Zaneta Malafu v Marco Polo Aged Care Services Ltd

[2019] FWC 289

[2019] FWC 289

FAIR WORK COMMISSION

DECISION

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

Zaneta Malafu
v
Marco Polo Aged Care Services Ltd
(U2018/7595)

COMMISSIONER CAMBRIDGE SYDNEY, 30 JANUARY 2019

Unfair dismissal - misconduct involving dishonesty - factual findings of employer verified - dismissal not harsh, unjust or unreasonable - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged on 23 July 2018. The application was made by Zaneta Malafu (the applicant) who has been represented by the Health Services Union (HSU). The respondent employer is the Marco Polo Aged Care Services Ltd (the employer) who has been represented by Bell Partners Legal.

[2] The application indicated that the date that the applicant’s dismissal took effect was 2 July 2018. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 31 October, and 28 November 2018.

[4] At the Hearing, the Commission confirmed that permission had been granted, pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. The applicant was represented by Mr L Maroney from the HSU. The employer was represented by Mr P Frazer, solicitor from Bell Partners Legal.

[5] Mr Maroney called the applicant as the only witness who provided evidence in support of the unfair dismissal claim. MrFrazer called five witnesses who provided evidence on behalf of the employer.

Background

[6] The applicant had worked for the employer for about 1 year and 4 months. The applicant was initially engaged as a casual employee, and she subsequently moved into permanent part-time employment. The applicant was employed as a Care Service Employee Grade 4, Team Leader, a position that was also referred to as an Assistant in Nursing, Team Leader (AIN Team Leader).
[7] The applicant worked at the employer’s aged care facility (the nursing home) located at Woonona, a northern suburb of Wollongong, New South Wales. The applicant had worked in the Aged Care Industry since 2008.

[8] Prior to the events leading to her dismissal, the work of the applicant was without recorded complaint regarding her performance or conduct.

[9] The dismissal of the applicant arose as a direct consequence of an incident that occurred at the nursing home shortly after 6 pm on 27 May 2018. The incident on 27 May 2018 involved the applicant’s interaction with, in particular, an elderly male resident of the nursing home who shall be identified as Mr C.

[10] Mr C and his wife Mrs C were both residents of the nursing home at the time of the incident of 27 May 2018. Both Mr and Mrs C had unfortunately experienced various age-related medical problems including dementia related issues which on occasions were exacerbated by communication difficulties created because English was a second language for Mr and Mrs C. These difficulties caused Mr C in particular to display certain behavioural difficulties arising from his heightened levels of anxiety and frustration. These behavioural difficulties included occasions where he exhibited verbal and physical aggression which was sometimes directed at Mrs C. Mr C also had suffered a stroke and had limited mobility whereby he required a cane/stick or other support in order to walk.

[11] On 27 May 2018, the applicant was at a nurses’ station/office when her attention was drawn to Mr C who was raising his voice at Mrs C as they walked down a corridor past the nurses’ station/office. The applicant heard a thudding noise which she thought was the sound of Mr C hitting Mrs C. The applicant immediately left the nurses’ station/office, went into the corridor, and intervened in what she believed had been the physical assault upon Mrs C by Mr C. The applicant remonstrated with Mr C, and she commenced to escort Mrs C down the corridor towards her bedroom. The applicant, together with Mr and Mrs C proceeded to walk slowly down the corridor during which time the applicant comforted Mrs C and she continued to remonstrate with Mr C.

[12] As the trio proceeded towards the end of the corridor, Mr C attempted to grab at the applicant’s arm and the applicant responded by grabbing Mr C’s arm and pushing him away which caused him to stumble backwards. Mr C stumbled back against the corridor wall dropping his walking stick as he then fell to the ground. The noise associated with the fall of Mr C attracted the attention of firstly, a Registered Nurse and then other staff who attended the site where Mr C was located on the ground in the corridor. Mr C was unable to stand up unassisted, and in due course the nursing home staff including the applicant, used a chair and a waistband brace in order to assist Mr C back to his feet. Once Mr C had been returned to a standing position, he again attempted to grab at the applicant’s arm before he was restrained, then pacified, and redirected away towards his bedroom.

[13] Immediately after the incident involving the altercation between the applicant and Mr C, the nursing home staff in attendance discussed the incident, and the applicant and the Registered Nurse at the scene discussed how the incident may be reported or recorded. Approximately half an hour after the incident had concluded the applicant made a progress note which set out her version of the details of the incident of 27 May.

[14] On the following day, Monday 28 May 2018, the nursing home Care Manager, Ms McCarry, became aware of the incident of 27 May when she read the Registered Nurse’s handover report which stated, inter alia that Mr C “hit his wife and tried hitting staff”. Ms McCarry then discovered the progress note that had been made by the applicant and which provided details of the incident of 27 May. In view of the serious nature of the details provided in the progress note made by the applicant, Ms McCarry decided to immediately inform the family of Mr and Mrs C about the incident, and she subsequently apprised the nursing home Facility Manager, Mr Fenech, of the incident.

[15] On 31 May 2018, Mr Fenech viewed CCTV footage of the incident of 27 May. Mr Fenech was immediately concerned about a disparity between the details that the applicant had included in the progress note and the record of the incident as revealed by the CCTV footage. Mr Fenech determined that the incident of 27 May met the criteria for mandatory elder abuse reporting, and he reported the matter to, inter alia, the police. Mr Fenech also contacted the family of Mr and Mrs C and invited their daughter to attend the nursing home to view the CCTV footage.

[16] On 1 June 2018, the daughter of Mr and Mrs C viewed the CCTV footage of the incident of 27 May. The daughter was alarmed at the CCTV footage of the incident such that in particular she sought to ensure that the applicant no longer had any contact with Mr C. Mr Fenech telephoned the applicant who was on annual leave that day, and he advised her that she had been suspended on full pay pending the outcome of an investigation into the incident of 27 May. The applicant also received a telephone call from a police officer who advised her that they had reviewed the CCTV footage of the incident of 27 May and had determined that they, (the police) would take no further action in respect of the incident. The police officer also told the applicant that they had informed Mr Fenech of their decision to take no further action in respect of the incident of 27 May.

[17] On 5 June 2018, the applicant received a letter dated 1 June 2018, from Mr Fenech which confirmed her paid suspension from duties. This letter also included advice of the investigation into the incident of 27 May, and it particularised two allegations raised against the applicant, namely; (a) that the applicant had used undue force against the resident (Mr C) resulting in the resident having a fall and, (b) that the applicant had falsified a resident progress note made in respect of the incident of 27 May.

[18] On 18 June 2018, the applicant was accompanied by a HSU official when she attended a meeting with Mr Fenech and other nursing home management representatives. This meeting, which was held as part of the employer’s investigation into the incident of 27 May, was sound recorded, and during the second part of the meeting it included the viewing of the CCTV footage of the incident of 27 May. During the viewing of the CCTV footage the applicant acknowledged, inter alia, that she had been mistaken in her belief that Mr C had hit Mrs C at the outset of the incident of 27 May.

[19] The employer considered the applicant’s responses provided at the meeting held on 18 June 2018 and decided to convene a second meeting which was held on 21 June 2018. At the meeting held on 21 June 2018, the applicant was again accompanied by a HSU official and this meeting was also sound recorded. At the second meeting the applicant was questioned further by Mr Fenech particularly in respect of significant differences that were identified in certain details provided by the applicant’s progress note when compared with the vision provided by the CCTV footage. The applicant was then advised that a further meeting would be held after the employer had concluded its investigation into the incident of 27 May.

[20] On 2 July 2018, the applicant attended a further meeting at the request of Mr Fenech and she was once again accompanied by a HSU representative. At this meeting, Mr Fenech advised the applicant that the employer had decided to terminate her employment on the grounds of serious misconduct arising from the incident of 27 May. The applicant was subsequently provided with a letter dated 3 July 2018, which confirmed the termination of her employment effective immediately for serious misconduct. Upon termination the applicant was paid all accrued entitlements.

The Case for the Applicant

[21] Mr Maroney, from the HSU, represented the applicant, and he made verbal submissions which elaborated upon documentary material that had been filed on behalf of the applicant. Mr Maroney submitted that as the applicant had been dismissed for serious misconduct there was an onus on the employer to prove that the serious misconduct had occurred, and that it was misconduct that was sufficiently serious to warrant summary dismissal.

[22] The submissions made on behalf of the applicant contended that the Commission should find that the applicant’s conduct, while warranting reprimand, did not constitute serious misconduct. Therefore according to the submissions made on behalf of the applicant, it would follow that the elevation of the applicant’s conduct to serious misconduct meant that the reason for dismissal was not sound, defensible or well-founded, and rendered it incapable of being a valid reason for dismissal of the applicant.

[23] It was submitted by Mr Maroney that the two particular allegations that were made against the applicant were not established by the evidence, and the relevant conduct of the applicant did not constitute serious misconduct. Mr Maroney submitted that from viewing of the CCTV footage the Commission could not be comfortably satisfied that the allegation that the applicant used undue force against Mr C was made good. Mr Maroney submitted that the applicant used a minimum amount of force and she really put her hand up to protect herself from the striking action made by Mr C. Further, Mr Maroney submitted that the Commission should find that the applicant’s actions when dealing with the behaviour of Mr C did not represent responses that were disproportionate and in the circumstances she acted appropriately.

[24] Further, Mr Maroney submitted that the second allegation against the applicant involving her intentional falsification of client documents could not be supported by the evidence. Mr Maroney submitted that the applicant gave evidence that it was her honest belief that Mr C had hit Mrs C at the outset of the incident of 27 May. Further, Mr Maroney submitted that the applicant acknowledged when first viewing the CCTV footage, that she had been mistaken in this belief. Mr Maroney submitted that the applicant had conceded that the progress note contained a mistake but that a mistake did not amount to misconduct. Further, Mr Maroney submitted that the progress note made by the applicant did not represent a falsification involving an intentional provision of false information designed to mislead the employer.

[25] Mr Maroney made further submissions that acknowledged that the applicant had been provided with notification of the reasons for her dismissal, and she had been given both an opportunity to respond, and to have a support person present throughout the process that led to the decision to dismiss. It was also submitted by Mr Maroney that there were other relevant factors such as the applicant’s age, the summary nature of her dismissal, and her regional location, which introduced a level of harshness. Mr Maroney said that the summary dismissal of the applicant was an entirely disproportionate penalty for any level of mistake or misconduct that could be identified.

[26] In summary, Mr Maroney submitted that when all of the evidence was properly considered, the dismissal of the applicant was unreasonable and unjust because there was no valid reason for the dismissal. Further, Mr Maroney submitted that the dismissal of the applicant was harsh as it was disproportional to the alleged misconduct and because of the consequences for the applicant arising from her individual circumstances. Consequently, Mr Maroney submitted that the dismissal of the applicant was harsh, unjust and unreasonable and he advocated that monetary compensation be provided as remedy for the applicant’s unfair dismissal.

The Case for the Employer

[27] The employer was represented by Mr Frazer, who submitted that the dismissal of the applicant was not unfair. Mr Frazer made submissions which referred to extensive documentary material that had been filed on behalf of the employer.

[28] Mr Frazer said that the determination required in this instance focused upon one basic fact or crucial point that involved the applicant completing important clinical documentation that contained material untruths. Mr Frazer submitted that the Commission should be comfortably satisfied that the contents of the progress note provided unequivocal evidence of the misconduct alleged against the applicant, and which involved a deliberate intention to mislead other people, particularly the employer.

[29] Mr Frazer made submissions which analysed the evidence provided by the CCTV footage of the incident of 27 May and compared and contrasted that record of the event against the contents of the progress note that the applicant had made. Mr Frazer submitted that the employer undertook a careful evaluation of the material differences that were identified between what undeniably occurred and was shown in the CCTV footage, with the details provided by the applicant in the progress note. The employer came to the view that the applicant had engaged in gross misconduct of the plainest kind as she had intentionally included untruths and misleading information in important clinical aged care documentation.

[30] Mr Frazer further submitted that there was just no possibility at all that the applicant could have held an honest opinion about the truth of the various factual falsehoods that could be identified from the contents of the progress note. Mr Frazer said that no person could have honestly got so many things wrong as positive assertions of fact about things that just did not happen or were completely wrong. Mr Frazer submitted that the applicant had provided a false and misleading account of the incident of 27 May and she had done so deliberately in an attempt to justify her use of undue and unreasonable force when she retaliated against the actions of Mr C during the incident of 27 May.

[31] The submissions made by Mr Frazer also focused upon what he described as the applicant’s intention to deliberately mislead other staff about the conduct of Mr C during the incident of 27 May. Mr Frazer submitted that the applicant’s intentionally misleading conduct was supported by her ongoing assertion that even after multiple observations of the CCTV footage, she claimed that Mr C did not fall, but rather he sat, as he had caught his cardigan on the wall rail and not fallen directly to the floor. Mr Frazer said that there was a very big difference between sitting and falling, and it was clear that Mr C stumbled backwards and fell after he had been pushed by the applicant.

[32] Mr Frazer also submitted that the employer had conducted a fair investigation and provided proper opportunity for the applicant to respond to the allegations regarding her conduct in respect to the incident of 27 May, and her documentary report of that event in the form of a progress note. Consequently, according to the submissions made by Mr Frazer, the dismissal of the applicant was not harsh, unjust or unreasonable.

[33] Mr Frazer provided further alternative submissions which rejected the proposition that the applicant was entitled to any relief if her dismissal was found to have been unfair. In this regard, Mr Fraser said that there was only minimal effort made by the applicant to find alternative employment after her dismissal. Further, Mr Frazer rejected the assertion that there were personal circumstances of the applicant which introduced harshness in respect to her dismissal.

[34] In summary, Mr Frazer submitted that the determination of the matter required a reasonably straightforward examination of the evidence provided by the CCTV footage, and a comparison of that evidence with the contents of the progress note made by the applicant. Mr Frazer said that when this evidence was properly examined, the employer’s finding that the applicant had provided a deliberately untruthful and misleading account of the incident of 27 May would be confirmed. Consequently, according to Mr Frazer, the employer had properly discharged any onus and established the serious misconduct of the applicant which justified her summary dismissal. Mr Frazer urged that the application for unfair dismissal remedy be dismissed.

Consideration

[35] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are identified as:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[36] In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable.

[37] Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are stipulated as:

“(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.”

387 (a) - Valid reason for the dismissal related to capacity or conduct

[38] The determination of this case has involved a fundamental and reasonably straightforward requirement to assess the evidence provided by the vision of the incident of 27 May as can be observed in the CCTV footage, 1 and scrutinise that material against the record of the event as was constructed by the applicant in the form of a progress note.2 The employer found two aspects of the 27 May incident to represent serious misconduct for which she was summarily dismissed. The applicant’s misconduct was found to have involved firstly, the use of undue force against Mr C, and secondly, the falsification of the report of the incident in the progress note.

Undue Force

[39] A detailed and repeated examination of the CCTV footage has confirmed that the applicant used a level of force in retaliation against the grabbing action of Mr C. Importantly, the applicant did not initiate the physical contact, Mr C did. The police assessed the CCTV footage and it was clear that the applicant’s actions could not represent elder abuse or some physical assault that warranted any criminal charge.

[40] However, upon careful, objective assessment of all of the factors present at the time, the level of force that was used by the applicant when she grabbed Mr C’s arm and then pushed him away was unnecessary, and it caused Mr C to stumble backwards and fall to the ground. The applicant’s persistent assertion, despite repeated viewing of the CCTV footage, that Mr C did not fall to the ground, but rather, that he “sat” significantly impugned her credibility.
[41] Although the applicant used a level of force that was unnecessary, her action was not excessive such that, of itself, it would have represented serious misconduct that warranted dismissal. The evidence provided by Mr Fenech confirmed that the undue force used by the applicant was something that might have appropriately attracted some formal warning and requirement for remedial training rather than dismissal. During the recorded meeting that was held on 21 June 2018, Mr Fenech stated, inter alia:

“… if your documentation had of matched up with what we saw,… we would have been dealing with a very very different situation.”

[42] Consequently, it was the combination of the applicant’s use of undue force together with the disparity identified between the CCTV footage and the applicant’s progress note which established the finding of serious misconduct. Simply put, it was not so much the actual misconduct but what was perceived by the employer to be the attempt to cover-up that conduct that manifest as serious misconduct.

Falsification of the Progress Note

[43] The first aspect of importance about the progress note is that the incident of 27 May 2018 was a matter that on any objective contemplation required formal documentary reporting in the form of an Accident/Incident Report rather than a progress note. The use of a progress note rather than an Accident/Incident Report represented an entirely understated documentary record that may potentially have avoided further scrutiny of the event.

[44] The applicant’s progress note commenced with the entirely false statement that: “(Mr C) hit his wife as she had stopped to wave to another lady in her room.” Even if the applicant had genuinely believed that the sound that she heard when she was in the nurses’ station/office was the sound of Mr C hitting his wife, that mistaken belief could not justify or explain the extraordinary nature and number of false factual assertions made throughout the progress note.

[45] The progress note makes numerous factual assertions that falsely exaggerate the conduct that the applicant sought to attribute to Mr C. For instance, the progress note states that; “(Mr C) again tried to hit his wife with his walking stick.” and, “(Mr C) tried to hit staff in the face with his closed fist.” and, “(Mr C) pushed toward staff to try and hit staff and lost some of his balance and lent up against wall.” and, “Mr C bent his knees… then slide [sic] down wall and then sat on floor and tried to crawl towards his wife who was sitting on a lounge chair crying.” Significantly, the progress note makes no mention that the applicant grabbed Mr C’s arm and pushed him away which caused him to stumble and then fall to the ground.

[46] Upon examination of the contents of the applicant’s progress note and assessment of the CCTV footage, it is clear that the progress note contains such significant and numerous errors of fact that such inaccuracies could not be properly attributed to some level of genuine human mistake. The progress note is a document that when carefully analysed in the context of all of the circumstances relevant to the 27 May incident, represents a conscious attempt to deliberately construct a false record which may have assisted to justify or mitigate the applicant’s use of undue force if the event was to become the subject of any subsequent scrutiny.

[47] Consequently, the employer’s finding of serious misconduct arising from the applicant’s use of undue force and her falsification by way of the progress note made regarding the 27 May incident have been verified. Therefore, there was valid reason for the dismissal of the applicant. The findings of serious misconduct made by the employer, specifically including the finding that the applicant acted dishonestly when she constructed the progress note as a false record of the 27 May incident, have established sound, well-founded and defensible reasons for the dismissal of the applicant.

387 (b) - Notification of reason for dismissal

[48] The employer provided written notification of the reason for the applicant's dismissal. No issue was taken by the applicant in respect of the question of notification.

387 (c) - Opportunity to respond to any reason related to capacity or conduct

[49] The employer provided the applicant with appropriate opportunities to respond. No issue was taken by the applicant in respect of the question of opportunity to respond.

387 (d) - Unreasonable refusal to allow a support person to assist

[50] There was no evidence that the applicant was refused the assistance of a support person during the various meetings that were held regarding the investigation into the 27 May incident. No issue was taken by the applicant in respect of the question of any unreasonable refusal to allow a support person to assist.

387 (e) - Warning about unsatisfactory performance

[51] This factor is not relevant to the circumstances in this instance.

387 (f) - Size of enterprise likely to impact on procedures

[52] The size of the employer’s operation would not have been likely to have a significant impact on procedures surrounding the dismissal of the applicant.

387 (g) - Absence of management specialists or expertise likely to impact on procedures

[53] This factor is not relevant to the circumstances in this instance.

387 (h) - Other relevant matters

[54] Consideration has been provided for other relevant matters including the applicant’s age, the summary nature of the dismissal, and her regional location. These factors have been balanced against all relevant factors. In particular, further consideration has involved contemplation of the serious misconduct involving the applicant’s blatant dishonesty which has provided valid reason for dismissal. Consequently, other relevant matters have not provided any persuasive basis upon which to render the dismissal of the applicant to have been harsh, or otherwise unfair.

Conclusion

[55] The applicant was dismissed upon the employer’s findings that her conduct in respect to the 27 May incident and her subsequent false reporting of that event, represented serious misconduct. These findings were established following a thorough and just investigation into the two specific allegations which had been raised against the applicant. The employer relevantly found that, in combination, the applicant’s use of undue force and her falsification of documentary records in respect to the incident of 27 May represented serious misconduct.

[56] Upon full Hearing of the applicant’s claim for unfair dismissal remedy, the findings of serious misconduct made by the employer have been confirmed by the Commission. There were no other factors which militated against the primary factual findings which represented the reason for the dismissal of the applicant.

[57] Consequently, the employer dismissed the applicant for valid reason relating to the applicant's conduct. That conduct represented serious misconduct sufficient to justify summary dismissal.

[58] The dismissal of the applicant was not harsh, nor was it unjust, or unreasonable. Therefore, the application for unfair dismissal remedy must be dismissed and an Order to that effect will be issued accordingly.

COMMISSIONER

Appearances:

Mr L Maroney from the Health Services Union appeared for the applicant.

Mr P Frazer, solicitor from Bell PartnersLegal appeared for the employer.

Hearing details:

2018.

Sydney:

October, 31.

November, 28.

Printed by authority of the Commonwealth Government Printer

<PR703943>

 1   Exhibit 5.

 2   Exhibit 9 - Attachment VF 9.