Xiaoqin Hua v Braemar Presbyterian Care

[2014] FWC 8633

[2014] FWC 8633 [Note: An appeal pursuant to s.604 (C2014/8119) was lodged against this decision - refer to Full Bench decision dated 23 January 2015 [[2015] FWCFB 396] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Xiaoqin Hua
v
Braemar Presbyterian Care
(U2014/12080)

DEPUTY PRESIDENT MCCARTHY PERTH, 2 DECEMBER 2014

Application for relief from unfair dismissal.

[1] This matter concerns an Unfair Dismissal Application (the Application) lodged by Ms Xiaoqin Hua (the Applicant) regarding the termination of her employment by Braemar Presbyterian Care (the Respondent).

[2] The Respondent is a residential aged care provider. The Applicant was employed as a casual carer in July 2013. The Applicant was dismissed on 15 August 2014.

[3] The Respondent stated in the termination letter provided to the Applicant on the day of her dismissal that the reason for her termination of employment was “the unlawful removal of company documentation from Braemar Village, containing private and confidential information of residents, for personal use”.

[4] The Fair Work Commission (the FWC) in considering applications of this nature must determine whether the dismissal was harsh, unjust or unreasonable. Therefore whilst even the reason stated in the letter of termination was unlawful conduct it is not for me to determine whether conduct of a dismissed employee was unlawful. Rather my role is to determine whether the dismissal was unfair or not.

[5] An incident is alleged to have occurred involving a dispute between the Applicant and another employee. As a result of the allegations about that dispute the Respondent conducted an investigation. In the conducting of that investigation a meeting was conducted on 9 July 2014 involving the Applicant, Mr Gary Walton (the Applicant’s support person), Ms Renee Reid (Human Resources Manager) and Mr Thomas Woodage (the Facility Manager).

[6] At the meeting on 9 July 2014 Ms Reid and Mr Walton suspected that the Applicant had in her possession documents belong to the Respondent which she should not have had. It is the response to enquiries made at that meeting of the Applicant about those documents, the allegations about the right of the Applicant to have those documents in her possession and, if the Applicant did have those documents, did she take them home contrary to rules and policies of the Respondent that are the most relevant matters to be examined in determining whether the dismissal was unfair.

The Evidence

Was the Applicant asked about documents belonging to the Respondent in her possession, and if so, what was the Applicant’s response?

[7] Ms Renee Reid the Human Resources Manager for the Respondent gave evidence. Ms Reid stated that at the meeting of 9 July 2014 she noticed the Applicant referring to documents which were concealed in an envelope. Ms Reid stated that she asked the Applicant about the documents. She says that the Applicant “denied that it was company documentation” and stated that “she had no company documentation”.

[8] Ms Reid also stated that she explained the seriousness of removing company documentation without authorisation and then Mr Woodage requested that the Applicant hand over the documentation. The Applicant denied that she had any company documentation.

[9] Ms Reid stated that after the meeting Ms Reid and Mr Woodage again sought to retrieve the information but the Applicant again refused. The Applicant’s support person then requested that he have a few moments with the Applicant in private. Shortly afterwards the Applicant gave some company documents to the Respondent. Ms Reid asserts that the documents provided were not the documents that were visible at the meeting.

[10] The Applicant gave evidence that she took a schedule which she variously described as a care schedule, an administration schedule and the showers list or table. She described it as a checklist type document which carers ticked boxes once they had completed the task for the relevant box. I shall refer to it as the shower list.

[11] The Applicant said that the carers take the shower list with them when they do their rounds and once the shift is competed the shower list is placed on a shelf in the Carers Room which is a room near the Managers Office.

[12] The Applicant stated that she took the shower lists for May 2014 and for June 2014 and showed them to Mr Woodage at the meeting. The Applicant stated that she wanted to prove that another employee was not performing her proper tasks. It seems she also wanted to establish that the other employee was performing tasks that the Applicant believed was part of the Applicant’s role.

[13] The Applicant stated that she did not take any other documents.

[14] The Applicant also stated that she took the care shower list home in an envelope and that her purpose was to take it to the meeting and show it. She claims that she did not open the envelope until she was at the meeting.

[15] Even if I were to accept the Applicant’s evidence on not opening the envelope, which I do not, it does not detract from the breach of rule, and does not justify the conduct.

[16] The Applicant also tried to justify her taking the documents by arguing that other people take copies of documents. However she then stated the purpose for those copies other people make is to provide that information to carers or other persons who may be involved in the care of the resident.
[17] The Applicant also tried to justify her taking the shower lists by arguing that other documents were public and gave the example of care worker rosters. I do not consider that rosters for care workers is in any way comparable to shower lists.

[18] Another reason the Applicant gave to justify her taking the documents was that the Respondent provided documents to third parties. The example she gave was the Respondent provided documents to the FWC for the purpose of these proceedings. The comparison of documents for proceedings of this nature being provided to establish a case in the FWC and the taking of documents by the Applicant is bizarre.

[19] The reasons for the rule, or policy, of a prohibition on removal of documents detailing private patient information and care given are obvious. Mr Woodage explained that the information included “where they (the residents) live, what room they (the residents) live in. It also has provided what care they (the residents) had provided to them and it also upon it a resident who had deceased and information regarding that”.

[20] The Applicant has little idea of the significant difference between her taking the shower lists and the other examples she provided. The examples she gave only served to establish the very opposite of what she was asserting, namely that care information documentation was not permitted to be removed by carers from the premises.

[21] The Applicant admitted that she was asked for the documents in the meeting. She said that “I give her the documents after a lot of times, because they’re my recommendation letters of the nurse, there’s a reference co-workers, and there were other documents exchanged”. TheApplicant’s evidence about her response to requests for documents was unconvincing.

[22] In contrastall of the evidence of Ms Reid and Mr Woodage was clear concise and consistent.

[23] The Applicant admitted that she had never seen any other employees take the shower lists. I consider that the Applicant knew and fully understood that she was prohibited from taking the shower lists home.

[24] I find that the Applicant removed from the premises of the Respondent documents that she was prohibited from removing and that she was aware she was not permitted to remove them. I also find that the Applicant was requested to provide documents she had removed and did eventually provide documents that had been removed but only after repeated requests and dishonest denials that she had possession of documents.

Consideration

[25] A reason for dismissal of the Applicant was the removal of documents from the Respondent’s premises without authority. I have found above that such conduct occurred. I find that the conduct engaged in by the Applicant was a valid reason for dismissal.

[26] The Applicant was notified of the reasons for her dismissal and given an opportunity to respond to those reasons.

[27] There was no refusal of any request for a support person to be allowed to be present at any discussions relating to the dismissal.

[28] The Respondent is an employer of a large number of people with dedicated human resource specialists neither factor of which I make any adverse findings of the Respondent.

[29] I have also taken into account the intentions of the Applicant and the acceptance that the Applicant had the best interests of the Respondent at heart. However, the way the Applicant went about pursuing those interests were serious breaches of protocol and policy.

[30] I find that the dismissal of the Applicant was not harsh, unjust or unreasonable. I therefore find that the dismissal was not unfair. The Application is dismissed.

DEPUTY PRESIDENT

Appearances:

X Hua in person.

R Reid of the Respondent.

Hearing details:

2014.

Perth:

November, 24.

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