[2019] FWC 183
FAIR WORK COMMISSION

REASON FOR DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Lansana Dolley
v
Anglicare SA Ltd T/A Anglicare SA Incorporated
(U2018/9659)

COMMISSIONER PLATT

ADELAIDE, 14 JANUARY 2019

Application for an unfair dismissal remedy.

[1] The following decision, now edited, was given in transcript during proceedings held on 9 January 2019.

[2] On 19 September 2018, Mr Dolley lodged an application pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act) seeking a remedy for an alleged unfair dismissal by his former employer, Anglicare SA trading as Anglicare SA Incorporated, which took effect on 7 September 2018.

[3] There is no dispute that Mr Dolley was protected from unfair dismissal at the relevant time pursuant to section 382 of the Act.

[4] The matter was arbitrated on 8 and 9 January 2019. Mr Zammit from United Voice represented Mr Dolley. Ms Eaton (of Counsel) represented Anglicare, with permission being granted pursuant to section 596(2) of the Act.

[5] Mr Dolley was a Disability Support Worker, who was employed at the Anglicare site at Elizabeth South. Mr Dolley is 27 years of age, tertiary educated, and has worked at Anglicare since November 2015.

[6] Mr Dolley was responsible for providing care to a number of patients who suffered from disabilities. It has been alleged that Mr Dolley failed in his duty to properly care for patients on three occasions – a feeding incident in March 2018 at Anglicare, an incident at SCOSA Elizabeth Park on 19 April 2018, and a shower incident on 23 August 2018. I have made an order prohibiting the publication of any material or transcript which identifies or tends to identify the names of any patients at Anglicare pursuant to section 594 of the Act with the consent of the parties.

[7] With respect to the feeding incident, it was alleged that Ms Vanessa Moore observed Mr Dolley standing near Patient M with a bowl of food, trying to shove food into the patient’s mouth. The patient was placing his hand in front of his mouth. Ms Moore observed Mr Dolley slap, in a back handed motion, the patient’s hand away from his mouth on three occasions. Mr Dolley contended he was trying to feed the patient a bowl of Weet-Bix and placed a spoonful of Weet-Bix near the patient’s mouth three times with the patient refusing on all three occasions. Mr Dolley suggested the patient’s hands were near his chest. Ms Moore then suggested they try a chocolate biscuit, which was refused. Ms Moore then suggested peaches. Both parties went to the kitchen, obtained a can of peaches, and Ms Moore fed the peaches to the patient. Mr Dolley denied trying to shove food into the patient’s mouth or slapping the patient’s hand. Mr Dolley contends he was not counselled about this incident.

[8] The SCOSA incident involved the collection of Patient NF from SCOSA by Mr Dolley on 19 April 2018. Ms Deborah Gates and Ms Kate Mayne, who are access workers employed by SCOSA, contended that Patient NF had been present at the Elizabeth Park facility in day care, and due to Patient NF exhibiting difficult behaviour they contacted Anglicare to facilitate his return. Mr Dolley came to collect the patient. The patient, who is severely autistic, hit another patient whilst leaving the site. It was alleged that Mr Dolley then grabbed the patient on the arm, pulled him to the ground, then pulled him up from the ground roughly whilst yelling at him to get up, and forcibly pulled or led him to the van. Ms Gates was with the patient at the time. Ms Mayne was about 10 metres away, walking towards the patient. The SCOSA employees reported the matter. Mr Dolley contended that the patient pulled his hand away from Ms Gates and sat on the floor playing with his keys. Mr Dolley states that the patient was aggressive as he had not had enough food and/or water. Mr Dolley states he asked for an apple, gave same to the patient, and that he and the patient walked to the van without incident.

[9] The shower incident occurred on 23 August 2018. Ms Jamie Pollard, a student who was on a work placement at the time, alleged she was assigned to shadow Mr Dolley whilst he attended to the morning wake up and washing routines for Patient NF before transporting him to SCOSA. Ms Pollard alleged that the patient was asleep on his bed. Mr Dolley tried to wake the patient but the patient did not get up. Ms Pollard observed Mr Dolley grab the patient’s wrist and yank him out of the bed and into the bathroom. In the bathroom, Mr Dolley undressed him and placed him under a cold shower. The patient screamed, and Mr Dolley said to her that he puts the patient under cold water to wake him up for the day and laughed about it. Mr Dolley then changed the water temperature to warm and placed the patient back under the shower. After the shower, Mr Dolley walked the patient back to his adjacent room with no towel. The patient sat on his clothes, which were on the bed, and Mr Dolley raised his voice at the patient, as he was wet and sitting on his clothes. Ms Pollard was concerned about what she saw, but did not report same until she spoke to other work placement students six days later. Mr Dolley contends that Ms Pollard was not present at this time, and contended that the patient was awake when he entered the room. He asked the patient to come to the shower. The patient acquiesced non-verbally. The shower was at the regulated temperature. Mr Dolley later contended that the temperature was variable but was set correctly. He asked the patient if he could undress him. The patient agreed. He asked the patient to enter the shower, which he did. The patient was quiet whilst under the shower. He washed the patient, left to get a towel, and then dried the patient, covered his lower half and walked him to his bedroom [where he was dressed].

[10] At the commencement of the matter the parties agreed that there was little, if any, common facts and that the matter would largely be determined on credit.

[11] Having considered the evidence, the manner in which the witnesses gave their evidence, the accuracy of their recollections, inconsistencies in the evidence, and the plausibility of the concluding arguments, I have determined to accept the evidence of witnesses, Pollard, Gates, Mayne, Moore and Cliffe over Mr Dolley as to their account of the three incidents.

[12] I accept Ms Pollard’s explanation for the delay in reporting the incident.

[13] There are a number of inconsistencies in Mr Dolley’s evidence, including:

  An inconsistency between his statements with respect to the use of a fixed temperature shower device as opposed to a flick mixer. I was not convinced by his explanation of the changes.

  His contention that he left Patient NF unattended in the shower to get a towel (when contrasted to the care plan which required 1:1 supervision requirements).

  The fact that Ms Pollard (despite not being present) was able to give an account of the patient’s movements between his room and the shower which (whilst absent any suggestion of inappropriate conduct) were broadly consistent with Mr Dolley’s account.

  The report, agreed with Ms Moore, over the SCOSA incident outlined that Mr Dolley accepted that he helped the patient off the ground and that in his statement he says that the patient got up himself.

  I also note that other inconsistencies were referred to by Anglicare in their oral submissions.

[14] Mr Dolley’s evidence was the polar opposite of the respondent’s witnesses’ account of these incidents.

[15] I am not persuaded that Ms Pollard, Ms Gates or Ms Mayne had any motivation to entirely fabricate the allegations concerning Mr Dolley’s conduct.

[16] There is no dispute that the Briginshaw v Briginshaw 1 standard applies when assessing the evidence.

[17] I find that Mr Dolley acted in each incident as deposed by the respondent’s witnesses, and that was a breach of his employment obligations.

[18] I find that Mr Dolley was not truthful during the investigation of the shower incident.

[19] The food incident was subject to little investigation at the time. The SCOSA incident was investigated but no disciplinary outcomes resulted despite a direction to do so. However, Anglicare do not rely on the food or SCOSA incident to establish a reason for the dismissal. Anglicare contends, and I accept, that these prior incidents are relevant to establish a course of conduct, which suggests that the shower incident occurred and are relevant as to the appropriateness of the dismissal.

[20] The shower incident was investigated. Mr Dolley was suspended, advised of the allegations and allowed to respond. Mr Dolley was not given an opportunity to respond to the proposed sanction of the termination as provided by Anglicare’s internal policy.

[21] No other procedural issues arise from the evidence.

Was the dismissal harsh, unjust or unreasonable?

Pursuant to s.387 of the Act, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Valid reason - s.387(a)

[22] In terms of valid reason, notwithstanding its formulation under a different legislative environment, I have adopted the definition of "valid reason" set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd 2, which requires the reason for termination to be “sound, defensible or well founded”.

[23] I find that Mr Dolley’s conduct in relation to the shower incident and his failure to truthfully answer questions in the investigation are valid reasons for the dismissal.

Notification of valid reason - s.387(b)

[24] Mr Dolley was advised of the shower incident in the letter setting out the allegations dated 31 August 2018.

Opportunity to respond - s.387(c)

[25] Mr Dolley had an opportunity to respond to the allegations about the shower incident and did so.

Any unreasonable refusal by the employer to allow Mr Rose have a support person present to assist at any discussions relating to dismissal - s.387(d)

[26] Mr Dolley had a support person and/or representative from United Voice during the process.

Warnings relative to unsatisfactory performance - s.387(e)

[27] There were no prior warnings relating to unsatisfactory performance.

Size of the employer’s enterprise and absence of dedicated human resources support - ss.387(g) and (f)

[28] Anglicare is a large employer with dedicated HR support.

Other matters considered relevant - s.387(h)

[29] I have considered the matters raised in Mr Dolley’s written submissions at paragraph 9, [and the failure of Anglicare to follow its disciplinary policy as detailed in paragraph [20] above.]

Conclusion

[30] The Explanatory Memorandum of the Act 3 explains the approach of the Commission in considering the elements of section 387.

“FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.”   

[31] In Byrne and Frew v Australian Airlines Limited 4, the following observations were made by McHugh and Gummow JJ that are relevant to my conclusion:

“It may be that the termination is harsh but not unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[32] Having considered all of the material before me and each of the factors contained in section 387 of the Act, I have concluded that the termination of Mr Dolley’s employment was not harsh, unjust or unreasonable.

[33] Accordingly, the application will be dismissed and an Order 5 reflecting this will be issued.

al of the Fair Work Commission with member’s signature.

COMMISSIONER

Appearances:

C Zammit on behalf of the Applicant.

K Eaton (of Counsel) on behalf of the Respondent.

Hearing details:

2019.

Adelaide.

8 & 9 January.

Printed by authority of the Commonwealth Government Printer

<PR703799>

 1   (1938) 60 CLR 336.

 2   (1995) 62 IR 371.

 3   Explanatory Memorandum to the Fair Work Bill 2008.

 4   (1995) 131 ALR 422.

 5   PR703804.