Thompson Healthcare Pty Ltd T/A Thompson Health Care v Mrs Angelika Adamopoulos
[2017] FWCFB 6922
•22 DECEMBER 2017
| [2017] FWCFB 6922 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Thompson Healthcare Pty Ltd T/A Thompson Health Care
v
Mrs Angelika Adamopoulos
(C2017/4530)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 22 DECEMBER 2017 |
Appeal against decision [2017] FWC 3505 and Order PR594566 of Deputy President Sams at Sydney on 28 July 2017 in matter number U2017/1706; appeal upheld; decision quashed; rehearing; reinstatement not appropriate.
Introduction
[1] Mrs Angelika Adamopolous was employed by Thompson Healthcare Pty Ltd (Thompson Healthcare) as a Director of Nursing at its Abbey House aged care facility in Mittagong from August 2014 until she was dismissed for reasons said to relate to her performance and conduct on 10 February 2017.
[2] Mrs Adamopolous applied to the Commission for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act). On 28 July 2017, Deputy President Sams determined that her dismissal was harsh, unjust and unreasonable (Decision). 1 He ordered Thompson Healthcare to pay compensation to Mrs Adamopolous in the amount of $69,450, less appropriate taxation, plus 9.5% superannuation (Order).2
[3] By Notice of Appeal lodged on 16 August 2017, Thompson Healthcare appeals against the Decision and Order.
[4] A hearing on permission to appeal was held on 3 October 2017. On 10 October 2017, we granted Thompson Healthcare permission to appeal. 3 This decision deals with the appeal.
Appeal grounds
[5] By its Notice of Appeal, Thompson Healthcare identifies five appeal grounds which can be summarised as follows:
1. Grounds 1 and 2: The Deputy President failed to find a valid reason for dismissal related to Mrs Adamopolous’ serious misconduct in:
a. managing “Dr Bob” (a client of Thompson Healthcare); and
b. directing that her absence from work on 9 November 2016 be recorded as “sick leave”;
2. Ground 3: There was error in adverse credit findings about three key witnesses (Ms Mackenzie, Ms Gladwin and Ms Hill) including that they “colluded” against Mrs Adamopolous; rejecting their evidence in key respects; and criticism of the investigation leading to dismissal (“the collusion findings”);
3. Ground 4: The Deputy President erred in finding a denial of procedural fairness when Mrs Adamopolous was given 24 hours to respond to allegations leading to her dismissal; and
4. Ground 5: There was error in consequent findings that the dismissal was unfair and that but for the dismissal, her employment would have continued for a further 12 months.
[6] For the purposes of the appeal, it is sufficient to deal with Grounds 3 and 5 above. We now turn to consider each of these grounds.
Consideration
[7] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 4 An appeal on a question of fact under Part 3-2 of the Act (dealing with unfair dismissal) can only be made on the ground that the decision involved a significant error of fact.5
Appeal ground 3 - the “collusion” findings
[8] Ground 3 of the Notice of Appeal challenges findings in the Decision of collusion between three witnesses in the proceeding. The challenge is made for reasons including that they were not supported on the evidence.
[9] A finding of collusion is a serious matter. It connotes cooperation for an improper purpose. In the workplace context, an employee colluding against another could readily lead to dismissal on the grounds of serious misconduct. More generally, it has serious reputational implications for those involved. This highlights the importance of such serious findings having a probative evidentiary foundation.
[10] The collusion findings in this case relate to three separate complaints sent to Ms Jennings, Human Resources Manager, on 1 February 2017 by Ms Mackenzie, current Deputy Director of Nursing at Abbey House, Ms Gladwin, current Director of Nursing at Abbey House, and Ms Hill, administrative assistant. The emails were sent at the request of Ms Jennings, in context of an investigation into Mrs Adamopolous’ conduct.
[11] At paragraphs 182 – 183 of the Decision, the Deputy President found “there was collusion between Ms Mackenzie, Ms Gladwin and Ms Hill to make their complaints consistent with each other and to give the impression they were independently provided to Ms Jennings.”
[12] The Deputy President also found that Ms Hill colluded with Ms Mackenzie “to prepare the list of complaints sent to Ms Jennings” 6 and that Ms Gladwin was “involved in colluding with Ms Mackenzie and Ms Hill, or at the very least, she was a fellow traveller, in their combined objective of bringing the applicant down”.7 The Decision refers to the “close friendship and collaboration” between Ms Hill and Ms Mackenzie which resulted in them “colluding to prepare the list of complaints sent to Ms Jennings”.
[13] Finally, the Deputy President found that “Ms Jennings failed to consider whether there was a concerted vendetta against [Mrs Adamopolous] or that Ms Mackenzie, Ms Gladwin and Ms Hill could have colluded and had real motivations for bringing [her] down”. 8
[14] These findings were made having regard to the similarities in language used by Ms Mackenzie and Ms Gladwin in their complaints, as well as the time each complaint was sent. Ms Mackenzie and Ms Gladwin denied colluding with each other in the preparation of their complaints. No allegation of collusion was put to Ms Hill, and nor was any allegation of collusion with Ms Hill put to either Ms Mackenzie or Ms Gladwin.
[15] In our view, the complaints 9 made by Ms Mackenzie and Ms Gladwin are not so strikingly similar as to warrant a finding of collusion. As to Ms Hill’s complaint10, it is quite different from the other two in both form and content.
[16] We accept that there are similarities in some of the language used by Ms Mackenzie and Ms Gladwin. Each begins by referring to a meeting “this afternoon” (when the emails were sent the following day) and ends by thanking Ms Jennings for her “support”, noting it has either “not been easy” or has “been very difficult”, and expressing concern about Mrs Adamopolous returning from her leave following their complaints.
[17] In our view, these similarities are explained by the circumstances in which the complaints arose. On 31 January 2017, there was a meeting between Ms Jennings, Ms Mackenzie and Ms Gladwin to discuss a resident complaint involving Mrs Adamopolous. Ms Mackenzie took the opportunity to raise her own concerns about Mrs Adamopolous and suggested Ms Hill also had concerns. 11 Ms Gladwin also expressed concern about what she saw as the unfair treatment of Ms Mackenzie by Mrs Adamopolous. Ms Jennings asked each of them to put their concerns in writing and to ask Ms Hill to do the same. 12
[18] The opening words in each of the complaints of Ms Gladwin and Ms Mackenzie are standard introductory words. In context, all they indicate is that each had begun writing up their complaint soon after the meeting with Ms Jennings, as requested.
[19] The closing words of the complaints are also similar, but then so was the position each writer was in. They were complaining to Head Office about the Director of Nursing, their direct supervisor with whom they each worked closely. Mrs Adamopolous was away on leave and their concerns had not been raised with her directly. Mrs Adamopolous was due to return to work in a few days and discover what she was likely to see as a betrayal. In the circumstances, it makes sense that each was apprehensive about how to deal with Mrs Adamopolous on her return.
[20] The only evidence of a close friendship between Ms Hill and Ms Mackenzie was Mrs Adamopolous’ observation of the amount of time they spent together at work and her view that a “clique” was forming. The nature of the relationship was not put to either Ms Hill or Ms Mackenzie in the proceeding at first instance, and was not referred to in their evidence.
[21] It is clear that Ms Hill and Ms Mackenzie had discussions at work about Mrs Adamopolous, and not always in favourable terms. Ms Mackenzie told Ms Jennings that Ms Hill had concerns about Mrs Adamopolous. Ms Mackenzie also complained about a claim Mrs Adamopolous made for sick leave on 9 November 2016 (discussed further below), implicating Ms Hill and relying on information most likely provided by her. The evidence establishes that they shared information. It does not establish a close friendship, or any collusion between them.
[22] As to the timing of each complaint, each was sent by email to Ms Jennings at the end of the following day on 1 February 2017. The fact that this occurred during a 14 minute window invites an inference that there was at least some discussion between Ms Mackenzie, Ms Gladwin and/or Ms Hill about what they were doing. Such an inference falls short of the kind of evidence that would ground a collusion finding.
[23] Having reviewed all the evidence in this matter, in our view, it was not reasonably open to find that there was collusion between Ms Mackenzie, Ms Hill and Ms Gladwin. The evidence upon which the Deputy President relied to make this finding was simply “too fragile a base”. 13 This was an appellable error in the nature of that described in House v The King.14The result was manifestly unjust in its implications for the reputation and continuing employment of Ms Hill, Ms Gladwin and Ms Mackenzie.
Appeal ground 5 - the unfair dismissal finding and likely period of service under s.392(2)(c)
[24] At paragraph [249] of the Decision, the Deputy President determined that, given his earlier reasons, which included the collusion findings, 15 there was no valid reason for the dismissal and that the “dismissal was capricious, spiteful and prejudiced and cannot be allowed to stand as a fair or reasonable outcome.”
[25] At paragraph [267] of the Decision, the Deputy President further found that the dismissal was:
“…unjust, because she was not guilty of the misconduct alleged against her; unreasonable because she was not afforded a sufficient opportunity to explain or give her version of the complaints from Ms Mackenzie, Ms Gladwin and Ms Hill and harsh because of the personal and economic circumstances that she found herself in as a consequence of her dismissal.”
[26] In our view, the collusion findings were inextricably linked to the finding of unfair dismissal. 16 They led the Deputy President to prefer the evidence of Mrs Adamopolous in key respects where it was in conflict with the evidence of Ms Hill, Ms Mackenzie or Ms Gladwin.17 This included Ms Hill’s evidence about the “sick leave” incident (at [216]) and the evidence of Ms Gladwin about “Dr Bob” (at [195] – [196]) which were critical to findings made by the Deputy President about the criteria for considering whether a dismissal was unfair under s.387 of the Act.18
[27] It follows that the finding of unfair dismissal involved appellable error in the nature of that described in House v The King 19. Accordingly:
1. Grounds 3 and 5 of the appeal are upheld; and
2. The Decision is quashed.
[28] We now proceed to rehear the application.
Was the dismissal unfair?
[29] There is no dispute that Mrs Adamopolous was dismissed from her employment on 10 February 2017 and her application for an unfair dismissal remedy was filed on 16 February 2017. We find that the application was filed within 21 days as required by the Act.
[30] It is common ground that Mrs Adamopolous’ period of employment with Thompson Healthcare was longer than the minimum employment period, and that an enterprise agreement applied in relation to her employment. 20 We find that Mrs Adamopolous was a person protected from unfair dismissal under the Act.
[31] At the time of dismissal, Thompson Healthcare employed approximately 1349 employees. We are satisfied that the dismissal could not have been consistent with the Small Business Fair Dismissal Code 21, as Thompson Healthcare was not a small business employer at the time of the dismissal.22
[32] No issue of redundancy arose in this matter and we are satisfied that the dismissal was not a case of genuine redundancy.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[33] The reasons for dismissal were set out in the ‘outcome letter’ sent to Mrs Adamopolous on 10 February 2017 and can be summarised as follows:
• Not being reliable, available and contactable as Director of Nursing;
• bullying and harassment of Ms Hill;
• fraudulently claiming sick leave on 9 November 2016; and
• unsatisfactory management of matters relating to “Dr Bob”, including after he slapped an employee.
Ability to be reliable, available and contactable as Director of Nursing
[34] This matter relates to allegations that Mrs Adamopolous was absent from work without sufficient reason for periods of time on 27 October 2016 and 13 January 2017. It was also alleged that Mrs Adamopolous did not take calls outside work hours.
Incident on 27 October 2016
[35] On 27 October 2016, it was alleged that Mrs Adamopolous took a leisurely detour back to work after attending a medical appointment with an employee, involving coffee at a coffee shop, a visit to a Polish deli, a drive past Ms Gladwin’s house and a stop at the Frensham Pool. The period of absence was estimated to be 2 hours and 15 minutes, which left Ms Gladwin alone to manage the facility with no information about the time of expected return.
[36] There was a dispute about whether it was Mrs Adamopolous or Ms Mackenzie who initiated the detour and exactly what they did in their absence. For reasons that will become clear, it is not necessary to resolve the debate.
[37] There are no fixed hours specified in Mrs Adamopolous’ contract of employment, or any prescribed breaks. No evidence was led in the proceeding about the actual hours worked by Mrs Adamopolous each week. She gave evidence that her ordinary hours were 8:30am to 5:00pm Monday to Friday, and that she regularly worked outside those hours. In our view, her contract and the seniority of her role indicates that she had some discretion as to her actual working times, including when she took her breaks.
[38] On the day in question, Mrs Adamopolous said the medical appointment took approximately one hour and 15 minutes. Ms Mackenzie, who drove her there, said she waited in the car for about one hour. This left approximately one hour, less the time it took to travel back to the facility, when Mrs Adamopolous was not actually working during the middle of the day. In our view, it was simply a meal break.
[39] We accept that she did not call ahead and provide an estimated time of return to Ms Gladwin, who was the most senior manager on duty in her absence and that it might have been desirable for her to do so. However, we are not satisfied that this omission, or the decision to take a meal break, were valid reasons for dismissal in circumstances where her hours of work were a matter of reasonable discretion and Ms Gladwin knew she was away from the premises.
Incident on 13 January 2017
[40] On 13 January 2017, it was alleged that Mrs Adamopolous directed Ms Hill to drive her to the shops between 11.00am and 12:15pm; that Ms Hill felt uncomfortable about it and that Ms Mackenzie was not informed that they were going, leaving her to manage on her own. According to Ms Hill, driving Mrs Adamopolous to the shops put her under pressure as she had less time to do her work.
[41] The issue arose because Mrs Adamopolous does not drive. She gave evidence that Ms Hill volunteered to drive her to the shops to purchase work supplies and gifts for two employees as she also wanted to do some shopping for a child’s birthday party.
[42] On balance, we are satisfied that Mrs Adamopolous asked Ms Hill to drive her to the shops and that Ms Hill agreed. We find that Mrs Adamopolous left a message at Reception for Ms Mackenzie that she was leaving, but did not tell her directly as she could not find her. There was nothing before us to indicate otherwise.
[43] If the actions of Mrs Adamopolous were in breach of policy, there was no evidence to that effect. Ms Hill may well have preferred not to drive Mrs Adamopolous on occasion, but there is no evidence she ever told her so or, if she was uncomfortable raising it directly, that she sought to communicate the concern indirectly (for example, via Ms Mackenzie). According to Mrs Adamopolous, Ms Hill “never mentioned anything” to her and there was no evidence to contradict this statement. In the circumstances, we are not satisfied it was a valid reason for dismissal.
Not taking calls outside of work hours
[44] This issue appears to relate to Ms Mackenzie’s concern that it was sometimes difficult to contact Mrs Adamopolous after hours. 23
[45] Mrs Adamopolous gave evidence that she was always available to take calls, that she frequently did so and that she had a roster arrangement with Ms Mackenzie and Ms Gladwin for being ‘on call’, with Mrs Adamopolous also available if necessary. Ms Mackenzie corroborated this in her complaint to Ms Jennings on 1 February 2017, stating that she and Ms Gladwin were always on call with instructions to contact Mrs Adamopolous if the matter was unable to be resolved. Ms Gladwin did not identify the issue as a concern in her list of complaints. 24
[46] The letter of termination suggests that Mrs Adamopolous agreed on 8 February 2017 that she only took calls on weeknights. 25 In cross-examination, Mrs Adamopolous agreed that it was part of her role to be on call, but denied not being available on weekends.26
[47] In our view, the evidence establishes an arrangement between Mrs Adamopolous and her direct reports to share the responsibility of being on-call, with Mrs Adamopolous to be contacted if necessary in each case. We also find that she did not always answer her phone or respond immediately when called. There was no evidence about her obligations in this regard, although we infer that as Director of Nursing, it was Thompson Healthcare’s expectation that she be contactable if needed. That said, it also limited her hours of work to 76 hours per fortnight, consistent with the National Employment Standards.
[48] The evidence before us does not establish that her failure to answer the phone outside of hours on occasion was a valid reason for dismissal.
Bullying and harassment of Ms Hill
[49] This matter relates to alleged “bullying and harassment” of Ms Hill on 21 December 2016, when Mrs Adamopolous walked in to Ms Mackenzie’s office and demanded of Ms Hill “what are you doing here” in an angry and aggressive tone while standing over her.
[50] According to Mrs Adamopolous, Ms Hill stated that she was in the office “doing the allocations” with Ms Mackenzie, and that Ms Mackenzie then corrected her and said “we’re having coffee”. Ms Mackenzie’s complaint to Ms Jennings recorded Ms Hill as in the office “for a coffee and to look at the mag” (referring to the company magazine). Ms Hill alleged that Mrs Adamopolous then said “you’re not to talk to Simone in her office about allocations or staff complaints”.
[51] In our view, the evidence does not establish that Mrs Adamopolous engaged in bullying or harassment of Ms Hill in connection with this incident. As Director of Nursing, Mrs Adamopolous was authorised to issue a direction in the terms that she did. Ms Hill may have found Mrs Adamopolous’ manner and tone brusque. It may have been so. But we are not satisfied on the evidence that the exchange involved either bullying or harassment.
[52] Ms Hill was subsequently excluded from regular Monday morning meetings following a discussion between Mrs Adamopolous and Ms Jennings, after consultation with Ms Gladwin, which concluded that Monday meetings would be limited to Heads of Department only. We accept the evidence on this course of events and that Ms Hill was unhappy about the change as it limited her access to information.
[53] We find that the decision to limit participation in the Monday meeting was a decision within the authority of the Director of Nursing. It was not bullying or harassment. It was made in the context of Mrs Adamopolous’ concern about the work relationship between Ms Hill and Ms Mackenzie and in consultation with both Head Office and Ms Gladwin. We are not satisfied that it was a valid reason for dismissal.
Fraudulently claiming sick leave on 9 November 2016
[54] It was alleged that Mrs Adamopolous acted fraudulently by claiming sick leave for absence from work on 9 November 2016 when she went to Sydney with her husband and did not notify Head Office. It was also alleged she directed Ms Hill to record the absence as sick leave unlawfully. Mrs Adamopolous denied each of the allegations.
[55] The incident was first raised by Ms Mackenzie in her list of complaints about Mrs Adamopolous on 1 February 2017. Ms Hill subsequently confirmed the allegation in response to questions from Ms Jennings, before Ms Jennings raised it with Mrs Adamopolous for the first time in the letter of 7 February 2017.
[56] In her investigation of the matter, Ms Jennings gave significant weight to the fact that Thompson Healthcare did not offer “time in lieu”, which led her to dismiss Mrs Adamopolous’ response about making up the time the following Sunday. However, the relevant company policy does not appear to apply to the Director of Nursing and in any event, Mrs Adamopolous’ contract of employment was not prescriptive as to either her span of hours or work days. This reflected the nature of her role which required her to manage her own time and be available as necessary.
[57] In our view, the evidence establishes that on 8 November 2016, Mrs Adamopolous told both Ms Gladwin and Ms Mackenzie that she was going to have the following day off. It was alleged, and on the balance of probabilities we accept, that Mrs Adamopolous also said she was not going to take the day as annual leave as she wanted to save up her leave. This explains why she did not advise Head Office of her absence, a process she understood only applied to annual leave. 27
[58] Mrs Adamopolous took the day off on 9 November 2016 to go to Sydney for an optometrist appointment with her husband. It is unlikely that Ms Hill recorded her absence as sick leave without being asked to do so. There is no basis to find that she manufactured the record with mischievous intent when she recorded the absence as sick leave on 16 November 2016, more than one month before she first complained about her interactions with Mrs Adamopolous (and following the incident in Ms Mackenzie’s office) on 21 December 2016. The much more likely position is that Mrs Adamopolous advised Ms Hill to record her absence as sick leave and that was what she did. We consider that this is so for the following reasons. First, once the adverse credit finding against Ms Hill, which for reasons earlier given falls away, there is no reason in the circumstances described above, to doubt her evidence. Secondly, Mrs Adamopolous does not provide a plausible explanation for the way in which her absence was recorded, in circumstances where she received payment of sick leave for the absent day, and if this was in error, made no apparent effort to correct it.
[59] If Mrs Adamopolous was not entitled to sick leave for her absence on 9 November 2016, and knew this, her claim for it was misconduct. The evidence does not allow us to reach a concluded view in this regard. While it appears her absence was to attend a medical appointment, there is no evidence about whether it was an absence that entitled her to personal/carer’s leave, either under the Act, Thompson Healthcare’s enterprise agreement or her contract of employment.
[60] However, her denial that she directed Ms Hill to record her absence as sick leave was dishonest. It was a valid reason for dismissal.
Unsatisfactory management of matters relating to “Dr Bob”, including after he slapped an employee
[61] This matter relates to the management of “Dr Bob”, a resident in care, and an incident where he hit an employee. The specific concerns identified by Thompson Healthcare were that Mrs Adamopolous:
• allowed Dr Bob to go on unsupervised outings “knowing that he would return under the influence of alcohol and potentially, physically violent”;
• allowed him to leave and return after she had left for the day, leaving his conduct to be managed by the nursing team;
• allowed him to leave unsupervised after 9 November 2016, when he hit an employee; and
• downplayed the ‘slapping incident’ and not report it in accordance with company policy.
[62] We note that some of these concerns narrowed in scope between the letter of allegation on 7 February 2017 and the letter of termination on 10 February 2017, after an initial response to the allegations was provided.
Allowing Dr Bob to leave and return under the influence of alcohol
[63] This allegation relates to Mrs Adamopolous’ approach to the care of Dr Bob, including whether she placed appropriate restrictions on his ability to leave the facility; and whether it was appropriate to leave the nursing team to manage his conduct rather than managing it herself.
[64] Thompson Healthcare argued that Mrs Adamopolous failed, and refused, to place appropriate restrictions on Dr Bob, who has a form of dementia in addition to a range of ailments. Dr Bob frequently left the facility of his own volition, returning with alcohol and drinking, sometimes to the point of intoxication, making it difficult for staff to care for him.
[65] Mrs Adamopolous placed significant emphasis in her approach to his care on Dr Bob’s independence and his right to freedom of movement: to come and go without undue restriction. Until February 2017, Ms Gladwin, as her Deputy, followed her lead and worked collaboratively with Mrs Adamopolous in relation to Dr Bob’s care. It does not appear that she ever expressed concern to Mrs Adamopolous about her approach. Her concerns only arose when pressed by Ms Mackenzie on and after 31 January 2017, while Mrs Adamopolous was on leave.
[66] What emerges from the evidence is that there was a difference of professional opinion in relation to Dr Bob’s care between Mrs Adamopolous on the one hand and Ms Gladwin, Ms Mackenzie and Ms Jennings on the other. Ms Jennings questioned the clinical judgement of Mrs Adamopolous, but as the Human Resources Manager, conceded she could not “direct how we’re going to manage clinical care. That is the role of the DON.” 28
[67] Ms Mackenzie also conceded she could not have done a better job because she “didn’t know what the job involved”. 29 Once Ms Gladwin became Director of Nursing, she imposed new sanctions on Dr Bob, but the situation did not improve. Dr Bob continued to leave the facility and return with alcohol or in a state of intoxication.
[68] We agree with Ms Jennings that Mrs Adamopolous was exercising her professional judgement within the scope of her delegated authority. If her professional judgement was wrong, or there were more effective methods available to manage Dr Bob’s behaviour, no one was able to identify a better approach.
[69] There was no instruction or guidance about how to manage Dr Bob given to Mrs Adamopolous, and no identification of any clinical error. We find that there was no refusal to follow instructions and that in the circumstances, failure to change her clinical approach to Dr Bob’s care was not a valid reason for dismissal.
Allowing Dr Bob to leave and return once she had left for the day, leaving him to the nursing team to manage
[70] This allegation refers to incidents on 2 September 2016 and 2 December 2016, when Dr Bob left the facility unsupervised.
[71] On 2 September 2016, Mrs Adamopolous was alleged to have left work knowing that a “compulsory reporting incident” may have been imminent, and without making any follow up call later to see if Dr Bob had been found. In response, Mrs Adamopolous said she left work early at the suggestion of Ms Gladwin because she was sick. We accept the evidence of Mrs Adamopolous on this issue, which was not contradicted. Ultimately, the incident was not relied on by Thompson Healthcare as a reason for dismissal.
[72] On 2 December 2016, Dr Bob again left the facility and had to be located. Mrs Adamopolous gave evidence that when she left work on that occasion, it was to go to town and find him. As it happened, he returned before she herself had left.
[73] For the same reasons as set out above at paragraphs [64] – [70], neither of these incidents gave rise to a valid reason for dismissal.
Allowing Dr Bob to leave and return after he hit an employee
[74] This allegation relates to whether further restrictions should have been placed on Dr Bob’s ability to leave the premises after 9 November 2016 when Ms Amber Smith, an employee, took his alcohol away and he hit her.
[75] The evidence establishes that on 9 November 2016, Dr Bob was in the room of a friend at the facility. Ms Smith came into the room and picked up a cup with whisky in it. According to the incident report, Dr Bob said “don’t touch it” and slapped her across the face. 30 After the incident, Mrs Adamopolous spoke with Ms Smith, Dr Bob and his wife. She then implemented measures in response, in consultation with Ms Gladwin, including:
• a reminder to Dr Bob and his wife about the Thompson Healthcare Alcohol Policy;
• unsupervised outings were put on hold until further notice, except an outing with his family the next Saturday;
• Dr Bob would apologize to Ms Smith;
• Ms Smith would be moved to another work area;
• wine with meals and a ‘good serve’ of his nightcap would continue to be provided each day; and
• the matter would be reviewed again the following week.
[76] The incident followed a similar occurrence six days earlier, on 3 November 2016, when Dr Bob had returned from an outing with a bottle of whisky and refused to give it to staff, instead taking it to have a drink with the same friend. It was Ms Smith who found the almost full bottle hidden in his room. While it is not clear on the evidence, we consider it likely that she took it away as she had been instructed to do.
[77] For the reasons earlier stated, we are not satisfied that a failure to place additional restrictions on Dr Bob’s movements was a valid reason for dismissal.
Downplaying the slapping incident and not reporting it to HR
[78] The allegation was that Mrs Adamopolous did not take the incident involving Ms Smith seriously and did not report it to Head Office.
[79] The evidence establishes that Mrs Adamopolous rang Ms Smith at home once she found out about the incident to check on her. She spoke to her again once Ms Smith returned to work, and in the meantime convened an immediate case conference with Dr Bob and his wife and implemented the measures discussed above. It is also relevant that at the time, Ms Smith did not want to report the matter or to go home. She ticked “no” on the incident report in answer to a question about whether she required any first aid or medical treatment. Mrs Adamopolous completed her own section of the Incident Report the next day and placed her responsive measures in the “Leecare” notes to communicate them to employees.
[80] The incident on 9 November 2016 put Mrs Adamopolous on notice, if she was not already, that Dr Bob’s intoxication presented certain safety risks to employees involved in his care. Her strategy to manage the risk of intoxication by instructing staff to remove alcohol from him and keep it secure may have reduced that risk, but it also created new risks, because it potentially placed employees in a position of confrontation with Dr Bob.
[81] After Ms Smith was hit, she was moved and no longer required to work with Dr Bob. However, other employees were left in precisely the position Ms Smith had been in and subsequent incidents occurred involving verbal and physical aggression toward staff on 19 November 2016 31 and 7 December 2016.32 It is not apparent that any additional measures were implemented by Mrs Adamopolous in response.
[82] As Director of Nursing, Mrs Adamopolous was responsible for managing safety risks to employees. Except for the decision to move Ms Smith, there is no evidence that she did so in connection with Dr Bob. It is also relevant that the concern about staff safety was never put to Mrs Adamopolous by Thompson Healthcare. Regrettably, it was only raised with her on termination, denying her the opportunity to reconsider her approach and/or adopt appropriate responsive measures.
[83] That does not change the position that Mrs Adamopolous was required to balance Dr Bob’s rights as a recipient of residential care with her obligation to as far as practicable, keep employees involved in his care safe. In our view, she did not do so. Her emphasis on client rights, while important, came at the expense of her responsibility to employees. In our view, this was a valid reason for her dismissal.
Conclusion – valid reason
[84] For the reasons set out above we are satisfied that there were valid reasons for dismissal relating to:
1. Mrs Adamopolous’ dishonesty in denying that she directed Ms Hill to mark her absence on 9 November 2016 as sick leave; and
2. Management of safety risks for employees involved in caring for Dr Bob.
[85] This weighs against a finding of unfair dismissal.
Notice of reasons for dismissal
[86] On 10 February 2017, Mrs Adamopolous was notified of the reasons for dismissal in the letter of termination. We are satisfied that Mrs Adamopolous was notified of the reasons for dismissal related to both her capacity and conduct.
[87] This weighs against a finding of unfair dismissal.
Opportunity to respond
[88] Mrs Adamopolous received a message via her husband that she had been stood down immediately on her return from leave on 4 February 2017.
[89] On 7 February 2017, she was put on notice of concerns about her performance and conduct at approximately 11am. The various allegations were comprehensively set out, and included the concern about claiming sick leave on 9 November 2016. No concern was raised about her obligation to ensure the safety of employees, other than perhaps by implication in relation to the ‘slap’ incident.
[90] We find that Mrs Adamopolous was given an opportunity to respond to the allegation about her claim for sick leave, but that she was not given any opportunity to respond to that which we have found was a valid reason for her dismissal relating to management of safety risks. The effect was to deny her procedural fairness. This weighs in favour of a finding of unfair dismissal.
Access to a support person in discussions relating to her dismissal
[91] Mrs Adamopolous had legal representation to assist in her discussions relating to her dismissal. We are satisfied there was no unreasonable refusal to allow her to have a support person assist her in those discussions. This weighs against a finding of unfair dismissal.
Warnings about unsatisfactory performance
[92] There is no evidence that Mrs Adamopolous was ever warned about her approach to managing safety risks until the various allegations against her were raised for the first time on 7 February 2017.
[93] On the other hand, we take into account that Thompson Healthcare relied on Mrs Adamopolous, as Director of Nursing, to exercise appropriate clinical care and judgement, and that it was her job to deal effectively with difficult situations such as the safety concerns arising in connection with Dr Bob. As noted in the Decision, the Director of Nursing is required to ensure at all times the care of residents/patients, and the safety of staff, visitors and other residents/patients. 33 .
[94] On balance, this weighs slightly in favour of a finding of unfair dismissal.
Size of the business and access to dedicated human resources management expertise
[95] At the time of the dismissal, the Respondent employed 1349 employees at multiple facilities across Australia. It had a dedicated human resources function, including Ms Jennings, who took on the responsibility of managing the process in effecting the dismissal and spent a substantial amount of time doing so, firstly meeting with Ms Gladwin and Ms Mackenzie, reviewing their complaints, preparing comprehensive correspondence in the matter, providing an opportunity for Mrs Adamopolous to respond in the first instance, investigating each of the matters raised, forming views about the necessary steps and acting on those views.
[96] We find the size of Thompson Healthcare’s business enterprise and its access to dedicated human resource management affected the procedures followed leading up to the dismissal by allowing for a more structured process than one might expect in a small business.
[97] However, there were deficiencies in the process and in particular the failure to provide an adequate opportunity to respond to concerns about the management of safety risks to employees. On balance, we find this a neutral factor in our consideration in this case.
Other relevant matters
[98] In our view, the process leading to the dismissal of Mrs Adamopolous was triggered by her decision, two months earlier, to commence a formal performance management process for Ms Mackenzie. A warning was issued to Ms Mackenzie about her own conduct, and she was not happy about it. The following exchange from Ms Mackenzie’s statement is telling 34:
“The Applicant had failed in her mission to get rid of me. I also now knew that she was not sophisticated enough to pull the wool over Head Office’ eyes.”
[99] Ms Mackenzie clearly had strong feelings on the subject, and had expressed her concern about working again with Mrs Adamopolous now that she had made complaints about her. In our view this influenced Thompson Healthcare’s decision to prefer dismissal over performance management and in that way, ensure the two would not work together again.
[100] Given our finding that Mrs Adamopolous was not warned about managing safety risks, this matter weighs slightly in favour of a finding of unfair dismissal.
Conclusion
[101] Having considered each of the matters specified in section 387, we are satisfied that the dismissal of Mrs Adamopolous was harsh in the circumstances. Accordingly, we find that the dismissal was unfair.
Remedy
[102] We are not satisfied that reinstatement is appropriate in this case. The trust and confidence between Mrs Adamopolous and Thompson Healthcare has eroded to a significant degree and in any event, it appears that Mrs Adamopolous has moved out of the area to find alternative employment.
[103] That leaves for separate determination the issue of whether an order for compensation is appropriate and if so, the amount of any compensation ordered. We therefore make the following directions:
1. Mrs Adamopolous is to file in the Commission and serve on Thompson Healthcare an outline of submissions, statements of any further evidence and any other documents upon which she intends to rely by 5.00pm on Monday, 15 January 2018;
2. Thompson Healthcare is to file in the Commission and serve on Mrs Adamopolous an outline of submissions, statements of any further evidence and any other documents upon which it intends to rely by 5.00pm on Wednesday, 31 January 2018;
3. Mrs Adamopolous is to file in the Commission and serve on the Thompson Healthcare any submissions in reply by 5.00pm on Wednesday, 7 February 2018; and
4. The matter will be listed for hearing at a date and time to be advised.
[104] We also encourage the parties to have discussions with a view to resolving the question of compensation by agreement. In this regard we are willing to organise a member assisted conciliation. If the parties wish to take up this offer, they should contact the chambers of the presiding member.
DEPUTY PRESIDENT
Appearances:
Mr G Boyce, Counsel for Thompson Healthcare.
Mr B Cross, Counsel for Mrs Adamopolous.
Hearing details:
2017.
Sydney.
17 October.
1 [2017] FWC 3505
2 PR594966
3 [2017] FWCFC 5170
4 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
5 Fair Work Act 2009, s400(2)
6 Ibid at [191]
7 Ibid at [183]
8 Ibid at [254]
9 Exhibit E, Attachments G, H & I
10 Exhibit E, Attachment HH
11 Exhibit E
12 Exhibit E
13 State Rail Authority of NSW v Earthline Constructions Pty Ltd (in Liq) (1999) 73 ALJR 306 at [63]
14 (1936) 55 CLR 499 at 505
15 Decision at [216], [227], [235], [238]
16 Decision at [248], [253], [254], [256], [266], [267], [275], [279], [280]
17 Decision at [182], [189], [190], [193], [195], [196], [216], [217], [222], [227], [235], [238], [242], [244]
18 Decision from [247] to [267]
19 (1936) 55 CLR 499 at 505
20 U2017/1706 - Form F2 (16 February 2017) and Form F3 (1 March 2017)
21 FW Act, s.388
22 FW Act, s.23
23 Exhibit E, Attachment G
24 Exhibit E, Attachment H
25 Exhibit E, Attachment F
26 Transcript PN350-362, 30 May 2017
27 Transcript 30 May 2017, PN180
28 Transcript of 30 May 2017, PN1163
29 Transcript of 31 May 2017, PN1435
30 AB463
31 AB441
32 AB460
33 At [1]
34 Exhibit G, paragraph 22
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