The Applicant v The Respondent

[2014] FWC 3189

[2014] FWC 3189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

The Applicant
v
The Respondent
(U2014/326)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 15 MAY 2014

Application for unfair dismissal remedy - valid reason - fair process - application dismissed.

[1] On 6 February 2014 the Applicant lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which she sought relief relative to the termination of her employment with the Respondent. The application was not settled through the conciliation process and was referred to me for determination.

[2] In this decision I have not identified the names of the parties or the witnesses. The parties to the matter have been separately advised of those details. I foreshadowed the possibility of this approach in the hearing and have noted that the parties adopted disparate views about this issue. I have concluded that this decision should be published without identifying persons or organisations because of the potential for embarrassment and misuse of this decision. This extends to changes made to remove names and references in evidence cited in this decision.

[3] The application was the subject of a substantive hearing on 6 and 8 May 2014 in Adelaide. The Applicant was represented by Mr Dean of United Voice and the Respondent, by Mr Snow of counsel. I determined that a grant of permission to this effect would be made at a telephone hearing on 17 April 2014. That grant was made pursuant to s.596(2)(a)(b) and (c). In reaching this conclusion I took into account that the Respondent Director/CEO was likely to represent the Respondent if permission was refused. The CEO was the principal decision-maker in relation to the termination of the Applicant’s employment and hence was an important witness. Further, it appeared to me that the matter would substantially turn on issues of fact in the context of questions relating to the evidence of at least one resident of the Respondent. These are factors which significantly contributed to my conclusion that a grant of representation was appropriate pursuant to s.596(2)(a). I was similarly satisfied that the CEO would not be able to represent himself effectively pursuant to s.596(2)(b). Finally, in terms of s.596(2)(c), I took into account that the Applicant was represented by Mr Dean who is a legally qualified practitioner with substantial experience in dealing with matters of this nature.

[4] None of the initial matters set out in s.396 of the FW Act have application in this case.

The Background

[5] There is no dispute that the Applicant was a regular casual employee. She worked for the Respondent from 2009. At the time of the termination of her employment she worked as a cleaner.

[6] The Applicant’s employment was terminated by a letter delivered to her on 4 February 2014. This letter stated:

“We confirm in writing the outcome of your disciplinary interview held 4.2.14. We confirm that your employment has been terminated effective immediately at approximately 2:00pm on 4.2.14.

It was determined that the following allegations occurred.

1. That on the 30.1.14 you stated to a resident that “Look we are going to have to do something about this you (the resident) should go to the current affairs program like before to expose what is going on here, we can not let them get away with this”

We further determine that this action constitutes serious and wilful misconduct in its own right.

We also note that on the 15.2.13 you were issued with a first and final warning in relation to spreading malicious rumours about the organization.” 1

[7] The Applicant was advised that she had been given a warning in February 2013. This followed allegations that she had spread malicious rumours. The circumstances surrounding this warning and the extent to which it can be relied upon are disputed.

[8] On 22 January 2014 the Applicant participated in an "all of staff meeting" which was held on an annual basis. Amongst the issues addressed in that meeting were the Respondent’s concerns over the potential damage from adverse media. The Respondent’s concerns in this respect reflected adverse media coverage through a television current affairs program (the current affairs program) in 2011.

[9] On 30 January 2013 the Respondent’s Director of Nursing (the DoN) advised the CEO that a resident, Mr K had informed her that the Applicant had discussed with him an issue about the provision of water jugs to residents and had suggested that he ought to contact the current affairs program regarding what was going on at the facility. The Applicant was suspended with pay on that same day and was provided with written advice of an allegation that she advised a resident to approach the current affairs program and that this may be regarded as serious and wilful misconduct warranting termination of employment. The evidence provided to me also details suggestions that the Applicant urged Mr K to raise concerns with an advocacy group and a federal politician (the MP). Those allegations were not put to the Applicant.

[10] The Applicant was required to attend a meeting on 4 February 2014 to discuss this allegation and was encouraged to have a representative with her at the meeting. The Applicant attended that meeting with a United Voice official.

[11] At this meeting the Applicant denied the allegations put to her. She sought advice about the identity of the resident but this request was refused. The CEO and the DoN confirmed that they would consider her responses and would advise her accordingly. The termination of employment letter was delivered to her later that day.

The Submissions

[12] The Applicant asserts that there was no valid reason for the termination of her employment in that she had not engaged in misconduct and that the alleged misconduct did not warrant dismissal.

[13] In terms of the process followed by the Respondent, the Applicant asserts that the allegations about her were insufficiently detailed such that they denied her a proper capacity to respond.

[14] The Applicant asserts that the process followed by the Respondent was inherently unfair. She seeks reinstatement with payment of lost remuneration or, in the alternative, an award of compensation.

[15] The Respondent’s position is that the evidence establishes a valid reason for the termination of the Applicant’s employment and the investigation process was fair and appropriate in the circumstances.

The Evidence

[16] The Applicant’s evidence went to her employment history, including the events that led to her warning in February 2013, and the termination of her employment. The Applicant’s evidence also covered the context and content of her discussions with the Respondent’s staff and residents over the provision of water and other issues. The Applicant detailed her discussions with Mr K, a resident and spokesperson for other residents in this respect. She emphatically denied advising Mr K, or any other person, that he should contact the current affairs program or any other external person or organisation.

[17] The CEO’s evidence went to the annual staff briefings and his involvement in investigating and then terminating the Applicant’s employment. The CEO’s evidence went to his assessment of the advice provided to him about the Applicant’s conduct, including the DoN's advice of Mr K's position and the DoN’s advice of information which was asserted to be from the EN. The Applicant’s evidence went to his involvement in the letter of allegation to the applicant and the meeting on 4 February 2014, and his subsequent decision to terminate the Applicant’s employment. He then detailed the actions that he then authorised to put that termination of employment into effect.

[18] The DoN’s evidence went to advice provided to her by Mr K on 30 January 2014, to the effect that the Applicant had been talking to him that morning about water jugs for residents and had suggested that he contact the current affairs program about this issue. The DoN also detailed her discussions on that day with the EN, when the EN reported overhearing the Applicant expressing concern to another employee about the water arrangements for residents.

[19] The DoN’s evidence went to her participation in the 4 February 2014 meeting and her discussions with the CEO following that meeting.

[20] The DoN detailed the steps she had taken to test Mr K's cognitive skills in April 2014 after he had a serious fall. Her evidence was that she was satisfied that Mr K had no, or minimal, impairment to his cognitive skills. 2 I have taken it that earlier arrangements for Mr K to give evidence, which were cancelled after his fall, were then reinstated.

[21] The EN is an enrolled nurse employed by the Respondent. Her evidence went to a conversation she overheard on 30 January 2014 where the Applicant complained loudly to another employee that the Respondent’s kitchen was not giving residents water. The EN’s evidence was that she asked the Applicant who had been denied water, but the Applicant said she could not remember. The EN’s evidence was that she investigated this matter by asking the kitchen staff and was told that Mr K had enquired about the water jug procedure. The EN’s evidence was that she then advised the Applicant that she was incorrect, that Mr K had simply been asking about the water procedure and that the Applicant should not make statements of that nature which could reflect poorly on the Respondent. The EN’s evidence was that, in her subsequent discussions with Mr K, Mr K advised her that the Applicant had also been agitating recent resident complaints regarding food quality.

[22] Mr K’s evidence was that the Applicant discussed with him on 30 January 2014, the provision of water and food to residents. His evidence was to the effect that, after discussing the water jug procedure and the concerns of some residents about food issues with him the Applicant had suggested that he take this matter to the current affairs program and to a nominated member of Parliament.

[23] Mr K’s evidence was that, on other, earlier occasions the Applicant had suggested that he should refer resident issues to the current affairs program or to a federal politician, and that she gave him the MP’s telephone number.

Findings

[24] Section 387 of the FW Act details the factors which I am required to have regard to in reaching a conclusion relative to this application. In order to consider those factors it is necessary that I make a number of findings on the facts before me.

The February 2013 warning

[25] I have concluded that the Applicant was made aware of the allegation that she had made unsubstantiated allegations to other of the Respondent’s staff about the CEO. It may be that the Applicant was not given a final copy of that warning, but I am satisfied that, on her own evidence and that of the CEO, the applicant was aware of both the allegation and the nature of the warning to be given to her.

[26] Notwithstanding this, I do not consider that this warning was a significant factor in the termination of her employment. The CEO’s evidence was that he took this previous warning into account but I have concluded that, irrespective of whether this warning was actually given to the Applicant, the allegations directed at her were so significant that they were determinative of the termination of employment decision in any event.

The 22 January 2014 general staff meeting

[27] I have accepted the evidence of the CEO, the DoN and the EN with respect to the 22 January 2014 Respondent’s general staff meeting and the extent to which the significance of media issues was made clear to the employees. That evidence is consistent and clear. There is no dispute that the Applicant attended this meeting. It is also clear that the Respondent had a staff complaints policy which was referenced in this meeting and was available to the Applicant.

Mr K’s recollections

[28] Mr K’s evidence about the Applicant’s discussions with him on and before 30 January 2014 is significant in this matter. I have concluded that his recollections were generally clear and, based on my observations of Mr K and my acceptance of the cognitive test of his memory undertaken by the DoN, I have accepted his evidence and preferred it to the evidence given by the Applicant. Not only was Mr K’s evidence specific and consistent relative to the critical issue of the advice which he alleged the Applicant gave him with respect to contacting the current affairs program, I am unable to discern a basis which would explain why Mr K would concoct such a version of events. In reaching my conclusions about Mr K’s evidence I have noted some uncertainties and inaccuracies, particularly with respect to the dates upon which certain events occurred and, to a lesser extent, the location where he had various of his discussions with people such as the DoN. Mr K is a resident in an aged care facility which I have concluded involves a relatively stable day-to-day environment. It is also clear that his role as an advocate for certain of the residents involves numerous meetings with the DoN. I have concluded that his inability to accurately remember certain specific dates or where all of these discussions occurred does not detract from his central evidence.

[29] Mr K’s evidence is also, at least in part, supported by the EN’s evidence about the events of 30 January 2014. That evidence was clear and precise and I prefer it to that of the Applicant with respect to the exchange involving the Applicant in the corridor and the EN’s investigation of the Applicant’s concern about residents’ access to water.

[30] Mr K’s evidence was that, in the course of earlier discussions with the Applicant she had suggested that he take concerns about the operation of the Respondent to the current affairs program and had provided him with contact details for a politician. 3 I have accepted Mr K’s evidence in this respect. I do not think that Mr K's inability to locate the paper upon which the Applicant wrote those contact details or to remember the precise date when this occurred discredits his otherwise detailed evidence.

Events of 30 January 2014.

[31] On the evidence before me, I have concluded that the Applicant was concerned over the Respondent’s changed practice of providing water jugs to residents and that she discussed this in some form with various people, including a maintenance employee, the EN and Mr K. The Applicant's evidence is that she had referred Mr K to a Registered Nurse, who was nearby, and suggested that he raise the water jug issue with her. I have preferred the evidence of the EN and that of Mr K to the evidence of the Applicant. That evidence is consistent with the allegation ultimately put to the Applicant. I have concluded that the Applicant suggested to Mr K that he contact the current affairs program in the context of a discussion she had with him about the water jug procedure and the concerns of various residents about food issues. The evidence of Mr K was that: 4

“I went back to the Applicant and I told her what the kitchen had told me, that is, that water will be supplied by the kitchen to residents in the afternoon.

The Applicant said to:

That’s alright, as long as they’ll have water.”

We then had a discussion about food. The Applicant was aware that residents had raised concerns about food being served and that I had a role in trying to resolve those concerns.

She said words like:

You want to go to the current affairs program or complain about it to Disability Complaints Service.” and also the MP” (hand written)”

[32] I have accepted that, in her discussions with Mr K on 30 January 2014, the Applicant may have also suggested that he take the water jug and/or food concerns to the MP as well as the media. I do not think Mr K reported that particular issue to the DoN. I have accepted the evidence of the DoN to the effect that in his discussions with her soon after, Mr K referred only to the Applicant's suggestion that he go to the current affairs program. I think that, if Mr K had reported to her that the Applicant had proposed that he take the issue to the MP, the DoN would have recalled and noted this as it would have been a particularly relevant issue.

[33] I have considered the extent to which it should have been obvious to the Applicant, that if the matter had been raised in the media this would most likely harm both the Respondent and, by implication, casual workers such as herself. I am, however, simply not able to make any further assessment in that particular respect and am unable to discount the evidence of Mr K, the EN and the DoN on that basis.

Mr K’s other evidence

[34] I have accepted Mr K’s evidence that on occasions prior to 30 January 2014, the Applicant suggested that he raise resident’s concerns with the current affairs program or with the MP and that on one occasion she gave him a telephone number for this purpose. In these respects, I prefer the evidence of Mr K to that of the Applicant. It is consistent with the evidence about the events of 30 January 2014.

Section 387

[35] This section 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.”

[36] I have considered each of these factors.

Valid Reason

[37] Notwithstanding subsequent legislative changes, I have applied the concept of a valid reason enunciated by Northrop J in Selvechandron v Petersen Plastics Pty Ltd 5.

[38] The Applicant’s behaviour in proposing that Mr K should approach the current affairs program represented behaviour which she knew, from the recent general staff briefing was likely to cause the Respondent substantial harm. The Applicant's actions went substantially beyond the recognition of Mr K's right to publicly criticise the Respondent in that she was encouraging that criticism.

[39] It was a deliberate act of misconduct. The Applicant had the capacity and the opportunity to raise any concerns she had about the provision of water to residents with appropriate managers. The Applicant was, or should have been aware, of the appropriate means of addressing these issues in a manner commensurate with her obligations as an employee, namely, use of the complaint process. The Applicant's actions undermined the trust that an employer is entitled to have in an employee. On this basis it must represent a valid reason for the termination of her employment.

[40] To the extent that the Applicant’s earlier suggestions that matters of concern to Mr K be taken to the media, or to a politician, I consider these actions most likely also represent a valid reason for the termination of her employment. Again, the Applicant’s actions were inconsistent with the Respondent's expectations of its employees, her actions had the potential to cause substantial and most likely unwarranted harm to the employer.

Notification of the reason

[41] I am satisfied that the written advice provided to the Applicant on 4 February 2014 informed her of the termination of her employment and the reasons for that dismissal.

Opportunity to Respond

[42] The Applicant was given an opportunity to respond to the proposition that her employment could be terminated as a consequence of her conduct. The advice provided to her on 30 January 2014 set out the allegations against her and the possible consequences. The Applicant had time to respond to this and did so.

[43] I do not consider that the Respondent's refusal to disclose Mr K's name at the 4 February 2014 meeting was a matter of significance. Simply put, the Applicant had the opportunity to respond to an allegation she said certain things to a resident. The name of that resident was not prejudicial to her response.

[44] The Applicant's evidence about Mr K was that: 6

“I can remember that residents once came to Mr K complaining about the poor quality of the food.

Another resident drew up a petition complaining about the food quality and Mr K drove around to all the residents on his scooter getting them to sign it.

Once he had enough signatures, he gave the petition to the accreditation people from the government that monitor aged care facilities.

He told me at the time that other residents had told him that if his plan to take them to accreditation about the food didn’t work, he was to go to the current affairs program about the issue.”

[45] In that context the Applicant has not satisfactorily explained why it was that she did not report that to the CEO when she had the opportunity to respond to the allegations put to her.

Unreasonable refusal to allow a support person

[46] The Applicant was encouraged to have a support person present at the 4 February 2014 meeting. She did so by arranging for a United Voice official to attend that meeting.

Warnings about unsatisfactory performance

[47] The Applicant was dismissed because of her misconduct. She was not dismissed for performance related reasons. Notwithstanding this, and despite any uncertainty about the February 2013 warning incident the Applicant should have been aware, from that incident, of the importance of accurate assessments and adherence to appropriate procedures.

Size of the employer’s enterprise in terms of likely impact on procedures

[48] The Respondent engages some 121 employees. Whilst it is not a large organisation, I am satisfied that the approach that the Respondent followed with respect to the termination of the Applicant’s employment was procedurally fair.

Absence of dedicated human resource management expertise

[49] I have concluded that the Respondent had limited access to specialist human resource management personnel in that the DoN was able to telephone an employer association for advice on 30 January 2014.

Any other matters considered relevant

[50] I am not satisfied that there are other factors relevant to the consideration of the fairness of the Applicant’s dismissal.

Conclusion

[51] For the reasons set out above I am satisfied that there was a valid reason for the termination of the Applicant’s employment and that this termination reflected a fair process. I am not satisfied that the termination of the Applicant’s employment was harsh, unjust or unreasonable. The application will be dismissed accordingly. An Order (PR550575) to this effect will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

P Dean representing the applicant.

W Snow counsel for the respondent.

Hearing details:

2014.

Adelaide:

May 6 and 8.

<Price code C, PR550574>

 1   Exhibit D3, attachment 2. - note: ‘the current affairs program’ was specified

 2   Exhibit T3, para 32

 3   Exhibit T6, paras 14 and 15

 4   Exhibit T6, paras 8 - 11

 5 (1995) 62 IR 371 at 373

 6   Exhibit D3, paras 82 - 85

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