Stuart William Delbridge v Baptist Care (SA) Inc T/A Baptist Care SA

[2019] FWC 4086

[2019] FWC 4086

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Stuart William Delbridge
v
Baptist Care (SA) Inc T/A Baptist Care SA
(U2018/12872)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 14 JUNE 2019

Application for an unfair dismissal remedy - child support worker – serious misconduct alleged – breach of duty established – loss of trust and confidence – dismissal not harsh, unjust or unreasonable – application dismissed

[1] On 13 December 2018 Mr Stuart Delbridge (Mr Delbridge or the Applicant) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by Baptist Care (SA) Incorporated (Baptist Care, the Respondent or the employer). He claims to have been unfairly dismissed on 23 November 2018.

[2] At the date of dismissal Mr Delbridge was employed by Baptist Care as a Child and Youth Support Worker. He was classified as a level 2.4 casual employee under the Social, Community, Home Care and Disability Services Industry Award 2010 (the Award).

[3] Mr Delbridge claims that his dismissal was harsh, unjust or unreasonable. His application sought orders for compensation equivalent to six month’s pay plus a statement of service, a substituted resignation, an apology from the employer and a non-disparagement agreement. Mr Delbridge did not seek an order for reinstatement.

[4] The orders sought by Mr Delbridge other than the compensation order are beyond the Commission’s power when determining matters under section 394 of the FW Act. Upon this being drawn to Mr Delbridge’s attention at the commencement of the hearing 1, he pursued the compensation remedy only.

[5] Baptist Care opposes the application. It says that on 23 November 2018 it summarily terminated Mr Delbridge’s employment on the ground of serious misconduct. Mr Delbridge was paid until the end of the day on which he was summarily dismissed. Baptist Care contend that the dismissal was not harsh, unjust or unreasonable, and that no issue of remedy arises.

[6] No jurisdictional issues arise in determining this matter. Mr Delbridge was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. He served the statutorily required minimum employment period (section 382(2)(a)). Though he was a casual employee, the employer agreed at the hearing that his service was on a “regular and systematic” basis within the meaning of section 384(2)(a) of the FW Act. His annual rate of earnings did not exceed the high income threshold (section 382(2)(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act. His application was filed within the statutorily required 21 days after dismissal took effect.

[7] On 24 January 2019 conciliation of the application was conducted by a Commission-appointed conciliator. It did not settle. It was referred to me for hearing and determination.

[8] I conducted hearings on 23 and 24 May and 5 and 6 June 2019.

Preliminary Matters

Identities of children

[9] This matter concerns allegations of a sensitive nature involving alleged misconduct concerning children in care. I consider there to be no public interest in the identification of those children. The parties before me agree. Proceedings before me were conducted on that basis. In this decision I have anonymised references to the children, and not included unnecessary details that could identify them. The parties and their representatives are aware of the identity of those persons, insofar as they were revealed during proceedings.

[10] The proceedings and documentary evidence is replete with material that could tend to identify children. I issue a direction that, subject to any further order of the Commission, access to evidence and submissions in these proceedings (including the audio record) be restricted to the parties and their representatives and officers of the Commission and not be used for any purpose other than associated with these proceedings or the lawful maintenance of Commission records. I have also ordered that certain parts of this decision that may disclose the identity of particular children be redacted from the public record (but be available un-redacted to the parties).

[11] I also note that where in the evidence or in this decision the letters “YP” are used; this is an abbreviation for the term ‘young person’.

Pre-hearing directions and orders

[12] I issued directions on 20 February 2019, 26 February 2019, 4 April 2019 and 21 May 2019.

[13] On 13 May 2019 I issued an order (at the request of Baptist Care) that a former employee of Baptist Care (Matthew Adams) appear to give evidence.

[14] On 13 May 2019 I issued an order (at the request of Mr Delbridge) that an officer of the Department for Child Protection (SA) (Kerstin Wojciechowski) appear to give evidence.

[15] On 20 May 2019 Mr Delbridge sought an order that three employees of Baptist Care (Cassandra Hemmings, Tiffany Koch and Leanne Hadeler) appear to give evidence. By agreement, and without the need for an order, Ms Hemmings, Ms Koch and Ms Hadeler gave evidence by telephone link.

The CARL Report

[16] On 21 May 2019 I issued an order (at the request of Mr Delbridge) for third party discovery, being production by the Department for Child Protection (the Department) of a report notified to the Child Abuse Reporting Hotline (CARL) on or about 5 November 2018 concerning persons under the care of Baptist Care and Mr Delbridge.

[17] The Department, represented by the Crown Solicitor’s Office, appeared in proceedings on 23 May 2019 on the Department’s application to set aside the order for production. The application to set aside was opposed by Mr Delbridge and supported by Baptist Care. Mr Boisseau for the Department submitted that the order would put the Department, the Commission and persons associated with the proceedings at risk of breaching section 163 of the Children and Young People (Safety) Act 2017 (SA) (the CYP Safety Act) insofar as the document could disclose the identity of a person who had made a CARL report.

[18] After hearing argument, I granted the application to set aside the order. I delivered my reasons on transcript 2. I was satisfied that the document sought was not of sufficient relevance given the matters in issue and given that Mr Delbridge was entitled to cross examine witnesses (including the departmental officer he subpoenaed) on their evidence. I did not specifically determine whether the document was of “critical importance” within the meaning of section 163(3) of the CYP Safety Act nor whether that Act constrained the Commission in the exercise of its functions.

Recusal

[19] On 26 February 2019 I informed the parties of a past familial connection with Baptist Care and provided an opportunity for submissions to be made on whether I should recuse myself on that basis. Both parties advised 3 that they raise no objection on that question. I considered there to be no grounds for recusal having regard to the relevant legal principles and the remoteness of the past connection.

Representation

[20] By decision dated 16 April 2019 4 I granted, by consent, permission under section 596 of the FW Act for both Mr Delbridge and Baptist Care to be represented by external legal practitioners.

[21] On 8 May 2019, legal representatives for Mr Delbridge ceased to act. No application was made by Mr Delbridge to vary my order of 16 April and I did not consider it necessary to do so.

[22] On 23 May 2019 I also granted permission for the Department for Child Protection to be represented by the Crown Solicitor’s Office as an intervener on the subpoena issue.

[23] At the hearing I took into account that Mr Delbridge was self-represented and provided a measure of guidance and assistance to Mr Delbridge consistent with my responsibilities as an independent and impartial officer of the Commission.

The Evidence

[24] In advance of and during the hearing I received a substantial volume of material including witness statements, documents (including those produced in consequence of directions and orders) and outlines of submissions from both Mr Delbridge and Baptist Care.

[25] I heard evidence from eight persons:

•  Stuart Delbridge (Applicant);

•  Linda Boucher (Team Leader and former Senior Support Worker Baptist Care);

•  Melissa Furtado (Manager People and Culture Baptist Care);

•  Matthew Adams (former Business Partner, People and Performance Baptist Care);

•  Cassandra Hemmings (Support Worker Baptist Care);

•  Tiffany Koch (Support Worker Baptist Care);

•  Leanne Hadeler (Support Worker Baptist Care); and

•  Kerstin Wojciechowski (Senior Investigator, Department for Child Protection).

[26] Mr Delbridge gave his evidence in a transparent manner. He openly admitted alleged incidents that the employer characterised as misconduct, though he strongly disputed that some of his alleged conduct was, when seen in context, misconduct. He also disputed more general allegations such as that he was not a team player.

[27] Mr Delbridge displayed an emotional disposition that depicted a person not just invested in these proceedings but deeply consumed by and emotionally attached to the events that brought about his dismissal and in particular his removal from the care of Person A. That depth of feeling was manifest in Mr Delbridge expressing continuing care and concern for Person A and repeating, in his evidence that he wished to foster Person A if that was ever possible 5.

[28] This level of subjectivity, expressed as both passion (for the job) and compassion (for the children), leads me to treat some of his evidence with caution. I consider his evidence to be largely reliable but not in every respect can it be objectively accepted. For example, he readily volunteered that his memory was hazy during a period in July/August 2018 when he was distraught at being taken away from a placement with Person A. I do not accept his evidence that he did not say certain things recorded in supervision, counselling and disciplinary notes.

[29] This depth of subjectivity led Mr Delbridge to ultimately advance his case on the basis that he believed the real reason for dismissal was not what was stated (alleged misconduct) but a conspiracy to remove him from Baptist Care because he had demanded to see the evidence on which he was removed from the care of Person A, and had taken a role in trying to make Baptist Care and the Care Team accountable for outcomes for children such as Person A.

[30] At the hearing and in his evidence Mr Delbridge made accusations that Baptist Care deliberately doctored evidence before the Commission, withheld evidence from the Commission and colluded with the Department and the employer’s legal representatives to fabricate evidence. None of these charges are established. They are scandalous. They reflect the deep distress felt by Mr Delbridge and what he believes to be the equally scandalous slur or inference that he was either a paedophile or grooming Person A. For reasons that follow, these are not my findings. However, making such assertions does a disservice to his case and the important issues of fairness on which he has asked the Commission to adjudicate.

[31] Mr Adams, who recommended dismissal, gave his evidence in a measured and confident manner. His evidence is reliable.

[32] Ms Furtado, who approved the dismissal recommendation, gave evidence in a measured manner but was cautious and uncertain in some respects. Nonetheless, I consider her evidence broadly reliable.

[33] Ms Boucher, who was central to the framing of care concerns and supervision meetings with Mr Delbridge, was (despite being in a managerial role) hesitant in recall and delivery. Her evidence was punctuated by labouring answers and pregnant pauses consistent with an overcautious approach not wishing to concede ground that may be unfavourable to the employer’s case. That said, where her evidence is supported by the documentary record, I find her evidence reliable and to have been broadly consistent with that record.

[34] Ms Wojciechowski’s evidence was brief and reliable.

[35] Some of the evidence before me strayed from factual matters into hearsay, opinion, assumption and commentary. I place reduced levels of weight on such evidence except where corroborated by direct evidence, is uncontested or inherently believable. I am not bound by the rules of evidence but consider them to be a good and useful general guide. I adopt the approach of a Full Bench of this Commission which has said:

“The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s. 577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances.” 6

[36] Where relevant to my determination, I make findings based on the demeanour of witnesses, the tone and manner of giving evidence, the consistency (or otherwise) between oral evidence and witness statements, the existence (or otherwise) of corroborating documentary evidence, and the inherent plausibility of versions of events.

[37] Where necessary to make findings on disputed facts I do so in the context of specific evidence. In this matter, I do not consider that the evidence of one witness over another to be generally preferred. Some of the factual disputes that emerged are the product of faded recollections (both Mr Delbridge and Ms Boucher accepted that their recollection of some events was hazy); others are the product of a different characterisation of the same events (such as whether a supervision meeting was feedback or counselling); and some the product of differing opinions and impressions.

[38] This latter category is relevant to the evidence of Ms Hemmings, Ms Koch and Ms Hadeler. Each proffered opinions on the conduct of Mr Delbridge when they worked in the same placement (usually at handover or in team meetings). I consider the evidence of each to be truthful. The differences in opinions are largely contextual; each was giving evidence about the conduct they witnessed, not the conduct the other witnessed. To the extent that opinions were expressed rather than evidence of actual events, I place lesser weight on opinion evidence. While the evidence of all three is broadly relevant and largely reliable, I give greater weight to the evidence of Ms Hadeler given that she worked more substantial hours and for a longer period in the same placement as Mr Delbridge.

The Facts

[39] I make the following findings.

[40] Mr Delbridge commenced work with Baptist Care as a Child and Youth and Support Worker on 24 June 2016 (signing a formal contract of employment dated 6 July 2016 on 14 July 2016 7).

[41] He is a middle aged man who came to Baptist Care with a background in the provision of care and education to young people.

[42] Although employed as a casual, he worked on a regular and systematic basis until dismissed on 23 November 2018, some two and half years of work with Baptist Care.

[43] He lives and worked for Baptist Care in regional South Australia.

[44] Baptist Care is a not-for-profit association providing support services in South Australia to persons in need including children and youth, disabled persons and the homeless. It is supported by and associated with the Baptist Churches of South Australia, a Christian faith denomination.

[45] In respect of its services to vulnerable children and youth (including children and youth in the care of the State), Baptist Care is subject to regulatory oversight by the South Australian Department for Child Protection and must comply with the Children and Young People (Safety) Act 2017 (SA), amongst other regulatory controls.

[46] Some children in the care of Baptist Care are in residential placements. These are homes in the community where care is provided by its employees across 24 hours a day 7 days a week. The children attend school and have their health monitored; and are fed, protected and taken to events and outings in the community as children ordinarily would.

[47] Baptist Care organises employees into a Care Team for these residential placements. Three or four employees form the team, and work across 24 hour rosters in each home.

[48] Baptist Care has a well-developed suite of policies and procedures 8 which its employees (including Mr Delbridge9) commit to as terms of their employment contract. These include a Code of Conduct, a Duty of Care Policy, a Transporting Clients and Children Work Directive, a Roles and Responsibilities for Support Workers Policy, a Supporting Positive Behaviour and Supervising Children Work Directive, a Log Book Work Directive and a Professional Boundaries Policy.

[49] Baptist Care conducts regular meetings of each Care Team to identify issues, develop strategies, exchange views and assess outcomes. These collective meetings supplement the informal dialogue that occurs between support workers on shift handover.

[50] Baptist Care requires support workers to maintain a log book and a communications book in each placement. The log book records incidents. The communication book provides a method of exchanging messages between support workers.

[51] Support workers report variously to a Senior Support Worker, a Team Leader and Case Manager.

[52] In addition to group meetings of the Care Team, the Team Leader conducts regular one-to-one meetings with each support worker. These are called Staff Review and Feedback Sessions. They are documented but not part of a disciplinary record.

[53] Major incidents that arise when providing care are required to be formally written up in a Critical Incident Report. These Critical Incident Reports are reports internal to Baptist Care.

[54] Where matters of a disciplinary nature arise concerning an employee (whether arising from a Critical Incident Report or otherwise), these are formally recorded in an electronic Employee Management System (EMS).

[55] The CYP (Safety) Act provides a right for any person to report an issue concerning the welfare of a child to the Department for Child Protection via the Child Abuse Reporting Hotline. These notifications are known as CARL reports. That Act protects from disclosure the identity of persons making a CARL report 10. If a report is made, the Department intervenes by pursuing the issue with the relevant person or organisation responsible for providing parenting, guardianship or care. CARL reports made concerning children in the care of Baptist Care are reports of the Department, not reports of Baptist Care.

[56] Mr Delbridge became employed in a placement in which he and the Care Team of which he was a part provided support to Person A. At relevant times, Person A redacted from Decision. Some years earlier, whilst Mr Delbridge was a support worker (SSO) at a school (independent of Baptist Care), he provided educational support to Person A.

[57] Mr Delbridge was, from the outset, an enthusiastic employee of Baptist Care who threw himself into his job due to his experience and compassion for the care of vulnerable persons.

[58] Mr Delbridge commonly worked 40 to 60 hours per week in the residential placement where Person A was housed. He would variously work morning, afternoon and overnight shifts. At relevant times, three other employees formed part of the Care Team: Cassandra Hemmings, Tiffany Koch and Leanne Hadeler. Although each worked for significant periods in the care of Person A, Ms Hadeler and Mr Delbridge worked the longest periods of time in his care.

[59] Person A redacted from Decision presented challenges for his carers in modifying behaviour, building relationships and establishing stable educational, sleeping, eating and social patterns.

[60] Under the work of the Care Team, including Mr Delbridge, Person A was in a safe and caring environment and there was evident progress in Person A’s well-being despite challenging behaviours.

[61] A number of incidents arose whilst Person A was in the care of Mr Delbridge that came to lead Baptist Care to counsel and then warn Mr Delbridge.

[62] Two of these incidents (buying fast-food for Person A from his own personal funds, and rewarding Person A with twisties for eating breakfast) were discussed with Mr Delbridge informally, and noted in feedback sessions and EMS. Once managers pointed out to Mr Delbridge that such practices were contrary to Baptist Care policy, they were not repeated.

[63] Two other incidents arose in the course of Mr Delbridge caring for Person A.

[64] On one occasion, due to lack of attention by Mr Delbridge (whilst making the purchase), Person A hired a MA15+ DVD and was watching it on a laptop in the residential home. The movie contained animation with strong sexual overtones. When Mr Delbridge noticed Person A watching it he informed Person A that he thought it inappropriate. Without objection from Person A, Mr Delbridge switched off the DVD. Mr Delbridge soon became aware that this incident was the subject of informal chatter amongst staff, so he openly volunteered what had occurred to his Case Manager. As the MA15+ DVD had been purchased and was being watched while Person A was in Mr Delbridge’s care, Mr Delbridge was counselled, policy was reaffirmed and the incident was noted (in a feedback session and EMS). It was not repeated.

[65] Some time later Mr Delbridge was walking with Person A in the countryside when they passed a concrete wall that had graffiti on it. Person A picked up a spray can that was lying nearby. Mr Delbridge negotiated an arrangement with Person A whereby he permitted Person A to spray his name on the concrete wall after which Person A would hand over the spray can. This is what occurred 11. When the incident became known to Baptist Care, Mr Delbridge was counselled, policy was reaffirmed and the incident was noted (in a feedback session and EMS). It was not repeated.

[66] A further and more serious incident occurred in around May 2018 in which Mr Delbridge was alleged to have engaged in inappropriate conversation with Person A. Mr Delbridge allegedly told Person A that he loved him, that he planned to have Person A sleep-over at his home and possibly hoped one day to foster him.

[67] I deal with this matter in considering whether there was a valid reason for dismissal.

[68] On 4 June 2018, by telephone call from his Case Manger Ms Karen Bagshaw, Mr Delbridge was removed from the residential placement with Person A. He was shocked. He asked why. He was told words to the effect, “I cannot, it is a Departmental matter and it is confidential” 12.

[69] Baptist Care commenced an investigation into the matter. Whether or not a CARL Report had been made (something on which I am not able to conclude), a Critical Incident Report had been made by a Baptist Care employee. It was dated 5 May 2018 but somewhat inconsistently the EMS file refers to a report of 4 June 2018 13.

[70] Based on the EMS report, on 12 June the Department raised a ‘care concern’ with Baptist Care concerning the incident. On 11 July the Department rated it as ‘moderate’.

[71] On 17 July 2018 Mr Delbridge received an allegations letter from Baptist Care alleging “inappropriate conversation with client Person A”. It specified the following: 14

“Person A disclosed to another placement carer when discussing your removal from the placement “Why couldn’t they send you away instead of Stuey, I hate Baptist Care rules, Stuey said he loved me and I love him, Stuey said he was going to fix his house up so that I could do sleepovers, Stuey and I were going to do things together and now we can’t, Stuart said he would never leave me here.”

[72] Mr Delbridge was required to attend a meeting with Baptist Care managers on 27 July 2018 (with a support person if he wished) to discuss the allegation. The allegations letter advised him that this was an internal process which “may, subject to your responses, result in disciplinary action up to and including termination of employment.”

[73] The meeting occurred on 27 July 2018 as a formal interview. Mr Delbridge attended with a support person. Mr Adams was present with Acting Area Manager Abigail Cook. An audio of the interview and written transcript is in evidence 15.

[74] Mr Delbridge provided explanations to the allegations, at length. He admitted them but provided mitigating context and background.

[75] Pending Baptist Care’s decision on his employment, after the meeting (not recorded) Mr Delbridge was advised (confirmed in subsequent discussions) that he would continue to be given shifts (in different placements) but that (other than transporting children) another Baptist Care support worker would need to be rostered with him.

[76] On 2 August 2018 Baptist Care wrote to Mr Delbridge advising that the allegation was sustained, that he would be given a first and final warning, that the employer expected the breach of policy to be remedied immediately and that further disciplinary action could follow if a repeat of policy breaches occurred including termination for serious matters.

[77] Mr Delbridge was also provided retraining, which he participated in and welcomed (though he later considered it to have been a ruse for dismissal).

[78] Over the next three months Mr Delbridge was rostered in a range of different placements. He was also asked to (and accepted) a brief placement in October 2018 with three young persons in which he was not subject to the co-support worker arrangement.

[79] During this three month period Mr Delbridge maintained professional courtesy to managers and colleagues but became progressively frustrated (especially with the Department) as he sought but was not able to ascertain information about Person A’s wellbeing and the background to his removal from Person A’s placement. He started asking his managers for documents (such as meeting minutes between Baptist Care and the Department). At a Feedback Session with Ms Boucher on 2 November 2018 he was disconsolate and depressed. Ms Boucher (and Ms Arnold 16) raised concerns with his mental wellbeing, fearing he may self-harm17. He was offered chaplaincy support.

[80] The incident that triggered dismissal occurred on 3 November 2018. Mr Delbridge left two children unsupervised in a vehicle (resulting in one child assaulting the other). The context was that Mr Delbridge was taking the children on an outing, had forgotten their medication, had returned to the house, parked the car in the driveway, rushed inside leaving the children unsupervised, located the mediation, did not complete the medication paperwork, returned to the car only to find that an incident had occurred. A co-support worker (Jeremy Young) witnessed the aftermath of the assault, and attended to the assaulted child. I find that the children were unsupervised by Mr Delbridge for between 1 and 2 minutes. An even shorter period of time occurred before Mr Young noticed the fracas and intervened. Mr Delbridge voluntarily completed a Critical Incident Report 18 (I am unable, on the evidence before me to conclude whether another person made a CARL report on the incident). The Critical Incident Report came to the attention of Ms Boucher, who logged it in EMS19.

[81] Managers (including Mr Adams and Ms Boucher) discussed the 3 November incident. In light of the first and final warning (and what Mr Adams considered to be troubling emails sent by Mr Delbridge), the managers decided that a further formal disciplinary investigation was required.

[82] Mr Delbridge remained employed but was not provided further shifts after 4 November 2018.

[83] On 16 November 2018 Mr Delbridge was given another allegations letter by Baptist Care. It raised four allegations concerning conduct between 2 and 7 November at the residential placement. The allegations were: 20

1. That, contrary to policy, on 3 November 2018 he left two children unsupervised in a vehicle which resulted in one child assaulting the other;

2. That, contrary to policy, on 7 November 2018, he sent an email to co-workers which included a Departmental officer in the distribution;

3. That, contrary to policy, between 2 and 4 November 2018 he failed to record in the log book that he was using cushions as a method to deflect blows from a child in his care; and

4. That, contrary to policy, on 3 November 2018 he failed to complete medication paperwork and protocols before administering medication to children.

[84] Mr Delbridge was required to attend a meeting with Baptist Care managers on 20 November 2018 (with a support person if he wished) to discuss the allegations. The allegations letter again advised him that this was an internal process which “may, subject to your responses, result in disciplinary action up to and including termination of employment.”

[85] The meeting occurred on 20 November 2018 as a formal interview 21. Mr Delbridge attended with a support person. It was attended by Ms Boucher and a Senior Manager Chelsea Arnold. Mr Adams was unable to attend.

[86] Mr Delbridge again provided explanations to the allegations, at length. He admitted the conduct but provided mitigating context and background asserting in his view that his late completion of the medication paperwork was common practice. Mr Delbridge directly asked for documents and records on his personnel file if he was to be sacked. He was provided certain documents that he had sought (but not all) 22.

[87] In the days that followed, Ms Arnold and Mr Adams discussed the employer’s options. They consulted another officer from the human resources department, Ms Furtado. Mr Adams and Ms Arnold 23 recommended summary dismissal in light of the seriousness of the incident (leaving children unsupervised) and the previous warning. Ms Furtado concluded that “it would not be prudent or appropriate to continue Stuart’s employment…we considered there was a real risk to the safety of children in his care that could arise”24. This reflected the view formed by Mr Adams25. The recommendation to dismiss was accepted by Ms Furtado and then Baptist Care’s Chief Executive.

[88] On 23 November 2018 Mr Delbridge received a letter of termination advising the outcome of the investigation. He was told he was terminated without notice “due to the seriousness of the issues at hand” 26.

[89] Mr Delbridge then commenced these proceedings on 13 December 2018.

Consideration

[90] The issue for determination is simply put: was Mr Delbridge’s dismissal “harsh, unjust or unreasonable” having regard to the considerations in section 387 of the FW Act and, if so, is it appropriate to order a remedy by way of reinstatement or compensation?

[91] Section 387 of the FW Act provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

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

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

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[92] I am under a duty to consider each of the criteria in section 387 of the FW Act, 27 and now do so. In so doing, I take into account all of the evidence and submissions before me.

[93] Given the breadth of issues raised, in this decision I specifically deal with evidence that is most material to arriving at a decision in this matter. Some evidence is not referenced, not because I have not considered it, but because I do not need to make specific reference to it. Similarly, I have dealt with each primary submission but not every angle of each submission, not because they have not been considered but because doing so would add excessive length to these reasons.

Valid Reason (section 387(a))

[94] An employer must have a valid reason for the dismissal of an employee. It is the Commission’s task to determine if a valid reason exists. The reason(s) should be “sound, defensible and well founded” 28 and should not be “capricious, fanciful, spiteful or prejudiced.”29

[95] In a conduct-based dismissal 30 the test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. The Commission must itself make findings as to whether the conduct occurred based on the evidence before it.31

[96] Where an employee is dismissed for misconduct, as in this case, an evidentiary onus rests on an employer to establish that on the balance of probabilities the misconduct occurred. 32

[97] It is also well settled that where, as in this case, an employer dismisses for serious misconduct, the standard of proof requires “a proper level of satisfaction” 33that the conduct did in fact occur having regard to the seriousness of the allegations. This is commonly referred to as the Briginshaw standard34. This requires more than mere satisfaction that it is more likely than not that conduct occurred. Rather it requires a proper degree of satisfaction that the conduct did in fact occur. Having regard to the nature of the allegations against Mr Delbridge and the seriousness of potential findings I am satisfied that the Briginshaw standard is the approach to be applied in this matter.

[98] In applying that approach I recognise that the standard of proof remains a civil standard. The allegations are allegations of dereliction of professional obligations as a carer. Serious though they are, they are not criminal charges. I adopt the approach set out in the joint judgment of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others: 35

“2. The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...”.

There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading.” [footnotes omitted]

[99] When considering applications alleging unfair dismissal, this approach has been endorsed by the Federal Court of Australia 36 and by full benches of this Commission.37

[100] In this matter Baptist Care dismissed Mr Delbridge because it lost trust and confidence that he would abide by its policies and procedures regarding the care of children and young people. It formed this view based on the disciplinary outcome (in November 2018) of four specific incidents of alleged misconduct that triggered his summary dismissal, the disciplinary outcome (in August 2018) that led to his first and final warning, prior incidents over which he had been counselled and general conclusions the employer reached concerning his conduct as an employee.

[101] It is appropriate to consider whether each of these items constitute misconduct or behaviour that individually or collectively warranted summary dismissal. It is convenient to deal with them under three headings:

•  Conduct in November 2018;

•  Conduct in May 2018 and prior;

•  General concerns

Conduct in November 2018

Leaving children unsupervised

[102] Two children in the care of Mr Delbridge were left by him in his car in the driveway of a residential placement while Mr Delbridge returned inside to collect the children’s medication, which he had forgotten.

[103] I have found that the children were left by Mr Delbridge for between 1 and 2 minutes. One undid his seatbelt, and assaulted the other (not seriously), leading the other to require treatment outside the car from another support worker who heard the fracas.

[104] Mr Delbridge accepted in his interview on 20 November 2018 38 and in his evidence before the Commission that this was a breach of policy. It clearly was. Clause 3.7.2 of the Baptist Care Supporting Positive Behaviour and Supervising Children Work Directive provides that:39

“All children must be supervised at all times.”

[105] In breaching this directive Mr Delbridge put the children at risk. On this occasion he failed in his duty of care.

[106] In assessing the seriousness of this breach, Mr Delbridge submits that I should take into account that he left the children unsupervised for a legitimate reason (to access their medication) and (in his view) there was only 15 seconds before the other support worker attended the scene.

[107] I do not consider there to be significant mitigation to the seriousness of this breach. There was a clear and responsible alternative: take the children out of the car, return to the house, recover the medication, complete the paperwork and return them to the car ready for travel. Whilst this may have taken time, it was the necessary course. The directives concerning supervision and transport, for good reason, do not permit short-cuts. Nor is the amount of time taken by the other support worker to attend the scene a material factor in mitigation. Whether it was 15 seconds (or more likely longer given the incident) the breach was committed. Mr Delbridge did not know that the other support worker had attended the scene until he re-entered the driveway. It was fortuitous that he had, but that was not Mr Delbridge’s doing.

[108] I do not however assess the seriousness of the breach by reference to the fact that an assault occurred. While a fight was reasonably foreseeable given that these children had previously displayed challenging behaviours, the breach would have been at the same level of seriousness had an assault not taken place.

[109] To his credit, Mr Delbridge owned up to the breach of policy. That notwithstanding, it was a serious breach.

Failing to log medication paperwork

[110] Mr Delbridge failed to log paperwork concerning the children’s medication being taken with him prior to removing it from the house. He did so at a later time.

[111] Mr Delbridge did not accept that this was a breach of policy; he contended (on 20 November 2018 and at the hearing) that support workers were permitted to make ‘late entries’.

[112] I accept Mr Delbridge’s evidence that from time to time late entries were made where support workers were busy with multiple tasks. However, the removal of medication and the giving of mediation without complying with medication protocols (verifying the medication, the dosage, the identity of the child, when last administered etc.) is a serious matter. Without documentation, risk to children arises. Policy required that documentation be completed in real time.

[113] Mr Delbridge submits that he had good reason not to complete the paper work at the time; he wanted to return to the car quickly because the children were unsupervised. Whilst this was understandable, it cannot be mitigation. Compounding breaches do not lessen the seriousness of either breach; nor does one error excuse the other. If Mr Delbridge felt it was going to take too much time to find and complete the medication paperwork, this should have been a prompt to bring the children inside while he did so.

[114] I consider the conduct in not completing the medication paperwork and protocols before travel to be a breach of a moderate nature.

Failing to log use of cushions as protective barrier

[115] This allegation is not that Mr Delbridge used cushions as a protective device when the children in his placement were violent towards the carer (or that he suggested this technique to other support workers). Rather, it is that Mr Delbridge failed to record this practice in the log book.

[116] Mr Delbridge accepted in his interview on 20 November 2018 40 and in his evidence before the Commission that this was a breach of policy. He submitted in mitigation that the house was a busy place, that there were many things he had to do and logging this practice slipped his mind, as after the cushion incident he went outside with a child onto a trampoline.

[117] There are sound reasons why a log book needs to be used by multiple support workers whilst in the care of children, especially in a residential placement. It provides not only a record of behaviour and incidents, but also a body of knowledge for those carers who work subsequent shifts on that or following days. Whilst it may be seen by some as paper work, it is intrinsic to the exercise of a duty of care in the context of a 7 day a week 24 hour a day care operation. Failure to record a violent outburst and how that was dealt with is not simply an administrative issue; it bears on risk management by other carers and the organisation as a whole.

[118] I accept that multiple tasks have to be performed by a support worker across a shift, and that instant recording in the log book of an incident has to be prioritised against other priorities. Nonetheless, it has to be done, and in a timely way. Mr Delbridge’s failure to do so was a moderate breach.

Including departmental officer in internal email

[119] On 7 November 2018 Mr Delbridge sent an email concerning a residential placement (concerning his use of cushions to deflect blows) to Baptist Care support workers and managers but also included a departmental officer in the distribution list 41.

[120] Mr Delbridge accepted in his interview on 20 November 2018 42 and in his evidence before the Commission that this was a breach of policy though he said that, at the time of sending the email, he was unaware that he could not include a departmental officer in the distribution list.

[121] I am satisfied that this was a breach of policy 43. For understandable reasons, Baptist Care wish to apply checks and balances as to how it communicates information to regulatory agencies with whom it interacts and to whom it is accountable. Baptist Care managers learning for the first time about practices or techniques used by their support workers (such as cushioning) are entitled to assess that conduct for compliance with their duty of care before it is communicated or made known to the regulatory agency.

[122] I accept Mr Delbridge’s evidence that he was not aware of the prohibition at the time he sent the email (though he had access to policies limiting communication). I also accept that the seriousness of this breach is lessened by the fact that departmental officers did participate, from time to time, in meetings between Baptist Care managers and the Care Team to discuss specific placements, and that Mr Delbridge knew and had dealings with the officer he included in his email.

[123] I consider this conduct to have been a low level breach only.

Conduct in May 2018 and prior

Inappropriate conversation

[124] There were two elements to the allegations letter of 17 July 2018 concerning an alleged inappropriate conversation between Mr Delbridge and Person A: that Mr Delbridge told Person A that he “loved him” and that Mr Delbridge told Person A that he would need to make changes to his private home to have Person A sleepover.

[125] To his credit, at the interview on 27 July 2018 and in his evidence before the Commission Mr Delbridge did not deny that the conversation occurred. He accepted that it was inappropriate and, strictly speaking, a breach of how a support worker should communicate with children in their care 44. His primary explanation in mitigation was context. He said that the context of the conversation mattered.

[126] Mr Delbridge’s evidence was that conversation, which occurred on 16 May 2018 whilst he and Person A were in the residential placement, went something like this: 45

“Person A: Do you know what it is like not to have parents, Stuey?

Mr Delbridge: No I don’t...I always had mum and dad

Person A: I love you Stuey. Do you love me?

Mr Delbridge: Absolutely I do mate, yes I do love you [says first name of Person A]

Person A: You love your kids more though?

Mr Delbridge: Well it’s not like that, you know Stuey loves everybody. I love my kids one way, my dog another way, and it’s different with you as well. There are lots of different ways to love someone or something.”

[127] I accept this evidence. It is broadly consistent with what Mr Delbridge said in the interview with Baptist Care on 27 July 2018. Whilst Mr Delbridge’s evidence in the last part of the conversation is somewhat self-serving, I am satisfied that this evidence of the conversation as a whole can be generally accepted.

[128] I agree that the context of any incident of alleged misconduct matters, as to whether the conduct was misconduct and if so, its level of seriousness.

[129] There is no doubt that this conversation was clearly a breach of policy. I take into account that it was the child who first asked Mr Delbridge the question “Do you love me?” Nonetheless, a support worker is required to have their wits about them. They are professionals in their place of work. They are not parents or family members; they are employees caring for a child and handing over that care to another at the end of their shift. They act in the name of the organisation that employs them, not in their own name. As professionals they are required to communicate in a manner that does not lower their guard, even in difficult moments. It is not surprising any child in care may ask that question of their carer, and the support worker is both trained and required to have the presence of mind to answer in a caring but not inappropriate way. In short, a support worker is entering dangerous territory if they make a personal declaration of love to a child even in response to a question seeking that answer.

[130] As Mr Delbridge said to the employer on 27 July 2018: 46

“I made a judgment call and I guess within Baptist Care guidelines it was not the right thing to do. But I felt morally and ethically obliged to give the little boy an honest answer because he had been hurt too much.”

[131] The risks to a child from a personal declaration of love by a single support worker carry self-evident risks to the wellbeing of that child. Such declarations are capable of being misunderstood by either the child or others responsible for the child’s care or regulatory agencies providing oversight. I accept the submission of Baptist Care that if a relationship of significant emotional attachment and dependency arises then a child is likely to be at greater risk when the support worker leaves the child at the end of a shift (or leaves the employ of the organisation entirely), creating a larger burden for the child and those carers that follow.

[132] I accept Mr Delbridge’s evidence that his declaration of “love” for Person A was love in the sense of caring deeply for Person A’s wellbeing and wanting to give the child the comfort of knowing he was loved.

[133] A child in care has a legitimate need for love. Indeed, the governing South Australian law (the CYP Safety Act 2017) provides as follows:

“8 Other needs of children and young people

(1) In addition to the paramount consideration set out in section 7, and without derogating from that section, the following needs of children and young people are also to be considered in the administration, operation and enforcement of this Act:

(a) the need to be heard and have their views considered;

(b) the need for love and attachment;

(c) the need for self-esteem;

(d) the need to achieve their full potential.”

[134] By using the word “love” in this context the parliament has reinforced the legitimacy of a child in care being loved and feeling attached to those providing care. This is not however a basis on which an individual carer can make a personal declaration to a child that they “love” them. Personalising affection in this way is inconsistent with the duties of a professional support worker. Meeting the need for “love and attachment” as specified by the parliament is best achieved by collective care, not by an individual carer’s personal statements of affection.

[135] The second limb of the allegation of an inappropriate conversation with Person A was that Mr Delbridge told Person A that he would need to make changes to his private home to have Person A sleepover.

[136] Whilst this was also admitted, again context matters.

[137] I accept Mr Delbridge’s evidence that he did not propose sleepovers to Person A but rather told Person A, in response to a question from Person A (about whether he could sleep over at his home) that he would need to make changes to his home for that to occur. Nonetheless, I find that Mr Delbridge did engage in discussion with Person A about sleepovers at his private home and allowed Person A to form a belief that a sleepover was a future possibility.

[138] For good reason, Baptist Care have clear policies prohibiting support workers from allowing children in their care attend their private family home let alone sleep over. The policy and training provided is that support workers separate their work and family lives, and do not disclose personal or family details to children in their care.

[139] Mr Delbridge’s conversation on the topic of sleepovers, and in particular his failure to rule out unequivocally that possibility, was not consistent with his employment obligations.

[140] It was also suggested by Baptist Care when interviewing Mr Delbridge on 27 July 2018 that he has told Person A that he (Mr Delbridge) wanted to foster Person A. I accept Mr Delbridge’s evidence that he had not told Person A as much in those terms, but that he had told Person A in more general terms that he would not leave him or abandon him. However I also accept the evidence of Mr Delbridge that he did in fact harbour an intention to foster Person A.

[141] At the hearing of this matter that remained his hope, distant though it may be.

[142] In his interview with Baptist Care on 27 July 2018 Mr Delbridge explained his longer term intention this way: 47

“I have approached at the last team meeting about some respite foster caring for Person A down the track. Yeah, I know look I can’t deny that mate and, yeah, I love him it is as simple as that.”

“I believe probably towards the last couple of months when I really made a conscious decision in my head I actually want to pursue this. I want to see this little boy, I want to be part of his life and not just for a few hours a week but for the rest of his life…”

“I told him I cared a great deal about you mate and I would like to think we could be friends forever. Yea, they are the sort of words I probably said to him.”

“I never said to him ‘I’m going to foster you and you’re going to come and sleep at my house’. No I did not say that. Not at all but I let him, I had a bit of hope that maybe one day we could continue to be friends and continue to spend time together and he could meet my daughter and my dog and so on and so forth.”

[143] In allowing Person A to form the view that a future relationship of some type could be established with Mr Delbridge’s family under the care of Mr Delbridge, he breached his duty as an employee in that he failed to keep separate his personal life and his employment responsibilities.

[144] On the issue of inappropriate conversation, I conclude:

•  The conversation Mr Delbridge had with Person A in which he told him “I love you”, even when considered in context, was a serious breach of his duty as an employee;

•  The conversation Mr Delbridge had with Person A in which he allowed Person A to form a belief that a sleepover at Mr Delbridge’s private home was a future possibility, even when considered in context, was a serious breach of his duty as an employee;

•  The conduct of Mr Delbridge in planning to foster Person A and, by conversation, allowing Person A to form the view that a future ongoing relationship of some type could be established with Mr Delbridge’s family was a serious breach of his duty as an employee.

MA15+ movie

[145] I have made findings that on one occasion, due to lack of attention by Mr Delbridge (whilst making the purchase), Person A hired a MA15+ DVD and was watching it on a laptop in the residential home with Mr Delbridge present. The movie contained animation with strong sexual overtones.

[146] Allowing Person A to purchase this movie was a breach of Mr Delbridge’s duty of care. I find that it was caused by inadvertence, not intention. Mr Delbridge immediately switched the movie off once he saw its inappropriate nature. Mr Delbridge also, to his credit, fessed up to his manager about the incident once he realised other support workers were chatting about what had apparently occurred.

[147] It was, in context, a moderate breach.

Graffiti incident

[148] I have made findings that on one occasion Mr Delbridge negotiated an arrangement with Person A whereby he permitted Person A to graffiti his name on a concrete wall in the countryside after which Person A handed over the spray can.

[149] In allowing this, Mr Delbridge did not set a good example. However, in the sterile environment of a hearing room months later, more can be made of this than in real time. I accept that alternatives were limited, and that forced removal of the can from the child would have required physical contact. Nonetheless, the child was allowed to negotiate a wrongdoing in an (albeit remote) community space and was not chastised for that.

[150] This was an error of judgment by Mr Delbridge in the exercise of his duty of care but one that I consider, in context, a moderate breach only.

General concerns

Emotional attachment

[151] Baptist Care submitted that Mr Delbridge’s conduct evidenced a failure to establish acceptable boundaries of detachment between himself and persons in his care. It says that “he had no insight into the need to maintain appropriate professional boundaries with the clients whom the Respondent has care of nor willingness to comply with the Respondent’s policies and procedures” 48.

[152] The evidence, particularly with respect to the residential placement with Person A, supports this contention concerning a lack of insight into the boundaries between a professional support worker on the one hand and a person with emotional attachment akin to a family member, guardian or parent on the other.

[153] The evidence before the Commission, including his interview with Baptist Care on 27 July 2018 is replete with statements made by Mr Delbridge which lead to that conclusion. Mr Delbridge allowed a relationship of mutual dependency to form between himself and Person A; one based (from his perspective) on an emotional attachment to the care and wellbeing of Person A.

[154] I also find that on multiple occasions in informal discussion with other support workers and in Review and Feedback sessions with his managers Mr Delbridge used the possessive “my” to describe his relationship with Person A. I do not accept his evidence that he did not use possessive language. That evidence is inconsistent with the written record of the feedback sessions conducted with Ms Boucher and other managers, and notes contained in EMS files. I find that in a workplace context Mr Delbridge commonly referred to Person A as “my little boy”, “my young man”, “my little mate”, “my little buddy” and “my little lad”.

[155] This possessive language is evidence of a relationship of emotional attachment.

[156] In explaining why he told the child (in context) “I love you” Mr Delbridge explained that the “felt morally and ethically obliged to give the little boy an honest answer because he had been hurt too much”.

[157] Whilst I accept that this was an “honest” answer to the child, it was an answer which revealed a deeper issue: that contrary to Baptist Care’s policy Mr Delbridge had allowed a relationship of mutual dependency to exist between he and Person A.

[158] In his evidence even twelve months later Mr Delbridge was still grappling with his feelings on the matter. He was still weighing in his mind whether it was wrong to tell Person A that he loved the child. Mr Delbridge told the Commission: 49

“I’ve never stopped loving him in my life I can’t deny that.”

“I was trying to be an advocate for the child.”

[159] In his evidence he accepted “absolutely” 50 that he loved Person A. In answer to questions from myself Mr Delbridge said that he accepted that a deep relationship of dependency was created with Person A and that he was angry that this had been broken by Baptist Care and the Department51.

[160] He had openly said as much to Baptist Care on 27 July 2018: 52

“So I do love the kid (laughs). One of the most challenging people I’ve ever met in my life but also one of the most rewarding, he really is.”

[161] In that interview he went on to explain his affection this way: 53

“Redacted from Decision”

[162] Similarly, at the hearing of this matter Mr Delbridge was still grappling with whether it was wrong to want to have Person A sleep over and ultimately foster him so he could become closer to his family.

[163] In his evidence he said that he “wanted to look towards foster caring” and “parenting” the child, and that they could form a “partnership like mates” 54. In answer to a question from myself Mr Delbridge said:55

“DEPUTY PRESIDENT: Do you still hold out an aspiration that you could still foster care child [initials]?

MR DELBRIDGE: I’m not going to give it up, that’s why I’m here Mr Deputy President.”

[164] In his interview with Baptist Care on 27 July 2018 Mr Delbridge explained his feelings this way: 56

“I’m hurting big time, like I’m missing one of my best friends, honestly.”

[165] These are sentiments reflective of human emotion going well beyond the professional detachment required of a support worker towards a child in their care.

[166] I conclude that Mr Delbridge failed to exercise the insight and judgment required of a support worker to place boundaries between his human affection for a child and his professional responsibilities as a support worker.

[167] In so failing, it was a serious breach of duty.

[168] Mr Delbridge, in his defence, said that he was regularly contacted by his superiors even on days off to come in and cover a shift with Person A because (so he was told) he was the person who could best manage Person A and settle his challenging behaviours.

[169] I accept the evidence of Mr Delbridge on this score. He was, from time to time, told that he was best able to care for ‘his little mate’ or ‘oh mate he needs you’ or words to that effect. The evidence is consistent with what he (Mr Delbridge) told Baptist Care during the interview on 27 July 2018 57.

[170] I also accept that at times Mr Delbridge asked his mangers to not roster him on so many overnight shifts with Person A as it was affecting his (Mr Delbridge’s) wellbeing.

[171] However, these factors do not explain or mitigate the seriousness of the breach concerning the failure to maintain professional boundaries. Having accepted the extra shifts, professional responsibilities applied. That a manager recognised that Mr Delbridge was best placed from amongst the Care Team to calm down Person A was not an invitation to cross professional boundaries.

[172] These factors as well as my overall view of the evidence are relevant to a further and important finding I make: there is no evidence before me that Mr Delbridge engaged in “grooming” 58 conduct towards Person A or any child in his care. A support worker developing a significant emotional attachment leading to a relationship of dependency is committing a serious breach of duty. Whilst that conduct is consistent with putting a child at risk of grooming it is equally consistent with a misguided application of the human emotion to care for children.

[173] There is no evidence before me to suggest that Mr Delbridge was motivated other than by a misguided application of human emotion for the care of children.

[174] There is no allegation or evidence before me of inappropriate physical conduct (of a sexual nature or otherwise) between Mr Delbridge and Person A, nor evidence of inappropriate conversations with Person A of a sexual nature or tone. There is evidence that Person A from time-to-time made inappropriate remarks of a sexual nature towards female support workers and, relevantly, the evidence is that Mr Delbridge raised this with his managers as a challenging behaviour by the child that needed to be rectified.

Not a team player

[175] Baptist Care contend that Mr Delbridge was not an effective team player within the Care Support Team when working in residential placements. It relied on the evidence of Ms Boucher 59 and, to a lesser extent, the evidence of Ms Hemmings and Ms Koch.

[176] Mr Delbridge strongly disputed this claim. He said that he was a committed member of the Care Team, provided guidance and mentorship and was not negative or overly critical of others. He said that the concerns stated by Ms Koch and Ms Hemmings in evidence were not expressed at the time he was working in the Team, and followed discussion about giving evidence with Ms Boucher. He submitted that I should prefer the evidence of Ms Hadeler, who expressed no such concerns in her evidence and who had worked with Mr Delbridge for a longer period (and who had not spoken to Ms Boucher prior to giving evidence).

[177] A fair assessment of the evidence is that Mr Delbridge was an enthusiastic member of the Care Team, did actively participate in Care Team meetings and did communicate professionally with Care Team members. However, as the most experienced carer within the Care Team and longest serving in the residential placement of Person A he took it upon himself to provide guidance and direction to others. When coupled with Mr Delbridge’s attachment to Person A and the confidence he had (fuelled by managers) to settle and calm Person A it was understandable that some of his Care Team members found his approach overbearing. Albeit unintentional, Mr Delbridge was prone to giving the impression that his methods were best, and the views of others less valuable. Ms Hemmings and Ms Koch took it that way; Ms Hadeler did not.

[178] Interaction with the Care Team was a matter of discussion between Mr Delbridge and his mangers in Review and Feedback supervision meetings. For example:

23 August 2016 (supervision file) 60

“Q: Do you see any obstacles to you achieving your performance objectives? A: My co-workers. The level of care and empathy given to the child. The lack of understanding of “some” carers towards the child’s development.”

19 July 2017 (supervision file) 61

“concerns with other YSW (RW) (Youth Support Workers) not doing job properly; placement messy, dishes stacked up, saying YP annoying and not listening”

20 February 2018 (EMS file 22156) 62

“Stuart continued on saying he has concerns OYSW (other youth support workers) not taking his direction re what is best for the YP. I again reiterated that it is a care team approach and all YSW (youth support workers) bring their own experience to the placement for the benefit of the YP. Stuart finished by saying that he has written in the communication book what he expects the team to abide by re directions for the YP.”

28 February 2018 (supervision file) 63

“Discussed talking with team not dictating or giving directions. Team approach is key. Feels at times other YSW not following what he says. Discussed respecting others ideas and strategies.”

27 June 2018 (EMS file 26597) 64

“Stuart then told me he thought he had been a person in the care team that really cared unlike some people that worked there.”

17 August 2018 (supervision file) 65

“Heading to acceptance of working with others and being in a team”

11 September 2018 (supervision file)  66

“Stuart felt that my wording ‘Stuart is becoming more accepting of being part of the team’ could be taken different ways and did mean in the past he wasn’t accepting. We covered the reasons behind the discussion about team work…Linda acknowledges that Stuart’s opinion and the restating of how he works with a team is valid and appropriate.”

[179] I conclude that Mr Delbridge’s input was occasionally critical of others but that he also offered a positive view about the Care Team. That said, the documentary record also shows that mangers did counsel Mr Delbridge about needing to engage better with the Care Team. In his evidence 67 Mr Delbridge accepted that these discussions occurred but considered that others needed to model his manner of caring.

[180] Overall, Mr Delbridge was an effective member of the Care Team but could be directive and unintentionally dismissive of the views of others where they conflicted with his methods or assessment.

Conclusion on valid reason

[181] Of the four incidents that triggered dismissal, I have concluded that one (leaving children unsupervised) was a serious failure of duty while two others were moderate breaches of policy (not logging cushioning and not completing medication protocols prior to removing medication) and the other a low level breach (including a departmental officer in an email).

[182] Whilst these were the incidents that triggered dismissal, the decision to dismiss was grounded on a more fundamental issue: over the previous six months the employer had progressively lost trust and confidence in Mr Delbridge being able and willing to comply with Baptist Care policies and procedures so as to not put the wellbeing of children in his care at risk. In particular, Baptist Care had concluded that Mr Delbridge was unable to maintain appropriate professional boundaries and had developed an unhealthy level of attachment to Person A.

[183] The serious failure of duty (leaving children unsupervised) on 3 November 2018 was a valid reason for dismissal in the context of the first and final warning issued in August 2018. The other moderate breaches and the low level breach advanced in the allegations letter of 16 November 2018 were not, individually or collectively matters that warranted dismissal but, in combination with the serious failure of duty and the previously issued warning they were relevant elements of a valid reason for dismissal.

[184] The employer’s loss of trust and confidence in Mr Delbridge as a result of these incidents and the ongoing attachment he was demonstrating to the wellbeing of Person A was soundly based and also a valid reason for dismissal.

[185] I reject Mr Delbridge’s assertions that the reasons for his dismissal were not the true reasons for dismissal.

[186] The evidence before me is that Baptist Care sought to keep Mr Delbridge in their employment as a carer for as long as they could, until the employer considered that his conduct was inconsistent with his duties as an employee having regard to Baptist Care’s policies and practices. If Baptist Care did wish to remove Mr Delbridge for ulterior purposes it would have, and could have, done so after the conduct with Person A emerged in mid-2018. Rather, the employer gave Mr Delbridge a lesser sanction, had regard to his overall commitment to the job, decided to help him retrain and correct his style of caring and did so via a formal warning rather than dismissal.

[187] Objectively speaking this was fair play, not unfair conduct.

[188] There is no credible evidence before me that Baptist Care or its officers or managers were engaged in a conspiracy against Mr Delbridge with the Department or others to remove him from their employment. Baptist Care, as with other care providers, is necessarily subject to oversight and regulatory control by the Department for Child Protection on matters within the remit of that Department. The fact that departmental officers engaged or liaised with Baptist Care and Mr Delbridge on care concerns including with respect to Person A is evidence of proper regulatory oversight in an area of difficult public policy and not evidence of conspiracy. Mr Delbridge’s evidence was that on one occasion a departmental social worker “yelled” at him during a meeting and took a dislike to him. There is no evidence before me that this incident formed a material element to the decision to dismiss.

[189] Nor is there any credible evidence before me that Baptist Care or its officers or managers unreasonably withheld documents from Mr Delbridge or doctored evidence. The evidence supports the conclusion, which I make, that in the second half of 2018 Mr Delbridge sought documents and minutes of meetings relating to his removal from the placement with Person A and that Baptist Care took steps to provide those, and did so over a period of months. Some of the documents sought by Mr Delbridge related to departmental matters, which Baptist Care needed to follow-up with the Department, and which it did.

[190] Mr Delbridge is correct to submit that the date of the Critical Incident Report of 5 May 2018 does not correlate with the EMS file record of the Critical Incident Report having been made on 4 June 2018. On the evidence before me I am not able to conclude why the date of 5 May 2018 appears, though it is more likely than not that it was a date recorded in error. There is no evidence that this date was inserted to deceive or mislead. Whatever the reason, this anomaly does not advance Mr Delbridge’s case. His evidence is that the inappropriate conversation with Person A occurred on 16 May 2018. That is consistent with the subsequent care concern and the investigation that followed in June, July and August 2018. Whether the date of 5 May 2018 was recorded in error, the substance of that Critical Incident Report was fully and appropriately followed up by the employer.

[191] The allegations of a premeditated intention to dismiss, conspiracy to dismiss and collusion to dismiss are unfounded.

[192] Mr Delbridge did however make a well-founded submission that the employer wrongly advanced in its written evidence and submissions 68 that a second care concern had been raised with the Department concerning Mr Delbridge after his dismissal. The evidence of Ms Wojciechowski69 clarified that this was not the case; that post dismissal the Department had simply sought information from Mr Delbridge concerning a care concern made against another person.

[193] I do not consider that this error by the employer impacts whether it had a valid reason for dismissal. This was a post dismissal view that was wrongly formed, and which, after hearing the evidence of Ms Wojciechowski the employer did not further advance.

Notification of the reason for dismissal (section 387(b))

[194] By the date of dismissal, Mr Delbridge had been made aware of the allegations against him. By letter dated 23 November 2018 he was advised of his dismissal and the reason being “the seriousness of the issues at hand”. Mr Delbridge knew what those issues were; they were the issues in the allegations letter of 16 November 2018 in the context of a formal warning three months earlier. Although the employer did not expressly inform Mr Delbridge that it had lost trust and confidence in him, this was reasonably inferential from the outcomes of the two disciplinary investigations in July/August 2018 and November 2018, and the fact that Mr Delbridge had not been rostered shifts following the 3 November incident.

[195] Mr Delbridge had also been formally notified of the reasons for the earlier formal warning in the letter of 2 August 2018.

[196] I conclude that Mr Delbridge was notified, albeit in an abbreviated form, of the reason for his dismissal.

Opportunity to respond (section 387(c))

[197] The evidence before me is that Mr Delbridge was provided clear and fair opportunities to respond to the allegations against him.

[198] With respect to the allegations concerning Person A, Mr Delbridge was provided a formal allegations letter dated 17 July 2018 entitled ‘Issues Requiring Your Response”.

[199] He attended a meeting on 27 July 2018 where he had a full opportunity to put his response. He did so at that meeting. It was a lengthy discussion and consistent with full consideration of the issues. I consider that Mr Delbridge was afforded procedural fairness with respect to the disciplinary action taken against him concerning his care for Person A.

[200] With respect to the allegations concerning conduct leading to his dismissal, Mr Delbridge was provided a formal allegations letter dated 16 November 2018 entitled ‘Issues Requiring Your Response”.

[201] He attended a meeting on 20 November 2018 where he had a full opportunity to respond. He did so at that meeting.

[202] I conclude that Baptist Care provided Mr Delbridge an opportunity to respond to the allegations of misconduct levelled against him.

Opportunity for support person (section 387(d))

[203] Mr Delbridge was afforded the opportunity to attend the allegation meetings of 27 July 2018 and 20 November 2018 with a support person. This was specifically made known to Mr Delbridge in the letters of allegation.

[204] Mr Delbridge attended the 27 July meeting with a support person. He also attended the 20 November meeting with a support person.

[205] I conclude that Baptist Care did not unreasonably refuse Mr Delbridge a support person.

Warnings concerning performance (section 387(e))

[206] Mr Delbridge had multiple occasions on which his managers discussed with him the behavioural risks that ultimately manifest in the conduct that gave rise to his formal warning and then dismissal. These were communicated in Staff Review and Feedback meetings. The purpose of these meetings was not counselling, but review and feedback. However, the feedback was two-way and on a number of occasions the feedback provided from managers (and in particular Ms Boucher) was in the form of counselling and guidance. Although Mr Delbridge regarded these as supervision meetings and not counselling meetings, the label given to such meetings is less important than the substance.

[207] I am satisfied that in each of these meetings Mr Delbridge was in discussion with his manager about care issues, including from time-to-time concerns management had with some of his methods and behaviours. Mr Delbridge was given full opportunity in these meetings to provide his feedback, and did so, often in writing in the meeting record. By no means were all the review and feedback in meetings negative; in some his attitude was regarded as healthy and positive outcomes were noted.

[208] However, where there was guidance provided Mr Delbridge did not particularly regard himself as being counselled. That does not however mean that he was not so counselled. I accept the evidence of Ms Boucher on these discussions. Her evidence accords with the written record. It was Mr Delbridge’s (then) confidence in his approach to caring for the children and the outcomes he saw as producing (particularly with Person A) that clouded his capacity to understand all that his employer was telling him: that some of his conduct in word and deed was too emotional, too close, too dependent, too risky and too dismissive of others in the care team.

[209] Examples of these informal counselling sessions (with extracts from the written notes) are:

28 December 2016 (supervision file) 70

“way emotional at times”

“learning to manage his emotions as this impacts on YP”

“needs to contact case manager prior to any movies/pictures etc for YP to see”

“realises it was inappropriate for MA15 movie for YP to see”

“understands and acknowledges that he needs to leave personal issues out of work and not to discuss these with or in front of YP”

26 October 2017 (supervision file) 71

“reminded YSW (youth support worker) of not sharing personal information and expecting YP to respond as his own child would”

“I reminded YSW (youth support worker) of our duty of care with YP and to promote a therapeutic environment. YSW (youth support worker) Stuart understood and stated that he will in future think of better options for YP challenging behaviours”

20 February 2018 (EMS file 22156) 72

“I queried why Stuart would disagree with the logging details (of other youth support workers) and also stated that the word ‘bullshit’ is not appropriate when discussing another YSW (youth support worker). Stuart apologised and said that the word ‘bullshit’ was more for his purposes”

28 February 2018 (supervision file) 73

“spray paint – role model socially exceptable (sic) behaviours”

“Reminded YSW (youth support worker) that conversations have been held previously re obsession and control over YP at other placements”

17 August 2018 (supervision file) 74

“Stuart will log such events as required in future”

21 September 2018 (supervision file) 75

“Discussion about what attachment is; things like sincerity compared to lack of presence and how children know this”

“child safety - being vigilant about preventing the children being physical with each other”

12 October 2018 (supervision file) 76

“conversation and modelled response by Linda to Stuart about how to stop unprofessional conversations as advised by P&C staff member.”

[210] Aside from these informal review and feedback sessions, I have found that Mr Delbridge was given a first and final warning on 2 August 2018 consequent on his inappropriate conversation with Person A and the investigation that occurred into that incident. That first and final warning, which was in writing, made it clear that: 77

“Consequence of Not Meeting Required Expectations

It is expected that the above issue(s) will be remedied by you immediately. In the event that the above issue(s) occurs again, without reasonable cause, you may be subject to further disciplinary action, and in more serious cases, termination of employment.”

[211] Mr Delbridge was placed on altered care arrangements in the three months that followed removal from the placement with Person A: another carer had to be rostered on with him except when he was driving children to and from venues. Mr Delbridge regarded this to be a “90 day probation”. Whilst that was not the label used by the employer, it was in effect just that: a sign by the employer that his conduct was not just warranting a warning but that risk management required another support worker to work alongside him for a period. Rather than seeing this as a sign that his employment was at risk if he did not modify some of his methods, Mr Delbridge took exception to the ‘probation’. Initially he maintained professional courtesy and kept his spirits up but following a team meeting on 9 August 2018 where he was told (“yelled at” in his evidence) by a departmental social worker that “we are not here to educate these children” and his continued separation from Person A he became disconsolate and frustrated.

[212] I also find that during this period (of ‘probation’) the employer provided specific training and retraining for Mr Delbridge after issuing the first and final warning, and that Mr Delbridge initially reported that he found it useful. This was a genuine attempt by the employer to assist Mr Delbridge; to help him adapt behaviours to exhibit a caring but more detached approach, and to identify the warning signs of emotional attachment.

Size of employer’s enterprise (section 387(f)) and human resource capability (section 387(g))

[213] Baptist Care is a significant employer in the not-for-profit sector, employing in excess of 900 persons throughout South Australia.

[214] It has dedicated human resources capability. Its size and human resource capability provides a basis to conclude that it has the capacity to establish policies concerning the conduct and well-being of employees and persons in its care, monitor compliance with such policies and contractual obligations, manage performance and conduct issues as they arise, and seek external advice on human resources or industrial matters where necessary.

Other matters (section 387(h))

Mitigation: harsh impact on Mr Delbridge

[215] It was submitted by Mr Delbridge that his dismissal was harsh because of the impact it has had on him and the likely impact on his career.

[216] It is clearly evident that Mr Delbridge had and still has a profound commitment to the care of children. Although I have concluded that he was unable to discern the proper level of detachment required of a professional support worker and became (and remains) emotionally attached to the care of Person A such that he crossed professional boundaries, I am in no doubt that Mr Delbridge provided that degree of attachment and support because he saw himself as able to improve the care outcomes of persons in his care and especially Person A. For Mr Delbridge it was the outcomes he was focussed on (such as reducing aggression in children, improving social engagement, getting them to school and eating and sleeping well, building trust) irrespective of whether the boundaries were crossed or policies not adhered to.

[217] The consequences of being removed from the care of Person A were devastating for Mr Delbridge. It rocked him to his core 78 and led him to bear some of his soul in these proceedings. He told Baptist Care that he “cried for 12 days”79. Those impacts were made worse because he did not see his removal from the care of Person A coming. That in itself was a consequence of an unhealthy attachment of dependency. His removal from the care of Person A led Mr Delbridge to consult doctors and to take stock of his physical and mental health. As those events, and the subsequent failure to promptly have documents about his removal provided to him, he lost respect for Baptist Care and the Department, and for the job he so enjoyed. When dismissed a few months later and in the days and weeks since he has been pre-occupied with remedying what he considers an injustice. When seeing the documents and witness statements required to be filed by Baptist Care in these proceedings, the impacts on him, already severe, became extreme. The case against him was laid bare. He read the written record and the inferences in the material. He adopted a laser focus on clearing his name from the stigma of being linked to grooming or paedophilia. That focus has come at the expense of attending to his social and personal relationships, and the hard task of securing fresh work.

[218] These impacts on Mr Delbridge are very real. Short of actually being accused of grooming and paedophilia, the inference from the allegations that he was putting a child at such risk is as brutal a burden as a dismissed employee can carry. I take this into account in considering harshness, but decisions that carry brutal burdens, if well founded, are not unfair decisions.

[219] I also take into account Mr Delbridge’s age and work history, and that he lives in a regional area of South Australia where employment opportunities are limited. However, such factors alone are not unique. They do not outweigh conduct in breach of policy or act to sufficiently transform a dismissal for a valid reason into one that can be characterised, at law, as harsh. 80

[220] In considering the significance of these factors I must weigh them alongside the self-evidently serious nature of the conduct, as well as my overall findings concerning procedural fairness.

[221] I am not satisfied that the impacts of dismissal on Mr Delbridge, brutal as they have been, render the dismissal harsh.

Conclusion

[222] This matter concerns summary dismissal for serious misconduct.

[223] My role is not to review whether the employer had a reasonable basis for its decision but to consider whether, on the evidence before me, the dismissal of Mr Delbridge was harsh, unjust or unreasonable.

[224] The onus of proof in establishing that a dismissal was harsh, unjust or unreasonable rests on an applicant, in this case Mr Delbridge.

[225] However, in cases such as this, the employer carries a considerable evidentiary burden of proof to establish that the misconduct which they allege did in fact occur. I have made findings of fact having regard to the evidentiary onus borne by the employer. Those findings of fact have been based on the requisite standard of proof.

[226] The ambit of the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd  81 as follows:

“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 reasonably 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.”

[227] In reaching my conclusion, I adopt the approach set out by a full bench of this Commission in B, C and D v Australian Postal Corporation T/A Australia Post: 82

“[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.

[59] It is in that weighing that the Commission gives effect to a ‘fair go all round’.”

[228] I have found that there were valid reasons for dismissal based on a serious breach of duty and a well-founded loss by the employer of trust and confidence in Mr Delbridge’s capacity to work as a support worker in a manner consistent with Baptist Care’s policies and procedures.

[229] The evidence leads me to conclude that this well founded loss of trust and confidence existed not just at the time of dismissal but that the factors underpinning it remain. Mr Delbridge continues to hold a level of attachment to the care of children, and in particular Person A, that is more consistent with the relationship between a child and a parent or guardian rather than the relationship between a child in care and a professional support worker.

[230] I have also concluded that there was no denial of procedural fairness to Mr Delbridge in either the investigation that led to the first and final warning, nor in the matters that led to dismissal three months later.

[231] In these circumstances the dismissal was neither unjust nor unreasonable. There was a sound, defensible and well-founded reason for dismissal. Procedures applied were fair, just and not predetermined.

[232] I have considered whether the dismissal was harsh in two contexts: whether harsh because of the impacts on Mr Delbridge, and whether harsh because it was a summary dismissal rather than dismissal on notice.

[233] I have concluded that whilst the impacts on Mr Delbridge were and remain harsh those impacts do not outweigh the seriousness of the breaches that led to dismissal. To the extent that the harsh impacts are the product of his deep distress at the inference that he was grooming a child, my findings have been made. I have found evidence of a misguided depth of care and affection towards a child, but no evidence of grooming.

[234] In some small manner, this finding may be of some value to Mr Delbridge in being able to overcome his distress at the inference that he was acting other than out of compassion for the healthy development of a child, and move on with his life. As Mr Delbridge said in his evidence, “a mistake is an opportunity to learn” 83.

[235] Given the circumstances surrounding the 3 November 2018 breach of duty (including the fact that related breaches were breaches of a moderate and low level nature only) there is superficial attraction to the proposition that the conduct was a momentary lapse of judgment (albeit serious) and that dismissal should have been on notice, and not a summary dismissal.

[236] However, I have found that the underpinning reason for dismissal was a loss of trust and confidence arising from the serious incident on 3 November 2018 and the Applicant’s ongoing failure to exercise proper insight with respect to the boundaries required of a professional support worker.

[237] In this context, the employer’s loss of trust and confidence was a fundamental issue which went to the heart of the employment relationship and concerned matters of a serious nature which, if ongoing, presented material risk to it and children in its care.

[238] Although the employer had the option of dismissal on notice, I do not conclude that summary dismissal was harsh.

[239] Also relevant to this issue is that Mr Delbridge was a casual employee and that Baptist Care was not obliged to offer him continuing employment on particular shifts. In the three weeks prior to dismissal (4 November to 23 November 2018) Mr Delbridge had remained ‘on the books’ but was not provided work. To the extent that Baptist Care could have dismissed him on notice, they would have needed to do no more than inform him that, from a specified future date, he would be removed from ‘the books’ and asked to return any property of the employer. The employer had no different obligation prior to giving notice than it would have had upon giving notice. If not rostered, Mr Delbridge would not have been remunerated even if notice had been provided.

[240] As the dismissal was not unfair, I am not required to consider issues of remedy.

[241] In conjunction with the publication of this decision I issue an Order that the application be dismissed and a further Order restricting access to the audio record of proceedings and to the Commission file.

DEPUTY PRESIDENT

Appearances:

S. Delbridge, on his own behalf

A. Short, with permission, for the Respondent

M. Boisseau, with permission, for the Department for Child Protection

Hearing details:

2019.

Adelaide.

23 and 24 May, 4 and 5 June.

Printed by authority of the Commonwealth Government Printer

<PR709293>

 1   Audio 23 May 2019; 5 June 2019

 2   Audio 23 May 2019

 3   Directions hearing 4.45pm 26 February 2019

 4   Email Chambers Anderson DP 16 April 2019 9.12am

 5   Audio 24 May 2019 16.06pm

 6   Pearse v Viva Energy Refining Pty Ltd[2017] FWCFB 4701 at [14]. See also section 591 of the FW Act and King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, 17 March 2000) Print S4213 at [61] - [62]; Enterprise Flexibility Agreement Test Case (Print M0464) at page 13; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 509

 7   MA1

 8   R2

 9   MA1 page 2 item 8

 10 Section 163 Children and Young People (Safety) Act 2017 (SA)

 11   A21

 12   A1 Statement of Stuart Delbridge paragraph 20

 13   MA3 EMS File 28631

 14   A3

 15   MA7

 16 R1 Statement of Matthew Adams paragraph 67

 17   LB2 and A6 ‘Staff Review Discussion and Feedback’ 2 November 2018

 18   MA11

 19   MA10 EMS File 34614

 20 R8 and A9

 21   MA12

 22   A20

 23   MA13

 24 R10 Statement of Melissa Furtado paragraph 22(d)

 25 R1 Statement of Matthew Adams paragraph 80

 26 R9 and A10

 27   Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [14]

 28   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 29   Ibid

 30   except where the Small Business Fair Dismissal Code applies

 31   King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 [24]

 32   Edwards v Guidice (1999) 94 FCR 561 [6]-[7]

 33   Budd v Dampier Salt Ltd (2007) 166 IR 407 at [14] - [16

 34   Briginshaw v Briginshaw (1938) 60 CLR 336

 35 (1992) 110 ALR 449

 36   Edwards v Guidice (1999) 169 ALR 89 at 92 per Moore J

 37   Parker v Garry Crick’s (Nambour) Pty Ltd t/as Crick’s Volkswagen[2018] FWCFB 279 at [124] – [125]; Hill v Peabody Energy Australia PCI Pty Ltd[2017] FWCFB 4944 at [15]; Heinz Company Australia Ltd v Green[2014] FWCFB 6031 at [14] – [15]; Budd v Dampier Salt Ltd (2007) 166 IR 407 at 14 - 16

 38   MA12 page 3 of 8

 39   R2

 40   MA12 page 5 of 8

 41   R7

 42   MA12 page 4 of 8

 43 R2 ‘Roles and Responsibilities of Support Workers’ “support workers are not to email the individual’s case manager (unless directed by the placement coordinator)”

 44   Audio 23 May 2019 1501pm

 45   A1 Witness Statement of Stuart Delbridge paragraph 32

 46   MA7 page 6 of 10

 47   MA7 page 5 of 10 and page 7 of 10

 48   Respondent’s Outline of Submissions paragraph 38

 49   Audio 24 May 2019 1602pm and 4 June 2019 1114am

 50   Audio 24 May 2019 1603pm

 51   Audio 24 May 2019 1632pm

 52   MA7 page 8 of 10

 53   MA7 page 5 of 10

 54   Audio 24 May 2019 1604pm

 55   Audio 24 May 2019 16.08pm

 56   MA7 page 8 of 10

 57   MA7 page 5 of 10

 58   As described by Baptist Care in its Child Protection Policy clause 4.3(R6)

 59 R11 Statement of Linda Boucher paragraphs 24 to 28

 60   A6 and LB2

 61   A6

 62   MA8

 63   A6 and LB2

 64   MA8

 65   A6 and LB2

 66   A6 and LB2

 67   Audio 4 June 2019 1006am

 68 R1 Statement of Matthew Adams paragraphs 89 – 90; Respondent’s Outline of Submissions paragraph 40

 69   A14

 70   A6 and LB2

 71   A6 and LB2

 72   MA8

 73   A6 and LB2

 74   A6 and LB2

 75   A6 and LB2

 76   A6 and LB2

 77   A4 A6 and LB2

 78   A7 “I am pretty well broken. Just like [initials of YP]” “I am shocked at the impact this is having on me. My pain confusion and despair have impacted every part of me. I cannot even talk” Emails Stuart Delbridge to Abigail Cook 20 and 22 July 2018

 79   MA7 page 6 of 10

 80   For example, Dawson v Qantas Airways Limited[2017] FWCFB 1712 at [48]

 81 [1995] HCA 24; (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ

 82   [2013] FWCFB 6191

 83   Audio 4 June 2019 1015am