[2011] FWA 8340 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Christina Dolva
v
Sylvandale Foundation Limited T/A Sylvandale Foundation
(U2011/8713)
COMMISSIONER DEEGAN |
CANBERRA, 23 NOVEMBER 2011 |
Termination of employment - alleged verbal abuse of disabled clients in breach of code of conduct - whether harsh, unjust or unreasonable.
Introduction
[1] This matter arises from an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) filed with Fair Work Australia on 9 June 2011 by Ms Christina Dolva (the Applicant) in respect of the summary termination of her employment by Sylvandale Foundation Limited (the Respondent) on 30 May 2011.
[2] The Respondent filed a response to the application on 23 June 2011 and an unsuccessful conciliation conference took place on 7 July 2011. Accordingly, the matter was listed for arbitration.
[3] A number of key witnesses to the relevant incidents which led to the Applicant’s dismissal were not called to give evidence at the hearing on the basis that they were frail, vulnerable clients of the Respondent. The Applicant did not challenge the Respondent’s refusal to bring these witnesses forward. 1
Background
[4] The Applicant commenced casual employment with the Respondent in March 2007. She was employed by the Respondent on a permanent basis in early 2008 and continued working in that capacity until her dismissal in May 2011.
[5] Her position within the Respondent’s organisation was that of a Disability Support Worker or ‘Social Educator’. The role involved the provision of care services to people (the clients) suffering from varying degrees of physical and intellectual disability. Many of these individuals are elderly, and are living in shared accommodation in the Respondent’s properties located in the Blue Mountains region of NSW.
[6] The Applicant performed duties at several of the Respondent’s premises, though worked predominantly at a residence called ‘Rainbow Lodge’ (also referred to as ‘Hillview 1’), which housed eight of the Respondent’s clients. 2
[7] The Applicant’s responsibilities included taking the clients on outings, and assisting them with showering, personal hygiene, medication, personal finances and shopping. 3
[8] The Applicant’s employment was terminated following a number of complaints being made about her conduct by two clients and another employee of the Respondent
Applicant’s Evidence
[9] The Applicant filed a statement of evidence prior to the hearing 4. The Applicant expanded on that statement during the hearing and was cross-examined on the evidence provided. The Applicant did not call any witnesses.
[10] The Applicant’s evidence in relation to the first complaint, which was made by a male client of the Respondent, was that she was unaware at the time that any of the clients were unhappy. It was only later that she realised a complaint had been made by a client in relation to an allegation that she had shouted at him, and been rude to him. She claimed that no investigation was undertaken and she was not issued with any warnings in relation to the incident. 5 The Applicant claimed that it was not until after the second incident, in January 2011 that she was first spoken to by management about her performance.
[11] The second complaint stemmed from an incident that occurred on the 17 January 2011 and involved Ms Smith. According to the Applicant, she witnessed Ms Smith, an elderly resident, pushing and shoving, another elderly resident. It was the Applicant’s evidence that she shouted “stop it” to Ms Smith, as she feared for the other woman’s safety, however she denied that she was verbally abusive towards Ms Smith. 6 The Applicant recalled that two other staff members were present at the time of the incident, Adrian Elliot and Lucy Blanchard.7
[12] The Applicant went on leave shortly after the incident. Upon returning from leave she was notified by Mr Daniel McCallum (Sylvandale Regional Manager, Accommodation Services) that a complaint had been received that she was “rude and aggressive” towards Ms Smith prior to her going away. The Applicant stated that she had requested details about the complaint which had been made against her, but was told that the information was “private and confidential”. She gave Mr McCallum an account of what took place and claimed that he then said to her: “Well that sounds fair enough, it won’t go any further. I accept your explanation”. 8 The Applicant stated that a few days after this meeting with Mr McCallum, she received a written warning about the incident with Ms Smith. She claimed the warning was given shortly after she had lodged a grievance about being rostered on for fewer than her contracted 60 hours per fortnight.
[13] The Applicant was critical of the investigation into the January 2011 complaint that was undertaken by Mr McCallum, claiming that no staff members who were present at the time of the incident were questioned.
[14] A third complaint resulted from an incident that occurred on 22 May 2011 whilst the Applicant was at work. The Applicant was working on her own in the house with six clients. She claimed that she went downstairs to the flat where Ms Smith and her flat mate lived, to check on them. She stated that she had knocked on the door and said ‘knock knock’ before entering, as was her usual practice. Inside the flat she found Ms Smith knitting in front of the television. Her flat mate was asleep in her room with the door closed.
[15] The Applicant stated that she knew that Ms Smith had gone to the house next door to Rainbow Lodge the previous night to watch a movie with another resident. The Applicant claimed that she had asked Ms Smith about the movie and Ms Smith had responded, complaining about the way she had been treated by the staff at the other house. According to the Applicant she had told Ms Smith to raise it with the managers, stating that she was unable to interfere. She stated that she then left to attend to another resident. Later she claimed that Ms Smith had come upstairs complaining that her flat mate was screaming and shouting at her.
[16] When she was at work the next day, on 23 May 2011, she received a call from Mr McCallum requesting that she attend a meeting with him the following day to discuss a complaint she had lodged about not being rostered for her contracted hours. It was her evidence that after signing a roster agreement 9 Mr McCallum said that there was “something else we need to talk to you about”.
[17] The Applicant was told that a complaint had been made about her verbally abusing a client on 22 May 2011. She was handed a letter 10 dated 23 May 2011 informing her that she was to be suspended on full pay until further notice and that she was required to attend a ‘formal fact finding meeting’ on 27 May 2011. This letter also advised her that “due to the serious nature of the matter” her service with the Respondent was under review and could be terminated.
[18] The Applicant stated that she asked Mr McCallum for further details in relation to the allegation but was again told that the information was “private and confidential”. 11
[19] On 27 May 2011 the Applicant attended a ‘formal fact finding meeting’ with Mr McCallum and Mr Glen Blayney (Sylvandale House Manager). During the meeting Mr McCallum put to her that she “...pointed [her] finger at Ms Smith’s face, called her a liar and were yelling and screaming at her”. The Applicant denied the allegations and explained that she would not have been shouting because it was likely to wake up Ms Smith’s flat mate, who was a particularly challenging client to care for. It was her evidence that Mr McCallum “appeared to agree” with her explanation.
[20] On 29 May 2011 the Applicant received a letter 12 directing her to attend a ‘formal fact finding resolution meeting’ with the same management representatives on 31 May 2011.
[21] According to the Applicant at the commencement of the 31 May 2011 meeting she was advised that she was being summarily dismissed and was not given any opportunity to provide further information. She was given a termination letter 13 and left the meeting after about 3 minutes. The termination letter set out the reasons for the dismissal as follows:
“A thorough and detailed investigation was conducted into this allegation. I can confirm that the allegation was substantiated and there was sufficient evidence of serious misconduct by you. Your actions represented client abuse and a breach of the Sylvandale Foundation’s Code of Conduct. Your employment contract with the Sylvandale Foundation has been terminated with 4 weeks pay in lieu of notice, and any additional entitlements...” 14
[22] The Applicant claimed that Ms Smith had made “continual complaints against staff which have been found to be unsubstantiated”. 15 The Applicant further stated that she had previously made several complaints to Sylvandale management about workplace harassment, shift penalties and overtime.16 Together with two other staff members in April 2010 she had lodged a complaint, about allegedly racist remarks made by the former house manager, Mr Bernard Howell.17
[23] It was the Applicant’s evidence that she has applied for several jobs since being dismissed but, despite being told that she has good qualifications, none of her applications has been successful. 18
[24] Under cross-examination the Applicant agreed that being a social educator requires a calm, empathetic approach and that it is important that staff and clients are “compatible”. 19 The Applicant accepted that it was inappropriate to yell at clients, call them a liar, or tell them not to speak to other staff about her.
[25] The Applicant stated that she was aware of the employer’s code of conduct and had been provided with a copy. She also agreed that it would be inappropriate to “barge into” a client’s room without knocking first, but denied that this is what she had done in the case of the May 2011 incident involving Ms Smith. 20
[26] The Applicant was asked about the behaviours and characteristics of the clients involved in the incidents that led to her termination.: 21 It was her evidence that the resident involved in the August 2010 complaint was elderly, and not always able to recall what has happened around him, but very good at finding his way around notwithstanding his blindness. It was also her evidence that the long-term resident she alleged was pushed by Ms Smith in January 2011 was also elderly, suffered from Down’s syndrome and required medication for brittle bones. The Applicant described her as very gentle and easily frightened.
[27] So far as Ms Smith’s flat mate was concerned, the Applicant stated that she was in her 40s, had only recently commenced living at Rainbow Lodge and was “incredibly demanding”. It was her evidence that the client would scream and hit other clients when upset. According to the Applicant, Ms Smith was able to “manage quite a lot of things by herself” 22 and had behavioural difficulties, in the sense that she liked to “be in charge of clients”. The Applicant also alleged that Ms Smith was a dangerous person and had previously tried to stab someone.23 It was the Applicant’s evidence that it was for this reason that Ms Smith’s former flat mate was moved upstairs.
[28] The Applicant was asked whether it was possible that she had been spoken to by Mr McCallum in relation to her voice in August 2010. The Applicant conceded that Mr McCallum had spoken to her in relation to her voice “more than once and that he had previously told her “to lower [her voice]”. 24
[29] So far as the incident in January 2011 was concerned, the Applicant said that the woman who was pushed didn’t actually fall as a result, but that Ms Smith had hit her and pushed her into a corner. The Applicant was shown a letter dated 1 March 2011 25 notifying her that it had been found that she “raised her voice to a volume that constitutes verbal abuse”, and formally warned that any further breaches of the employer’s code of conduct could result in further disciplinary action including termination. The Applicant conceded that she had seen the letter before but could not recall exactly when it was given to her.
[30] The Applicant was also questioned about her meetings with Mr McCallum on 24 May 2011 and 27 May 2011. The Applicant agreed that she was given the opportunity to put her side of the May 2011 incident during the 27 May 2011 meeting, 26 and that she knew that the meetings concerned serious matters as a result of which her employment might be terminated.27 The Applicant conceded she could not remember whether she had actually said to Mr McCallum that he had told her not to worry about the warning given over the January incident. She also acknowledged that she did not lodge a grievance in relation to being issued with a formal warning which she felt was unjustified despite being aware of the process, which she had adopted in relation to the rostering issue.28
[31] It was put to the Applicant that:
[32] The Applicant was also questioned about her attempts to gain further employment since her termination. It was her evidence that she had applied for “eight or nine” positions, including jobs in the aged care industry, 33 but that she has not been able to find a new job and that “every time they ask me for a reference, I’m in trouble”.34 In re-examination the Applicant gave evidence that a prospective employer had contacted a representative of the Respondent and advised the Applicant afterwards that his organisation “still [had] concern[s] about the reason you left Sylvandale”.35
Respondent’s Evidence
[33] Four witnesses were called to give evidence on behalf of the Respondent:
[34] Mr Daniel McCallum filed a statement of evidence 36.
[35] During his oral evidence the witness stated that he had no knowledge of any suggestion that Ms Smith had ever held a knife to her flat mate’s throat or tried to stab another resident. He noted that Ms Smith was a frail, aged, kind, old woman.
[36] When cross-examined the witness agreed that while his position meant that he travelled around to all the premises operated by the Respondent, he was not a witness to any of the events but conducted the investigations into the allegations. It was his evidence that he conducted thorough investigations.
[37] The witness stated that he had received the complaint in relation to the August 2010 incident on 3 August 2010. The complaint had been made by Bernard Hawes, the accommodation manager, on behalf of a resident. Mr McCallum conceded that the Applicant, along with two other staff, had complained about Bernard Hawes making racist remarks. He did not concede, however, that Mr Hawes had a reason to be unhappy with the Applicant.
[38] It was the witness’s evidence that he spoke to the Applicant about the complaint on 10 August 2010. He could not recall what he said to her but did not believe that he told her that she was being given a warning or that her job was in jeopardy.
[39] It was the evidence of Mr McCallum that he spoke to Mr Adrian Elliot about the January 2011 incident. The notes of his conversation with Mr Elliot were annexed to his witness statement and it was his understanding that the Applicant had yelled at Ms Smith and had been aggressive in telling her to eat her dinner. It was also his evidence that he also spoke to other staff members during the investigation when he was told by Mr Elliot that other named staff members had witnessed similar behaviour from the Applicant. He denied having been told by the Applicant of the presence of another staff member, Lucy Blanchard, whom he had not interviewed. It was his evidence that he had spoken to the Applicant about the incident and the Applicant had told him that she had raised her voice. She had also told him about seeing Ms Smith attempting to push another resident. Mr McCallum did not interview Ms Smith about the January incident, nor did he interview Lucy Blanchard.
[40] Mr McCallum was also asked about an investigation he had conducted into a complaint against another staff member, Helga. It had been alleged that Helga had pointed her finger and raised her voice at Ms Smith. During the investigation Mr McCallum had noted that the current house manager, Glen, had said that Ms Smith made allegations about staff when she was asked to do things. It was his evidence that he had investigated allegations made by Ms Smith in the past and had not found them to be substantiated.
[41] So far as the May incident was concerned, Mr McCallum agreed that he had interviewed both Ms Smith and her flatmate. He also interviewed another staff member who had contacted him during the investigation. It was his evidence that Ms Smith had given him a fairly specific account of the incident. He had been aware of allegations made by her in the past and had tested the veracity of the allegations against the Applicant by interviewing other people. He had spoken to Ms Smith’s flatmate, who was in her own bedroom at the time. Although the flatmate claimed to have seen the Applicant point her finger at Ms Smith, Mr McCallum had noted that she would not have had the necessary line of sight. The witness denied that there were widely divergent views of the incident, and stated that he had received reports from other staff that the Applicant had acted on other occasions in the manner alleged. He also noted that the Applicant had agreed that she has a loud voice, which she has raised inappropriately in the past, and that she waves her arms about when she speaks.
[42] Mr McCallum was asked about the Applicant’s explanation for the January incident, including whether it was appropriate for the Applicant to intervene to prevent one resident form hurting another, as she had claimed. Mr McCallum responded by noting that, while he did not accept that the incident described by the Applicant had actually occurred, given that both clients allegedly involved were frail and aged, he would expect that staff would find a way of dealing with the situation without resorting to verbal abuse. He further noted that the rooms in the house were not large and that some other method of intervention might have been more appropriate.
[43] When re-examined, Mr McCallum reiterated that according to his note of his conversation with the Applicant about the January incident she had not mentioned Lucy Blanchard being a witness to the event. He also agreed that his notes of the conversation recorded the Applicant as saying that she has a loud voice and that people complain about her loud voice.
[44] No statement of evidence was filed on behalf of the witness Adrian Elliot, another social educator employed at Rainbow Lodge. Leave was given for the Respondent to call Mr Elliot to give evidence about those matters involving him recorded in the statement of Mr McCallum. It was Mr Elliot’s evidence that in January 2011 he had witnessed the Applicant getting “quite angry and very frustrated” with one of the clients, Ms Smith, because she was refusing to eat her dinner. He could not recall the words used by the Applicant at the time but recalled that she raised her voice. It was his evidence that he reported the incident to Mr Hawes, the house manager, and to Mr McCallum.
[45] Mr Elliot’s evidence was that he has no knowledge of any allegation that Ms Smith had ever held a knife to a resident’s throat. Under cross-examination he conceded that he would not necessarily have known if such an incident had occurred.
[46] Ms Jessica Boza, another social educator with the respondent and the key worker for Ms Smith, was also called to give evidence. Leave was also granted for Ms Boza to give evidence as no witness statement had been filed. Ms Boza explained that her position as key worker for Ms Smith entailed looking after her health needs, her daily living environment and any medical needs that she has.
[47] It was Ms Boza’s evidence that in May 2011 Ms Smith complained to her, saying that she had been yelled at by the Applicant and told her that she was not to tell other staff members, and that if she did put in a complaint neither Daniel (Mr McCallum) nor Glen (the house manager) would listen to her. Ms Boza asked Ms Smith if she would like to make a formal complaint and when she said yes, she assisted her to fill out the form. She then informed Mr McCallum about the complaint.
[48] It was also the evidence of Ms Boza that the reason Ms Smith’s former flat mate was moved to the upper level of the house was because a room became available and she would be less controlled by Ms Smith. She was unaware of any allegations that Ms Smith had held a knife to the throat of her former flatmate or had threatened to stab someone. She indicated that, as Ms Smith’s key worker, she would be aware of any such incident.
[49] Under cross-examination Ms Boza agreed that Ms Smith had previously made allegations about staff members which had been found to be unsubstantiated. She denied that such allegations were made regularly. She noted that she had been Ms Smith’s key worker for nearly four years. She initially disagreed with the proposition that allegations made by Ms Smith about staff members could not be regarded as reliable, but conceded that she could not maintain that position given that the other allegations had been found to be unsubstantiated.
[50] Ms Bronwyn Howlett had filed a witness statement 37. She claimed to have varying degrees of familiarity with the clients of Rainbow Lodge. She was familiar with Ms Smith, having visited the house and spoken to her on a number of occasions. She was not aware of any allegations that Ms Smith had held a knife at the throat of her former flatmate or threatened to stab someone. She did not believe Ms Smith was aggressive, stating that she was more likely to become tearful if agitated.
[51] Under cross-examination Ms Howlett agreed that her witness statement was essentially a collection of evidence, largely company records, compiled by other people. She agreed she had no personal knowledge of the events which led to the termination of the Applicant’s employment. She also agreed that the conclusions contained in her witness statement were drawn from the reports upon which the statement was based.
[52] Ms Howlett was cross-examined about her statement and the conclusion that some of Ms Smith's allegations have not been substantiated. She explained that quite often it was Ms Smith's word against someone else's. Where that occurred the employer was not necessarily able to say definitively that what Ms Smith had said had occurred.
[53] When asked about complaints made by the Applicant during her employment, Ms Howlett said that she had been unaware of them at the time of the dismissal but was now aware of them. She had no involvement in those complaints.
[54] When Ms Howlett was asked who made the decision to dismiss the Applicant she replied that Mr McCallum would make a recommendation based on his investigation and then she would consult with the Chief Operating Officer and the head of HR about the response.
[55] It was Ms Howlett’s evidence that she was aware of the unsubstantiated complaints made by Ms Smith at the time the termination decision was made, and that all complaints were taken seriously and investigated. She stated that she did not believe that Ms Smith told lies, just that there was not always enough evidence to substantiate her allegations.
Applicant’s Submissions
[56] It was put for the Applicant that her dismissal was based on three incidents, all of which had been investigated by Mr McCallum, in the context of a number of complaints which the Applicant had made about workplace harassment and her basic entitlements. The Applicant denies the allegations put to her by the Respondent including that she verbally abused one of its clients and acted in a manner contrary to company policies.
[57] In relation to the August 2010 incident it was the Applicant’s submission that her evidence was to be preferred over that of Mr McCallum as the ‘discipline summary’ 38 (the only written record of the Applicant receiving a verbal warning) was created sometime after 30 May 2011 and he admitted under cross-examination that he has no independent recollection of “the specifics of what was said”. It was the Applicant’s submission that the fact there is no contemporaneous documentation in relation to the August 2010 incident suggests it was never brought to the attention of the Applicant and, as a result, she was not given a warning or an opportunity to respond to the allegations made against her.
[58] So far as the incident of 17 January 2011 was concerned it was put that the evidence indicated that the Respondent and the Applicant were talking about separate incidents. The only common thread between the Applicant’s recollection of what took place that day, and the incident supposedly witnessed by Adrian Elliot and Lucy Ballinger, is that the Applicant raised her voice at a client. According to the Applicant’s submission she had described a different event to the one which was the subject of the employer’s investigation because she was provided with insufficient details of the allegations made against her. Ostensibly for reasons of privacy and confidentiality she was not given sufficient detail to know what was alleged to have occurred.
[59] It was the Applicant’s submission in relation to the third incident that, in circumstances where the client who made the complaint against the Applicant has a history of making unsubstantiated allegations against staff members, there is a reasonable inference that the allegations had no sound basis. Without other supporting evidence, the Applicant claimed that Ms Smith’s allegations could not be substantiated.
[60] It was the Applicant’s submission that she was dismissed for alleged ‘serious misconduct’. It was put that there were two matters for determination by the Tribunal: first, did the conduct for which the Applicant was dismissed actually occur? Second, did the conduct amount to a valid reason for dismissal?
[61] The Applicant submitted that the events said to have occurred on 22 May 2011 simply did not occur. The only two witnesses of the incident were the occupants of the downstairs flat at Rainbow Lodge, Ms Smith and Tess. While the Applicant does not press the Tribunal to draw inferences from the Respondent’s failure to call these clients to give evidence, it is the submission of the Applicant that there is an onus on the employer to exercise caution in assessing the validity of allegations made by clients, particularly where a client has a history of making unverified allegations against staff. The Applicant submitted that the Respondent was only entitled to rely on the allegations of Ms Smith if there was other supporting evidence in addition to that of staff members based solely on statements made to them by Ms Smith.
[62] The Applicant submitted that the Respondent’s conclusions about the May 2011 incident rely on inferences drawn in part from how the Applicant is alleged to have behaved on other occasions, in particular the incidents that occurred in August 2010 and January 2011. According to the Applicant’s submission the basis for Mr McCallum’s inferences was flawed, as there was considerable doubt as to the version of earlier events relied on by the Respondent.
[63] It was the Applicant’s case that the true reason for her dismissal relate to complaints she had previously made to company management about workplace harassment, not being paid the correct shift penalties, and overtime. 39
Respondent’s Submissions
[64] The Respondent accepts that the Applicant is a person protected from unfair dismissal. It was the Respondent’s submission that the Applicant’s case depended upon the acceptance of her evidence and it was put that the Applicant was not a witness of truth. As evidence of the Applicant’s lack of credibility the Respondent relied primarily upon the Applicant’s assertion that Ms Smith had a history of violence, that she was evasive when questioned about her roster agreement, and that she provided inconsistent answers in relation to her job applications.
[65] It was noted by the Respondent that during her evidence 40 the Applicant had accused Ms Smith of having a history of hitting people and verbal abuse and had even claimed that Ms Smith had held a knife to a resident’s throat. It was put for the Respondent that these claims had never been raised by the Applicant previously. It was also submitted41 by the Respondent that the Applicant’s claims about Ms Smith’s behaviour became “more lurid” with each question put to her in cross-examination, and examples of this were set out in the Respondent’s submissions.42
[66] It was the Respondent’s submission that the Applicant’s claims about Ms Smith’s behaviour were not credible, given the clear evidence of the Respondent’s witnesses that they had no knowledge of any incident involving Ms Smith holding a knife to a resident’s throat, and that there was no truth in the Applicant’s claim that Ms Smith’s flatmate had been moved out of the flat as a consequence of Ms Smith’s threatening her with a knife. It was put for the Respondent that had such an incident occurred it would have been brought to the attention of at least three of its witnesses.
[67] So far as the proposed roster changes and the job applications were concerned the Respondent set out those parts of the Applicant’s evidence which, it submitted, substantiated its claim that the Applicant’s answers were evasive and contradictory, and indicative of her not being a witness of truth 43.
[68] Having canvassed the evidence in relation to the August 2010, January 2011 and May 2011 incidents given by the Applicant and by its own witnesses the Respondent submitted that there was a valid reason for the Applicant’s dismissal, particularly given the vulnerability of the clients for whom the Respondent provided services. In addition it was put that the evidence showed that the Applicant had been notified of the reasons for her dismissal and given a chance to respond to those reasons. Finally, it was submitted that the dismissal of the Applicant had not been unfair.
Consideration
[69] In determining whether the Applicant was unfairly dismissed I am required to take account of the matters set out in s387 of the Act.
Section 387(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)
[70] Having heard the evidence of the witnesses in this matter I am satisfied that there was a valid reason for the termination of the Applicant’s employment. The Applicant did not take issue with the Respondent’s decision not to call as witnesses the clients involved in the incident that occurred on 19 May 2011. I am satisfied that the evidence gathered by Mr McCallum during his investigation of the allegation made against the Applicant was sufficient for him to conclude that the Applicant had engaged in the conduct alleged. Having reviewed that evidence, and having heard the evidence of the Applicant and Ms Boza I am satisfied, on the balance of probabilities, that the Applicant did raise her voice at Ms Smith and tell her that it would not matter if she complained to either of the managers as they would not believe her. I found the Applicant an unconvincing witness. I do not believe that Ms Boza fabricated the report she made concerning Ms Smith’s complaint and I do not believe that the complaint was fabricated by Ms Smith.
[71] It is my assessment that the conduct attributed to the Applicant by Ms Smith, reported through Ms Boza, was consistent with behaviour exhibited by the Applicant on other occasions and witnessed by other staff. I accept the evidence of Mr Elliot about the Applicant’s aggressive conduct in the kitchen in January 2011. Mr Elliot was sufficiently disturbed by the Applicant’s behaviour to make a formal complaint at the time, and there was no evidence to suggest that the witness had any reason to fabricate the complaint against the Applicant. I found the Applicant’s evidence about that incident unconvincing, contradictory and ultimately not credible. I believe the story put forward by the applicant when challenged about the January incident was fabricated in an attempt to deflect criticism of her behaviour. The evidence concerning the complaint made by another resident in August 2010 was consistent with the behaviour alleged against the Applicant in January and May 2011. The allegations were made by different people, two by different clients and one by a staff member.
[72] I found the Applicant a less than credible witness. I accept the evidence of the respondent’s witnesses that they had no knowledge of any such incident involving Ms Smith threatening a client with a knife and that, had such an incident occurred, they would have come to their attention. The Applicant called no other staff member to support her claims, nor did she raise such serious allegations (threatening with a knife) with her employer during the investigation. In the circumstances I do not accept the Applicant’s evidence that Ms Smith demonstrated violent behaviour in the past. It appears that the Applicant was prepared to fabricate stories about Ms Smith in order to attempt to excuse her own behaviour.
Section 387(b): Whether the person was notified of that reason
[73] I am satisfied that the Applicant was notified of the reason for her dismissal.
Section 387(c): Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[74] On the evidence before me I am satisfied that the Applicant was given an opportunity to respond to the reason relating to her conduct that was the basis for the decision to terminate her employment. Two separate meetings were held with the Applicant following the lodging of the complaint on behalf of Ms Smith. The Applicant was advised of the detail of the complaint by Mr McCallum at the first meeting. She responded in some detail with her version of the events of 22 May 2011.
Section 387(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
[75] I accept the evidence of Mr McCallum that he advised the Applicant that she could have a support person with her at the meetings. I also accept his evidence that he did not tell the Applicant that she could not bring her solicitor but advised her that her support person would not be able to speak on her behalf. While there may be some grounds for a finding that the Applicant was refused a support person to “assist” in the discussions about termination I do not believe that this affected the outcome of those discussions.
Section 387(e): If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal
[76] The reason for the dismissal was the Applicant’s conduct towards a resident on 19 May 2011. It did not relate to any unsatisfactory performance. This was clear from the evidence of the employer.
Section 387(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
[77] I am satisfied that the size of the employer’s enterprise did not impact on the procedures followed in effecting the dismissal. I find no defect in the process that was adopted.
Section 387(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
[78] The Respondent has dedicated human resource management expertise and the evidence was that this expertise was drawn upon for the purpose of carrying out the procedures that were followed in effecting the dismissal.
Section 387(h): Any other matters that Fair Work Australia considers relevant
[79] While termination of employment might in other situations seem a harsh reaction to a staff member raising their voice unnecessarily to a client, given the nature of the employment and the particular vulnerability of the clients of the Respondent in this matter I take the view that the dismissal was the only avenue available to this employer.
[80] An employee occupying a position such as that occupied by the Applicant must have the total confidence of their employer. An employer cannot take the risk of leaving an employee in charge of vulnerable clients where there is a reasonable concern that the employee may not react appropriately in all situations. An employer providing the services of carers to clients such as those the employer in this case, are so dependent on their carers, a reasonable belief, supported by evidence, that a carer has a short temper, reacts immoderately to minor provocations, or acts in a way that could be construed as an abuse of their position, is a valid reason for the termination of that person’s employment.
Conclusion
[81] Having taken into account all those matter set out in s387 of the Act it is my determination that the termination of the Applicant’s employment was not harsh, unjust or unreasonable. Consequently, given that the dismissal was not unfair the application for a remedy is dismissed.
COMMISSIONER
Appearances:
Mr Philip Blaxell, Blaxell Liberty Lawyers Pty Ltd, for the Applicant.
Mr Bruce Miles, of Counsel, for the Respondent.
Hearing details:
2011.
Sydney:
September, 8.
Final written submissions:
Applicant: 29 September 2011.
Respondent: 12 October 2011.
1 Transcript PN337. See also Transcript PN621-PN632.
2 Transcript PN195.
3 Transcript PN22.
4 Exhibit D1
5 Exhibit D1 at paragraph 4. See also Transcript PN52, PN55, PN61-PN63, PN429-PN430.
6 Transcript PN96.
7 Transcript PN85.
8 Exhibit D1 at paragraph 8.
9 Annexure D to Exhibit D1.
10 Annexure A to Exhibit D1.
11 Transcript PN162-PN163.
12 Annexure B to Exhibit D1.
13 Annexure C to Exhibit D1.
14 Transcript PN37, PN57-PN58 and PN238-PN239.
15 Exhibit D1 at paragraph 19.
16 Exhibit D1 at paragraph 29. See also Transcript PN106.
17 Transcript PN173-PN186.
18 Transcript PN21.
19 Transcript PN250-PN254.
20 Transcript PN269-PN270.
21 Transcript PN280-PN322.
22 Transcript PN230-PN232 and PN314.
23 Transcript PN320-PN322.
24 Transcript PN424-PN426.
25 Annexure B to Exhibit S2.
26 Transcript PN497
27 Transcript PN490-PN493.
28 Transcript PN505-PN510.
29 Transcript PN516-PN519.
30 Transcript PN525.
31 Transcript PN533.
32 Transcript PN546.
33 Transcript PN551-PN555.
34 Transcript PN562.
35 Transcript PN597.
36 Exhibit S1
37 Exhibit S3
38 Annexure C to Exhibit S2.
39 Exhibit D1 at paragraphs 29 and 32.
40 Transcript PN71
41 Respondent’s Closing Submissions at paragraph 22
42 Ibid
43 Ibid at paragraph 17
Printed by authority of the Commonwealth Government Printer
<Price code C, PR517404 >