| [2019] FWC 4573 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Michael Girgis
v
Civic Disability Services Limited
(U2019/1147)
DEPUTY PRESIDENT BULL |
SYDNEY, 1 JULY 2019 |
Application for an unfair dismissal remedy; Allegations of failing to provide care and support to vulnerable clients. Failure to remain alert and vigilant on wakeover shift; Whether valid reason for dismissal.
[1] Mr Girgis (the applicant) claims that on 7 January 2019, he was unfairly dismissed from his employment as a casual employee for the respondent, Civic Disability Services Limited (the respondent). The respondent claims that on 8 January 2019 Mr Girgis was suspended from duties with pay and following an investigation into allegations made against him, was dismissed at a meeting on 16 January 2019.
[2] Leave was sought by the respondent to be legally represented which Mr Girgis opposed. Having regard to the submissions filed by both parties, and the witness evidence proposed to be adduced by the parties, the Commission considered that the matter before it was sufficiently complex that legal representation on behalf of the respondent would enable the matter to be dealt with more efficiently. Accordingly, the respondent was granted leave to be legally represented at the hearing.
[3] Civic Disability Services Limited is a registered charity and not for profit service. It provides services to highly vulnerable and marginalised persons with intellectual/physical disabilities and/or mental health conditions. These persons are referred to as the respondent’s clients.
[4] The respondent’s services are provided to more than 600 clients including but not limited to:
• drop in support;
• residential care; and
• child/youth programs.
[5] Approximately 90% of the respondent’s revenue is government funding including through the National Disability Insurance Scheme. The respondent provides shared accommodation to clients in over 50 homes.
[6] Mr Girgis was said by the respondent to have been employed as a Support Worker with the respondent on a permanent/casual basis since 4 November 2015 and had worked at over 20 high and low support accommodation homes of the respondent.
[7] At the First Avenue home, where Mr Girgis was employed at the time of his dismissal, at least one employee is required to be on site at all times due to the high care needs of its clients.
Allegations
[8] Mr Girgis was alleged by the respondent to have:
• set up a camp bed with a pillow and blanket in the First Avenue staff room where he was laying down in the dark during a wakeover shift on 7 January 2019;
• not provided a client with personal care in accordance with the Shift Duties Form by not changing her incontinence pad during his wake over shift on 1 January 2019;
• failed to provide personal care and assistance to a client found vocalising and hitting her head against walls on 1 January 2019;
• not ensuring the front doors of First Avenue were locked at all times;
• used a tablet device to watch a movie or television show during his wakeover shift on 1 January 2019; and
• not emptied the dishwasher in accordance with the Shift Duties Form on the shift commencing 31 December 2018.
[9] While working as a casual employee for the respondent Mr Girgis adjusted his working hours with the respondent to enable him to also work in real estate. Mr Girgis was adamant in his oral evidence that he was employed as a ‘social educator’ during his employment and not a ‘support worker’ as described by the employer. Nothing appears to turn on Mr Girgis’s classification description in regards to his unfair dismissal application.
[10] Mr Girgis stated that he first commenced work at First Avenue in January 2018 and had worked there on 12 occasions. His role included assisting clients with their personal hygiene where required. Mr Girgis acknowledged that First Avenue was a high support home with at least 3 out of 5 clients having significant disabilities. He was not, however, aware that one client had previously absconded requiring the home to be kept locked at all times.
[11] When rostered on a ‘wakeover’ shift at First Avenue, Mr Girgis was usually the only employee on duty for most of the shift which he accepted required the respondent to hold a high level of trust in his ability to undertake such a shift. Wakeover shifts require the employee to remain awake, vigilant and alert at all times.
[12] Mr Girgis maintained that none of the allegations resulting in his dismissal were proven. He states that his alleged failures were due to the deficiencies of the employer for failing to provide him with the relevant Shift Duty Forms, Personal Care Protocols, or Incontinence Protocols. Mr Girgis’s evidence was that he had never been inducted at the First Avenue home. In Mr Girgis’s submissions the Practice Leader from the First Avenue home had not informed him that there existed Shift Duty Sheets that needed to be followed or where they could be located.
[13] Mr Girgis did not recall fellow support worker Ms Calamia advising him on the evening of 31 December 2018 that a client needed to have her incontinence pad changed at 03:00am the following morning. 1
[14] Mr Girgis contended that on 1 January 2019 around 06:00am he heard a car pull up, so he unlocked the front door and the front screen door. He did not greet the oncoming support worker at the front door but returned to the office. He maintained that the front doors were locked prior to this event.
[15] In respect of the events in the early hours of 7 January 2019, Mr Girgis submitted that sitting in a non-ergonomic chair for over six hours in a cold environment caused his back to ache. As a result he sourced a beach mat from his motor vehicle as he did not want to lie on the cold floor so he could lie down and stretch his back out to relieve the pain. He obtained cushions and a blanket from the First Avenue home. In cross examination, Mr Girgis stated at times he was sitting up on the floor and lying back on the mat but at no time was he asleep. He stated he was unable to adjust the air-conditioning which was set at 15 degrees Celsius. He did not wish to lay on a lounge as one client had a habit of smearing faeces over everything.
[16] The First Avenue home’s lights, including the office light, were turned off so as not to disturb the clients and were only turned on to clean or perform his duties. Mr Girgis submitted that the ‘Man Down’ report indicated that he was awake at 4:01am on 7 January 2019. The Man Down Safety System requires employees working alone in high risk situations such as wakeover shifts to press an alarm button every hour to indicate that the staff member is active and alert. If the button is not pressed an automated call will be placed to the relevant home and if not answered will be escalated until dealt with. 2
[17] Mr Girgis submitted that the evidence given by Ms Calamia a support worker on behalf of the respondent could not be relied upon as she stated that the requirement to change a client’s incontinence pad at 03:00am was contained in the personal care plan which was not correct. He also submitted that the witness statement of Ms Couch was inconsistent with what she had previously advised the employer and did not support the allegation against him in respect to not attending to a client who was self harming.
[18] Mr Girgis submitted that he had never been counselled previously or warned in regard to his work performance. Nor had the employer at any time prior to his dismissal alleged that Mr Girgis had engaged in serious misconduct as was now stated in the employer’s written submissions.
Evidence of Elizabeth McKeon
[19] Ms McKeon gave evidence in support of Mr Girgis and, although she did not provide a witness statement, Mr Girgis tendered 3 an email she had sent him on 29 April 2019. Ms McKeon acted as Mr Girgis’s support person at meetings on 14 and 16 January 2019 and was the union delegate for the respondent’s Australian Municipal, Administrative, Clerical and Services Union members.
[20] Ms McKeon had worked with the respondent as a Practice Leader up until 7 March 2019 when she resigned and had been Mr Girgis’s Practice Leader at two of the respondent’s homes. As a matter of course she stated she provided inductions to all employees under her supervision while employed as a Practice Leader with the respondent. In her experience every home had different systems in how they operate which would be challenging for casuals who worked across multiple sites.
Evidence of Kyle Crofts
[21] Ms Crofts is the respondent’s General Manager of Human Resources and appeared subject to an order to attend issued by the Commission on the application of Mr Girgis. Ms Crofts reports to the respondent’s Chief Executive Officer. She did not provide a witness statement.
[22] Ms Crofts stated that following a disciplinary investigation regarding the events of 1 and 7 January 2019 Mr Querro, the respondent’s People and Experience Leader, recommended Mr Girgis’s employment be terminated. Ms Crofts stated that having regard to what was put before her she agreed with Mr Querro’s recommendation.
[23] Ms Crofts had been made aware that Mr Girgis had brought onto the First Avenue site items such as a doona and pillow. 4 As a result she had a serious concern that Mr Girgis may have been sleeping or at least putting himself in a position where he was not performing his duties, as he needed to remain alert at all times on a wakeover shift.
[24] Ms Crofts acknowledged that she did not have regard to the Man Down report for 7 January 2019 when agreeing that Mr Girgis’s dismissal was appropriate, however it was Mr Girgis’s potential to fall asleep during his shift that caused her serious concern.
[25] Ms Crofts agreed that it was the role of the Practice Leaders and Practice Managers to conduct inductions, but that inductions were not the only way a support worker could inform themselves of what is required at a specific home. This is particularly the case as client needs change from time to time.
[26] Ms Crofts stated that on an unsupervised wakeover shift the level of trust needed was very high as the clients at First Avenue have high care needs. While she had considered alternatives to dismissal she believed that the trust and confidence needed for Mr Girgis to remain in employment had broken down.
Evidence of Ms Doyle
[27] Ms Doyle is the Chief Executive of the respondent and also appeared subject to an order to attend issued by the Commission on the application of Mr Girgis. While Ms Doyle was described as the final decision maker, she had not been called by the employer to give evidence as to the reasons for her decision, hence Mr Girgis’s application for her compulsory attendance.
[28] Ms Doyle stated that she was telephoned on 7 January 2019 and advised that Mr Girgis had been sent home as he had been found asleep on a wakeover shift. She received a verbal report of the incident; Ms McPhee a Practice Manager for the respondent told her that Mr Girgis was asleep. An investigation under the supervision of Ms Crofts was carried out by Mr Querro. Ms Doyle spoke to Ms Crofts and was told that Mr Girgis had set up a makeshift bed and was lying down while on duty.
[29] Ms Doyle was given a recommendation that Mr Girgis’s employment be terminated which she accepted. This was based on Mr Girgis being found to be lying down on a makeshift bed in an office with the door closed and the light off while on a wakeover shift. Ms Doyle stated that employees have previously been dismissed for sleeping on wakeover shifts.
[30] In giving her evidence Ms Doyle was somewhat argumentative and it became clear that she was unaware of the details of Mr Girgis’s unfair dismissal application. She was unaware that Mr Girgis disputed that he was asleep on duty and stated she was ‘shocked’ at Mr Girgis’s assertion that he was not aware of the requirement to change a client’s incontinence pad at 3:00am. Ms Doyle accepted that inductions were required for each home and was ‘surprised’ that Mr Girgis had not received an induction at the First Avenue home.
[31] Ms Doyle stated on a number of occasions that she expected to be called before the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability and that failure to take the action that she did in dismissing Mr Girgis would not be viewed favourably.
[32] Ms Doyle stated that First Avenue requires a high degree of client care resulting in the need for a wakeover shift being provided.
[33] Despite Ms Doyle having been of the view that Mr Girgis was found asleep on his wakeover shift, Ms Doyle’s evidence was that lying down in a dark room with the light off was not in any way acceptable during a wakeover shift. Ms Doyle stated that a ‘wakeover’ shift is paid at a higher rate than a ‘sleep over’ shift as employees are required to remain alert and vigilant at all times during a wakeover shift due to the medical conditions of the clients. It was also not appropriate to have the office door closed during a wakeover shift.
[34] Ms Doyle’s evidence was that Mr Girgis’s actions did not meet the minimum standards of a wakeover shift and his re-employment was untenable on the basis that there was no longer any trust and confidence in Mr Girgis carrying out his duties.
Submissions
[35] The respondent opposed the application and submitted in its written submissions that Mr Girgis engaged in serious misconduct for which he was dismissed following an investigation.
[36] In the respondent’s final oral submissions, and in response to Mr Girgis submitting that he had never been put on notice that his actions involved serious misconduct, the employer’s submission that he had engaged in serious misconduct was withdrawn and it was then put that Mr Girgis’s conduct constituted a valid reason for his dismissal and did not need to constitute serious misconduct for his dismissal to be fair.
[37] It was put that from 30 December 2018 until 7 January 2019 Mr Girgis undertook 3 wakeover shifts at First Avenue. The respondent received complaints regarding his work performance which led to his dismissal. Most seriously were allegations that he:
• set up a camp bed, pillow and blanket in the First Avenue staff room where he was laying down in the dark during a wakeover shift on 7 January 2019
• did not provide a client with personal care in accordance with the Shift Duties Form by not changing her incontinence pad during his wakeover shift on 1 January 2019
• failed to provide personal care and assistance to a client found vocalising and hitting her head against walls on 1 January 2019
• did not ensure the doors at First Avenue were locked at all times
[38] Of lesser seriousness were allegations that he:
• was using a tablet device to watch a movie or television show during his wakeover shift on 1 January 2019
• had not emptied the dishwasher in accordance with the Shift Duties Form on the shift commencing 31 December 2018
[39] The respondent considered Mr Girgis’s responses and formed the view that he had in fact engaged in the conduct set out in the allegations. 5 Such conduct was completely unacceptable, damaged the trust required of an employee and made his continued employment untenable.
Evidence of Ms McPhee
[40] Ms McPhee has been a Practice Manager for the respondent for approximately 9 years and provided oral evidence and a witness statement 6 on behalf of the respondent.
[41] Ms McPhee’s evidence was that on or about 1 January 2019 she received a telephone call from Ms Joanne Asher a Practice Leader expressing concern that Mr Girgis had not been undertaking personal care duties for a client, in particular he had not been changing a client’s incontinence pad as required. As a result of this concern it was determined that a spot check should be conducted at the First Avenue site on the morning of 7 January 2019.
[42] Together with Ms Asher she arrived at the site at approximately 03:55am. Ms Asher having accessed the backyard of the property advised her that the home was in darkness other than a light in the staff toilet. In looking into the observation window of the office door from outside, apart from the light from the PC monitor, the room was dark and no one was sitting in the office chair or in the office.
[43] Ms McPhee and Ms Asher then accessed the house through the garage door through the locked side door leading to the hallway and office. Ms Asher unlocked the office door and she then saw Mr Girgis standing at the office door rubbing his eyes with both hands and appearing as if he had just woken up.
[44] Inside the office was a ‘black rolled out camp bed’ with a pulled back quilt over the top and two pillows placed at the head of the camp bed. 7 Ms Asher then began to question Mr Girgis who became quite assertive and rude. Ms McPhee then instructed Mr Girgis to leave the site and on being asked why by Mr Girgis, replied that she believed that he had been asleep, jeopardising client safety.
[45] After Mr Girgis had left she observed that the provision of personal care to a client had not occurred as the client’s incontinence pad had not been changed since 9:00pm the night before and was required to be changed at 3:00am.
[46] Under cross examination Ms McPhee stated she was not aware that Mr Girgis had not been inducted at First Avenue.
Evidence of Ms Asher
[47] Ms Asher is a Practice Leader with the respondent. Prior to 7 January 2019 she had received communications from support workers at First Avenue that Mr Girgis was not performing all his shift duties, specifically changing the incontinence pad of a client as required at 3:00am. After discussing this with her Practice Manager Ms McPhee, it was agreed to conduct a spot check in the early hours of 7 January 2019.
[48] On 6 January 2019, Ms Asher instructed Support Worker Ms Anna Dobrincic to print off shift duty forms, hourly observation forms and handovers summary forms and to leave them on the office desk of First Avenue. Ms Dobrincic was not called by the respondent to give evidence that she had actually undertaken this task. Ms Dobrincic worked the shift prior to Mr Girgis commencing his wakeover shift on 6 January 2019.
[49] Ms Asher stated that on arriving at First Avenue at 3:45am on 7 January 2019 with Ms McPhee, the site was in darkness. Ms Asher let herself into the property through the locked gate with her master key. She then walked down the side of the home and noticed there was a light on in the staff bathroom but everything else was in darkness, she then accessed the backyard and looked toward the rear of the home and observed that it was in darkness with the blinds drawn. She then returned through the side gate and met Ms McPhee on the street at approximately 3:55am.
[50] On accessing the house and checking that no one was in the dining, lounge or kitchen area she then used her key to unlock the office door which was in darkness and immediately observed Mr Girgis at the door rubbing both eyes. On turning on the office light she noticed a black bedroll with a doona on top which appeared to have been flung aside. There were two cushions on the floor.
[51] As Mr Girgis was wearing thongs she asked where his work shoes were and did not receive a response. Ms Asher then asked Mr Girgis whether he had finished his shift duties having noticed a pile of papers on the office desk that included the hourly observation sheet and a shift duty and handover summary form, again Mr Girgis did not respond.
[52] Mr Asher’s evidence was that she then asked Mr Girgis ‘what were you doing’ and he responded that he was just lying down. Ms Asher states she then replied this is a wakeover shift not a lying down shift. She then asked whether he had made the client lunches and Mr Girgis responded that he was just about to do so. Ms Asher’s evidence was that she believed that Mr Girgis was asleep at the time Ms McPhee and she entered the site. 8
[53] After Ms McPhee instructed Mr Girgis to leave the workplace she changed the incontinence pad of a client (who was intellectually disabled and non-verbal) that Mr Girgis had failed to do as part of his shift duties.
[54] Under cross examination Ms Asher acknowledged that she had not actually seen Mr Girgis asleep. Ms Asher stated that it is the job of a Practice Leader to carry out site inductions and had assumed Mr Girgis had been inducted as he had been working at First Avenue before she took over as Practice Leader at First Avenue.
[55] Ms Asher stated that Mr Girgis could have ascertained the need to change the client’s incontinence pad at 03:00am by viewing the Shift Duty form.
Evidence of Ms Calamia
[56] Ms Calamia is employed part time as a support worker the respondent. On 31 December 2018 she attended for work at First Avenue, her shift commenced at 15:00pm and finished at 23:00pm. At the end of her shift she handed over to Mr Girgis to start his wakeover shift. Ms Calamia’s evidence 9 was that she spoke to Mr Girgis and informed him that a client’s incontinence pad was to be changed during his shift at 03:00am.
[57] During a shift handover the following day Rachael Couch another part time support worker told her that a client’s incontinence pad had not been changed that morning at 03:00am by Mr Girgis. Ms Calamia advised Ms Couch that she had expressly told Mr Girgis of the need to perform the 03:00am incontinence pad change.
[58] Under cross examination Ms Calamia maintained that she had told Mr Girgis of the need to change the incontinence pad during the shift handover.
Evidence of Rachael Couch
[59] Ms Couch is a part time support worker for the respondent and prepared a witness statement and gave oral evidence as to her recollection of events on the morning of 1 January 2019.
[60] On 1 January 2019, Ms Couch arrived for work at First Avenue at approximately 05:50am and found the front screen door and main door unlocked. Both doors are to be kept locked at all times as one client is known to abscond and another has a tendency to move objects outside and wander around outside without staff present.
[61] On entering the premises she observed a client standing outside her bedroom who she said good morning to as she walked towards the office. Mr Girgis then came out of the office and she observed what she believed was a movie or TV show playing on a tablet device on the office desk.
[62] Ms Couch stated that she then told Mr Girgis that he shouldn’t leave the doors unlocked as it is a lockdown site. Ms Couch’s evidence was that she then walked out of the office and walked towards a client who was vocalising and making incoherent noises. The client followed her to the lounge room and began slapping her hand on different parts of the furniture. After a short time the client began banging her head on the walls and windows. Ms Couch stated that she stayed with the client for approximately one hour redirecting her away from self harm and allowing her to vocalise and slap furniture. During this period Ms Couch stated she could not recall whether Mr Girgis came out of the office. 10 The client calmed down around 07:00am. Between 07:30 – 08:00am she observed that the bed sheets of the client were wet with urine.
[63] At around 10:00am while preparing to undertake personal hygiene care for another client Ms Couch noted that their incontinence pad had not been changed from the night before, the pad was heavy and full of urine and had not been changed during Mr Girgis’ wakeover shift. This posed a health risk to the vulnerable and intellectually disabled client.
[64] As a result of her concerns she sent an email to Ms Asher and Ms McPhee. On speaking to Ms Calamia later in her shift, Ms Calamia told her that she had distinctly told Mr Girgis the night before of the requirement to change the client’s incontinence pad during the night on his wakeover shift.
[65] During cross examination Ms Couch was taken to the email she had forwarded to Ms Asher and Ms McPhee at 10:58 am on 1 January 2019 and in particular where the statements in the email differed from her witness statement filed in the hearing. The email to Ms Asher and McPhee stated that on entering First Avenue on the morning of 1 January she witnessed a client hitting her head on the walls and being in an agitated state while Mr Girgis remained in the office. Whereas Ms Couch’s witness statement referred to the client behaviour as not having commenced until sometime after she had arrived for her shift. Ms Asher was unable to satisfactorily explain the differences in her two statements.
Evidence of Mr Querro
[66] Mr Damian Querro is the respondent’s People and Experience Leader reporting to Ms Crofts the General Manager Human Resources.
[67] Mr Querro explained that the process prior to issuing a letter of termination is to provide his recommendation to Ms Crofts and for Ms Crofts and the Chief Executive Officer to consider and approve or reject his recommendation.
[68] The First Avenue home is a locked site which means all external doors must be locked when not in use by employees while entering and exiting the home. Two clients require a high degree of care as one has the intellectual capacity of a 2 year old and requires regular and routine changing of her incontinence pad and another requires monitoring and encouragement to ensure she uses the toilet.
[69] An employee performing a wakeover shift is required to remain alert at all times as they may be required to respond to an incident at any time from clients who have complex behaviours and needs.
[70] At the commencement of each shift Mr Girgis is required to review the Shift Duties Form. 11 Mr Girgis was also required to ensure compliance with the Personal Care Plan for any clients under his care.
[71] On 8 January 2019 Mr Querro sent Mr Girgis correspondence confirming that he was suspended from duties and which contained a list of allegations directing Mr Girgis to attend a meeting the following day to respond to the allegations.
[72] The allegations contained in the 8 January 2019 correspondence were that Mr Girgis:
On Tuesday 1 January at the First Avenue home:
• Left both front doors unlocked and that a client was found in an agitated state, vocalising and hitting her head on the walls and her bed sheets were soaked in urine.
• Was watching a movie or television show on a tablet device on the office desk
• Had not emptied the dishwasher from the night before.
• Had not changed a client’s incontinence pad at 03:00am as detailed in the Shift Duties Form
On Monday 7 January at the First Avenue home:
• Was in the office with the lights off the door closed with a pillow, blanket and camp bed on the floor, when asked why replied that he was just lying down.
[73] At Mr Girgis’s request the meeting was delayed until 14 January 2019. Mr Girgis attended the rescheduled meeting with his support person Ms McKeon.
[74] During the meeting Mr Girgis stated he had not been told of the requirement to change an incontinence pad at 03:00am. When put to him that he had been notified of this requirement by another support worker he did not respond and requested the date of the conversation. Mr Girgis stated he was not aware there was a Shift Duties Form in place at First Avenue and was unsure whether he had completed an induction for First Avenue.
[75] Mr Girgis stated he had unlocked the front doors of First Avenue on 1 January 2019 when he saw that a co-worker had arrived and was parked out the front. Mr Girgis stated that at the time he was accessing his pay slip on his tablet device as he wasn’t able to do so this on the staff computer.
[76] Mr Girgis stated that on 7 January 2019 he had a mat and cushions in the staff office as he is unable to sit at the office desk for long periods as he suffers from back problems. He required a blanket as it was cold in the staff office.
[77] After the disciplinary meeting Mr Querro met with Ms McPhee and Ms Asher who agreed that Mr Girgis’s responses were unacceptable.
[78] Following this discussion Mr Querro formed the view that Mr Girgis should have been aware of the requirement to change a client’s incontinence pad at 03:00am as it was contained in the Shift Duty Form and he had been advised of this requirement by a fellow support worker. It does not appear however that Mr Querro confirmed with Ms Dobrincic whether she had complied with Ms Asher’s instruction to print off shift duty forms, hourly observation forms and handovers summary forms and to leave them on the office desk of First Avenue on 6 January 2019.
[79] Mr Querro concluded that Mr Girgis had left the front doors of First Avenue unlocked on the morning of 1 January 2019, which was inconsistent with the procedures in place for First Avenue.
[80] In respect of the allegation that Mr Girgis did not provide personal care and assistance to a client who was found in an agitated state, vocalising and hitting her head on the walls and that her bed sheets were soaked in urine, Mr Querro stated that Mr Girgis’s response was that the client was not awake before 06:00am and only woke up after his co-worker arrived at 06:00am. Mr Querro found that Mr Girgis’s response was insufficient and concluded that Mr Girgis had not provided the personal care and assistance to the client in accordance with his duties and responsibilities.
[81] However, Mr Querro accepted that Ms Couch’s statement prepared for the hearing was materially different to her email correspondence of 1 January 2019 to Ms Asher, where she stated that on entering the site she found a client agitated, vocalising and hitting her head on the walls. Ms Couch’s written statement 12 states that on entering the premises the client was standing outside her bedroom door with her hands clasped and watched her walk down the hallway. It was not until sometime later did the client begin to vocalise making incoherent sounds and not until Ms Couch had turned on the television in the lounge room did the client walk to the back wall of the house and after a short time begin to bang her head on the walls and windows.13 On this basis Mr Querro accepted the allegations as specified in the respondent’s correspondence of 8 January 2019 that the client was seen to be engaging in the above behaviour by Ms Couch on entering the home could no longer be substantiated.
[82] Mr Querro’s witness statement did not address the allegation concerning Mr Girgis’ failure to remove the dishes from the dishwasher the night before on 31 December 2018. However in his oral evidence Mr Querro stated he did not believe that Mr Girgis intended to empty the dishwasher at any time during his shift.
[83] In respect of the allegation Mr Girgis was watching a movie or television show on a tablet device on the office desk on the morning of 1 January 2019, Mr Girgis stated that he wasn’t able to access his pay slip on the staff room computer and had asked his co-worker Ms Calamia to assist with opening his payslip that morning. As Ms Calamia was not rostered on during the morning of 1 January 2019, Mr Querro formed the view that Mr Girgis was untruthful in his response. In his oral evidence Mr Querro, on being advised that Mr Girgis had stated he had mistaken the name of the employee, did not accept this explanation.
[84] Mr Querro found that Mr Girgis had in the early hours of Monday morning 7 January 2019 been lying down in the staff room with the light off not undertaking his duties, stating that it is not acceptable under any circumstances for an employee to lie down on a ‘camp bed’ in the dark during their shift 14 putting the health and safety of clients at serious risk.
[85] Mr Querro expressed serious concern that Mr Girgis appeared to believe his explanation for this conduct was sufficient and damaged any trust and confidence necessary to accept he could conduct himself in an appropriate and safe manner in the future.
[86] Under cross examination Mr Querro stated he did not believe it was necessary to speak to all employees as part of his investigation who were at work during the relevant times in particular an employee named ‘Mohan’ who Ms Couch had stated also observed the self-harming client’s sheets being soaked with urine.
[87] Mr Querro advised Ms Crofts and Ms Doyle of his conclusions. On 16 January 2019, a meeting was held with Mr Girgis where he was advised of the respondent’s intention to terminate his employment with immediate effect and provided him with written notice of termination. Although engaged as a casual he was provided with one week’s pay as payment in lieu. 15
[88] While Mr Querro did not have regard to the Man Down report he stated that it would not have altered his recommendation as it only indicates that a button was pressed once an hour and not that Mr Girgis was performing his duties for the entirety of his shift.
Conclusion
[89] Section 387 of the Act sets out the factors the Commission must take into account in considering whether the dismissal was harsh, unjust or unreasonable:
(a) whether there was a valid reason for the dismissal related to the person’s capacity
or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.
[90] The above matters are considered below.
(a) Whether there was a valid reason related to capacity or conduct for the dismissal
[91] The term “valid reason” was considered by Northrop J in Selvachandran v Petron Plastics Pty Ltd 16, in relation to s.170DE of the Industrial Relations Act 1988. While under a different legislative framework, the below comments of Northrop J remain apposite:
“Section 170DE(1) refers to ‘a valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective `valid’. A reference to dictionaries shows that the word `valid’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: `2. Of an argument, assertion, objection, etc.; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In the Macquarie Dictionary the relevant meaning is `sound, just or well founded; a valid reason.’
In its context in s 170DE(1), the adjective `valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must `be applied in a practical, common-sense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of a s 170DC.”
[92] The above is authority for holding that a ‘valid reason’ means the reason for the dismissal must be sound, defensible or well founded and should not be ‘capricious, fanciful, spiteful or prejudiced.’ This approach to determining whether a valid reason exists has been and continues to be adopted by the Commission in unfair dismissal matters.
[93] The approach to the assessment, pursuant to s.387(a) of the Act, as to whether there is a valid reason for an employee’s dismissal relating to the employee’s capacity or conduct where the employee is alleged to have committed misconduct was commented on by a Full Bench in B, C and D v Australian Postal Corporation T/A Australia Post 17:
“[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd, 18 Sherman v Peabody Coal Ltd,19 Australian Meat Holdings Pty Ltd v McLauchlan .20
[35] Subject to that, as indicated by Northrop J in Selvachandran 21, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee.
[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”
[94] In the decision of Owen Sharp v BCS Infrastructure Support Pty Ltd 22 the Full Bench stated that it is well established that, for the purposes of s.387(a) of the Act, it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal.
[95] The reasons for Mr Girgis’s dismissal were stated in his termination of employment letter of 16 January 2019. The dismissal was effective immediately and although employed as a casual Mr Girgis was provided with one weeks’ pay in lieu of notice.
[96] Essentially the allegations that had been put to Mr Girgis in earlier correspondence of 8 January 2019 were said to have been substantiated. The nature of the allegations were said to be serious and damaged the inherent trust required in the employment relationship.
[97] The allegations said to be substantiated by the respondent are that Mr Girgis on his wakeover shift between 31 December and 1 January 2019 at the First Avenue Home:
• Failed to change an incontinence pad for a client at 03:00am on 1 January 2019
• Did not keep locked at all times the front doors to the First Avenue Home on the 31 December/1 January 2019
• At around 06:00am on 1 January he was watching either a television show or a movie on a tablet device and had not emptied the dishwasher from the night before
• Failed to provide personal care and assistance to a client found vocalising and hitting her head on the walls
[98] Further on 7 January 2019 on his wakeover shift at First Avenue he was found with a pillow, blanket and camp bed in the staff room floor with the door shut and had not completed his shift duties at the time.
[99] Mr Girgis provided responses to all the allegations put to him and submitted that his conduct was at all times in accordance with the procedures and protocols of the employer.
[100] In respect of whether the allegations against Mr Girgis were substantiated to the Commission’s satisfaction and if so whether they constituted a valid reason for dismissal either singularly or in conjunction with other substantiated allegations I draw the following conclusions:
Failure to empty the dishwasher from the night before (31 December 2018) in accordance with the Shift Duties Form.
[101] On its face this allegation which was accepted by Mr Girgis subject to his further explanation is not of a sufficient seriousness to constitute a valid reason for dismissal. Mr Girgis explained that there were 2 hours left on his shift on the morning of 1 January 2019 and that he usually emptied the dishwasher near the end of his shift so as not to disturb clients sleeping.
[102] Despite the allegation being included in the correspondence from the respondent of 8 January 2019, it was not referred to in Mr Querro’s witness statement.
[103] The explanation provided by Mr Girgis in respect to this allegation was not seriously contested by the employer and I accept the explanation provided by Mr Girgis as reasonable where he still had 2 hours of his shift left to work in which to perform the task. It cannot be safely assumed, as stated by Mr Querro, that Mr Girgis was not intending to perform this task in the remaining 2 hours of his shift.
Failure to provide personal care to a client by not changing a client’s incontinence pad.
[104] Mr Girgis does not deny that he did not change a client’s pad at 03.00am on 1 January 2019 which was listed as part of a First Avenue client’s personal care protocol on the Shift Duties Form. 23 In his defence he states that he was unaware that he had to change the pad at 03:00am as he had never been provided with the Shift Duty Forms, Personal Care Protocols or Incontinence Protocols for First Avenue. Mr Girgis’s understanding was that incontinence pads were changed in the morning as clients were showered, and this was the process in all other houses he had worked in.
[105] Mr Girgis did not recall fellow support worker Ms Calamia telling him on the evening of 31 December 2019, that a client needed to have her pad changed at 3:00am. 24 He further disputed that the Shift Duty Forms were located on the office desk. While the respondent produced a Shift Duty Form which included the task of changing the client’s incontinence pad at 03:00am it was not signed by Mr Girgis or dated.
[106] I am satisfied in respect to this allegation that it was brought to Mr Girgis’s attention by Ms Calamia to change the incontinence pad and that he failed to act on that advice. Even accepting that he was not advised of the requirement to change the incontinence pad, having regard to the evidence of Ms Croft and Mr Querro in regard to Mr Girgis’s work history and experience, I am satisfied that he failed to make himself aware of the personal care requirements of the clients at the commencement of his shift.
[107] While being a casual employee and not being regularly rostered at the First Avenue home Mr Girgis was experienced enough to know he should have sought out the Shift Duty Form when it wasn’t in a ‘purple folder’ where he believed it would normally have been kept.
[108] Despite this failure I do not consider that in isolation it provides a valid reason for his dismissal as opposed to some other less drastic disciplinary measure. Ms Crofts on this issue confirmed in her oral evidence that the failure to change an incontinence pad alone would not cause the employer to dismiss Mr Girgis.
Failure to lock the Doors when not in use on 1 January 2019
[109] It is a requirement that all external doors are locked at First Avenue as some clients have a propensity to abscond placing their safety at risk. This is particularly the case where one client had a tendency to abscond. Mrs Couch’s evidence was that at approximately 5:50am on 1 January 2019 she arrived at work and opened the screen door on the outside of the home which was unlocked and then opened the wooden door behind the screen door which was also unlocked. It wasn’t until she had walked some distance down the hall that Mr Girgis came out of the office.
[110] Mr Girgis states that the doors were locked and that he had unlocked the front doors when he heard a car pull up. Mr Girgis then returned to the office, as a result when Ms Couch entered the home the doors were unlocked contrary to the requirements that existed at First Avenue, the allegation is therefore sustained to the Commission’s satisfaction.
[111] As stated above the Full Bench in B, C and D v Australian Postal Corporation T/A Australia Post held that a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal. I do not consider the failure by Mr Girgis to ensure that the front doors of the First Avenue home remained locked, in the period it took for the oncoming staff member to walk from the car park to the front of the home, to be a substantial or wilful breach of policy constituting a valid reason for his dismissal particularly as it was not demonstrated to be other than a one off incident.
Watching a movie or television show on a tablet device on the office desk
[112] Mr Querro formed the view that Mr Girgis was untruthful in responding to this allegation as the employee to whom Mr Girgis referred to when asking for assistance to access his pay slip on the staff room computer was not rostered on at the time. Mr Girgis gave evidence that as a casual and not working regularly at First Avenue he didn’t know the other staff well and had referred to the wrong staff member. He denied that he was watching television or a movie.
[113] It would have been preferable for Mr Querro to have put to Mr Girgis that the staff member he referred to in his response was not working at the relevant time to enable Mr Girgis to provide the response he did in his evidence before the Commission that he had mistakenly named the incorrect employee. As stated above, Mr Querro in his oral evidence did not accept that Mr Girgis had mistaken the name of the employee. There was no reason proffered by the respondent why Mr Girgis provided the name of an employee who was not on duty at the relevant time. It is far more plausible to accept that as a casual working at numerous homes he was mistaken about the name he provided.
[114] On what was put before the Commission I am not persuaded that on the balance of probabilities this allegation is substantiated. In any event, such conduct in the first instance would warrant a warning as opposed to being a valid reason for dismissal.
Failed to provide personal care and assistance to a client found vocalising and hitting her head on the walls
[115] The allegation as framed by the employer in its list of allegations put to Mr Girgis in the 8 January 2019 correspondence and said to have been substantiated in the termination letter of 16 January 2019, was conceded by Mr Querro in his oral evidence at the hearing to no longer be substantiated in light of the evidence of Ms Couch differing from what she had initially told the employer’s representatives. Despite this, Mr Querro stated his conclusion to recommend Mr Querro’s dismissal would not have been altered.
[116] I accept that the behavior of the client occurred as alleged, however it was not demonstrated that while Ms Couch was dealing with the client’s behaviour Mr Girgis failed in his duties in the manner specified in the letter of allegations. Further, Mr Querro in my view rightly conceded the allegation could no longer be said to be substantiated in the manner it was framed and as such it could not constitute a valid reason for Mr Girgis’s dismissal.
Laying down with sleeping furnishings on morning of 7 January.
[117] The employer’s letter of allegations of 8 January 2019 alleged that Mr Girgis was at around 04:30am on 7 January present in the First Avenue office with the door closed and lights off with a pillow, blanket and camp bed set up on the floor. When asked what he was doing he responded that he was just lying down.
[118] Mr Querro’s evidence was that at the investigation meeting Mr Girgis advised that he was not asleep, suffers from back problems and had a mat and cushions in the staff office as he is unable to sit at the desk for long periods. He had a blanket as it was cold. Mr Querro stated that he not did make a finding that Mr Girgis was asleep but was satisfied he had been lying down in the staff room with the light off and not attending to his duties. 25
[119] In his oral evidence Mr Girgis maintained that he was uncomfortable in the office chair and was cold due to the air conditioning being turned down low which he could not adjust. He was not actually lying down but propped up against the wall. He had obtained a doona and cushions from the home and had brought in his own beach mat. Mr Girgis accepted that the office door was closed with the light off, but not locked as stated by Ms Asher.
[120] It is difficult to reconcile the time frame in which this incident occurred based on the evidence and various statements made. For example the letter of allegations of 8 January 2019 states that Ms McPhee and Ms Asher presented at the First Avenue site on 7 January 2019 at ‘roughly’ 04:30 hours, whereas Ms Asher states she arrived at 03:45am 26 and Ms McPhee states she arrived at approximately 03:55am.27 The Man Down switch which was not taken into consideration in the investigation by the respondent shows it was activated at 04:01am. While the time frame of this incident is far from clear, the actions of lying down with bedding material were not disputed by Mr Girgis who argued that as he had been pressing the ‘Man Down’ switch every hour he could not have fallen asleep.
[121] Lying down in the staff room with a blanket, cushions 28 and a mat, with the lights off and the door closed locked or not are on any version activities contrary to undertaking the duties of a wakeover shift. Remaining alert and vigilant as to the special needs of the respondent’s clients at all times is an essential requirement of a wakeover shift. A wakeover shift as Ms Crofts stated requires utmost trust in the employee as they are unsupervised and required to perform the duties vigilantly for the benefit of clients with high care needs.
[122] The collection and arrangement of cushions, a mat and doona or blanket on the floor with the door closed with the light off is tantamount to sleep preparation. Mr Girgis at the very least put himself in a position where he had the potential to fall asleep and not remain alert. Being the only employee on site at the time only heightens the seriousness of the conduct, in a home with highly vulnerable clients.
[123] Mr Girgis’s conduct in taking up a position on the office floor either prostrate, or leaning against a wall on the floor as he stated in his oral evidence, with the door shut and light off with the necessary bedding accessories to either fall asleep or at a minimum not remain clear-headed and responsive provided the employer with a valid reason for his dismissal.
(b) Whether the person was notified of that reason
[124] Mr Girgis was provided with notice of the allegations made against him in written correspondence dated 8 January 2019. The reasons for his dismissal was outlined in correspondence dated 16 January 2019 and reflected the allegations contained in the 8 January 2019 correspondence.
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct
[125] Mr Girgis was provided with an opportunity to respond to the reasons for his termination at an investigation meeting held on 14 January 2019.
(d) Any unreasonable refusal to allow the person to have a support person present to assist at any discussions relating to dismissal
[126] Mr Girgis attended the investigation meeting with a support person.
(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[127] The respondent submits that the termination of Mr Girgis is related to conduct not performance; however this submission was not elaborated upon. Mr Girgis stated that he had not received any warnings or counselling regarding his performance which was not contested by the respondent.
[128] In my view, the allegations made by the respondent in part relate to Mr Girgis’s performance such as not emptying the dishwasher, not changing an incontinence pad at the appropriate time and not locking the doors of First Avenue at all times. It is not disputed that these performance issues had not previously arisen where Mr Girgis had been counselled or provided with a warning.
[129] I accept however that the allegation concerning lying down during a wakeover shift in a locked office with the light off is conduct-related.
(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
[130] The employer’s business is of a sufficient size to require that any dismissal process be carried out in an appropriate manner.
(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
[131] The respondent did not suffer from an absence of dedicated human resource management.
(h) Any other relevant matters
[132] Whilst I am satisfied that the applicant’s conduct in lying down on the floor of his office was a valid reason for his dismissal this does not of itself make the dismissal fair. As stated by the Full Bench in Container Terminals Australia Limited v Toby 29 at paragraph [15]:
“In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable.”
[133] In my view the allegations not concerning lying down in the office (where substantiated) such as Mr Girgis not locking the First Avenue doors and not unstacking the dishwasher, could not constitute poor performance to the degree justifying his dismissal having regard to the absence of any previous warning on these issues. A penalty of dismissal would be disproportionate to the conduct.
[134] It is however the more serious allegation of lying down with bedding equipment during a wakeover shift in an office with door closed and the light off that potentially endangered the safety of vulnerable clients which has caused the employer to lose trust and confidence in Mr Girgis’s ability to remain employed. Such conduct does not lend itself to counselling or a warning as was put by Mr Girgis.
[135] Having commenced in November 2015 with the respondent, Mr Girgis’s service was neither short nor lengthy. He worked as a casual to suit his work in real estate which he continues to do, although he states he has not earnt any income due to the long lead times in real estate.
[136] I have had regard to the fact that Mr Girgis had not been inducted at the First Avenue home and that the completion of Shift Duty Forms at least at the First Avenue home did not appear to be a consistent practice among staff.
[137] I am however not persuaded that there exist any matters that make Mr Girgis’s dismissal harsh, unjust or unreasonable. The conduct of the applicant in retiring with bedding to the floor of his office with the light off and the door shut in the context of performing a wakeover shift with the care and responsibility of vulnerable clients was incompatible with his obligations as a support worker and destructive of the necessary confidence between the employer and the applicant.
[138] Given also Ms Girgis’s denial of any wrong doing in respect to lying down on the office floor on a wakeover shift, I am satisfied the employer’s trust and confidence in him has justifiably been lost as the respondent could not be confident that he would not act in a similar way by ignoring his responsibilities to highly vulnerable clients.
[139] For the above reasons Mr Girgis’s application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
M Girgis on his own behalf
J Zadel solicitor on behalf of the respondent
Hearing details:
2019
May 13, 21, 29
June 17
Printed by authority of the Commonwealth Government Printer
<PR709903>
1 Written submissions 1 May 2019 at [4.1] Exhibit A8
2 See Witness Statement of Mr Querro Ex R5 at page 28
3 Ex A8
4 Mr Girgis stated that he had sourced these items from within the home
5 Although there was no actual finding on the dishwasher allegation
6 Ex R1
7 Ex R1 at [14]
8 Exhibit R2 at [34]
9 Witness statement Ex R3
10 Witness statement at [18]
11 Witness statement at [65] Exhibit R5
12 Exhibit R4
13 Ibid [15-18]
14 Witness statement at [156]
15 See termination letter of 16 January 2019
16 (1995) 62 IR 371 at 373
20 (1998) 84 IR 1)
21 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
22 [2015] FWCFB 1033 at [32]
23 See DCQ1 at p25
24 Reply statement Ex A8 at [4]
25 Witness statement at [154] Ex R5
26 Exhibit R2 at [7]
27 Exhibit R1 at [8]
28 Some witnesses referred to a doona/quilt and pillow
29 Print S8434