| [2017] FWC 478 [Note: An appeal pursuant to s.604 (C2017/1077) was lodged against this decision - refer to Full Bench decision dated 12 April 2017 [[2017] FWCFB 2099] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Della Lehmann
v
Mary Mackillop Aged Care SA
(U2016/11131)
COMMISSIONER HAMPTON |
ADELAIDE, 8 FEBRUARY 2017 |
Application for relief from unfair dismissal – patient care attendant in residential facility – alleged elder abuse involving rough handling and related conduct – earlier final warning – whether conduct occurred – whether misconduct – whether valid reason – findings made on credit – most but not all allegations found – valid reason – whether harsh given circumstances and reservations about earlier warning – on balance not harsh, unjust or unreasonable – application dismissed.
1. Background and case outline
[1] Ms Della Lehmann has made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal by her former employer, Mary Mackillop Aged Care SA (MMAC).
[2] Ms Lehmann commenced her employment at MMAC as a Patient Care Attendant (PCA) in July 2014, on a casual basis. The employment was based at a regional residential care facility operated by MMAC. In April 2015, Ms Lehmann began working part-time in the same facility.
[3] In October 2015, Ms Lehmann received a first and final warning in relation to the alleged verbal abuse of a resident and failure to follow a reasonable instruction. That warning was disputed at the time and remains in conjecture.
[4] On 5 August 2016, Ms Lehmann was rostered to work in the “low care” unit. It is common ground that Ms Lehmann and a fellow PCA were attending to a resident who suffered from dementia and incontinence. It is also agreed that whilst Ms Lehmann was attending to the cleaning up of the resident, that resident became upset and denied that she needed cleaning.
[5] It is alleged by MMAC that Ms Lehmann’s actions and manner in cleaning up the resident were rough and inappropriate, that she failed to stop the activity in circumstances where that should have been done in order to de-escalate the situation. It is further alleged that Ms Lehmann “shoved” an open bag of faeces and toilet paper in the face of the resident.
[6] Ms Lehmann contends, in effect, that she attended to the resident, who was resisting being cleaned up due to her dementia, in an appropriate and usual manner and denies that a bag of faeces was placed anywhere near the resident’s face. Rather, Ms Lehmann contends that a sealed bag was shown to the resident to demonstrate that she had required cleaning up and that this was done by lifting the bag to about waste height and making reference to it.
[7] Ms Stacy Waterman, the PCA who also attended to the resident with Ms Lehmann reported the events of 5 August 2016 to the Nurse on duty. The matter was then escalated through to senior management and Human Resources.
[8] On 24 August 2016, after an investigation, MMAC advised Ms Lehmann that her employment was terminated on the basis that she had engaged in serious and wilful misconduct.
[9] Ms Lehmann contends, in effect, that the dismissal was unfair on the following grounds:
● She did not use excessive force when attending to the cleaning of the resident;
● She showed the bag of faeces (tied together) to the resident, who suffers from dementia, to demonstrate that she had defecated and needed cleaning. She did not do so in an intimidating and humiliating manner and did not push the bag close to the resident’s face;
● Her conduct on 5 August 2016 did not amount to elder abuse; physical, emotional or psychological;
● Ms Waterman was not an experienced PCA and was mistaken about what she had observed;
● To the extent that MMAC relied on the earlier final warning, this warning was not well founded and was issued without any reasonable basis; and
● If the Commission were to find that the dismissal was for a valid reason, given the significant personal and economic consequences of the termination, it should still be considered harsh.
[10] In substance, Ms Lehmann contends that the dismissal was harsh and unjust in all of the circumstances. She does not seek reinstatement, but seeks compensation equivalent to 6 months’ earnings.
[11] MMAC contends, in effect, that Ms Lehmann’s dismissal was for a valid reason and not unfair on the following grounds:
● The applicant has previously received a first and final warning for a range of matters including not responding to a resident’s call bell, telling the resident that she could ring the bell 100 times but that she would not be answering it and then advising the resident not to talk about it, and refusing to relocate to another area of the nursing home when directed. It also contended that Ms Lehmann had also abused a Residential Site Manager in that context;
● Ms Lehmann engaged in “elder abuse” on 5 August 2016 when following a direction to attend to a resident who had suffered faecal incontinence. Specifically, that she:
● Wiped the resident aggressively with toilet paper and did not use wipes or a washer at any time as is the usual procedure;
● Did not cease wiping the resident when she cried out in pain;
● Aggressively thrust the (open) bag of faeces into the resident’s face when the resident said “I do not poo. Please stop” to demonstrate that she had defecated and responded to the resident by saying “well it isn’t mine”; and
● Stormed out of the room, leaving the resident in a highly distressed state;
● The applicant’s actions constitute serious and wilful misconduct;
● Ms Lehmann was aware that the employer’s procedures require a carer to discontinue an action that is agitating a resident, particularly one with dementia;
● The incident was reported immediately by the PCA who witnessed the events and her account remained consistent when interviewed at a later stage and was reliable; and
● Ms Lehmann was provided with 2 weeks’ pay in lieu of notice as a gesture of goodwill.
[12] I note that in its submissions, MMAC initially contended that as a result of these events, which were reported both to the Police and the Australian Aged Care Quality Agency under the relevant mandatory reporting requirements, it had suffered compliance and other consequences. However, at the hearing MMAC conceded that those were the result of broader matters and did not press that element of its case.
[13] There is no dispute that Ms Lehmann was protected from unfair dismissal within the meaning of s.382 of the FW Act and there is a valid application before the Commission.
2. The witness and other evidence
[14] Ms Lehmann provided a witness statement and gave evidence in the matter.
[15] MMAC relied on the witness statements and oral evidence of the following employees:
● Ms Stacy Waterman – PCA and the employee who attended to the resident with Ms Lehmann and subsequently reported the incident;
● Ms Glenys Evans – Registered Nurse; and
● Mr David Wabnitz – formerly Human Resources Advisor to MMAC.
[16] Both parties accepted that it would be inappropriate to require the resident involved to provide evidence as she suffers from diagnosed dementia. However, a behavioural evaluation of the resident conducted on 21 March 2016 was tendered into evidence. 1 This evaluation describes the resident as being generally calm and cooperative however it notes that at times she will refuse treatment and care, becoming vocal when this happens. This behaviour was confirmed by Ms Evans.
[17] I found that elements of Ms Lehmann’s evidence were not convincing. This includes her evidence about the circumstances leading to the resident being attended to and her conduct in relation to the bag of faeces.
[18] I found Ms Waterman to be a careful, honest and credible witness. Her evidence was influenced by her view as to what had occurred but this did not prevent her from making reasonable concessions and clarification as to the basis of her observations and evidence. This included that her views about the force and nature of Ms Lehmman’s cleaning up of the resident on 5 August 2016 were largely based upon her monitoring of the reaction of the resident rather than a full direct observation of that event. I have made some allowance, when considering her views as to what was occurring, for the fact that Ms Waterman did not have significant experience as a PCA. That experience, and her training and qualifications, was however sufficient for Ms Waterman to understand the correct procedures and to accurately observe the substance of the actual events. I prefer the evidence of Ms Waterman over that provided by Ms Lehmann in relation to events that were directly witnessed by Ms Waterman.
[19] Ms Evans was an excellent witness. Her evidence concerned the proper approach to dealing with residents, the examination of the resident after the incident on 5 August 2016, and related matters. Ms Evans’ evidence about these issues was objective, knowledgeable and clearly motivated by a desire to assist the Commission to determine the facts and the fairness of the events in question.
[20] The evidence of Mr Wabnitz was given openly and honestly, and I accept it. Some of that evidence went to views about what was fair and reasonable and these are ultimately matters for the Commission itself to determine.
[21] In my consideration of the disputed evidence and making my findings of fact on the more serious allegations in this matter, I have had regard to the approach of Dixon J in Briginshaw v Briginshaw2 as follows:
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
[22] Further, I note that in Budd v Dampier Salt Ltd3 a Full Bench of the Australian Industrial Relations Commission said the following in relation to Briginshaw v Briginshaw:
“[14] The second ground of appeal is that the Commissioner erred in the application of the principle in Briginshaw. So far as relevant, that case decided two things. The first is that where allegations are made in civil proceedings which, if proven, might found criminal liability, the standard of proof remains the civil standard. It follows that it is necessary that the court only be satisfied on the balance of probabilities. The second thing is that in such a case a proper degree of satisfaction is required having regard to the seriousness of the allegations. In the words of Dixon J., as he was: “The nature of the issue necessarily affects the process by which reasonable satisfaction is obtained.”
[15] In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd the High Court pointed out that care needs to be taken in applying what was said in Briginshaw. Furthermore, it would be wrong, for example, to apply a standard of proof higher than the balance of probabilities. Counsel for the appellant contended that the Commissioner failed to have regard to the seriousness of the situation for the appellant in making findings of fact as to what had occurred and in deciding that there were no extenuating circumstances for the appellant's behaviour.
[16] In relation to fact finding, the Commissioner analyzed the evidence with care. In making findings he indicated how the findings were reached, in particular why he rejected some evidence and accepted other evidence. There was no error in the fact-finding process. To the extent that this ground involves a contention that the Commissioner did not exercise the statutory discretion properly it should also be rejected. Briginshaw was a case concerned with the nature of findings about conduct. It is potentially misleading and unnecessarily complicated to attempt to apply Briginshaw to the exercise of judgement required once the findings about conduct have been made. Section 652(3) specifies the way in which the discretion is to be exercised and the matters to be taken into account. Loss of employment is a serious matter and applications for a remedy are to be dealt with seriously. That the Commissioner so regarded it in this case is clear from his decision. There is no basis on which to conclude that the Commissioner's approach to the fact-finding process or to the exercise of the discretion was erroneous because of anything said by the Court in Briginshaw. The second ground of appeal must be rejected.”
3. Findings of fact
3.1 Ms Lehmann’s employment and qualifications
[23] Ms Lehmann has completed Certificate III’s in Aged Care, Home and Community Care and Business Studies. She was first employed as a PCA at MMAC in July 2014 on a casual basis. She began working part time, between 50 and 70 hours per fortnight in April 2015, and this continued until her dismissal in August 2016.
[24] Ms Lehmann completed various training courses through MMAC as part of her employment. Her records indicate that she completed training in elder abuse and mandatory reporting on three separate occasions; as part of her induction in July 2014 and again in August and October 2015.
3.2 The October 2015 first and final warning
[25] In October 2015, Ms Lehmann received a first and final warning. This warning arose in the context of allegations concerning the lack of responsiveness to a resident’s call button, when Ms Lehmann was in the immediate vicinity, and related alleged conduct. The warning also concerned an allegation that Ms Lehmann did not move to another part of the facility later in the day when directed to do so.
[26] Ms Lehmann disputed this warning at the time, including through the intervention of United Voice; however, the employer declined to withdraw it. Ms Lehmann provided evidence about these matters, and most of that was plausible and provided some important context. There was no direct evidence about these events led by MMAC. It is evident, as conceded by Mr Wabnitz, that the seriousness of these allegations required a proper investigation, which was not undertaken at the time. The allegation of abusing a Residential Site Manager was also not dealt with at that time and there was no direct evidence about that aspect provided by MMAC during the hearing of this matter.
[27] In these circumstances, I accept that the first and final warning represents a reinforcement of the need for proper standards and conduct; however, little weight can be placed on the October 2015 warning in its own right.
3.3 The events of 5 August 2016
[28] It is common ground that on 5 August 2016 Ms Lehmann was rostered to work on the respondent’s “low-care” unit and the incident occurred during “lunch time”, that is, between 12 noon and 1 pm. Based on the evidence that is before the Commission, I find the sequence of events was then as follows:
● Ms Lehmann appeared agitated when she and Ms Waterman were directed by a Nurse to attend to a resident who had suffered faecal incontinence;
● The resident was accompanied by Ms Lehmann and Ms Waterman to the resident’s bedroom and initially did not raise any concerns about doing so;
● The resident suffers from dementia and was apparently unaware that she needed to be cleaned up;
● When in the bedroom, the resident resisted going into the bathroom and Ms Lehmann commenced to clean up the resident with Ms Waterman standing next to the resident who was being supported by a walking frame;
● During the course of Ms Lehmann wiping the resident with toilet paper, the resident became upset and indicated that she did not want to be cleaned up. The resident stated several times that she “do not poo”;
● The resident also cried out and stated “you’re hurting me, please stop” and became highly distressed;
● Ms Lehmann continued to wipe the resident with some force in order to clean her up and the resident attempted to move away from Ms Lehmann;
● After Ms Lehmann had finished cleaning but before redressing her, the resident continued attempting to move away and Ms Lehmann requested Ms Waterman to hold the resident. Ms Waterman did so by holding onto the resident’s walking frame and supporting her. The resident continued to deny that she needed to be cleaned and at this point Ms Lehmann picked up the open bag of faeces and cleaning materials and raised it near to the resident’s face. The resident stated that “it’s not mine” and Ms Lehmann responded to the effect of “well it isn’t mine”;
● The resident became further agitated by this and attempted to reach out for Ms Lehmann and became unstable. After Ms Lehmann and Ms Waterman stabilised the resident, Ms Waterman assisted to pull up the resident’s underwear, hip protector and clothes, which were at the time around her ankles or lower legs;
● When the resident was dressed, Ms Lehmann abruptly left the room;
● The resident remained very distressed and appeared to be having a panic attack. Ms Waterman stayed with her for a period until she calmed down when the resident was taken out to lunch; and
● Ms Waterman immediately reported the event to the Enrolled Nurse on duty.
[29] In relation to the nature and intensity of the wiping of the resident by Ms Lehmann, it is evident that Ms Waterman generally observed the initial wiping and the response of the resident but did not see the whole conduct. This was due in part to her location, to the side of the resident, and the fact that when the resident initially became upset, Ms Waterman attempted to distract her by referring to and looking at family photos in the room.
[30] I accept that the resident complained of being hurt and that she became very distressed. However, given her medical condition and other observed behaviour documented in the records associated with the resident, 4 this response would also be consistent with a protest that the resident did not want to be cleaned. There were no physical signs after the event of the resident having being very roughly wiped and based upon the evidence of Ms Evans, who examined the resident, it is probable (but not definite) that there would have been some indication if extremely rough wiping had been involved. Ms Lehmann’s evidence that she had to apply some force to remove toilet paper which had become trapped was plausible, given that the cleaning was being undertaken which the resident was standing and moving. Ms Waterman’s observations that Ms Lehmann was annoyed at the time of these events would be consistent with, but not necessarily conclusive of, the resident being wiped in an improper manner.
[31] On balance, I am not sufficiently persuaded that the manner in which Ms Lehmann wiped the resident itself could be properly described as being very rough.
[32] However, I am satisfied that at the point that the resident became very agitated, the proper course of action was for Ms Lehmann to have stopped the activity and taken steps to have the resident safely seated and for further assistance to be sought. This could have been done, despite the state of undress, given the presence of Ms Waterman to assist with that move and to stay with the resident. This approach would have been consistent with the procedures required in relation to a resident becoming upset, 5 particularly one with dementia, and the decision to continue involved the escalation of the issue, disrespected the rights of the resident, and added to the risk of injury.
[33] In reaching these findings, I have taken into account that Ms Waterman did not directly intervene to stop Ms Lehmann. However, Ms Waterman’s evidence, which I accept, was that as she was the more recent and less experienced PCA, she was reluctant to do so. She did however report the matter at the earliest reasonable opportunity.
3.4 The investigation and dismissal
[34] Ms Lehmann was stood down following the events of 5 August 2016. MMAC interviewed Ms Waterman and two other employees; Ms Desri Hollis, Enrolled Nurse who Ms Waterman reported the incident to, and Ms Evans, Registered Nurse, who became involved when the incident was escalated. Ms Evans also attended to the resident soon after the incident to check for any injury, signs of trauma to her skin, or bruising, and none was evident.
[35] A letter outlining the allegations was sent to Ms Lehmann on 22 August 2016, which stated:
“… …
Mary Mackillop Care SA has serious concerns related to your actions in your position of Personal Carer. You have been accused of physical and emotional/psychological abuse relating to an incident with resident (name) on 5 August 2016. The allegation was put forward by Personal Carer, Stacey Waterman.
It is alleged that:
These allegations constitute physical and emotional/psychological abuse as defined by Mary Mackillop Care SA’s Mandatory Reporting Procedure (enclosed). If the allegations are deemed to be accurate, based upon the balance of probabilities, we would consider this incident to be a serious matter.
It is important to note that training records indicate (enclosed) that you have undertaken training in elder abuse and mandatory reporting three times since you have been employed with Mary Mackillop Care, once at induction 21/7/14 and twice during the course of your employment 19/08/15 & 28/10/15.
… …” 6
[36] Statements from Ms Hollis and Ms Evans concerning the allegations were also supplied to Ms Lehmann. Ms Lehmann was requested to attend an interview to provide an opportunity to respond to the allegations.
[37] The interview was convened on 24 August 2016. Ms Lehmann attended with a support person and an official from United Voice. MMAC was represented by an external Consultant, Mr Capes, and Mr Wabnitz.
[38] Ms Lehmann explained her version of the events and denied the allegations of rough wiping and putting the bag of faeces up to the resident’s face. Ms Lehmann also indicated that Ms Waterman was wrong in her recollection of the events and pointed to the fact that there were no signs of injury or the consequences of the alleged rough wiping.
[39] MMAC representatives took the view that there was no reason that Ms Waterman should not be believed, and that given the seriousness of the conduct and the risk of continuing to employ someone who had acted in that manner, Ms Lehmann should be dismissed. Ms Lehmann was advised at the conclusion of the meeting that she would be dismissed with immediate effect, but would be paid 2 weeks wages as an “act of goodwill”.
[40] The dismissal was confirmed in writing on 29 August 2016.
[41] MMAC reported the incident to the Police and to the Australian Aged Care Quality Agency.
4. Was Ms Lehmann’s dismissal unfair within the meaning of the FW Act?
[42] Section 385 of the FW Act provides as follows:
“385 What is an unfair dismissal
(1) A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[43] Ms Lehmann was dismissed, the employer is not a small business within the meaning of the FW Act, and the concept of a genuine redundancy is not relevant here.
[44] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or unreasonable.
[45] The FW Act relevantly provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 is related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[46] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be treated as a matter of significance in the decision making process and weighed up accordingly.
[47] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.
[48] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.7
[49] The conduct as found by the Commission represented misconduct. The decision not to disengage when the resident became agitated and very upset was a mistake in judgement, albeit a significant mistake that affected the rights of a vulnerable resident.
[50] The actions with respect to the bag of faeces and the associated conduct was a serious breach of the reasonable expectations of a person in Ms Lehmann’s position and was also a significant abuse of the resident’s rights. This was done, not as an act to inform the resident, but undertaken improperly out of frustration and annoyance. The denial of that conduct in the course of the investigation is also relevant in this context.
[51] There was a valid reason for dismissal.
[52] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken. 8
[53] The evident purpose of this consideration is that notification of the valid reason to terminate must be given to the employee before the decision to terminate the employee is made and the notification needs to be in explicit and clear terms.
[54] I am satisfied that Mr Lehmann was notified of the reasons for dismissal.
[55] The relevant reasons are those arising from the valid reasons found by the Commission. This consideration is therefore directly related to the above discussion.
[56] The process contemplated by the FW Act does not require any particular formality and is to be applied in a common sense way to ensure the employee has been treated fairly. The question becomes whether Ms Lehmann was aware of the nature of the employer’s concern about her conduct and had a full opportunity to respond to these concerns. 9
[57] I am satisfied that this consideration was met by the investigation and subsequent interview with Ms Lehmann.
[58] Ms Lehmann was accompanied by a support person and an official of United Voice.
[59] This consideration does not directly arise given the reasons for dismissal.
[60] I deal with these considerations together. MMAC is a large employer and has dedicated Human Resources expertise.
Section 387(h) - other matters considered to be relevant
[61] Amongst other considerations, it is appropriate for the Commission to consider the impact of the dismissal upon Ms Lehmann given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission.10
[62] Further, a dismissal may, depending upon the overall circumstances, be considered to be harsh on the applicant employee due to the economic and personal consequences resulting from being dismissed.11
[63] In Parmalat Food Products Pty Ltd v Mr Kasian Wililo,12 the Full Bench observed:
“[24] ... ... The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”
[64] In this case I have, for reasons outlined earlier, placed little weight upon the first and final warning. I am also not satisfied that one element of the alleged misconduct occurred as contended by the employer. Further, I accept that the circumstances under which the events of 5 August 2016 took place, including the fact that the work being undertaken by Ms Lehmann was demanding, and the incident occurred at a time where the staff were and had been very busy, are relevant. However, these circumstances do not represent significant mitigating factors given the misconduct.
[65] I have found that serious misconduct took place and the nature of that conduct and the context in which it took place is significant. Ms Lehmann has lost her employment of some two years and this has had, and will have, some financial and other consequences. This is relevant but must be considered in the context of the serious misconduct as found by the Commission and the statutory considerations more generally. Ms Lehmann was also paid 2 weeks (in lieu of notice) on an ex gratia basis.
5. Conclusions and order
[66] I have weighed all of the factors and circumstances of this application in light of the considerations established by s.387 of the FW Act.
[67] I have found a valid reason for dismissal, the procedural requirements have been met and there are competing considerations as to whether the dismissal was harsh. For reasons outlined earlier, the seriousness of the misconduct, in the context of the workplace and position undertaken by Ms Lehmann, is a significant consideration.
[68] On balance, I am not satisfied that Ms Lehmann’s dismissal was harsh, unjust or unreasonable. As a result, the dismissal is not unfair within the meaning of the FW Act and this application must be dismissed. An order 13 to that end is being issued in conjunction with this decision.
COMMISSIONER
Appearances:
L Smith, of United Voice, for Ms Lehmann.
B Capes on behalf of Mary Mackillop Aged Care SA.
Hearing details:
Berri:
2017.
20 January.
1 Exhibit A2.
2 (1938) 60 CLR 336.
3 (2007) 166 IR 407 at [14] - [16].
4 Exhibit A2.
5 Confirmed in the evidence of Ms Evans.
6 Attachment DW6 to the Statement of Mr Wabnitz – Exhibit R3.
7 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, at [36].
8 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.
9 RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].
10 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
11 See also Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.
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