Yuliya Matyashenko v Russian Relief Association of St Sergius of Radonezh

[2011] FWA 6921

[2011] FWA 6921

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Yuliya Matyashenko
v
Russian Relief Association of St Sergius of Radonezh
(U2010/14075)

SENIOR DEPUTY PRESIDENT HARRISON SYDNEY, 17 OCTOBER 2011

Application for unfair dismissal remedy - arbitration.

Introduction

[1] An application has been made by Ms Matyashenko under s.394 of the Fair Work Act 2009 (the FW Act) in which she seeks an unfair dismissal remedy. The application relates to her employment with St Sergius Aged Care Facility which is operated by The Russian Relief Association of St Sergius of Radonezh (the employer). The applicant had been employed as an assistant in nursing (AIN) and engaged as a casual.

[2] The applicant was represented by her husband Mr Lyashenko. She was assisted in giving her evidence by an interpreter. The employer was represented by counsel, Ms Ryan.

The evidence - witnesses and documents

[3] The Applicant filed a document which was described as “Submissions-Outline” but she said it constituted her statement. The directions which had earlier issued required her to file both an outline and a witness statement. As the hearing progressed however it became apparent that document was more likely to have been prepared by her husband than by the applicant. Nonetheless, she said she had read it and it was accurate. 1 No other witness was called by the applicant although initially a number of statements of other persons had been filed. None of the deponents were called to give evidence and none of the statements were tendered.

[4] The employer called three witnesses. They were Ms Melissa Milic, Director of Nursing, Ms Barbara Jargiello, Deputy Director of Nursing and Ms Helen Workman, Physiotherapist. Several statements of other employees were tendered by the employer. None of these persons were required for cross-examination. Where relevant to the findings I have made I will identify the deponent.

[5] A digital video disk (DVD) was viewed by me and the parties and it was tendered by the employer. It was an extract of video footage, from 8.06 am to 8.30 am on 28 October 2010, of an area of the nursing home in which the applicant worked which I will describe as the ground floor area. In December 2010 the applicant sought the issue of a summons for “Video footage from the surveillance camera from 9am 21/10/10 to 21pm 28/10/10....” of corridor movements in and around the room of a resident of the home. It was agreed we would refer to this resident as Mr G. The applicant was advised that the summons would not issue at that time as the documentation sought may be filed by the employer in accordance with directions which had issued and, if not then filed, the issuing of the summons should be raised again. A request for the issue of a summons was not made until 7 March 2011 with an indication the documentation sought had not been included in the employer’s evidence. The summons was returnable on the first day of the arbitration.

[6] On the first hearing date the employer said it could not comply with the summons. It submitted that the footage would have required 150 DVD’s. It did however provide (and tender) the DVD I have referred to above which it said was of “the relevant period”. 2 Ms Ryan said that the footage for the period identified in the summons had been “wiped”. Apparently the practice is that after a period of one month any footage that is not considered to be related to “critical incidents” is deleted.3 I expressed my concern that the employer, knowing about the incident of 28 October, did not consider it wise to retain more footage around that time. How it could not have comprised a critical incident is unclear. It is most unsatisfactory that all that was retained was for a period of around 30 minutes on 28 October. I return to the footage later in this decision.

The conduct of this hearing

[7] The parties agreed that the whole of this matter should proceed by way of a hearing. That was after a discussion in a conference about whether this was the best option to deal with the application and numerous other related matters. The issue about this application proceeding by way of a hearing was again discussed at the commencement of the first day the matter was listed.

[8] There are several unsatisfactory aspects of the way this hearing proceeded which I should refer to. I refer first to the applicant’s case. As I have earlier indicated, the applicant was represented by Mr Lyashenko, her husband. It is most unfortunate she did not have representation by a person with industrial relations expertise. Mr Lyashenko made numerous assertions about matters which were not contained in the applicant’s statement or any documents filed by her. I indicated on many occasions the difference between his submissions and the evidence that would be considered by me in reaching my decision. On numerous occasions Mr Lyashenko interrupted, in midstream, the answers that the applicant was giving. An element of coaching was apparent. He made submissions about evidence that would be led which, as it transpired, was not. He raised in cross-examination of witnesses for the employer matters about which there was no evidence in the applicant’s statement nor her evidence in chief. And, when doing so, the allegations were not even raised with each of the correct witnesses. I give one example. Mr Lyashenko put to Ms Workman that she had altered her mobility assessment notes for Mr G at the request of Ms Milic. This was a very serious allegation. It was not put to Ms MiIic (who gave evidence before Ms Workman) and it is clear Mr Lyashenko had no basis whatsoever to have made that allegation.

[9] The applicant’s evidence seemed to develop into new areas as it went along. Many matters were volunteered or were put to her by her husband which were not in any of her earlier evidence when it may have been assumed she would mention them. I have been unable however to decide if this is a criticism fairly to be levelled solely at the applicant or was due, in significant part, to the way her advocacy was conducted.

[10] The unsatisfactory aspects of this hearing are not confined to presentation of the applicant’s case. It was also necessary for me to indicate to counsel for the employer that some of the submissions she made during the hearing were not made out by the evidence. The most important was a very serious allegation about the applicant’s responsibility for the death of Mr G due to the applicant’s failure to use the correct lifting equipment. That was not made out on the evidence and should not have been asserted by Ms Ryan. 4 I do not overlook the fact Mr Lyashenko also referred to this allegation when cross-examining the employer’s witnesses.5 I note Ms Milic had a very strong suspicion about what had occurred and this was based on her extensive experience in the industry. She accepted however there was no direct evidence and that the key reason for her decision to dismiss the applicant was the incorrect use of equipment and misleading management about that. I refer to this consideration again later in this decision.

[11] The evidence of Ms Jargiello was not entirely satisfactory. When entries in documents she had prepared identified an error or misunderstanding she would not make any concession. Rather than do so she simply did not answer the question put to her and would repeat what she understood to be the reason for the applicant’s dismissal. Her failure to concede what the DVD established about the garments worn by Mr G is an example. However, I accept her evidence in preference to the applicant’s about the discussion she had with the applicant on 29 October and the interviews on 2 November. I accept without hesitation the evidence of Ms Workman. Subject to one matter only, I also accept the evidence of Ms Milic. The one issue relates to the video footage which I have referred to earlier and about which I will comment when making my findings. Where the evidence of the applicant is at odds with that of Ms Workman or Ms Milic I prefer their evidence.

[12] I also consider unsatisfactory the manner in which the employer dealt with requests for the applicant’s performance appraisals. It was a matter raised by Mr Lyashenko and myself. Ms Ryan indicated she would obtain those performance appraisals. 6 They should have been part of the applicant’s case but it seems she did not retain a copy of them. Very late in the hearing Ms Ryan handed a copy of an appraisal to Mr Lyashenko but it was said to not constitute the original nor a correct copy. Mr Lyashenko then said he did not wish to tender that document but I suspect he did not understand that as a result no appraisals were before me. However it is apparent to me that the appraisals would not have been of assistance to the employer’s case.

The types of equipment used in the nursing home

[13] I should next refer to certain pieces of equipment used in the nursing home that are relevant to this matter. This is because the incident which gave rise to the termination of the applicant’s employment concerned the use of manual handling equipment.

[14] Mechanical lifters of different types and slings that may be attached to some of them are used to move some residents. Obviously they are a benefit to both the resident and to the staff. The use of appropriate lifting equipment is of paramount importance in the nursing home. Depending on the physical capacity of the resident, what might be recommended to be the type of lifting equipment to be used will differ. It is the role of the physiotherapist to assess this and review this assessment from time to time. The equipment used at the nursing home included full body slings and hoist lifters. A hoist lifter is a type of mechanical lifter. A full body sling is an attachment to a mechanical lifter. There are also sit/stand lifters. The type of lifter and associated equipment used for a resident will depend on a number of variables which the physiotherapist takes into account. The ability of a resident to bear any weight, to mobilise, to balance and to understand or comprehend their capacity about these matters is all taken into account. A sit/stand up lifter will only be used for residents who can bear some of their own weight and can in some way physically assist with the lift. Additionally, the physiotherapist will assess how many staff should operate lifting equipment and attend to the resident.

Documents and notes that are kept

[15] There are numerous documents and notes prepared and kept for each resident. One is a Mobility Assessment document which is completed by the physiotherapist. It comprises a list of questions with multiple answers from which a choice is highlighted. The questions concern the ability of the resident to mobilise independently, to bear any weight and how many staff are needed to assist the resident. Notes about the management of the resident are made at the foot of the document. It records the type of manual handling equipment which is to be used.

[16] A manual handling sheet is kept in the resident’s wardrobe and it contains details of the lifting equipment that must be used and other related information such as number of staff to conduct any lifting. The document has a diagram of equipment which is used for non ambulant residents and for transfers and showering. A cross is placed in the box next to the equipment that is to be used for the resident.

[17] There is also a document described as entry notes which is maintained for each resident. It notes issues related to mobility, transfers, interventions, actions required and evaluation. Members of staff are expected to acquaint themselves with these entries.

[18] The documents and notes that had been prepared for Mr G were in evidence. I should here note one issue arose about the original of the mobility assessment document and the copy which was used in cross-examination of Ms Matyashenko. 7 The original was produced and I compared it to the copy that had been made and indicated that I was of the opinion that the copy was a faithful representation of the original.8 The difference in presentation was that entries in the original were highlighted in red and the copy had the entries circled.

My findings

[19] Based on the evidence I make the following findings. The applicant commenced employment in April 2009 as an AIN. She was engaged as a casual. At the time she commenced she was provided with, and signed, a document titled “The Russian Relief Association Code of Conduct”. The document records that each staff member would accept responsibility for safety and actions in the workplace and uphold the quality and expected standards of care at the nursing home.

[20] The applicant had been doing a TAFE Aged Care Certificate III course by correspondence. She said the practical part was being done at work. She was learning her skills on the job. 9 There was a special classroom at the nursing home and a clinical nurse educator, Ms Ruth Reyes would give lectures.

[21] A document titled “Induction Record” was in evidence and the applicant had initialled a number of topics as being matters about which she had been given instruction. The topics included manual handling.

[22] A document titled “Employee Handbook” was provided to the applicant and she had read it. 10 I note that the version in evidence bears a later date than the date the applicant would have received her copy. However, the applicant says she had familiarised herself with the content of the document. Under the topic of lifting, the document indicates that the lifting of persons must always be undertaken strictly in accordance with the current manual handling policy. It indicates that failure to abide by this policy will result in disciplinary action and adherence to the policy would be strictly monitored by all senior staff. If an incident occurred a detailed description of the incident must be given, and the incident must be reported immediately to the person in charge. The details are to include the type of lift carried out and the names of persons involved.

[23] A document titled “Residential Manual Handling Nursing Staff” was recognised by the applicant. It records the training given to the applicant to achieve the required competency standard. All the boxes were ticked and they include the use of sit/stand lifters and full body mechanical lifters and slings. 11

[24] The applicant attended lectures and would sign that she had attended these lectures. 12 A record of training she had undertaken in 2010, an Education Record, was in evidence.13 Included in the list of lectures she had attended were two lectures about falls prevention.

[25] The applicant completed a manual handling questionnaire although the date she did so is unclear. 14 It asks questions about safe manual handling, risk management and reporting of any manual handling incident. The applicant said she asked a colleague to fill it out for her and she submitted in her own name. However, she said she understood everything in it but did not want to make any mistakes filling it out.15

[26] In June 2010 Mr G was transferred into room number 10 on the ground floor. This remained his room up to 28 October. As soon as possible after a transfer a registered nurse transfers all of the documentation relating to the resident to the relevant floor and resident’s room. Although there was no direct evidence of the date this occurred I find that the documentation for Mr G was transferred.

[27] Entry notices for Mr G had two entries dated 17 September 2010. They appear to have been made by Ms Maguire, a registered nurse. It was a staff members responsibility to check the entries made on this document. The entry records that the mechanical lifter with full body sling was to be used with two staff engaged and the resident could not bear any weight at all. The applicant said she had never seen this plan or entry. 16 That may be so, nonetheless, she should have seen and read it.

[28] The manual handling sheet for Mr G was signed by Ms Workman and also dated 17 September 2010. It showed he was to be transferred with “Hoist Full Body Sling” and two assistants.

[29] A mobility assessment document dated 17 September was also completed by Ms Workman. 17 The entries indicated Mr G was bedfast/chairfast, had no mobility, could bear no weight and required two staff to transfer him. It recorded that a mechanical lifter plus a full body sling was to be used. The applicant said she had never seen that document.18 I find that is unlikely but in any event she should have been aware of it and its content.

[30] The applicant wanted to be appointed on a part time or full time basis. She was unhappy she had been overlooked when positions had become available. She thought persons with less service than she had were obtaining these positions. She said preference was being given to people who were not born “in former USSR”. She also said she initially did not get a job at the nursing home when she had first applied for this same reason. I comment on these matters later but, for present purposes, I indicate there was no evidence to support these allegations.

[31] In around June 2010 the applicant spoke to a person she described as the president of St Sergius about “bullying and discrimination”. She said he was very nice to her and promised to help. I can make no finding about this but accept some conversation did occur and it was probably about the applicant wanting a part time or full time position. The applicant subsequently spoke to Ms Milic about her wish for such a position.

[32] Around the end of July or beginning of August 2010, being a short time after Ms Semeriy was dismissed, the applicant knew her position was available so she raised this with Ms Milic. She was told she would not get that position as she was a bad worker and bad feedback about her work had been received. 19 Ms Milic agreed that she had decided not to give the applicant a permanent position as she had received feedback from other co-workers which indicated certain aspects of the applicant’s work were not satisfactory. I accept she informed the applicant about them. In the overall assessment of this case these issues are not particularly significant and I do no more than mention them. They relate to the applicant spending a lot of time on a mobile phone, having her nails done and then not wanting to do certain work as it might smudge them and her concern about her eyelash extensions being affected by steam in the showers.20

[33] The applicant said that the hours she was being rostered were reducing and were fewer than those of employees who were not born in “former USSR”. She said she was not rostered weekends or public holidays. I note from Exhibit R1 which is a bundle of rosters, that the applicant does not appear to be singled out in respect of the hours and days of the week she worked.

[34] In September 2010 (the actual date is unclear) there was an incident when a resident’s leg was broken due to the wrong lifter being used. On 23 September 2010 a memo was provided to all staff. It was signed by Ms Milic. 21 It concerned manual handling policy and procedures and indicated that “any staff member not following correct manual handling techniques including the use of lifters will face disciplinary action immediately”. The applicant remembered seeing that memo and she had signed confirmation that she had received and read it.

[35] The applicant said that about the beginning or middle of October 2010 she noticed there were no instructions in the wardrobe of Mr G’s room and she said she had told the nurse about this but instructions did not subsequently appear. 22 She said that as at 28 October there were still no instructions in the wardrobe in Mr G’s room.23 Other residents’ wardrobes had them but not Mr G’s.24 She saw Ms Jargiello several times on 28 October but did not think it appropriate to raise with her the absence of any resident’s notes. Nor did she raise that with the nurse on duty.

[36] I do not accept any of the applicant’s evidence about the absence of Mr G’s notes. If in fact there were no notes early in October it is inexplicable how that was not reported and rectified prior to 28 October. She had worked on the ground floor on numerous shifts during that time and specifically with Mr G. If the notes did not turn up she had a responsibility to alert the nurse in charge or other management about this. It is not likely that every other worker who had attended to Mr G also failed to report the absence of notes in his room. I find there was documentation in Mr G’s wardrobe and in his room concerning the manual handling equipment to be used for him. The applicant knew this and failed to use the correct equipment. So too did her co-worker Ms Oudomlith.

[37] On 28 October there were three AIN’s rostered on the morning shift and working on the ground floor. The applicant was one of them and the others were Ms Liu and Ms Oudomlith. A registered nurse was also rostered, a Ms Rondolo.

[38] The applicant said she thought the sit/stand up lifter was to be used for lifting Mr G. At all times during her evidence in the hearing she continued to insist the sit/stand up lifter was the correct one to have been used on Mr G. 25 I do not accept this evidence. In light of all the other evidence, it is almost impossible to comprehend how the applicant could hold this view.

[39] The applicant noticed Mr G was complaining more than usual. She notified Ms Rondolo about this. She said it was likely to be due to constipation and gave some advice about what should be done. It is likely this conversation occurred early in the afternoon. The applicant finished up her shift on that day. She said she had done nothing wrong on that shift. 26

[40] I am unable to find that the evidence establishes that Mr G had a fall on the morning of 28 October and that the fall was due to the incorrect lifting equipment being used. I accept his injuries were consistent with that but that is not enough for such a finding. What is clear though is that the applicant used the incorrect equipment on her shift. I find she did so knowing it was the wrong equipment.

[41] On Friday 29 October at around 10.30am Ms Rondolo called Ms Jargiello and advised her that Mr G had bruises on his chest. Ms Workman was asked to look at the bruising on Mr G. He had significant bruising across his torso. As she assumed the correct lifters had been used on him and no fall had been reported she considered what other injury, including internal bleeding, could have caused the bruising. 27 Shortly after this Mr G was transferred to Liverpool Hospital. An enquiry was made about whether Mr G had a fall and what type of equipment had been used on him. At this time, as there was no reason to suspect the wrong equipment or a fall, that possibility was not indicated to the hospital staff.

[42] When the applicant started work on the afternoon of 29 October she was asked by Ms Jargiello (Ms Maguire was also there at the time) whether Mr G had a fall the previous day or anything else had happened to him. She said no. She was asked if the mechanical lifter full body sling had been used and the applicant said yes. 28 She asked the applicant to write a report about what had happened the previous day. Ms Oudomlith was also spoken to and said the mechanical lifter and full body sling had been used.29

[43] The applicant did not write a report immediately as she wanted to do so at home with the use of a dictionary and someone who knew English. 30 She prepared a written report which was in evidence and dated 29 October 2010. She prepared it with her husband's assistance and said she gave it to Ms Jargiello at 8am on 1 November 2010. At that time she said it was only her signature on the report.31 The document that was tendered in fact had two signatures, the applicant’s and that of Ms Oudomlith. Ms Jargiello said the report she received on 1 November had been placed under her door and was signed by both the applicant and Ms Oudomlith.32 In cross-examination the applicant said that the appearance of the second signature on the document had nothing to do with her.

[44] It is not necessary to make a finding about how Ms Jargiello received the report but I do accept that when she did, it had the two signatures on it. I find the applicant to have not been truthful in her evidence about how the signature of Ms Oudomlith was put on the report.

[45] Nowhere in the statement is there any indication that there were no instructions in the wardrobe in Mr G’s room. The applicant knew that was a critical issue but was unable to explain why she omitted to make any reference to it in the statement. She also knew that it was important for the precise details of the type of lifter that she had used to be included in the statement and she could not give any satisfactory explanation as to why she had only referred to a "lifter" without giving any indication of the type of lifter.

[46] It was the inadequacy of the applicant’s statement dated 29 October 2010 that prompted the employer to view the video footage. It was then observed that the incorrect lifter had been used on the morning of 28 October. In this context I do not accept the evidence of Ms Milic 33 who said she had seen all the footage and did not need to provide it to the applicant as it showed that the only time the wrong equipment was used was by her and her co-worker. The footage should have been retained and tendered in evidence. On the other hand, the evidence does not establish that other workers used the wrong equipment on Mr G or on other residents as the applicant would have me find.

[47] On 2 November the applicant was interviewed in Ms Milic’s office. Ms Jargiello was also there. She was asked what kind of lifter she had used with Mr G and she said the sit/stand up lifter. 34 I prefer the evidence of Ms Milic and Ms Jargiello that she said she had used the full body sling and hoist lifter. I also find that the video was then shown to the applicant clearly showing that she had used the sit/stand lifter and she then said words to the effect “isn’t that the full body sling hoist lifter?”. Ms Milic had looked at documents she had with her and said everywhere it was written that with this resident the hoist and full body sling was to be used35. She said that instead the applicant had used sit/stand lifter and that was wrong. The applicant said Ms Milic was very upset and said words to the effect that the applicant had killed the resident. Ms Milic was not cross-examined about whether she had made this statement and it is not necessary I make a finding about that. I do find however that Ms Milic was very unhappy about the use of the incorrect equipment and the applicant’s incomplete written statement and her evasive comments in the interview. Despite opportunities being given to the applicant to identify precisely which lifter was used she was evasive and continued to argue that despite all of the documents provided to her that she had still used the correct lifter.

[48] I also find that, contrary to the applicant’s evidence, she was shown the video in the interview on 2 November. 36 I accept the evidence of both Ms Milic and Ms Jargiello about this matter.

[49] Later in the day of 2 November the applicant was called back into a discussion with Ms Jargiello and was given a letter dated 2 November 2010 which was signed by Ms Jargiello. The letter refers to an investigation that had been undertaken concerning an incident with Mr G on Thursday, 28 October 2010 at 9:07 am. It records that the internal cameras had indicated that the applicant and her co-worker did not use the correct lifter which was “the Full Body Sling”. It records that this was clearly stated in the resident’s notes and also on the inside of his wardrobe. It says that during the conversation that had been held with the applicant that day she was still arguing the point about what was the correct lifter. It recorded that it had been decided she would no longer be employed. Her employment was to cease immediately.

[50] The applicant said she believed that the nurse was responsible. She also said that she had not seen Mr G’s upper body so maybe the bruises were already there. 37 The applicant understood she was dismissed because she had used the wrong lifter but she did not agree she had done so. She continued to insist she used the correct lifter.38

[51] No evidence was given about the reference to 9.07 am in the dismissal letter. As I have earlier noted the DVD which was tendered relates to the period 8.06 am to 8.30 am. I suspect the time should have been “8.07 am” and the hearing had proceeded on that basis.

[52] In the document “Submissions-Outline” which was taken to be the applicant’s written statement, she said she wanted her husband to attend the second interview on 2 November (when she was handed the termination letter) and was refused her right to have a support person with her. That matter was not mentioned in the applicant’s evidence in chief and she was not cross-examined about it. None of the employer’s witnesses said it was raised in the meetings on 2 November and neither was cross-examined about it. Against this background I must decide whether the evidence establishes that the applicant had requested a support person and, if so, whether that request was refused. Having considered all of the evidence, and despite the applicant adopting the “Submissions-Outline” as her statement, I think it unlikely she asked for a support person and, it follows, was not refused that opportunity. I refer to this consideration later in my decision by reference to s.387(d).

[53] On 2 November the employment of the applicant’s co-worker, Ms Oudomlith was also terminated. In the interview that was held with her she said that she acknowledged she had used the wrong lifter. 39 Another employee who was a more senior AIN, and also rostered on 28 October, Ms Liu, was given a warning as she should have observed the lifters being used by other staff. She had not observed what they were doing.

[54] The decision to terminate the applicant’s employment was made by Ms Milic together with the President and Vice President of the nursing home. In Ms Milic’s statement she listed the reasons why they decided the actions of the applicant amounted to serious misconduct and warranted termination. I should comment on the first of those reasons. Although I accept that there was evidence to establish the incorrect manual handling equipment was used by the applicant the evidence does not establish that the applicant was responsible for causing the bruising sustained by Mr G. I accept the evidence that the nature of that bruising was consistent with incorrect handling equipment and a fall due to an incorrect lifter being used. Ms Milic said that even though there was no footage of any injury which led to the bruising she had no doubt that it had occurred on the morning of 28 October. The kind of injury Mr G had sustained is that which is associated with a fall having used an incorrect lifter. 40 I accept that Ms Milic, who had been in the industry for 31 years, could judge from injuries to a resident how they had been sustained. That is not adequate however to take the further step and for me to find the applicant was responsible for Mr G’s injuries. I find each of the remaining reasons referred to in Ms Milic’s statement are established by the evidence.

[55] There was no evidence of warnings which had been given to the applicant about her performance. I note the statement of Ms Reyes which was tendered by the employer. Ms Reyes was not required for cross-examination. She refers to several “clinical skills competencies” which the applicant needed to improve and about which she had been spoken to in September 2009 and March 2010. I do not consider this evidence to constitute a warning about unsatisfactory performance.

[56] There was no evidence to establish a number of allegations made by the applicant. These included that the nursing home did not hire Russians, Ms Milic preferred to promote employees who were not Russian and that Ms Milic had dismissed around 15 employees and the “vast majority” of these persons “came from former USSR and their positions were taken by other nationals”. 41 The applicant accepted in cross-examination that there were approximately 50 employees at the nursing home who spoke Russian or would consider themselves Russian. The extensive mix of different nationalities employed at the nursing home is at odds with the applicant’s assertions of Ms Milic having a particular bias as alleged.

The statutory considerations

[57] Section 387 contains the criteria which I must take into account in my consideration of whether the applicant’s dismissal was harsh, unjust or unreasonable. I turn to each of the relevant provisions of that section.

[58] Section 387(a) requires me to consider whether there was a valid reason for the dismissal related to the applicant’s capacity or conduct (including its effect on the safety and welfare of other employees). The employer had a valid reason to dismiss the applicant. The reasons the employer did so are stated in the letter of termination. Ms Milic gave more detailed reasons for the dismissal in her evidence. With the exception of the reference to the applicant’s use of incorrect equipment causing extensive bruising to Mr G, I have earlier found each of the reasons for the applicant’s dismissal were established by the evidence. Probably any one of them may have constituted a valid reason. I do not have to make this finding however. Together they constitute a valid reason.

[59] The next consideration is whether the person was notified of that reason. I have earlier found that the applicant was notified of the reasons for her dismissal.

[60] Section 387(c) requires consideration as to whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person. The applicant was given an opportunity to respond to the reasons. On 29 October 2010 she did not honestly answer the question about the equipment she had used the previous day. She was asked to give a written statement and when she did it was misleading and incomplete. She was interviewed on 2 November and given an opportunity to respond to the allegations raised by Ms Milic and Ms Jargiello.

[61] I have considered if there was any unreasonable refusal by the employer to allow the applicant to have a support person present to assist at any discussions relating to dismissal. 42 I have found that there was no refusal by the employer to allow the applicant a support person during the second interview on 2 November. It was not asserted there had been any relevant refusal at any other time. Had I accepted the applicant’s statement that she had been refused a support person in the interview of 2 November, I would have nonetheless reached the same conclusion I have in paragraph 66.

[62] Next s.387(e) refers to a dismissal which relates to unsatisfactory performance and whether the person had been warned about that unsatisfactory performance before the dismissal. There was no evidence here of any warning which was specific to the applicant’s prior conduct. The evidence did however establish that as recently as 23 September 2010 a memo was given to all staff about the use of the correct manual handling equipment and that immediate disciplinary action would be taken if there was a breach. The applicant signed a confirmation record of receiving and reading the memo.

[63] I have also considered the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal. 43 No submissions were made about this consideration. It is sufficient for me to note that the employer is not a small employer as defined by the FW Act. The investigation into the incident was adequate and timely and undertaken principally by Ms Jargiello. She reported the outcome of her investigation to Ms Milic.

[64] Next 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 is to be considered. 44 This was not addressed by the parties. There was no evidence the nursing home had any relevant specialists or expertise. This possibly accounts for some of the shortcomings in some of the employer’s documentation and failure to understand the importance of retaining more of the video footage.

[65] Finally s.387(h) refers to any other matters that FWA considers relevant. I have considered the possibility that other employees also had used the wrong manual handling equipment and not been dismissed. The applicant made much of this in submissions but evidence in support was not called. It was not conceded by the employer’s witnesses. I accept Ms Milic’s evidence that she had consistently stressed upon all staff the importance of following correct procedures and the likelihood of disciplinary action if they did not.

Conclusion

[66] I have considered all of the evidence and conclude that the applicant’s dismissal was not harsh, unjust or unreasonable. Her application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

I Lyashenko for the applicant.

I. Ryan, Counsel for Russian Relief Association of St Sergius of Radonezh.

Hearing details:

2011.
Sydney:
March 14, 15;
April 13.

 1   PN266-269

 2   PN53

 3   PN63

 4   PN1638

 5   PN2693, 2698

 6   PN116, 142, 2258, 2260, 2268, 2270

 7   Ex R6 and R6A

 8   PN2082

 9   PN797

 10   Ex R12

 11   Ex R3

 12   PN775-810

 13   Ex R4

 14   Ex R5

 15   PN1148-1161

 16   PN1071

 17   PN3372. Ex R6A

 18   PN1087

 19   PN379, 392, 393

 20   PN2220

 21   Ex R10

 22   PN466-474

 23   PN830-837

 24   PN875-887

 25   PN961-963

 26   PN535, 536

 27   PN3356-3358

 28   PN542, 2929

 29   PN3022

 30   PN548

 31   PN1274

 32   PN2942

 33   PN2601

 34   PN573

 35   PN575

 36   PN616, 2675-2679, 3273

 37   PN588-611

 38   PN445-457

 39   PN2993

 40   PN2603-2611

 41   Ex A1 para 15

 42   Section 387(d)

 43   Section 387(f)

 44   Section 387(g)

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