| [2017] FWC 20 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Colleen Moody
v
TriCare Limited T/A TriCare
(U2016/13012)
COMMISSIONER SIMPSON |
BRISBANE, 31 MARCH 2017 |
Application for relief from unfair dismissal – Allegations of Misconduct – Finding Misconduct occurred – Dismissal not harsh, unjust or unreasonable – Application dismissed.
[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mrs Colleen Moody who alleges that the termination of her employment with TriCare Limited T/A TriCare (TriCare) was unfair.
[2] Mrs Moody is 59 years of age. 1 Mrs Moody submitted she commenced employment as a personal carer on a permanent part time basis and her hours were 69.25 a fortnight.2 She worked from 11 September 2007 to 13 October 2016. There is no dispute Mrs Moody satisfied the minimum employment period required in order to bring the application.
[3] Mrs Moody claims that her dismissal was unfair because she disputes allegations of misconduct made against her by TriCare. TriCare alleges Mrs Moody was terminated as she engaged in behaviour that resulted in serious breaches of the code of conduct and Charter of Rights and Responsibilities of Care.
[4] The matter was heard at the Bundaberg District Courthouse on Wednesday 22 February 2017. Mrs Moody was represented by Mr Ebert of Finemore Walters and Story Solicitors. TriCare was represented by Mr Merrell of Counsel. Both parties were granted leave to be represented in accordance with s.596. 3
[5] Mrs Moody was the only person to give evidence in support of her application and filed two witness statements. 4 TriCare called five witnesses who provided statements, namely Mr Stephen Wheeler5, Ms Lauren Hart6, Ms Frances Beare7, Mr Christopher O’Brien8 and Mr Daniel Aitchison.9
[6] Submissions were filed on behalf of Mrs Moody in the course of the hearing. TriCare filed an outline of argument on 3 February 2017, and a further outline of argument with respect to remedy in the course of the hearing.
[7] TriCare sought an order pursuant to s.594(1) of the Fair Work Act 2009 prohibiting the publication of a resident’s name, who was not a party to the matter and who was named in the course of the evidence. This application was not opposed and was granted.
[8] TriCare claims that on 17 September 2016, Mrs Moody entered the room occupied by two residents who will be identified in this decision as resident A and resident B. After entering the room, resident A engaged in a conversation with Mrs Moody about the manner in which she opened the curtains and turned on lights while he was resting.
[9] TriCare alleged that during this conversation Mrs Moody was argumentative, rude and aggressive and at times raised her voice.
[10] Ms Hart, a Registered Nurse currently employed as an Aged Care Funding Instrument Documentation Co-ordinator at the Bundaberg TriCare facility, gave evidence that on 17 September Mrs Moody approached her and looked flustered. Ms Hart said Mrs Moody told her that earlier in her shift she had a conversation with resident A that got heated. Ms Hart said Mrs Moody told her that it was regarding a curtain in the room and that resident A had demanded that she tell him everything that she was doing in the room. 10
[11] Mr Steven Wheeler, TriCare’s Facility Manager at Bundaberg, gave evidence that resident A has a medical diagnosis of Parkinson’s Disease, and is categorised as a high care resident with a range of specific medical issues. 11 Mr Wheeler said on the afternoon of Friday 23 September 2016, resident A attended his office and asked to speak to him about Mrs Moody. Mr Wheeler said resident A told him he had made a recording on his mobile phone of a conversation that had taken place between himself and Mrs Moody the previous weekend, and had done so as Mrs Moody had previously been rude and abusive toward him.12 Mr Wheeler listened to the recording and by agreement with resident A took a copy of it.
[12] Mr Wheeler sought and obtained advice from Mr Aitchison, the Aged Care Manager at TriCare, to stand Mrs Moody down on full pay while the matter was investigated. Mr Wheeler said he made a number of attempts to contact Mrs Moody that day, prior to her next rostered shift which was to commence the following day Saturday 24 September at 10:00pm. As Mrs Moody did not answer or return Mr Wheeler’s calls, Mr Wheeler said he made a decision that the Registered Nurse on duty, Ms Lauren Hart would ask Mrs Moody to attend the office on her arrival at work and he would inform Mrs Moody by phone of the allegations and the stand down decision. 13
[13] In relation to the meeting on 24 September 2016, Mrs Moody submitted that upon arriving to work, Ms Hart advised Mrs Moody that she needed to follow her to a room so she could call Mr Wheeler. Mrs Moody submitted that Ms Hart did not advise Mrs Moody what the meeting was about. 14 Mrs Moody accepted that Mr Wheeler said to her over the phone that a serious allegation had been received from a care recipient involving her and she was to be stood down immediately pending an investigation.15
[14] Mrs Moody said in her witness statement that when Mr Wheeler informed her she had been stood down, she asked Mr Wheeler for reasons why. Mrs Moody submitted Mr Wheeler said words to the effect of “you will find out in due course”. Mrs Moody submitted she left the TriCare premises as instructed, however did not yet know that this was about her conversation with resident A. 16 It was put to Mrs Moody that she demanded to know more about the allegation and the identity of the care recipient, and shouted at Mr Wheeler over the phone. Mrs Moody denied that.17 She denied she hung up the phone, but accepted that Mr Wheeler had rung her back.18 She accepted when Mr Wheeler rang back she asked for more details but denied she was upset and angry or that she hung up the phone a second time.19 She accepted that Mr Wheeler said to her that a serious allegation had been received and there would be an investigation and he asked her if she understood.20
[15] Mr Wheeler’s evidence is that Mrs Moody raised her voice to the point of shouting towards him and twice hung up on him. Ms Hart corroborated Mr Wheeler’s evidence that Mrs Moody was angry and raised her voice at Mr Wheeler and also hung up twice. 21 In her oral evidence she accepted that Mrs Moody could have been agitated and flustered.22
[16] Ms Hart also asserted that after the phone call concluded, she told Mrs Moody that she was required to leave the premises and Mrs Moody refused to leave, shouted at her, pointed her finger repeatedly at Ms Hart for 20 minutes and demanded to know what the matter was about. Ms Hart said she informed Mrs Moody she needed to talk to Mr Wheeler about the matter on Monday. 23 Mrs Moody denied that she refused to leave or that she demanded Ms Hart tell her what the matter was about, but accepted she asked Ms Hart prior to leaving. She denied she was shouting or pointing her finger.24 Ms Hart in oral evidence said Mrs Moody stayed for between 10 and 20 minutes.25
[17] Mrs Moody submitted that during this meeting she felt intimidated and flustered as she was unable to attend with a support person due to no notice being given. She submitted she felt ambushed when she arrived at work that day. 26
[18] In relation to a letter dated 26 September 2016 27 Mrs Moody submitted she was not provided with a copy of the Code of Conduct as part of TriCare’s investigations.28
[19] The letter outlined the alleged breaches of TriCare’s policies and procedures and was sent from Mr Wheeler. The letter outlined the incident that occurred on 17 September 2016 where Mrs Moody allegedly breached the Code of Conduct, Charter of Rights and Responsibilities of Care Recipients and constituted care recipient verbal abuse.
[20] Mrs Moody confirmed she received it and read it at her residence. 29 Mrs Moody accepted that she read that the letter invited her to arrange a witness to be present and she would not be required to respond to the allegations at the meeting, but that she would be required to provide a written response.30
[21] The letter stated that whilst an investigation into the incident took place, Mrs Moody would be stood down from duty with pay. The letter further stated that a written response was required of Mrs Moody by close of business on 5 October 2016. The written response was then to be discussed at 2pm on 6 October 2016 at a meeting, to which Mrs Moody was able to bring a witness or representative.
[22] In relation to the meeting on 28 September 2016, Mrs Moody submitted that she asked if Ms Hart could attend the meeting to act as her support person. Mrs Moody submitted she had no one else close to her who could attend. Mrs Moody submitted that Mr Wheeler told her “no”, and said words to the effect of “if you know Lauren’s phone number you can have her”. 31
[23] In oral evidence Mrs Moody accepted that Mr Wheeler contacted her after she had received the letter and arranged a meeting for 28 September. She agreed that she said to Mr Wheeler she had wanted Ms Hart to be her witness but denied Mr Wheeler had advised her to contact Ms Hart herself. 32 She accepted she could have sought to contact Ms Hart herself when Ms Hart was at work.
[24] Mr Wheeler and Ms Beare met with Mrs Moody on 28 September. Mrs Moody was handed a letter setting out in detail the specific allegations raised by resident A, including 19 specific statements Mrs Moody was said to have made to resident A before and after him asking Mrs Moody to let him know before she turned the light on when he is resting. 33
[25] Mrs Moody submitted that the show cause letter stated that an audio recording existed of a conversation between herself and resident Aon 17 September 2016. Mrs Moody submitted she asked to hear the audio recording multiple times during the meeting on 28 September 2016 however each time was told “no”. 34 Mr Wheeler denied that Mrs Moody was told that there was a recording at that stage.35 Ms Beare was adamant there was no discussion of an audio recording at this meeting.36
[26] Mrs Moody submitted that she prepared a hand written response to the letter dated 28 September 2016 to the best of her limited recollection of the events which was drafted without independent advice, legal or otherwise. 37
[27] The meeting of 6 October was attended by Mr Peter Worboyes, the Operations Manager and Ms Beare. Mrs Moody accepted she did not request a support person to attend. Mrs Moody accepted the allegations were read out one at a time and her response was given to each allegation. 38 Ms Beare supported this evidence.39
[28] Mrs Moody provided her written response to TriCare. Mrs Moody asserted in her oral evidence that at the meeting on 6 October she asked to listen to the tape recording and that this request was denied. 40 It was put to Mrs Moody that there was no discussion at the meeting about a tape recording, however she maintained there was. It was put to her that she was confusing the 6 October meeting, with a later meeting , however she continued to maintain it had been mentioned at an earlier point. Mrs Moody asserted in oral evidence that the recording was referred to in correspondence received from Mr Wheeler, but it is apparent from reading the correspondence this is not correct.41
[29] Mrs Moody’s response letter responded in numerical order to the each of the 19 statements she was alleged to have made to resident A in the letter provided to her of 28 September. 42 It was put to Mrs Moody during cross examination that she knew exactly what was alleged against her, however she responded that she had not heard the recording.43
[30] Mrs Moody accepted that she recalled being asked by Mr Worboyes if she had raised her voice to resident A and she had responded she hadn’t. 44 Ms Beare’s evidence was that in response to a question from Mr Worboyes, she denied raising her voice or speaking in an offensive manner to the resident, and it was the resident who used the words and had told her not to be a “smart arse”. It was put to her during her oral evidence, that she claimed in the meeting it was resident A who had used offensive language and she said she wasn’t sure.45
[31] Mrs Moody’s statement said she attended a meeting on 11 October 2016 with Mr Peter Worboyes, Mr Chris O’Brien and Mr Andrew Knox and during this meeting, a ‘termination of employment’ letter was given to Mrs Moody from TriCare. It was later clarified that this meeting was in fact on 13 October and the attendees were Mrs Moody, Mr Chris and Mr Daniel Aitchison, the Aged Care Manager; and Mr Worboyes and Mr Knox were not present. When this was put to Mrs Moody in oral evidence she said she was not sure. 46
[32] It was not in dispute that Mrs Moody was offered an opportunity to have a support person present at this meeting and she elected not to. 47
[33] Mr O’Brien gave evidence that the ultimate decision to terminate Mrs Moody fell to Mr Aitchison. Mr Aitchison accepted that as correct. 48 Mr O’Brien said Mr Aitchison explained to Mrs Moody that TriCare had considered her responses and made the decision that her conduct was so serious that her employment would be terminated, and Mr Aitchison then provided the letter of termination to her.49
[34] Mr O’Brien said Mr Aitchison then explained that the decision was based on a number of matters including Mrs Moody’s denial of the allegations, the conclusive evidence of the conversation and the seriousness of the complaint by resident A, including how she spoke to resident A and what she said. Mr O’Brien said it was explained that TriCare had a zero tolerance to resident abuse and with such clear evidence of what occurred, it was decided to terminate Mrs Moody’s employment. 50
[35] Mr O’Brien said that early in the meeting that he explained to Mrs Moody that TriCare had a taped recording of the exchange between herself and resident A.
[36] The termination letter stated that the allegations made against Mrs Moody were substantiated and therefore Mrs Moody’s employment was terminated as TriCare felt no other option was viable for her conduct, which constituted serious misconduct. TriCare stated in the letter that in light of the evidence and Mrs Moody’s complete denial of the allegations, there has been a complete breakdown of trust and confidence in Mrs Moody as an employee.
[37] Mrs Moody agreed that the meeting went for somewhere between 45 minutes and an hour. 51 Mrs Moody submitted that during the meeting she wanted Ms Hart there as her support person, however based on Mr Wheeler’s abrupt response to her request during the first meeting she felt that she was unable to ask again. Mrs Moody submitted she did not ask for Ms Hart to attend as she was scared that the response she would receive would have been aggressive.52 Mrs Moody said she was not sure if Mr Aitchison had invited her to organise a support person to be present.53
[38] Mrs Moody submitted the meeting was very intimidating with all parties being very condescending and the conversation was one sided. Mrs Moody felt that she was not allowed a chance to respond. 54
[39] Mrs Moody agreed that in the course of the meeting she was taken through the content of a letter dated 11 October provided to her at the meeting. 55 Mrs Moody rejected the proposition that this meeting was the first time that she had been made aware there was a tape recording of the conversation with resident A.56 Mrs Moody agreed that Mr O’Brien said that TriCare had a tape of the conversation.57 In re-examination when Mrs Moody was given an opportunity to clarify her evidence concerning when she believed she first became aware of the existence of a tape, her evidence was vague and appeared unclear on the point.58
[40] Mrs Moody submitted she did not have the benefit of hearing the evidence (i.e. the audio recording) prior to filing this application. She further submitted that when her solicitors served the application on TriCare they requested the audio recording, however their request was denied. Mrs Moody submitted the audio recording was only provided after the conciliation when ordered by the Commission. 59
[41] Mrs Moody appeared to accept that Mr Aitchison and Mr O’Brien explained to her that they believed the tape recording was conclusive evidence of the conversation, that the Bundaberg residence was resident A’s home, and it was TriCare’s duty to care for the frail and vulnerable care recipients such as resident A. 60
[42] Mrs Moody accepted that it was said to her that resident A had Parkinsons Disease, he was entitled to make complaints, and TriCare was required to consider those complaints. 61
[43] The Form F2 Unfair Dismissal application filed on behalf of Mrs Moody advised that Mrs Moody disputed that she spoke to resident A in a rude or derogative tone of voice and claimed that a number of comments alleged by the resident were disputed. Further it was said in the application that a number of the actions raised by the resident were undertaken for the benefit of the resident’s roommate.
[44] Mrs Moody claimed in her written response provided to TriCare at the meeting on 6 October that upon entering the room with resident B (resident A’s roommate) she tried to talk softly to her co-worker to not disturb resident A. Mrs Moody stated that her speaking softly to her co-worker might have sounded like she was talking to herself and claims that to resident A it might sound like she was mumbling.
[45] Mrs Moody stated in her response of 6 October that it was resident A that stated “not to be a smart arse and told us that we had to tell him everything that we were doing with (resident B)”. Mrs Moody in her response denied she said to resident A “hey, every day you have to whinge about one of the staff” and “every day you are ignoying (sic), you whinge about staff”.
[46] Mrs Moody replied to TriCare’s claim that she said to resident A “it’s none of your damn business” that she had already informed resident A that herself and her partner were providing care for resident B. Mrs Moody in her response denied that she said “well you accuse staff of pulling curtains”. Mrs Moody claimed the curtains are at times pushed back to produce light for the safety of residents as there are obstacles in the way of staff.
[47] Mrs Moody in her response agreed with TriCare’s allegation that she had switched on the light in resident A’s room and he was informed that more light was required in order to provide care to resident B. Mrs Moody claimed that resident A stated in an angry tone “if I do not want the big light on you will not turn it on, if you want to turn it on you would have to tell me”.
[48] Mrs Moody claimed that with regard to the allegation of saying to resident A “Because, hey, his table was there and I had to move his table [with aggressive tone]” this incident was in relation to when Mrs Moody pulled the curtains back so that resident B could get into the room.
[49] Mrs Moody accepted that the position description attached to the statement of Mr Wheeler 62 was the position description that applied to her role.63 Mrs Moody accepted that each resident had a written personal care plan kept on the back of the doors of resident’s rooms.64 Mrs Moody accepted that the care plans set out some behaviours of residents to assist in providing care for them.65
[50] Mrs Moody accepted she was familiar with the TriCare Code of Conduct and had received refresher training in the Code of Conduct once a year. 66 Mrs Moody also accepted that she was required to adhere to the Charter of Care Recipients Rights and Responsibilities - Residential Care (the Charter), and that she received refresher training in the Charter once a year.67
[51] Mrs Moody accepted that training in both the Code of Conduct and Charter was known as essential training and if a employee could not attend the course each year they would not be rostered for work until they had completed the training. 68
[52] The Code of Conduct includes the following:
“Employee performance whilst on duty at all times will demonstrate;- Compliance with the CHARTER OF CARE RECIPIENTS’ RIGHTS AND RESPONSIBILITIES – RESIDENTIAL CARE Aged Care Act 1997, Schedule 1 User Rights Principles 2014
(i) Courteous communication at all times
(ii) Willingness to assist each other in any way possible
(iii) Dignified, subdued verbal communication that excludes raised voices or shouting except in the case of emergency
(iv) Language that is free of words and phrases that are commonly known as uncouth and/or vulgar
(v) Actions and words that are gentle, courteous, dignified, respectful.
Whilst employees are on TriCare premises, they must not;-
(i) Engage in behaviour commonly defined as bullying or harassment
(ii) Swear at another person
(iii) Speak to another person in tones louder than that of normal conversation (except in the case of hearing impairment)
(iv) Call another person names or use insulting comparisons to describe their behaviour or appearance
(v) Hit, kick, push, handle roughly, physically harm, or inflict other physical action that is commonly accepted as assault, violence, or harassment on another person.
In the event that these or similar actions occur, verbal and/or physical abuse, or harassment, will be alleged and the employee will face disciplinary action according to Human Resources policy which may result in discipline or termination of their employment…..”
[53] The various elements in the Code of Conduct were put to Mrs Moody and she accepted she knew she was required to conduct herself in conformance with the Code prior to her termination. 69 Mrs Moody gave similar evidence with regard to the Charter.70
[54] Mrs Moody accepted in the case of some residents with mental health issues including dementia becoming verbally aggressive, she is still required to comply with the Code. 71
[55] Mrs Moody said in her witness statement that she has now had the opportunity and benefit of listening to an audio recording of the conversation relevant to these proceedings. 72 Mrs Moody said she heard the audio tape of the conversation between resident A and herself for the first time about two weeks before the hearing itself.73 Mrs Moody did not dispute it was her voice on the audio tape.74
[56] Mrs Moody submitted that she now acknowledges the conversation that occurred between herself and resident A, and has never denied that this conversation had occurred. Mrs Moody submits she filed an incident report verbally with Ms Hart after the incident occurred, within approximately one hour. Mrs Moody submitted Ms Hart did not advise her if she needed a written report to be completed. 75
[57] Mrs Moody submitted that at the time of the conversation occurring, she was aware of, or at least held a reasonable belief that resident A had been making continuous frivolous complaints about TriCare staff and that he would regularly be abrupt and arrogant with staff. 76
[58] Mrs Moody submitted that the incidents which made her nervous and somewhat cautious around resident A were:
“(a) Continual verbal annoyance while attending to [resident B] (i.e. continually asking staff what they are doing to [resident B] in a manner to hurry them up and get the staff out of the room, refusing to cooperate, such as moving, while staff are attending to [resident B]);
[59] Mrs Moody accepted in relation to (c) above that matter came to her second hand. 78 Mrs Moody also accepted in relation to (d) she did not see resident A try to kick the night nurse, however said she was in the room when he stated that he would.79 Mrs Moody accepted that the examples she gave set out above were not an excuse to breach the Code of Conduct.80
[60] Mrs Moody accepted during oral evidence that a symptom of Parkinsons Disease can include anxiety and depression. 81 Mrs Moody indicated she had been providing care for resident A for in the order of 12 months.82 Mrs Moody accepted that she knew Resident A was suffering from Parkinsons Disease as at 17 September 2016.83 Mrs Moody was asked whether she knew on 17 September 2016 that resident A had undergone two knee replacements and she indicated she knew he had some procedure on his knees.84 Mrs Moody also accepted she was aware he was suffering from acute shoulder pain85 and that he suffered from anxiety.86 Mrs Moody accepted that after resident A’s Parkinsons Disease became more pronounced he required more assistance to move around.87
[61] Mrs Moody submitted there was a separate incident, in or about July 2016, involving another resident where she was punched in the face, smashing her glasses. This made her feel unsafe at work at times and since then she had felt on edge while dealing with some of the residents who are known for being arrogant and stubborn. TriCare paid for her replacement glasses. Mrs Moody accepted she did not raise with Mr Wheeler, Ms Beare or Ms Hart that she felt unsafe working at TriCare after this incident. Mrs Moody indicated her team leader dealt with the situation by reporting the incident. 88 It was put to Mrs Moody that she had never mentioned to anyone that she felt nervous or cautious around resident A. She claimed she had mentioned it to her team leaders but accepted she had never raised it with Mr Wheeler, Ms Beare or Ms Hart.89
[62] In her first witness statement Mrs Moody submitted that upon entering the room on 17 September 2016 she was already on edge due to the previous verbal intimidation by resident A. She claimed she entered the room with Ms Edith Casey, her partner carer, sometime during the middle of the day. Mrs Moody submitted she recalled that Ms Casey was not present during the entire conversation with resident A. Mrs Moody submitted when this matter was first raised by management she believed this to be a different staff member. 90
[63] The audio recording made by resident A was played during the hearing when Mrs Moody was giving her evidence. Mrs Moody was taken to a transcript of the audio recording attached to the statement of Mr O’Brien. 91 I am satisfied having listened to the audio recording that the transcription attached to the statement of Mr O’Brien accurately records the oral exchange that took place between Mrs Moody and resident A.
[64] In her statement Mrs Moody submitted that upon entering the room she needed to adjust the partition curtains to give her access to the toilet for resident B and also for his privacy during this process. Mrs Moody submitted that as she pulled the curtain for resident B, resident A began to berate her about this and she responded. 92
[65] It was put to Mrs Moody that she said to resident A “I beg your pardon, hey, I’m talking to myself; I’m not talking to you. Just mind your own business” in a raised voice. Mrs Moody accepted in oral evidence that her voice sounded raised. 93 This is inconsistent with what she said in her written response in the course of the investigation where she claimed she was trying to talk softly.
[66] Mrs Moody said in her witness statement that the reason her tone was “terse and somewhat abrupt” was because she was on edge because of abuse from resident A previously directed towards herself and other staff. 94
[67] It was put to Mrs Moody that she said to resident A “Hey, I am allowed to mumble, if you don’t like it tough titties.” It was further put to her that this was uncouth and vulgar. In her response of 5 October she claimed she was trying to talk softly to her partner and did not use words like that. In her oral evidence Mrs Moody said she did not find these words uncouth and vulgar, 95 and when it was put to her that she denied saying these words she responded that she had not heard the tape at the time.96 It is clear the response provided by Ms Moody on this point during the investigation was not correct.
[68] Given that Mrs Moody reported the incident to Ms Hart immediately after the exchange with resident A it is seems unlikely that Mrs Moody would not have recalled she had said this to resident A when it was put to her approximately 2 weeks later.
[69] In her response of 5 October Mrs Moody denied saying “Don’t be a smart-arse” to resident A and alleged that resident A had said the words to her. Mrs Moody accepted during her oral evidence that when she said to resident A “Don’t be a smart-arse” that could reasonably be described as uncouth and vulgar. 97 It is clear the response provided by Ms Moody on this point during the investigation was not correct. Again, it seems unlikely Mrs Moody would have not recalled saying this, and mistakenly recalled resident A said it. Her letter of 5 October responded directly to the allegation.
[70] It was put to Mrs Moody that when she said to resident A “Hey, every day you have to whinge about one of the staff” it was said in an aggressive way. Mrs Moody responded that she did not think so. 98 Mrs Moody rejected the suggestion that when she said to resident A “Every day you are ignoying (sic), you whinge about staff” it was in an aggressive way.99
[71] It was put to Mrs Moody that she said to resident A “Its none of your damn business” in a raised voice and in an aggressive way which she rejected. 100
[72] It was put to Mrs Moody that she said to resident A in an aggressive way “Well you accuse staff of pulling the curtins.” She rejected that. 101
[73] In the course of her evidence the same pattern of cross examination continued with regards to the list of statements, as set out below, and made to resident A by Mrs Moody as part of exchanges between them, and that she addressed resident A variously, either in a raised voice and/or aggressively and was uncouth toward him:
● “He is allowed to have the light on and so am I to see what I am doing. It’s his part of the room.”
● “Hey, I come in because this is his side of the room and if I wanna put the light on for him I will.”
● “I do not have to let you know that I am putting the light on.”
● “Hey when we attend to (resident B) I don’t have to tell you a damn thing.”
● “I don’t care.”
● “Hey, I don’t have to tell you what we’re doing with him.”
● “Because hey, his table was there and I had to move his table.”
● “Hey, you had this here, here, you had your wheelchair sitting here when we need to attend to him, to stand him up.”
● “Oh, just don’t”.
● “Put a sock in it.” (twice)
● “I imagine all this do I”.
● “Oh don’t be a smart-arse all the time.”
● “I just said that if was attending to him we don’t have to tell you a damn thing about another resident.”
● “I beg your pardon.”
● “Hey, he has, when we pull him back through the shower.”
[74] Mrs Moody for the most part rejected the proposition that she had spoken in a raised voice, been aggressive or had not been courteous. 102
[75] However when it was put to her that she had not all times used dignified, subdued communication she responded with “I suppose not”. 103 She also accepted that there was no excuse for her to have said to resident A “If you don’t like it tough titties”, “Don’t be a smart-arse” or “put a sock in it”.104 When it was put to Mrs Moody again that she had spoken to resident A in an aggressive way she responded with “I don’t know”.105
[76] Mrs Moody accepted the proposition that resident A was asking her to show a bit of courtesy and not to just come in and turn the lights on and open the curtains when he was asleep. 106
[77] Mrs Moody submitted that it was not in her usual practice, during her 18 years in the nursing industry to speak in such an abrupt manner. She submitted the conversation in the audio recording was uncharacteristic of her. Mrs Moody submitted that the extent of the conversation went for about four minutes and she did not use any profanities. 107
[78] The discrepancies between Mrs Moody’s letter of 5 October and what was borne out as the true nature of the exchange on the tape recording played in the hearing are substantial. Mrs Moody was taken to a further example during her oral evidence where in the letter of 5 October she denied having said to resident A to “put a sock in it”, however it is clear from the tape recording she did so twice.
[79] In re-examination Mrs Moody claimed she spoke to resident A in a normal voice, and that maybe her level of pitch might have gone up a little bit. I disagree. On having listened to the tape recording it is my view Mrs Moody’s tone was aggressive.
[80] Mr O’Brien gave evidence that TriCare made a decision that the audio recording was not to be provided to Mrs Moody given resident A’s fear of retribution, and instead TriCare provided detailed allegations based upon the audio recording. 108
[81] Mrs Moody was bound by TriCare’s Code of Conduct which provided that, whilst on duty, Mrs Moody had to use dignified, subdued verbal communication, excluding raised voices or shouting except in the case of an emergency, that her language was free of words and phrases that are commonly known as uncouth and/or vulgar and that her actions and words should be “…gentle, courteous, dignified and respectful”.
[82] In submissions it was put for Mrs Moody that she acknowledges that the conversation with resident A was not appropriate, however that is not enough to justify dismissal and ought to have been dealt with by an alternative method given her length of service and good disciplinary record. It was said Mrs Moody was at least in part provoked or wound up by resident A.
[83] It was said in response to TriCare’s conclusions about Mrs Moody not being honest in the course of the investigation, that the evidence does not suggest direct lies, but rather confusion or lack of recollection. I am satisfied on the evidence that during the conversation between Mrs Moody and resident A on 17 September 2016, Mrs Moody’s verbal communication was not subdued and at times her voice was raised, her language included uncouth and vulgar language and her words and tone of voice were not courteous, were not dignified and were not respectful. I am also not inclined to accept that Mrs Moody was merely confused or lacked recall of the exchange. As already discussed above, she raised the exchange with Ms Hart on the same day, and specific allegations were put to her only 11 days later. It is unlikely her recollection of the conversation would be so poor as claimed.
[84] TriCare submitted there was a valid reason for Mrs Moody’s dismissal, due to the abusive manner and tone in which she spoke to resident A on 17 September 2016. This was a breach of the Respondent’s Code of Conduct. Mrs Moody submitted that even if her actions are taken to amount to a breach of the Code of Conduct, her actions did not justify dismissal as she has a strong work history and has not previously been the subject of any disciplinary actions.
[85] The recording is clear evidence that Mrs Moody behaved in an unprofessional manner towards resident A. The language and tone of her voice were unacceptable. Residents in aged care facilities are in a position of great vulnerability, with care staff being in a position of power. Mrs Moody’s conduct was in clear breach of the Code. The Commission as well as the community expect that employers engaged in residential aged care will maintain high standards consistent with the objectives set out in TriCare’s Code of Conduct and the Charter Of Care Recipients’ Rights And Responsibilities – Residential Care Aged Care Act 1997, Schedule 1 User Rights Principles 2014. In the circumstances it is fair that TriCare took the approach it did. Mrs Moody ought to have known that this position would be taken by her employer, especially given her training and experience.
[86] Mrs Moody has also not provided any reasonable explanation for her behaviour, other than that she was “on edge” due to her allegation that she had been the subject of abuse from resident A. Mrs Moody has not provided evidence of any such abuse from resident A. Mrs Moody had never raised this issue with management with the exception of a discussion with Ms Hart immediately following the incident on the day. The audio recording of the exchange does not reveal any justification for Mrs Moody’s reaction on the day. In any event, Mrs Moody had been trained in the appropriate way to respond to challenging behaviour from a resident. Mrs Moody has engaged in misconduct that amounts to a valid reason for dismissal.
[87] Mrs Moody does not deny she was notified of the reasons for her dismissal. I accept TriCare’s position that Mrs Moody was notified of the reason for her dismissal in the meeting on 13 October 2016 and by letter dated 11 October 2016.
[88] It is submitted for Mrs Moody that as she was not given the audio recording she was denied procedural fairness. TriCare has said it was withheld out a fear of retribution on the part of the resident. TriCare submitted that while Mrs Moody was not provided with the recording prior to her dismissal, by the letter dated 28 September 2016, the allegations of the words used and her manner towards resident A were particularised for her such that she knew the issues under discussion and the possible consequences for her such that she could respond to.
[89] I am satisfied Mrs Moody was given a reasonable opportunity to understand the specific nature of what was alleged against her following the meeting on 28 September. Mrs Moody was provided in writing 19 specific statements it was alleged were said to resident A and she provided a written response addressing specifically each and every alleged statement.
[90] At the meeting of 6 October 2016 Mrs Moody was given an opportunity to expand on some of her written responses. Whilst it would have been preferable for Mrs Moody to have been provided with either the audio recording, or the full transcript of the exchange, rather than her statements only, I am not inclined to accept that approach denied Mrs Moody procedural fairness to the extent that she could not seek to defend the allegations. Mrs Moody was not ignorant of the issues. Mrs Moody was also warned of the potential consequences of positive findings, including termination of employment.
[91] Mrs Moody was notified in writing and verbally of her right to have a witness accompany her and was recommended to seek independent advice when responding to the allegations. The evidence does not support Mrs Moody’s claim that she was denied an opportunity to have a support person present at the relevant times.
[92] Section 387(e) is not relevant in this matter as the reasons for termination were in connection with Mrs Moody’s conduct, not her performance.
[93] TriCare is a large employer with dedicated human resources staff. It is to be expected in this case that the employer had sophisticated procedures and expertise to effect the dismissal.
[94] TriCare submitted that Mrs Moody’s dismissal was not unfair given the very specific type of employment in which she was engaged and the high level of trust and confidence that was required by TriCare of Mrs Moody. I have had regard to Mrs Moody’s length of service and the absence of previous misconduct, however I accept Tricare’s submission that it has lost trust and confidence in Mrs Moody for the reasons explained above. I have had regard to each of the criteria for consideration in s.387 of the Fair Work Act 2009 and I am not satisfied Mrs Moody’s dismissal was harsh, unjust or unreasonable and on that basis the application is dismissed.
COMMISSIONER
Appearances:
Mr G. Ebert of Finamore Walters and Story for the Applicant
Mr J. Merrell of Counsel for the Respondent
Hearing details:
2017
February 22
Bundaberg
1 Transcript PN 49.
2 Transcript PN 646.
3 Transcript PN 4 – PN9.
4 Exhibit 1, Statement of Colleen Moody dated 18 January 2017; Exhibit 2, Statement of Colleen Moody dated 9 February 2017.
5 Exhibit 4, Statement of Stephen Wheeler dated 2 February 2017.
6 Exhibit 5, Statement of Lauren Hart dated 2 February 2017.
7 Exhibit 6, Statement of Frances Beare dated 2 February 2017.
8 Exhibit 7, Statement of Christopher O’Brien dated 2 February 2017.
9 Exhibit 8, Statement of Daniel Aitchison dated 2 February 2017.
10 Exhibit 5, Statement of Lauren Hart dated 2 February 2017 at [6].
11 Exhibit 4, Statement of Stephen Wheeler dated 2 February 2017 at [16]-[18].
12 Exhibit 4, Statement of Stephen Wheeler dated 2 February 2017 at [21].
13 Exhibit 4, Statement of Stephen Wheeler dated 2 February 2017 at [27].
14 Exhibit 1, Statement of Colleen Moody dated 18 January 2017 at [25].
15 Transcript PN 460 – PN 461.
16 Exhibit 1, Statement of Colleen Moody dated 18 January 2017 at [27].
17 Transcript PN 464.
18 Transcript PN 469.
19 Transcript PN 475.
20 Transcript PN 463.
21 Exhibit 5, Statement of Lauren Hart dated 2 February 2017 at [8]-[10].
22 Transcript PN 874 – PN 872.
23 Exhibit 5, Statement of Lauren Hart dated 2 February 2017 at [11].
24 Transcript PN 843.
25 Transcript PN 888.
26 Exhibit 1, Statement of Colleen Moody dated 18 January 2017 at [28].
27 Exhibit 4, Statement of Stephen Wheeler dated 2 February 2017, Attachment SW5.
28 Exhibit 1, Statement of Colleen Moody dated 18 January 2017 at [29].
29 Transcript PN 490.
30 Transcript PN 495 – PN 498.
31 Exhibit 1, Statement of Colleen Moody dated 18 January 2017 at [30].
32 Transcript PN 505.
33 Exhibit 4, Statement of Stephen Wheeler dated 2 February 2017 at [30], Attachment SW6.
34 Exhibit 1, Statement of Colleen Moody dated 18 January 2017 at [32].
35 Transcript PN 781.
36 Transcript PN 943.
37 Exhibit 1, Statement of Colleen Moody dated 18 January 2017 at [34].
38 Transcript PN 562.
39 Exhibit 6, Statement of Frances Beare dated 2 February 2017 at [8].
40 Transcript PN 58 – PN 60.
41 Transcript PN 571 – PN 578.
42 Transcript PN 518 – PN 521.
43 Transcript PN 524.
44 Transcript PN 587.
45 Transcript PN 588.
46 Transcript PN 593.
47 Transcript PN 1106; Exhibit 8, Statement of Daniel Aitchison dated 2 February 2017 at [19].
48 Transcript PN 1079.
49 Exhibit 7, Statement of Christopher O’Brien dated 2 February 2017 at [21].
50 Exhibit 7, Statement of Christopher O’Brien dated 2 February 2017 at [22].
51 Transcript PN 598.
52 Exhibit 1, Statement of Colleen Moody dated 18 January 2017 at [37].
53 Transcript PN 601.
54 Exhibit 1, Statement of Colleen Moody dated 18 January 2017 at [38].
55 Transcript PN 609.
56 Transcript PN 613.
57 Transcript PN 619-620.
58 Transcript PN 660 PN 662.
59 Exhibit 1, Statement of Colleen Moody dated 18 January 2017 at [39]-[41].
60 Transcript PN 621 – PN 626.
61 Transcript PN 626 – PN 628.
62 Exhibit 4, Statement of Stephen Wheeler dated 2 February 2017, Attachment SW1.
63 Transcript PN 90.
64 Transcript PN 100 – PN 105.
65 Transcript PN 108.
66 Transcript PN 121 – 127.
67 Transcript PN 128 – PN 132.
68 Transcript PN 136 – PN 140.
69 Transcript PN 146 – PN 167.
70 Transcript PN 170 – PN 175.
71 Transcript PN 183 – PN 204.
72 Exhibit 1, Statement of Colleen Moody dated 18 January 2017 at [12].
73 Transcript PN 356.
74 Transcript PN 357.
75 Exhibit 1, Statement of Colleen Moody dated 18 January 2017 at [13].
76 Exhibit 1, Statement of Colleen Moody dated 18 January 2017 at [14].
77 Exhibit 1, Statement of Colleen Moody dated 18 January 2017 at [15].
78 Transcript PN 290.
79 Transcript PN 295.
80 Transcript PN 285, PN 298 and PN 306.
81 Transcript PN 211.
82 Transcript PN 216.
83 Transcript PN 225.
84 Transcript PN 228.
85 Transcript PN 230.
86 Transcript PN 234 and PN 255.
87 Transcript PN 239.
88 Transcript PN 320 – PN 324.
89 Transcript PN 327.
90 Exhibit 1, Statement of Colleen Moody dated 18 January 2017 at [17]-[18].
91 Exhibit 7, Statement of Christopher O’Brien dated 2 February 2017, Attachment CO2.
92 Exhibit 1, Statement of Colleen Moody dated 18 January 2017 at [19]-[20].
93 Transcript PN 360.
94 Exhibit 1, Statement of Colleen Moody dated 18 January 2017 at [21].
95 Transcript PN 362.
96 Transcript PN 532.
97 Transcript PN 364.
98 Transcript PN 365.
99 Ibid.
100 Transcript PN 370.
101 Transcript PN 371.
102 Transcript PN 371 – PN 394.
103 Transcript PN 397.
104 Transcript PN 400 – PN 403.
105 Transcript PN 405.
106 Transcript PN 415.
107 Exhibit 1, Statement of Colleen Moody dated 18 January 2017 at [22]-[23].
108 Exhibit 7 Statement of Christopher O’Brien dated 2 February 2017 at [14].
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