The Applicant v The Nursing Home

[2014] FWC 6855

[2014] FWC 6855

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

The Applicant
v
The Nursing Home
(U2014/10215)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 22 OCTOBER 2014

Application for relief from unfair dismissal - findings of fact - criminal allegations - no valid reason.

[1] In this decision I have not identified the parties to minimise the potential for unwarranted embarrassment which could also extend to persons other than the direct participants. The parties will be provided with an explanation of the identifying references in this decision.

[2] On 23 June 2014 the Applicant lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) with respect to the termination of her employment with the Nursing Home. The application was referred to me for determination and was the subject of a determinative conference on 30 September 2014. At this conference, the Applicant was represented by Mr Wright, of counsel. The Nursing Home was represented by Mr Bolton as agent. Permission in both cases was granted pursuant to s.596(2)(a) of the FW Act.

[3] The background to the application is straightforward. The Applicant worked for the Nursing Home from February 2013 as a part-time aged care worker. There were no disciplinary issues associated with her employment. Her employment was terminated with immediate effect on 4 June 2014.

[4] This employment termination followed advice provided to the Nursing Home management on 29 May 2014 from another Nursing Home aged care worker, Ms X that, on 27 May 2014 she was working with the Applicant when she heard a slapping noise and the applicant subsequently said that she had slapped a Nursing Home resident in response to being slapped by the resident. The Applicant was suspended with effect from 29 May 2014. The allegation was subsequently reported to the police. The Applicant was provided with a letter detailing the allegations made against her on 30 May 2014. The Nursing Home Director of Nursing, Ms Y met with Ms X on 2 June 2014 and Ms Y and Ms Z, the Nursing Home Clinical Nurse Consultant, then met with the Applicant and her nominated union official on 4 June 2014. The Applicant denied that she had slapped the resident and rejected Ms X’s version of the events of 27 May 2014. Ms Y then suspended the meeting to confer with Ms Z before advising the Applicant that she was instantly dismissed. A letter confirming this dismissal was subsequently sent to the Applicant on 10 June 2014.

[5] At the time of the determinative conference, the parties advised that the police investigation remained current. I advised the parties that my determination of the matter would be deferred for a period of up to 3 weeks and invited additional submissions in the event that further information about this police investigation was available within this time period. The advice now provided to me means that I am unsure of the status of the police investigation, such that I consider this matter should now be determined.

[6] The Applicant’s position is that the termination of her employment was harsh, unjust and unreasonable because she did not slap the resident and, accordingly, there was no valid reason for her dismissal. She asserts that the process followed by the Nursing Home to effect her employment termination was inherently unfair in that it relied simply on the uncorroborated version of events put by Ms X. The Applicant asserts that the Nursing Home should have adopted a process which required a higher degree of rigour relative to the assessment of the allegation against her.

[7] The Nursing Home position is that the termination of the Applicant’s employment was neither harsh, unjust nor unreasonable because the clear evidence available to it indicated that the Applicant had slapped the resident and the legislation under which it operated then required that matter to be reported and appropriate action to be taken. The Nursing Home asserted that the process it followed to investigate the matter and to consider the Applicant’s position was entirely appropriate and fair.

[8] It is appropriate at the outset that I note that the police investigation and the Applicant’s behaviour in the context of the allegation of elder abuse are required to be considered in the context of the Aged Care Act 1997. Elder abuse is a criminal matter and hence the allegation must be established beyond reasonable doubt. In this matter, it is necessary that I reach conclusions about the disputed facts simply on the basis of the balance of probabilities. As a consequence, the position adopted by the police is an entirely separate matter to the conclusions I am required to reach on the material before me.

[9] I have considered the evidence put to me on this basis.

[10] At the outset I note that there is no dispute that the resident involved in this matter has a tendency to be somewhat aggressive but there was a difference about her demeanour on 27 May 2014. Both the Applicant and Ms X advised that the resident did not appear to be agitated or in pain after the incident. There is no dispute that the Applicant and Ms X worked well together prior to this incident. There is no dispute that both the Applicant and Ms X had been trained with respect to their obligations toward residents and elder abuse issues.

[11] The Applicant’s evidence went to the events of 27 May 2014. Her evidence was that she and Ms X were assisting the resident. Ms X was to the rear of the resident while the Applicant was leaning across the resident. The Applicant advised that the resident pinched her and then slapped her as she pulled away. As she leaned over the resident again she saw the resident about to pinch her again and said “xxxx don’t pinch, it hurts!”. The Applicant’s evidence was that the resident was somewhat restless at that point. The Applicant asserts that she then had “a little laugh” with Ms X at the fact that she was going to have another bruise. The Applicant’s evidence was that she did not hit the resident, that Ms X did not say “What was that noise?” and that the Applicant did not then say that she hit the resident.

[12] The Applicant’s evidence also went to her suspension and subsequent meeting with Ms Y on 4 June 2014 and to the discussions which culminated with the termination of her employment.

[13] Ms X’s evidence went to her employment history including her training. Her evidence was that on 27 May 2012, whilst working with the Applicant, to toilet the resident, she was behind the resident when she heard a “smacking noise”. 1 She moved to the side of the resident to see what was going on and asserts that the Applicant said words to the effect that: “I just gave [the resident] a smack because she hit me”. Ms X advised that she did not further discuss the matter with the Applicant. Her evidence also differs from that of the Applicant in that she asserts that the Applicant then left the room before her and that she then returned the resident to a common area.

[14] Ms X did not report the incident for two days. Her evidence was that she was unnerved by the incident and wanted to talk with a colleague. She did this by telephone on 28 May 2014 and reported the matter to Ms Z on the morning of 29 May 2014.

[15] Ms X’s evidence went to her subsequent interview with Ms Y on 2 June 2014 where she recounted her observations of the incident.

[16] Ms Z’s evidence went to the advice about the matter provided by Ms X and to the steps she then took to inform Ms Y of it. Ms Z was instructed by Ms Y to suspend the Applicant with pay immediately and make a police report consistent with the Nursing Home elder abuse obligations.

[17] Ms Z’s evidence went to her participation, with Ms Y, in the interview with the Applicant on 4 June 2014. She was involved in discussing the termination of employment decision with Ms Y during the break in that meeting.

[18] Ms Y’s evidence went to the actions she took after being advised of the incident, including the letter of allegation she forwarded to the Applicant on 30 May 2014 and her interview with Ms X on 2 June 2014. She advised of the conclusions she reached at the disciplinary interview on 4 June and the basis upon which she decided to then terminate the Applicant’s employment.

Findings

[19] Section 387 of the FW Act establishes the factors I am required to take into account in deciding whether the termination of the Applicant’s employment was unfair. However, before I can consider these factors, I am required to make findings about the disputed facts of the matter. Those findings confirm the difficult decision ultimately made by the Nursing Home given the extent to which this matter largely turns on the diametrically opposite evidence of the Applicant and Ms X. This is exacerbated by the fact that both these persons presented as credible witnesses and professional aged care workers.

[20] In determining the Applicant’s conduct I have applied the long established approach in Briginshaw v Briginshaw in the following terms: 2

“.... The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty ; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequence flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inference.

....

It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues .... (references removed). But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.”

[21] I am not able to draw any adverse conclusions about the evidence of the Applicant or Ms X on the basis of obvious deficiencies in their advice to me. For instance, there is a difference in the evidence about who left the resident’s room first, but there is nothing that establishes one version is correct.

[22] I do not consider that Ms X’s version of events should be discounted simply because she did not immediately report the matter as she was required to by the Nursing Home elder abuse policy. That is a separate issue which I acknowledge the Nursing Home has taken up with her. However, an effect of the delay in reporting the alleged incident is that the Nursing Home management were unable to check the resident’s condition for some days after the incident. I have concluded that this meant that a potential capacity to positively confirm the allegation was not available such that the allegations against the Applicant have to be considered in that context. In this regard I have noted that neither the Applicant nor Ms X observed that the resident appeared to be in pain or adversely affected by her interaction with the Applicant.

[23] No reason for the fabrication of Ms X’s version of events is apparent to me. The difference between the Applicant’s version and Ms X’s version is so substantial that it simply cannot be described as a mis-hearing or minor difference between the two employees. It must be the case that either the Applicant or Ms X is simply not telling the truth. In assessing this conflicting evidence I have concluded that the resident was agitated whilst the Applicant was leaning over her and most likely did pinch the Applicant. In terms of the following sequence of events it is simply the case that either the Applicant slapped the resident who was intent on pinching her again, or the resident slapped and pinched the Applicant.

[24] On very fine balance I have concluded that the evidentiary material before me was insufficient to establish to the degree necessary, a finding that, on the balance of probabilities the Applicant hit the resident. I have reached that conclusion because of the clear conflict between the evidence of the Applicant and Ms X, and the lack of any corroborating evidence to support the proposition that the Applicant hit the resident. In the circumstances before me, the approach in Briginshaw favours a finding that misconduct of the nature alleged has not been established on the balance of probabilities.

[25] Section 387 states:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[26] I have considered each of these factors in the context of the evidence before me and the finding I have set out above.

Valid reason

[27] Notwithstanding changes to the legislation since the Northrop J observations in Selvachandran v Peterson Plastics Pty Ltd 3 so as to separately identify various elements of the concept of a valid reason, I have applied the principles articulated in that matter.

[28] Given my finding that I am not satisfied, on the balance of probabilities, the Applicant hit the resident I am not satisfied that there was a valid reason for the termination of her employment. This finding should not be misconstrued. The decision to terminate the Applicant’s employment on the evidence of Ms X was understandable. It is simply the case that, in the particular circumstances of this matter, I am not satisfied that the behaviour which resulted in the termination of the Applicant’s employment, has been shown to have occurred or, on the balance of probabilities, did occur.

Notification of the reason

[29] The Applicant was notified of the reason for the termination of her employment at the conclusion of the meeting on 4 June 2014, and in subsequent correspondence sent to her.

Opportunity to respond

[30] The Applicant was given an opportunity to respond to the allegations against her. Those allegations were themselves clarified in the discussion on 4 June 2014. The decision to terminate her employment was only made after that opportunity to respond was provided to her. I do not consider that unfairness was created by the clarification of the allegations.

Any unreasonable refusal to allow a support person

[31] The Applicant was encouraged to have a support person with her and took up this opportunity.

Warnings about unsatisfactory performance

[32] The termination of the Applicant’s employment was not related to unsatisfactory performance and in any event there were no warnings relative to her employment generally.

Size of the Nursing Home business - impact on procedures

[33] The Nursing Home is not a large business but nevertheless I am satisfied that the process it followed reflected a commitment to logical procedures and processes. To the extent that my conclusion about the allegations made against the Applicant differs from the Nursing Home management conclusion I have noted that the decision about the Applicant’s conduct was a particularly difficult one and I have concluded that it is likely that the Nursing Home erred on the side of caution with respect to concern about its residents. I have also noted that this issue demonstrates the degree of difficulty confronting employers in this industry who are required to address issues of equity in terms of their employees, and the obligations established by the aged care legislation.

Absence of human resource management specialists

[34] I have concluded that the decision to terminate the Applicant’s employment was made without direct input from a human resource management specialist. Had specialist advice been available, further consideration and investigation of the matter may well have been possible.

Other matters considered relevant

[35] I am not satisfied that other issues, beyond those to which I have already referred, are relevant to this matter.

Conclusion - harsh, unjust or unreasonable

[36] I have concluded that the termination of the Applicant’s employment was harsh because I am not satisfied, on the balance of probabilities, the Applicant hit the resident. I have concluded that this termination of employment was unjust in that the alleged incident occurred two days before it was reported. Hence, evidence to substantiate or refute the allegation was simply not available. I do not consider that the termination of the Applicant’s employment was unreasonable given the substantial obligations on the employer to ensure resident safety and compliance with the relevant aged care legislation. I find that the termination of the Applicant’s employment was unfair.

Remedy

[37] Section 390 establishes the remedies available to the FWC in these circumstances. The primary remedy is that of reinstatement. The Applicant seeks reinstatement. The Nursing Home opposes any reinstatement.

[38] Little evidence has been given to me relative to the possibility of reinstatement. Reinstatement has significant potential implications for both parties. I have decided to give the parties the opportunity to consider this decision and, unless an agreement is reached between the parties relative to remedy, reinstatement would be considered through a conference to be listed shortly. That conference will allow the parties the opportunity to put to me, evidence and submissions relating to the extent to which reinstatement is appropriate in all the circumstances of this matter. Directions to this effect will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

A Wright counsel for the Applicant

L Bolton agent for the Respondent.

Hearing details:

2014.

Adelaide:

September 30.

 1   Exhibit R2

 2 (1938) 60 CLR 336

 3 (1995) 62 IR 371 at 373

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