were then provided to her union representative directly, then supplied back to the Respondent in her response. The Applicant stated that no other parties had access to the photographs at any time prior to her dismissal and it is therefore not a valid reason for dismissal.[34] The Respondent stated that this argument overlooked that the copying and sharing the documents in the Respondent’s operation, significantly exposes their operations.
The Applicant also made reference to the case of Samuel O’Leary v Huntsman Pty Ltd T/A the Archer Hotel[35] where the Applicant had disclosed information, but it was found to have had no impact on the confidentiality of the information. The Applicant submitted the circumstances are analogous as information was provided to a representative and there has been no severe impact to the Respondent.
The Applicant also addressed a range of issues with the disciplinary process including:[36]
the Applicant had been employed by the Respondent for over 3 years and had only had one prior warning during that time;
the Applicant was not offered EAP services during the disciplinary or Show Cause processes and submitted she felt unsupported;
the proposed disciplinary action was not particularised in the Show Cause correspondence of 19 August 2022, so the Applicant was not aware or informed that termination was a possible outcome.
The Applicant refuted the Respondent’s reliance on the case of Grant v BHP Coal Pty Ltd[37] as the facts were argued to be distinguishable. The Applicant’s representative argued that in Grant, the Applicant ceased to communicate with the Respondent regarding the disciplinary process, which the Union argued was not the case here, stating that there was ‘consistent and clear contact between the parties’ in this case.[38] In this matter, it was the Applicant’s non-compliance with a lawful and reasonable direction to attend the meeting.
SUMMARY OF RESPONDENT’S SUBMISSIONS AND EVIDENCE
In addition to the material set out in the background, the Respondent submitted that the termination was for a valid reason and was not harsh, unjust or unreasonable. In summary, the Respondent submitted that all of the facts of the case must be considered including the nature of the Respondent’s operations. They submitted that each allegation in the disciplinary process should not be viewed in isolation, as the conduct as a whole is what led the Respondent to make the decision to terminate.[39]
With regard to the direction to the Applicant to attend the meeting on 8 August 2022, it was argued that this was a lawful and reasonable direction, and failing to comply with such can form a valid reason for dismissal.[40] Specific reference and similarities were drawn to the case of Grant v BHP Coal Ltd[41] where the Applicant refused the employer’s direction to be involved in an independent medical assessment and workplace disciplinary meeting. The Respondent submitted that the conduct of the Applicant in that case, was the conduct that the Respondent ‘took issue with’ here. [42]
Further, the Respondent went on to note, that if the non-attendance at the meeting was not considered to be wilful and deliberate, with reference to Purves v Queensland Rail[43] that they characterised the Applicant’s failure to attend the meeting as “accidental, inadvertent or careless.” Therefore, they submitted that on the current facts in line with that case, this also represented a valid reason for dismissal.
With regard to the incident of copying the Respondent’s confidential information, the Respondent submitted that the case of Goss can be distinguished from the present case for several reasons; the most relevant being that in this case the Applicant, rather than her support person disclosed the confidential information and that the confidential information was not requested from the Respondent, nor was it disclosed as part of the investigation. The Respondent submitted this breach of confidentiality was a clear and serious breach of their internal policies (the Confidentiality Agreement and Confidentiality Memo) in addition to their legislative obligation to maintain the privacy of information to NDIS clients under the National Disability Insurance Scheme Act 2013 (Cth).[44]
The Respondent submitted that had the documentation been requested, rather than removed, the provision of the ‘reasonably necessary’ information would have been considered to ensure procedural fairness. The Respondent outlined that had they considered the material necessary to disclose for the investigation, a summary of such, or a redacted version, rather than the document itself with client information, would have been sufficient.[45] They submitted that the Applicant’s collection and possession of the information was not for a reason approved or consented to by the Respondent and referred to the Applicant’s conduct as “surreptitious”[46] Further, they submitted that the conduct breached their trust and confidence in the Applicant.
The Respondent argued that the Applicant’s act of sharing the images of the Incident Reports was conduct that amounts to an intention not to be bound by the employment contract and the obligations to the Respondent and was incompatible with the faithful performance of her duties.[47]
The Respondent submitted that none of the identified mitigating factors relied on by the Applicant altered the decision to terminate the Applicant’s employment and that it was proportionate to the aggregate of the Applicant’s conduct.[48] Further, they submitted that the decision to only issue a warning for the prior conduct of allegedly failing to report and properly document the medication incident (though they considered it serious misconduct), was due to the Respondent taking the Applicant’s pregnancy into account. Noting this, they submitted that the other incidents of serious misconduct meant that further concessions could not be made due to the Applicant’s pregnancy a second time.[49]
As to remedy, the Respondent submitted that reinstatement was not practical or appropriate due to the lack of trust and confidence the Respondent had, in the Applicant to perform her duties to a reliable and adequate standard. The Respondent did not consider the dismissal was harsh, unjust or unreasonable; therefore, they argued no corresponding remedy was warranted.
CONSIDERATION
Was the dismissal harsh, unjust or unreasonable?
387(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);
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[50] and should not be “capricious, fanciful, spiteful or prejudiced.”[51]
Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[52] I am satisfied that each piece of the conduct complained of, occurred. The Applicant's non-attendance at the meeting, the inappropriate interaction with a staff member, the copying and sharing of confidential information and the breach of the medication policy. These matters form a valid reason for the termination. However, it recognised that the reliance on the non-attendance at the meeting is affected by the final exchange of emails. In relation to that meeting, the exchange of emails between the Applicant's representative and the employer extended past the meeting start time. This reduced the enforceability of the Applicant's non-compliance with the Respondent's direction to attend the meeting. Whilst the Respondent did not resile from the direction to the Applicant to attend, and the Applicant did not confirm her non-attendance, her representative was exchanging emails regarding the meeting, as set out, beyond the commencement time of the meeting. In any of the emails on the morning of the meeting, the employer did not retract the direction to the employee attend. However, it is recognised that in terms of procedure, the emails on that morning, mitigate against the clarity of the lawful and reasonable direction to attend. Taking that into account, the combined events still form a valid reason for the dismissal.
The Respondent alleged that the Applicant had engaged in serious misconduct twice in the course of her employment. Once in failing to follow the correct policies and procedures during the medication incident, and the second time in sharing confidential information with a third party. I agree that in the nature of the employer’ s operations, the breaches of policy represented serious misconduct. Compliance with these procedures for an employee with the Applicant's experience and training was straightforward, and the importance of which was clearly understood. Serious misconduct is defined in the Fair Work Regulations 2009 (Cth) (‘The Regulations’):
1.07 Meaning of serious misconduct
(1)For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2)For subregulation (1), conduct that is serious misconduct includes both of the following:
(a)wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b)conduct that causes serious and imminent risk to:
(i)the health or safety of a person; or
(ii)the reputation, viability or profitability of the employer’s business.
(3)For subregulation (1), conduct that is serious misconduct includes each of the following:
(a)the employee, in the course of the employee’s employment, engaging in:
(i)theft; or
(ii)fraud; or
(iii)assault;
(b)the employee being intoxicated at work;
(c)the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(Emphasis added)
As set out previously, it was confirmed that the Respondent was able to have regard to the totality of the Applicant’s relevant prior conduct and warnings in determining if the dismissal of her employment was reasonable. In Newton v Toll Transport[53] it was established that “the Commission is required to conduct an objective analysis of all relevant facts in determining – on the basis of the evidence in the proceedings before it – whether there was a valid reason to dismiss.” Further, in Virgin Australia Airlines Pty Ltd v Blackburn[54] it was summarised that prior warnings form part of the factual matrix that existed at the time of the dismissal and the Commission must consider them when determining whether a valid reason existed for the termination. This is so even if those facts do not appear explicitly in the Show Cause notice. However, in this matter, the Applicant was aware that the Respondent was proceeding based on all of the conduct. This was confirmed again by both representatives during the proceedings. In addition, all of these disciplinary matters were addressed by both parties in their materials for the hearing.
With regard to the medication incident and breach of policy, for which a warning was issued, the Respondent stated this was serious misconduct under 1.07(2)(b)(i) and (ii) due to the risk to the health and safety to the client involved. A finding of non-compliance with the correct policies and procedures jeopardised the business license to operate in this industry and put the patient’s health at risk in not contacting 13HEALTH. It also potentially affected the staff caring for the client without him having received the correct medication.
With regard to the deliberate copying of the Respondent’s documents containing client information, the Respondent submitted this was serious misconduct under 1.07(2)(b)(ii) due to the effect of a breach of confidentiality and/or the breach of privacy of their client’s information to a third party. The conduct breached the Respondent’s obligations to their NDIS clients, in relation to maintaining the custody of the documents, and the Applicant’s employment obligations as set out in their confidentiality policies.
Failure to follow a lawful and reasonable direction
In the case of Grant v BHP Coal Ltd[55] (‘Grant’) it was found,[56] and upheld on appeal[57] that failure to follow a lawful and reasonable direction can amount to a valid reason for dismissal. The Respondent placed reliance on this case in arguing that the direction to attend the meeting to discuss reasonable concerns was lawful and reasonable. I adopt this view of the circumstances against this case. The Respondent had a right to direct her attendance and to expect such. The Grant case involved the direction to attend an Independent Medical Examination, however the case authority is applicable to the issuing of a lawful and reasonable direction to attend a meeting as per the current circumstances.
It is recognised that there was consistent contact from the Respondent in relation to the forthcoming meeting. The Applicant confirmed attendance at the meeting and received the additional information as requested but failed to attend. The case of Grant emphasised the right of the employer to expect adherence to a lawful and reasonable direction to attend a meeting.
The Applicant did not refute that the direction given to attend the meeting was lawful and reasonable, instead her representative submitted that mitigating factors should be taken into account that led to the Applicant’s non-attendance at the meeting. While the exchange of emails on the morning of the meeting, as instigated by the union, did not remove the Respondent’s expectation of the Applicant’s attendance, they provided evidence of the fact that the arrangements for the meeting in the Union’s view had not been fully settled by the morning of 8 August 2022.
The email exchanges however must be considered in the context of the Applicant, originally accepting the meeting invitation, her union representative seeking further information for the meeting, and the Employer providing this and then the Union at the last opportunity agitating against the Monday meeting time with the employer and then both the Applicant and the Union not attending the meeting without formal notification to the employer except for the email exchanges on the morning of and at the time of the meeting.
The Applicant's union representative had contacted the Respondent on the morning of Sunday 7 August 2022 to alter the Monday 8 August 2022 meeting time, and to request further particulars and to extend the timeline for responses. The Respondent had already altered the meeting time twice for the Union and provided two emails with relevant details of the reasons. The Respondent did not amend the Monday 8 August 2022 meeting time. However, the Respondent’s email on the prior Friday 5 August 2022 regarding the Monday morning meeting concludes with the opportunity for the Applicant and/or the Union to propose another meeting time.
The Applicant had originally confirmed attendance at the meeting on 4 August 2022. On 5 August 2022 further information was sent for the meeting. That email asked the Applicant to confirm attendance by 5:00pm that same day, again for that Monday 8 August 2022 meeting. The Applicant set out that she did not see this email on the Friday until after 6:00pm on Friday 5 August and therefore did not provide further confirmation of her attendance at the Monday meeting, nor did she recant the earlier confirmation.
However, the fact that the meeting status was unclear such that the Respondent considered it necessary to seek further confirmation on Friday 5 August 2022, and for the Union to raise the meeting on the day prior and in the early hours of 8 August 2022, only a few hours before it was due to commence, provides context to the Applicant’s non-attendance. It is clear that the Applicant considered that in the time leading up to the meeting, for reasons of procedural fairness, the meeting may have been postponed. The non-attendance of the Applicant cannot be completely excused given there was no confirmation of such. The meeting was affected by uncertainty in terms of being the subject to the email exchanges on the Monday morning.
What is understandable is the Respondent’s frustration with the arrangements for the meeting and it subsequently not going ahead, and that the exchanges regarding the Applicant, were increasingly time-consuming without the finalisation of discussions of any of the matters relevant to the Applicant. Given the manager was one of only two managers undertaking all of these duties, subsequent to this, the Respondent contracted this matter to their legal advisor.
In this sense, the facts of this case are distinguishable from those in Grant, insofar as they relate to a refusal to follow a lawful and reasonable direction. Grant involved a willful election not to follow the relevant direction.[58] However, the facts of the present case do not demonstrate similar conduct. While it is correct to say that the Applicant ultimately failed to carry out the Respondent’s lawful and reasonable direction, this failure was not the product of an Applicant who “willfully elected” to disregard the direction. As established earlier, there was continued uncertainty surrounding the meeting’s scheduling that interfered with the direction to attend. The Applicant however did not also make her non-attendance clear.
The important concerns to be discussed at the meeting were the earlier allegations outlined above which included a failure to follow policies and procedures during a medication incident, and issues of inappropriate communication with management. The allegations were clearly provided, and the Respondent considered the substantiation of the medication incident alone to be serious misconduct, but in recognition of the Applicant’s pregnancy, downgraded the discipline and issued a warning instead.[59]
The Applicant’s union representative sought that the warning issued regarding the failure to follow policies and procedures for the medication incident, be reconsidered, and provided further information in response to the allegation, which the Union stated, if it was properly considered, ‘that neither allegation can be substantiated.’[60] It is noted that the information provided on the Applicant’s behalf at this juncture was all known to the Applicant at the time of the scheduled meeting, and therefore could and should have been provided at the scheduled meeting. Accordingly, the clarification even when provided did not remedy the disciplinary matters. Attached to the Union’s response was also the confidential information of concern, which was shared with the Union, which is further dealt with below.
It is noted however, that in relation to the Show Cause process the Respondent then went on to determine the overall disciplinary matter without a meeting with the Applicant, with no notice of such in terms of the procedure being observed. With all of the further opportunities (pursuant to the directions, and at hearing) to provide additional submissions, no further persuasive material was provided by the Applicant that undermined the initial warning applied, in relation to the allegations that were the subject of the meeting and the termination for a valid reason. However, matters of procedural fairness are set out further.
The CEO set out in her witness statement, the risks of failing to follow the Respondent’s internal procedures:
“[12] Regarding the second allegation, Carlita provided me with the letter put to the Applicant, as well as incident report form and the relevant policies, which she had prepared in a bundle to provide the Applicant during the in-person meeting. It seemed clear to me the Applicant had not contacted 13HEALTH, which, in the circumstances, was essential. This process is in place to ensure the NDIS participants do not suffer any harm. A failure to observe this policy’s requirements is significant and puts the business at risk.
[13] Relevantly, the risk is two-fold, being a risk of an NDIS participant suffering harm and the later issue which would arise, which would be a breach of duty of care issue should something happen. These are not small matters, and I consider this oversight caused the business a significant risk.”[80]
In the further particulars provided by the Respondent on 5 August 2022, it was set out:
“Your position requires you to meet a specific standard of care, specifically for, and when treating NDIS Participants. Crucial to this obligation is the management of drugs and other pharmaceuticals which are use within ActsCare as per health directions and NDIS Participant’s care plans. Your conduct, if substantiated, demonstrates an intention not to be legally bound by the terms of your employment contract, particularly in circumstances where you have failed to comply with a lawful and reasonable direction. This conduct can be categorised as serious misconduct under the Fair Work Regulations 2009 (Cth).
Further, your conduct has the potential to expose ActsCare to a significant liability regarding the potential breach of duty of care of an NDIS Participant. This is serious matter to ActsCare given the nature of our business.”[81]
(emphasis added)
The incident report form did not note any attempt by the Applicant to contact 13HEALTH (as she had claimed), in breach of the Respondent’s policies. The Respondent’s determination to issue the level of a warning also took into account the Applicant’s pregnancy. The Applicant should have been well aware that her position was in jeopardy at this stage, and that there was a requirement on her part given her presumed focus on working up until the parental leave, to ensure adherence to the required policies. This did not occur, as per the further matters set out above that emerged.
The Applicant’s representative stated that the dismissal should be based on two allegations only, and that the dismissal was not proportionate to the two allegations set out in the Show Cause notice. The Union stated firstly, wilfully or deliberately failing to attend the meeting, and having not provided a reason for same and secondly, having inappropriately disclosed confidential information for an improper purpose without the Respondent's consent. The Applicant’s assessment of only these matters as being relevant to the dismissal is rejected. The termination of employment was reasonably based on the totality of the conduct; which included the consideration of the prior matters and relevant prior conduct (as per the Show Cause correspondence), and the allegations set out again in the termination letter. [82] However, procedural matters associated with these issues have been considered.
The gravity of the conduct and the proportionality of the dismissal decision to that conduct are important matters to be taken into account, and that it is well established that a dismissal may be harsh, unjust or unreasonable, notwithstanding that there is a valid reason for the dismissal.[83] In all of the facts and circumstances, including the two instances of serious misconduct, the aggregate of all of the conduct provided a valid reason for the termination of the Applicant’s employment. However, all of the procedural flaws associated with the non-attendance at the meeting of 8 August 2022 and the absence of a meeting in the second Show Cause process, without foreshadowing, this was the process make the termination unfair.
In terms of the disciplinary outcome, the Applicant should have been aware of the seriousness of the issues arising in the employment relationship, based on the Respondent’s correspondence as follows:
“The above allegations are serious, and if substantiated ActsCare will consider what, if any, disciplinary action is necessary.”[84]
“Our Client appreciates Ms Sharma may be upset by the Allegation Letter and its contents and being provided with a formal warning for her conduct. Particularly as it was her colleague who took steps to identify her conduct to our Client. In these circumstances, any retaliatory or retributory conduct by Ms Sharma will not be entertained and will result in disciplinary action up to and potentially including termination of her employment.”[85]
“The above allegations are serious, and if substantiated, our Client will consider what, if any, disciplinary action is necessary.”[86]
(emphasis added)
However, the Applicant took no genuine steps on the evidence and responses she provided to the Respondent to allay the concerns of the Respondent, that she was committed to ensuring compliance with the policies moving forward. Further, no steps were taken in the response to the Show Cause notice to convey her understanding of the breach of policy and its consequences. No steps were taken to provide assurances to the Respondent to remedy the matters. Therefore, despite the absence of any explicit statement of the potential consequences of a disciplinary finding being that of dismissal the Applicant should have been clearly aware of the seriousness of the situation, based on the correspondence of the Respondent at all points of the matter. This was particularly so for the Applicant, given her preference for the continued employment prior to the parental leave.
Reference was made to three cases in support of the Applicant’s argument of harshness of the dismissal.[87] The three cases are set out below. I have taken them into account against the current circumstances.
In the case of Bostik (Australia) Pty Ltd v Gorgevski (No 1)[88] the Applicant referred to the following passage:
“These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee’s misconduct.”
(emphasis added)
The other cases referred to by the Union are set out below. In the case of Byrne v Australian Airlines Limited[89] the Applicant drew attention to:
“…It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonable have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
In Stark v P & O Resorts (Heron Island)[90] (‘Stark’) the Applicant highlighted the following determination:
“Where…an application...is advanced on the basis that a dismissal was harsh, unreasonable or unfair, the task of the Commission is to assess whether it should intervene to protect the applicant against a decision which is fundamentally one for the employer to make. Ordinarily intervention will be justified only where the employer has abused the right to dismiss. Ordinarily where an employer conducts a full and extensive investigation and gives the employee a reasonable opportunity to respond to allegations being made against him, an honest decision of the employer that misconduct warranting dismissal has occurred will, it formed on reasonable grounds, will be held immune from interference by the Commission…”
(emphasis added)
What can be taken from the above cases is that the potential for harshness will not invalidate a dismissal or cause a conclusion that there is no valid reason. The lack of proportionality of response to the gravity of the conduct can lead to harshness, and particularly in Stark, that a dismissal determination will be immune where certain criteria are met. Those criteria being that there was a proper investigation, a reasonable opportunity to respond, and an honest and reasonable decision that the conduct warranted dismissal on reasonable grounds.
The Applicant’s overall conduct (in the context of her qualifications and experience with the operations) with regard to the medication incident, photographing confidential information and providing it to a third party, her interactions with staff, and non-attendance at the meeting caused the resultant diminished trust and confidence in the employment relationship that the Respondent relied on to terminate her employment. Despite two of the incidents referred to being categorised as serious misconduct, the Applicant was paid two weeks wages in lieu of notice.
Whilst it is reasonable in a disciplinary process, to take the particular circumstances of the Applicant into account, (for example her pregnancy) it is not for the employer or the employee to completely ignore the emerging issues in the employment. To do so in the nature of this workplace would have compromised client care. This was at the core of the Applicant’s duties. It cannot be accepted where the employee is not observing mandatory procedure or observing their standard obligations or interacting in a suitable manner. The employer has to act on this in these operations. The employment contract requires both parties to meet their obligations, and whilst the employer provided recognition of the Applicant's circumstances, in not initially moving to dismiss, reciprocally there was an obligation for the Applicant to adhere to her employment obligations. The Applicant’s pregnancy did not in any way prevent the Applicant from complying with the normal procedures as set out, nor did the Applicant’s condition absolve the Applicant of her employment obligations.
The Respondent witness Ms Annette Rose, CEO, outlined the considerations that were made when determining to terminate the Applicant’s employment. Ms Rose stated that the prior medication incident was considered to be serious misconduct and in considering the appropriate disciplinary outcome, it was determined that due to the Applicant’s pregnancy, a warning was appropriate.[91] Due to the further aggregate instances of misconduct, no further concessions could be made by the employer due to her pregnancy, and the termination of employment was necessary.[92]
It is recognised that the Respondent considered the repercussions of the dismissal. In addressing the circumstances of harshness, the Respondent’s representative sought financial information in relation to the husband's earnings. The Union did not object to the provision or consideration of this financial information and the Applicant had referred to his income in her submissions. The effects of the dismissal on the employee’s personal and economic position, have been examined. Whilst the relevant spousal earnings, as presented, lessened the argument as to resultant financial harshness, it is noted that the Applicant would have been placing reliance on her salary as well, in proceeding on parental leave. The Applicant, in her supplementary statement, set out her current monthly financial obligations. These expenses are accommodated within her husband’s earnings. However, in the absence of any real argument on the Applicant’s behalf as to harshness, any argument on this basis was alleviated when the earnings of the Applicant’s spouse, were admitted by consent of both parties, into the consideration. There was also a lack of clarity on whether there was duplication in some of the monthly expenses. As set out below this matter can be the subject of further submissions.
The Applicant’s pregnancy (being at 6 months) was recognised by the Respondent in the factors under consideration with the termination. However, the Respondent could not reasonably have maintained her employment until the Applicant went on parental leave, when there was no trust or confidence being demonstrated by the Applicant, by the totality of her conduct. The Respondent could not have had continuing confidence in the Applicant to perform her duties without further breaches of the employment contract and policies, based on her conduct. The circumstances of that conduct were of the Applicant’s own making. The Applicant should have been aware after the initial warning that her job was in jeopardy and responded accordingly to ensure her employment. The Applicant (in copying the patient information) for no apparent reason, set out that she was suspicious of the Respondent.
The employer could not be confident that these significant breaches of policy, would not re-occur. A demonstration of commitment to compliance was required. A combination of the Applicant’s attitude, non-attendance at the meeting and non-compliant conduct led to a determination by the Respondent that this commitment was not being demonstrated. This significantly affected the required trust and confidence that the employer could have in the Applicant. The Applicant did not demonstrate any remorse or contrition for the conduct or a significant willingness to ensure future adherence to the operating requirements and policies of the employer. The environment of the Respondent’s operation is heavily regulated for good reason, to protect NDIS clients. The employer has to have confidence in an employee's compliance with those requirements. The Respondent could not be satisfied in terms of the Applicant maintaining the necessary trust and confidence, to ensure ongoing compliance with the Respondent’s statutory obligations, in operating a disability care service.
Alternatives to dismissal were reviewed by the Respondent, but were not considered appropriate, when taking into account the breaches and lack of acknowledgement by the Applicant to remedy and commit to the requirements of the operation.[93] The concerns of the employer were justified, and at hearing the Applicant did not convey confidence in ensuring all of her interactions would be suitably compliant and professional.
In circumstances where the Respondent’s business is providing a care service for vulnerable people, the attitude and conduct of the Applicant was contributing to a problematic employment relationship, which was exacerbated when working in regulated NDIS client care operation. The Applicant’s conduct and approach did not support returning her to this work or to reforming the employment relationship. The Applicant, on her own evidence, in copying the forms was guarded about the employer, despite no basis for this position.
The Applicant did not demonstrate at any stage, a willingness to accept the necessary revision of her approach to her employment obligations and interactions. In the context of the seriousness of all of the Applicant’s conduct and the Respondent’s operations, the consideration of the incidents was substantiated and provided valid reasons for the dismissal. Taking all of the circumstances into account, there was a valid reason for the termination. However, there is also a finding of unfairness due to the procedural matters set out below.
387(b) and (c) whether the person was notified of that reason and was given an opportunity to respond
Proper consideration of section 387(b) requires a finding to be made as to whether the Applicant “was notified of that reason”. Contextually, the reference to “that reason” is to the valid reason found to exist under section 387(a).[94] The Applicant was notified of all of the reasons, the aggregate of which contributed to the valid reason.
With regard to the Applicant’s failure to follow a lawful and reasonable direction to attend the meeting, it was argued on behalf of the Applicant that the reason her union representative continued to agitate for particulars and response timeframes was due to a lack of procedural fairness. While this is accepted, in relation to the circumstances of whether the meeting was proceeding, (given the late email exchanges), the outlines of the allegations and the notification of the meeting provided to the Applicant, contained reasonable detail, completely sufficient to enable the discussion and response. The Applicant on the information provided was aware of the incidents being referred to and would have been able to discuss this at the meeting. This is evidenced by her early confirmation of attendance. However, after a request from the Union further particulars were provided by the employer. However, the issues of unfair procedure arose when it emerged that the meeting details had not been fully settled in the hours leading up to the meeting.
The Respondent referred to the case of Siriwardana Dissanayake v Busways Blacktown Pty Ltd,[95] in reference to the proposition that a failure to cooperate with a disciplinary process does not result in a failure to provide an opportunity to respond.[96] With reference to the first instance decision, the Full Bench upheld the finding that there was no lack of procedural fairness:
“The evidence, particularly that of Mr Yearsley, which I accept, overwhelmingly supports a conclusion that the applicant refused to co-operate with the respondent in the two disciplinary meetings held on 17 and 19 August 2010. The meetings were intended to allow him to give his version of events. His reason for not answering questions was because he wanted to see the actual complaints. Apart from the fact that it was Company policy not to provide the actual complaint to an employee, largely due to privacy reasons (see earlier par 35), it is only necessary, as a matter of procedural fairness, that the applicant was fully aware of the allegations being made against him. Given that Mr Mason read out the complaints and the applicant was shown CCTV footage of the incidents, I do not apprehend how it could possibly be argued that the applicant was denied procedural fairness by not being provided with the passenger’s complaint or the students’ statements. I have no doubt that the applicant knew precisely what was being alleged against him and his failure to co-operate, reflects very poorly on him. If it was a tactic designed to deflect attention from his own conduct and behaviour, it failed miserably.”[97]
(emphasis added)
The case is analogous to the current circumstances, in that the Applicant had been provided with detail of the matters of discussion. That case confirmed that there is no lack of procedural fairness when the Applicant is adequately aware of the allegations and has been provided the opportunity to attend and respond and does not do so. However, in the current case, issues of procedure emerged. The questions as to the meeting time were pressed by the Applicant’s union representative with proximity to the meeting and had not been fully resolved at the commencement time of the meeting.
The Respondent still had an expectation that the Applicant would be attending the meeting as scheduled. However, the uncertainty, from the Applicant’s perspective, surrounding the meeting’s scheduling provides procedural deficiency in relation to the confirmation of the meeting, the attendance and the opportunity to respond. There was resulting procedural unfairness in this process, in the lack of clear final notification of the meeting, that undermined the Respondent’s consideration of the Applicant’s non-attendance at the meeting.
Taking all matters into consideration, the issue with the meeting still being the subject of correspondence, was procedurally unfair. In addition, the Respondent moved directly from the Show Cause response to termination without notification that this would be the process without a meeting. There was not an appropriate opportunity to respond but for the written response. Therefore, the opportunity was not afforded, and it was not communicated as being the process to be used. These factors provide unfairness in the process.
387(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.
The Respondent afforded the Applicant the opportunity to be represented by her Union. Failure for the meeting to proceed on 8 August 2022 and failure to have a Show Cause meeting obviated the Applicant’s union representative being a support person at these critical times. This factor weighs in favour of the Applicant.
387(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal
As detailed, the Applicant had received a prior warning from the Respondent for serious misconduct for the medication incident and the unsatisfactory conduct of the Applicant’s inappropriate interaction with the staff member. The Respondent set out the basis for that in the correspondence on 10 August 2022. The Applicant was also provided with particulars of the concerns the Respondent held regarding unsatisfactory conduct of sharing confidential information and her failure to attend the meeting. The Respondent clearly set out what they considered to be their concerns in the matters complained of. The Applicant was appropriately warned of her initial unsatisfactory conduct prior to the further conduct occurring then the aggregate of the conduct justifying dismissal. The Respondent considered that the initial matters substantiated termination, however given the Applicant’s pregnancy, they set out their concerns and downgraded the response to a warning. The Applicant was then on notice regarding any future conduct. The occurrence of the further serious breaches justified termination. The assessment of this factor weighs against the Applicant.
387(f) and (g) the degree to which the size of the employer’s enterprise and 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
It is noted that the Respondent is a medium sized employer but had a very limited management structure and no dedicated in-house Human Resource personnel. The limited number of management personnel that performed those duties gave evidence and set out the steps taken in endeavouring to manage and respond to the Applicant and her Union, prior to engaging an external employment law advice when the management of the Applicant became onerous.[98] The external employment lawyer assisted the Respondent to appropriately manage the disciplinary process which led to the termination process. The Union has been critical f the Respondent’s use of the legal representative in the proceedings. However, it is evident that dealing with the Applicant and the Union in this matter was demanding. The Applicant was also represented throughout the process by her Union.
There was however no persuasive evidence that the process afforded to the Applicant was improper or deficient or impacted due to the initial lack of specialist assistance. The Respondent’s lawyer when introduced, set out the Respondent’s position. The Union is understandably, was critical of the Respondent’s representative moving to consider the Applicant’s conduct when the Applicant failed to attend the meeting. The later responses provided by the Applicant did not alter the Respondent’s view of the process.
However, whilst this represents a procedural flaw, it did not alter the termination of employment based on the merits against all of the information known at the time of the dismissal or provided subsequently. The Respondent’s representative had not also set out that the show cause process would not include a meeting after receipt of the reasons. The Respondent’s representative moved from considering the show cause response to termination. The absence of a meeting had not been set out to the Applicant or the Union. The Union only provided a brief response to the show cause letter. I am satisfied that there was a valid reason for the termination of employment, but the procedural flaws in the process contributed to the unfairness of the termination.
387(h) any other matters that the FWC considers relevant
The Applicant’s union representative made reference to other matters for consideration. Firstly, that the Applicant had been employed for three years with only one prior warning being the warning issued on 10 August 2022, for the combined conduct that warning having been scaled down (on the basis of the Applicant’s pregnancy) from awarding a higher disciplinary outcome. The Applicant’s pregnancy was taken into account but this leads to matters relevant to parental leave and gaining employment after this. The Applicant had also not been offered EAP services during the disciplinary process, and thirdly, the Applicant had not been clearly made aware in the show cause process that there would not be a meeting, but also that termination was a possible outcome.
Whilst the Applicant’s disciplinary history is noted, the warning considered with the further events justifies the conduct relied on for dismissal. The gravity of the combined conduct, as set out earlier, is sufficient to provide a valid reason for the termination of employment. The Applicant’s argument that EAP services were not mentioned in the correspondence in no way invalidates the process or is sufficient to mitigate the Applicant’s conduct. Further, the Applicant had access to the support of her Union at all times in the process, and they were able to query with the Respondent the availability of those services if required and to notify the Applicant of how to access the EAP services.
CONCLUSION
The full factual matrix of the matter has been taken into account. The decision to terminate the Applicant’s employment was based on valid serious reasons. The termination was a proportionate response to the Applicant’s instances of serious misconduct, being the failure to follow fundamental policies and procedures considering the medication incident and the breach of confidentiality. These two incidents caused a serious risk to the Respondent’s business and were of significant gravity to the employer’s operations.
In accordance with the Full Bench decision of B, C and D v Australia Postal Corporation T/A Australia Post[99] a dismissal may be harsh, unjust or unreasonable, despite the existence of a valid reason for the dismissal:
“Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the
Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button [2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited [2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.”[100]
In the circumstances, there were procedural flaws involved in the process employed by the Respondent with regard to the meeting on 8 August 2022 and the absence of the meeting in the show cause process without prior notification, and which affected the Applicant’s ability to respond to the reasons for dismissal. I am therefore satisfied that notwithstanding a valid reason for the dismissal, the Applicant’s dismissal was harsh due to the impact on her circumstances. In this regard, the Applicant was not provided an adequate opportunity to respond to the reasons for dismissal, in accordance with section 387(c) of the Act.
The emerging difficulties in the Applicant’s employment and the lack of any exhibited contrition or consideration on the part of the Applicant to redress the issues, did not provide any basis for an ongoing employment relationship. All of the circumstances of the Applicant being pregnant and the effects of the termination of the Applicant’s employment have been considered.
In these circumstances, as set out, where there was a valid reason for the dismissal, but the procedural flaws provided unfairness, I find that reinstatement is inappropriate. This is also so when considered with the Applicant’s distrust of the Respondent without reason (motivating her to make copies of the incident reports and also the Respondent’s loss of trust and confidence in the Applicant based on the significant breach of policy and procedure), together with the Applicant’s conduct with the other staff member and her non-attendance at the meeting. The employer had no further trust and confidence in the Applicant.
Having considered each of the matters specified in section 387 of the Act, I am satisfied, on the evidence provided, that the Respondent had valid reasons for terminating the Applicant’s employment, but that it did not do so in accordance with a procedurally fair process. I Order accordingly subject to the further consideration of remedy.
While both parties provided submissions in relation to the remedy, neither party accurately addressed the question of the Applicant’s ordinary hours of work, or ordinary earnings for the purpose of calculating the compensation payable to the Applicant. Compensation is under consideration for the procedural flaws, commensurate to a period to remedy those deficient steps, taking into account the wages in lieu of notice already paid.
The parties are therefore directed, in correspondence separately issued, to provide confirmation regarding the Applicant's weekly ordinary hours of work and the commensurate weekly remuneration amount at the time of her dismissal.
A separate Order addressing the appropriate remedy will be made on receipt of the further information from the parties.
COMMISSIONER
[1] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[2] Witness Statement of Savita Sharma, SS-10.
[3] Witness Statement of Savita Sharma at [61]-[66].
[4] Witness Statement of Savita Sharma at [71]-[72].
[5] Witness Statement of Annette Rose at [12]; Witness Statement of Carlita Rose at [7] and [9].
[6] Witness Statement of Annette Rose at [12]-[13]; Witness Statement of Carlita Rose at [10].
[7] Witness Statement of Mrs Savita Sharma, SS-03.
[8] Witness Statement of Savita Sharma at [85]; Witness Statement of Carlita Rose at [12] and CR-02.
[9] Witness Statement of Savita Sharma, SS-04.
[10] Witness Statement of Savita Sharma at [86].
[11] Witness Statement of Mrs Savita Sharma, SS-05.
[12] Witness Statement of Savita Sharma, SS-03; Witness Statement of Carlita Rose, CR-03.
[13] Witness Statement of Carlita Rose at [16].
[14] Witness Statement of Savita Sharma; SS-07.
[15] Witness Statement of Carlita Rose at [19].
[16] Witness Statement of Savita Sharma; SS-08; Witness Statement of Carlita Rose, CR-04.
[17] Witness Statement of Savita Sharma, SS-09; Witness Statement of Carlita Rose, CR-05.
[18] Witness Statement of Savita Sharma; SS-10; Witness Statement of Carlita Rose, CR-06.
[19] Witness Statement of Mrs Savita Sharma, SS-11; Witness Statement of Carlita Rose, CR-07.
[20] Witness Statement of Savita Sharma; SS-12; Witness Statement of Carlita Rose, CR-07.
[21] Witness Statement of Mrs Savita Sharma, SS-13; Witness Statement of Carlita Rose, CR-09.
[22] Witness Statement of Carlita Rose at [23]-[24]; Witness Statement of Annette Rose at [14]-[15], PN1238, PN1247.
[23] Respondent Outline of Submissions at [11] with reference to KylieSmith v Bank of Queensland Ltd[2021] FWC 4 at [122].
[24] PN273 and Applicant Submissions in Reply at [4].
[25] [2021] FWCB 3457; reference was also made to DeVania Blackburn v Virgin Australia Airlines T/A Virgin Australia [2022] FWCFB 232.
[26] Applicant Outline of Submissions at [11].
[27] Applicant Outline of Submissions at [12].
[28] Applicant Outline of Submissions at [11], [12] and [14].
[29] Applicant Outline of Submissions at [15].
[30] Applicant Outline of Submissions at [18] referencing Allied Express Transport Pty Ltd [1999] FCA 799, cited in Brett v Transit Australia Pty Ltd[2022] FWA 2278 at [62].
[31] Applicant Outline of Submissions at [20].
[32] [2021] FWC 1751.
[33] Ibid at [49].
[34] Applicant Outline of Submissions at [23].
[35] [2018] FWC 7281.
[36] Applicant Outline of Submissions at [32], [39] and [41].
[37] [2014] FWCFB 3027.
[38] Applicant Submissions in Reply at [8].
[39] Respondent Outline of Submissions at [26].
[40] Respondent Outline of Submissions at [24] citing Lambeth v University of Western Sydney[2009] AIRC 47 at [70] and Grant v BHP Coal Pty Ltd[2014] FWCFB 3027.
[41] [2014] FWCFB 3027.
[42] Respondent Outline of Submissions at [24].
[43] [2022] FWC 3343 at [90], citing Singh v Sydney Trains[2019] FWC 182.
[44] Respondent Outline of Submissions at [38].
[45] Respondent Outline of Submissions at [39]-[40].
[46] Respondent Outline of Submissions at [42].
[47] Respondent Outline of Submissions at [45] citing Purves v Queensland Rail[2022] FWC 3343 at [78] making reference to Raj Bista v Group Pty Ltd t/a Glad Commercial Cleaning [2016] FWC.
[48] Respondent Outline of Submissions at [55]-[56].
[49] Respondent Outline of Submissions at [59]-[60].
[50] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[51] Ibid.
[52] Edwards v Justice Giudice [1999] FCA 1836, [7].
[53] [2021] FWCFB 3457 at [76].
[54] [2022] FWCFB 232 at [78].
[55] [2013] FWC 1712.
[56] Ibid at [113]-[115], [120]-[121], [125].
[57] [2014] FWCFB 3027 at [129], [154]-[155] and Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374.
[58] Grant v BHP Coal Ltd [2014] FWCFB 3027 at [142].
[59] Respondent Outline of Submissions at [21]-[22].
[60] Witness Statement of Savita Sharma; SS-10; Witness Statement of Carlita Rose, CR-06.
[61] PN1112, Respondent Outline of Submissions at [26].
[62] Respondent Outline of Submissions at [31] citing Purves v Queensland Rail[2022] FWC 3343 (Purves) at [90], citing Singh v Sydney Trains[2019] FWC 182.
[63] Applicant Outline of Submissions at [12] with reference to North v Television Corporation Ltd (1976) 11 ALR 599 at 608-609; Serventi v John Holland Group Pty Ltd [2006] FCA 1049 at [6]; Melbourne Stadiums Ltd v Sautner (2015) 229 FCR 221 at [87].
[64] PN1153.
[65] PN1125.
[66] PN1130.
[67] PN1152.
[68] PN1184, PN1192.
[69] PN1193.
[70] PN1194.
[71] [2021] FWC 1751.
[72] [2021] FWC 1751 at [49].
[73] [2021] FWC 1751 at [50].
[74] [2018] FWC 7281.
[75] [2018] FWC 7281 at [30].
[76] [2018] FWC 7281 at [34].
[77] Witness Statement of Savita Sharma; SS-12; Witness Statement of Carlita Rose, CR-07
[78] (1995) 62 IR 371.
[79] Witness Statement of Savita Sharma; SS-10; Witness Statement of Carlita Rose, CR-06.
[80] Witness Statement of Annette Rose at [12]-[13].
[81] Witness Statement of Savita Sharma; SS-05.
[82] Newton v Toll Transport[2021] FWCFB 3457 at [76] and Virgin Australia Airlines Pty Ltd v Blackburn[2022] FWCFB 232 at [78].
[83]Applicant Outline of Submissions at [30] referring to B, C, and D v Australian Post Corporation T/A Australia Post[2013] FWCFB 6191 at [41].
[84] Witness Statement of Savita Sharma; SS-05.
[85] Witness Statement of Savita Sharma; SS-09.
[86] Witness Statement of Savita Sharma; SS-11.
[87] Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 26 FCR 20, 28; Byrne v Australian Airlines Limited (1995) 185 CLR 410, 916 and Stark v P & O Resorts (Heron Island) (1993) 144 QGIG 914, 916.
[88] (1992) 26 FCR 20, 28.
[89] (1995) 185 CLR 410, 916.
[90] (1993) 144 QGIG 914, 916.
[91] Witness Statement of Carlita Rose at [23]-[24]; Witness Statement of Annette Rose at [14]-[15], PN1238, PN1247.
[92] Witness Statement of Carlita Rose at [31]; Witness Statement of Annette Rose at [25]-[26], PN1247.
[93] PN1238, PN1247.
[94] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[95] [2011] FWAFB 648.
[96] Ibid at [22].
[97] [2011] FWAFB 648 at [15] quoting [2011] FWA 3549 at [128].
[98] PN921, PN926, Witness Statement of Carlita Rose at [12]-[20].
[99] [2013] FWAFB 6191.
[100] [2013] FWAFB 6191 at [41] upheld by Australian Postal Corporation v D’Rozario [2014] FCAFC 89. See also Carter v Qantas Airways Limited [2011] FWA 8025.
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