[2012] FWA 3737 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hari Lengkong
v
Bupa Care Services Pty Ltd T/A Bupa Morphettville
(U2011/14885)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN |
ADELAIDE, 1 MAY 2012 |
Termination of employment - valid reason - medical record keeping - retention of confidential documents - harsh, unjust and unreasonable - reinstatement considered - payment of compensation.
[1] On 22 December 2011 Mr Lengkong lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief with respect to the termination of his employment with Bupa Care Services Pty Ltd (Bupa).
[2] Mr Lengkong’s application was referred to me for arbitration. It was the subject of hearings on 19 and 20 April 2012. At these hearings, Mr Lengkong was represented by Mr Hanna, of counsel and Bupa, by Mr Lazaravich, of counsel.
[3] Mr Lengkong is a Registered Nurse. He commenced employment with the employing entity, previous to Bupa in April 2007 and continued as an employee until the summary termination of his employment on 12 December 2011. At the time of the termination of his employment he worked an average of 34.2 hours each week as a weekly hire part-time employee.
[4] Mr Lengkong asserts that the termination of his employment was substantively and procedurally unfair.
[5] Evidence in this matter was given by the following persons:
● Mr Lengkong
● Dr Coulthard who is the general practitioner servicing a significant number of Bupa residents
● Ms Sandhu who previously worked for Bupa as a personal carer
● Ms Wood who was the General Manager of the Bupa facility where Mr Lengkong worked
● Ms Rachaputi a Sydney-based Bupa Human Resources Consultant
● Ms Dineveska, the Sydney based Bupa Human Resources Operations Manager
● Ms Caruso who is a Care Manager at the Bupa facility where Mr Lengkong worked
● Ms Taylor who is a Care Manager at the Bupa facility where Mr Lengkong worked.
The Background
[6] Mr Lengkong variously worked as a Registered Nurse or as the Registered Nurse in Charge of designated work areas. Commencing in August 2009 Mr Lengkong raised various concerns with Bupa management with respect to staffing levels and care arrangements. His union, the Australian Nursing and Midwifery Federation (ANMF), was involved in various discussions about some of these matters.
[7] Additionally, Bupa management raised some issues with Mr Lengkong in relation to his performance of his duties. The relevance and basis of these concerns is disputed.
[8] Bupa maintains an employee personal improvement program. This program provides for 3 broad levels of employee performance ratings. At various times Mr Lengkong held different ratings. The operation of the system and Mr Lengkong’s ratings are disputed.
[9] On 29 October 2011 Mr Lengkong worked as a Registered Nurse. A Carer in his ward advised him that an elderly patient had injured her hand. The extent of this injury is disputed. Mr Lengkong incompletely filled in a Resident Incident Notification form and treated the injury. He advised the resident’s family of the incident and endeavoured to advise Dr Coulthard as her doctor. The extent and adequacy of Mr Lengkong’s actions in these respects is disputed.
[10] At around this same time, Mr Lengkong was engaged in negotiations with Bupa management over staffing issues. He lodged a s.372 General Protections application with Fair Work Australia (FWA) which was the subject of a conference with me but was not resolved. I note that both parties advised me that they had no concerns about my involvement in both these proceedings. I also note that the s.372 application has subsequently been discontinued.
[11] In mid-November 2011 the General Manager, Ms Wood, initiated an investigation into the 29 October 2011 matter after a complaint about the incident was made by members of the resident’s family. Mr Lengkong was interviewed by Bupa management on 17 November 2011. Formal allegations were put to him on 29 November and a final disciplinary interview was held on 1 December 2011. A union official was present at this interview. Interviews were also conducted with the two Carers who were attending the resident at the time the injury occurred. The detail of the interviews with Mr Lengkong is disputed. It is also appropriate that I note that there is no suggestion that the injury to the resident involved any form of resident abuse.
[12] After consultation with the Bupa Human Resource management personnel, Ms Wood determined that Mr Lengkong’s employment should be terminated. The letter confirming this termination of employment set out the allegations against Mr Lengkong in the following terms:
“ Failure to meet a number of ANMC National Competency Standards for the Registered Nurse
[13] This letter continued to detail Bupa’s concerns about Mr Lengkong’s actions relative to the incident and his responses during the investigation process. It referenced earlier incidents involving Mr Lengkong. It concluded that Bupa considered Mr Lengkong’s actions amounted to gross neglect of duty. Ms Wood advised that she had “lost trust and confidence” 1 in Mr Lengkong’s ability to perform his work. Ms Wood concluded that Mr Lengkong had shown no remorse and that summary dismissal was appropriate.
[14] Mr Lengkong asserts that his response to the incident was appropriate and that his actions did not represent serious misconduct and did not warrant dismissal, let alone summary dismissal.
[15] To the extent that the termination of employment decision was based on alleged past failures, Mr Lengkong disputed this history and asserted that the termination of his employment was unfair in that these matters were not put to him.
[16] Mr Lengkong sought reinstatement, or, in the alternative, a financial remedy.
[17] The Bupa position was that Mr Lengkong’s summary dismissal was justified in that he did not follow proper reporting procedures and its thorough investigation process indicated that his behaviour was deliberate and was not regretted. Bupa assert that the investigation process which led to the decision to terminate Mr Lengkong’s employment was fair and appropriate and that Bupa was entitled to take into account earlier incidents involving Mr Lengkong.
[18] Further, that subsequent to the termination of his employment, Bupa became aware that Mr Lengkong had retained confidential resident information which he sought to use in the conciliation process. Bupa asserts that this conduct breached its instructions to employees and its requirements of them.
Findings
[19] I am satisfied that none of the preliminary matters referenced in s.396 are relevant to this application.
[20] Before considering the factors set out in s.387 of the FW Act, I have made findings relative to the significant matters in dispute.
[21] I have concluded that Mr Lengkong received various advices from Bupa management relative to its expectations of him and his behaviour. I am not satisfied that these advices represented disciplinary warnings. I have reached this conclusion on the basis of the form and content of these advices.
[22] I have concluded that various staff had concerns about the manner in which Mr Lengkong performed his duties but I am not satisfied that these concerns were elevated to the level of formal disciplinary action or that they were necessarily established as properly based. For example, the evidence of Care Manager Ms Caruso detailed various concerns about Mr Lengkong but positive actions to formally address these matters was not taken.
[23] I have concluded that the Bupa ‘personal best’ program can be described as a performance program in that it recognises employees who are meeting performance expectations. I have concluded that Mr Lengkong’s standing in this scheme varied notwithstanding that he genuinely believed he was in the top performance category, I am not satisfied that a lower rating reflected any performance concerns that were identified to him as distinct from Mr Lengkong’s failure to renew his participation in the scheme in accordance with the scheme requirements.
[24] The 29 October 2011 injury to the elderly resident is particularly significant in this matter. I have concluded that the incident represented a reasonably substantial skin tear to the hand that was most likely sustained when the resident was being lifted using a lifting device. The evidence is that the wound healed within the normal time period for that type of injury and that it was seen and not adversely remarked upon by a number of other nursing and patient care staff on that day and the days that followed. Further, that the resident sustained further skin tears after this incident such that the resident was considered susceptible to such injuries and a strategy was put in place to minimise this risk. I do not agree with the Care Manager, Ms Taylor’s advice about when she actually saw the wound. 2 The assessment of the resident’s wound is a matter of clinical appraisal with scope for different views. However I do not consider that there was a factual basis upon which the General Manager, Ms Wood understood it to be a more serious “de-gloving” injury.3 There was no medical evidence to support this assertion, in that the resident’s General Practitioner’s opinion was not sought.
[25] I have concluded that Mr Lengkong did omit to fully complete the incident notification form which reported on this matter. Mr Lengkong admitted as much in discussions with Bupa management.
[26] I am satisfied that Mr Lengkong’s record of the incident was factually correct in terms of its cause and description of the injury. In this respect, the evidence of Ms Sandhu who was attending to the resident at the time of the injury is significant. I am not satisfied that the omissions from this Incident Record form were critical to Bupa’s capacity to manage the injury or respond to the concerns about the cause of the injury which were subsequently raised by the resident’s family. The omissions related primarily to information about notification to the doctor, details associated with the notification of the next of kin and the name of the second witness. Additionally, the alleged deficiency in the investigation of the incident goes to the extent of the investigation required to be undertaken by Mr Lengkong but is inconsistent with the brevity of the incident report form. On the material before me, Mr Lengkong’s description of what happened is consistent with the nature of the incident. Finally, I have noted that the incident report form was forwarded to the Care Manager, Ms Taylor but the omissions were not immediately identified as problematic and I am not satisfied that these omissions seriously impeded Bupa’s capacity to respond to the issues raised by the resident’s family.
[27] I am satisfied that the importance of completing relevant patient records, including incident notification forms had been made it clear to Mr Lengkong, but I am also satisfied that he was busy when he completed the form and accept his unchallenged evidence that oversights in form completion happen on occasions.
[28] To the extent that it is relevant, I have concluded that Mr Lengkong did endeavour to send a facsimile to Dr Coulthard relative to the incident but when he was unable to do so, he spoke with the doctor on the following day. I have relied on the evidence of Mr Lengkong in this respect. I do not consider his conduct in this respect can be described as misconduct.
[29] I have concluded that Care Manager, Ms Taylor met with the resident’s family on a number of occasions and that the General Manager Ms Wood was involved in some of these discussions. Ms Taylor’s investigation of the matter was primarily directed at the family concerns over the cause of the injury, given that they had understood from the resident that it occurred as she entered a doorway.
[30] I am unable to reach a clear conclusion about the process of this investigation because of errors in the records kept by Ms Taylor. 4
[31] The initial interview with Mr Lengkong was primarily directed at the cause of the resident’s injury. I am satisfied that the injury occurred while the resident was being lifted and that this was clear to Bupa management as a result of the advice of Mr Lengkong and the two Carers who were with the resident at the time. I consider the fact that the resident has dementia is also relevant to the weight that could be put on her advice in this respect.
[32] Ms Wood, as the General Manager of the Bupa facility met with Mr Lengkong on 17 November 2011. I have concluded that this interview focused on the cause of the injury to the resident and, to a lesser extent, the adequacy of Mr Lengkong’s completion of the report and his subsequent actions.
[33] Mr Lengkong was provided with formal allegations on 29 November 2011. These allegations effectively changed the investigation focus to record keeping and heightened the significance of the clinical wound assessment. He met with Ms Wood and the Bupa Human Resources Consultant, Ms Rachaputi on 1 December 2011. Mr Lengkong had a union official in attendance with him. I have concluded that Ms Wood’s reference to the resident’s injury as a “de-gloving” injury over-stated its significance and that Mr Lengkong’s responses to criticisms about his completion of the form were reasonable in the circumstances. These responses disclosed some deficiencies in his completion of the form.
[34] I have concluded that Ms Woods was the decision maker in the termination of Mr Lengkong’s employment and that she reached this decision after consulting with other Bupa personnel.
[35] I have decided not to take into account the evidence of Ms Racheputi in so far as it deals with matters which occurred in the conciliation proceedings. 5 In this respect, I have concluded that the “without prejudice” nature of the conciliation process should be preserved.
[36] However, I have reached the following conclusions on the basis of concessions made by Mr Lengkong and the evidence before me.
[37] Mr Lengkong retained and took home two patient care records. The first related to an incident where a patient had briefly absconded in October 2010. The appropriateness of Mr Lengkong’s actions in responding to this incident were raised with him at that time and he referred to that patient care record in responding to management concerns.
[38] Secondly, Mr Lengkong retained the patient care records of the resident who sustained the skin tear on 29 October 2011.
[39] Mr Lengkong was aware of requirements that he not disclose confidential information of that nature but, after making some efforts to remove patient names, he did so and continued to rely on that material to support his position, in breach of Bupa’s policies and instructions. I have concluded that Mr Lengkong’s use of this material was directed at defending the Bupa allegations made against him.
Section 387
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
[40] I have considered each of these factors.
Valid Reason
[41] Notwithstanding that successive legislative changes have now specifically referenced a number of factors which were previously captured by the concept of a valid reason, I have adopted the broader approach set out by Northrop J in Selvechandron v Petersen Plastics Ltd: 6
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly”.
[42] Two elements of Mr Lengkong’s behaviour are relevant to whether there was a valid reason for the summary termination of his employment.
[43] Firstly, there is the issue of Mr Lengkong’s behaviour in investigating and reporting on the 29 October 2011 incident where the resident suffered the skin tear. In this respect, I am not satisfied that Mr Lengkong’s behaviour could be properly characterised as serious misconduct. At best, it involved an oversight which did not prejudice the welfare of the resident or the Bupa position.
[44] Mr Lengkong did not fully comply with the Bupa record keeping requirements but I am not satisfied that these requirements were clearly specified so as to be so significant that termination of employment would follow if they were breached. Further, Bupa’s own approach to record keeping, such as the Family Conference Notes 7 is inconsistent with its expectations of Mr Lengkong.
[45] I do not consider that Mr Lengkong’s failure to fully complete the incident report form, other forms, or to more comprehensively investigate the incident can be regarded as a defensible or justifiable reason for the summary termination of his employment, or, for that matter, for dismissal with notice in these circumstances. These were matters which may reasonably have prompted a warning but do not strike at the heart of the employment relationship.
[46] Secondly, I have considered the extent to which Mr Lengkong’s behaviour in retaining, copying (with name deletions) and utilising patient care notes in his pursuit of this action constitutes a valid reason for the termination of his employment. I have noted that Bupa only became aware of this issue after the termination of his employment.
[47] Mr Lengkong’s actions in this respect could be regarded as a valid reason for the termination of his employment. Indeed, were it not for the fact that Mr Lengkong was engaged in disputation with Bupa, that he went to some lengths to remove the resident’s names and used this material in the pursuit of this application, his behaviour may have formed a valid reason for the termination of his employment. However, in the current circumstances I cannot conclude that this behaviour represented a valid reason for this dismissal.
[48] The termination of employment letter referred to an alleged failure relative to “a number of ANMC National Competency Standards for the Registered Nurse”. 8 I have taken it that this refers to the confidentiality requirements expected of Mr Lengkong9 but I am not satisfied that evidence to sustain a breach of these standards in this, or any other respect, has been made out.
Notification of the Reason
[49] The letter 10 which confirmed the termination of Mr Lengkong’s employment recited the allegations against him in the following terms:
“ Failure to meet a number of ANMC National Competency Standards for the Registered Nurse
[50] Notwithstanding that I consider this letter incorporates a number of unsubstantiated allegations and deficiencies in the investigation process, I am satisfied that it sets out the reasons for the termination of Mr Lengkong’s employment which were known to Bupa at that time.
Opportunity to Respond
[51] Mr Lengkong was given an opportunity to respond. However to some extent, this opportunity was inherently limited because the initial investigation was directed primarily at the cause of the incident on 29 October 2011, whereas the termination of his employment was more broadly based.
Unreasonable refusal to allow a Support Person
[52] Mr Lengkong had access to his union and a union official attended the 1 December 2011 disciplinary interview.
Warnings about Unsatisfactory Performance
[53] Mr Lengkong was not dismissed because of his unsatisfactory performance. He was dismissed because Bupa found his behaviour represented serious misconduct.
[54] Notwithstanding this, it is clear from the letter of 12 December 2011 which confirmed the termination of his employment, that Bupa took into account previous incidents in which Mr Lengkong was involved. I am not satisfied that any of these incidents resulted in formal disciplinary action being taken against Mr Lengkong such that he received warnings which were related to the matters that led to his dismissal or that they necessarily concluded any fault on his part.
Size of the Employers Establishment
[55] Bupa is a very large employer with sophisticated human resource management procedures.
Absence of dedicated Human Resource Management Specialists
[56] Bupa has dedicated human resource management specialists who were actively involved in the consideration of the termination of Mr Lengkong’s employment.
Other matters considered relevant
[57] For some time prior to the termination of his employment, Mr Lengkong had been raising concerns about the adequacy of staffing levels with Bupa management. At the time of the termination of his employment, he was a union delegate and had initiated a general protections application pursuant to the FW Act.
[58] The evidence before me permits a conclusion that Mr Lengkong’s behaviours were a source of frustration to management and contributed to the termination of his employment. I have not formed that opinion because it appears to me that the termination of employment decision was based, albeit erroneously in some respects, on issues linked to resident care.
Conclusion - Harsh, Unjust or Unreasonable
[59] I have concluded that the termination of Mr Lengkong’s employment was harsh in terms of his failure to undertake a more comprehensive investigation into the cause of the 29 October 2011 incident and to record his conclusions in this respect on the incident notification form. Mr Lengkong failed to include the second witness name, the next of kin contact details and doctor notification details on the relevant form. To the extent that this failure formed the basis for the termination of his employment, his dismissal was also harsh. The termination of Mr Lengkong’s employment would also be harsh if it was founded simply on his limited use of the resident care records to defend his actions.
[60] The termination was unjust because Mr Lengkong’s conduct could not be described as serious misconduct. It was unreasonable because it was founded on inconsistent approaches to record keeping on the part of other Bupa personnel.
[61] Consequently, I have concluded that, for the purposes of s.385, Mr Lengkong was unfairly dismissed.
Remedy
[62] Division 4 of Part 3-2 of the FW Act provides for remedies in this circumstance. It is clear from s.390 that reinstatement is the primary remedy.
[63] I have considered whether Mr Lengkong should be reinstated to his previous position or to another position on terms and conditions no less favourable than those which previously applied.
[64] Reinstatement is Mr Lengkong’s preferred remedy. He asserts that he bears no grudge toward Bupa in that, if he was reinstated, he could work at the same, or an alternative aged care facility. The Bupa position is that reinstatement is inappropriate in that Mr Lengkong could not reasonably be re-employed in the same facility and that it has lost the necessary trust to have him work in another aged care facility.
[65] I have considered the practicality of reinstatement to Mr Lengkong’s previous position or to another Bupa facility. On the evidence of Ms Wood, Mr Lengkong’s retention and unauthorised use of the two patient records is a factor which mitigates against the successful re-establishment of the employment relationship even if Mr Lengkong was to be reinstated to another care facility. Mr Lengkong’s own evidence 11 indicates that he had lost confidence in Bupa such that he felt he had to retain confidential patient information. This would not bode well for an enduring employment relationship.
[66] Further, Mr Lengkong had such a long list of concerns about Bupa’s operations such that, even if he was reinstated to a different facility, I doubt that an enduring employment relationship could be preserved. 12
[67] Mr Lengkong indicated his concerns that Bupa was trying to “get rid of me” 13 as early as mid 2011. He was concerned that he was being bullied. His evidence was that:
“But don't you go as far as saying you're effectively targeted for bullying?---Yes, that's correct. Yes, all those things is evidence that I'm being bullied. That's why I collect all those information.” 14
[68] In the course of the investigations which led to the termination of Mr Lengkong’s employment, his relationship with Bupa management further deteriorated, 15 to the point where he foreshadowed civil litigation against Bupa.
[69] Hence, despite Mr Lengkong’s assertion that he bore no grudge against Bupa or its staff, I consider that the material before me indicates that reinstatement is unlikely to be sustainable because of the issues and concerns raised prior to the termination of Mr Lengkong’s employment and at the hearing. In short, I consider that the employment relationship is highly unlikely to be capable of restoration.
[70] For these reasons, I have decided that reinstatement is not appropriate.
[71] Given this conclusion, I have considered a grant of compensation pursuant to s.390(3). Section 392 specifies the criteria to be considered in deciding an amount of compensation. I have had regard to these criteria.
[72] There is nothing to indicate that the amount of compensation being considered would impact on Bupa’s viability. Mr Lengkong had been employed by Bupa and its predecessor organisations for a reasonable time, in that he commenced with a predecessor employer at that aged care facility in April 2007. However, I do not regard this as a particularly long period of employment.
[73] Had Mr Lengkong not been summarily dismissed, I would not have expected his employment to have continued indefinitely because of his concerns over Bupa’s staffing allocations and practices. I would, however have expected Mr Lengkong to have remained a Bupa employee for at least six months. On the evidence before me I consider that Mr Lengkong would have continued to earn a base salary in the order of $1133 each week. This takes into account an imminent adjustment to his salary arising from an annual incremental adjustment. 16
[74] Mr Lengkong has earned some $3000 since the termination of his employment. In this respect I have concluded that Mr Lengkong chose to limit the range of work which he sought and that, had he wished to do so, he could have pursued additional work options. I have also noted the evidence before me about the availability of work in this industry. I am not satisfied that Bupa has provided potential employers with advice that has restricted Mr Lengkong’s ability to obtain other work. Accordingly, I have reduced the amount being contemplated because I consider the Mr Lengkong has limited his own alternative employment prospects.
[75] In the particular circumstances of this matter, I have elected not to reduce the amount of compensation payable to Mr Lengkong because of his retention of the patient care records because I have noted his attempts to preserve the resident confidentiality and his clear undertaking that he no longer has any such records.
[76] I have concluded that Mr Lengkong should be paid 16 weeks pay, less tax. This amount is based on likely ongoing employment with Bupa less income which could reasonably have been expected to be achieved by Mr Lengkong had he more actively pursued other work opportunities. I am satisfied that this approach is consistent with that adopted in Sprigg v Paul’s Licensed Festival Supermarkets. 17
[77] An Order [PR523276] reflecting this decision will be issued.
SENIOR DEPUTY PRESIDENT
Appearances:
K Hanna counsel for the Applicant.
A Lazarevich counsel for the Respondent.
Hearing details:
2012.
Adelaide:
April 19 and 20.
1 Exhibit B8 (CW-5).
2 Ms Taylor’s evidence was that she saw the wound on 13 November (Transcript PN1288) and that it still had steri-strips on it. The Wound Chart (Exhibit B4) indicates that the steri-strips were removed before then (Transcript PN1368).
3 On 17 November (Exhibit B8 CW-3) Ms Woods referred to the injury as a ‘significant skin tear’. On 29 November (B8 CW-4) she repeated the reference to ‘significant skin tear’. In cross-examination (Transcript PN858) she confirmed that the advice to her was that it was a very significant skin tear but that this resident had other subsequent skin tears that were not investigated. Ms Wood (Transcript PN867) based her conclusions on Ms Taylor’s advice. After interviewing other staff Ms Wood confirmed that she did not consider the injury to be a ‘de-gloving’ (Transcript PN873). In contrast, at the disciplinary interview on 1 December 2011, Ms Woods referred to the injury as a ‘de-gloving type of injury’.
4 Exhibit H4 - where the sequence of meeting dates does not appear sustainable (Transcript PN1400 - PN1452).
5 Exhibit B13, paras 17-25.
6 (1995) 62 IR 371 at 373.
7 Exhibit H4.
8 Exhibit B8 (CW-4).
9 Ibid (CW-10).
10 Ibid (CW-5).
11 Transcript, PN275-PN278.
12 Exhibit H3, paras 8 and 9.
13 Ibid, para 9.
14 Transcript, PN493.
15 Exhibit B13 (SR-2).
16 Transcript, PN2061.
17 AIRC, Print R0235, (24 December 1998).
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