DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chadissa Whale
v
CPL – Choice, Passion, Life
(U2019/11114)

Application for an unfair dismissal remedy – aged care – disabled care – failure to report injury – injury not caused by Applicant – show cause process – multiple terminations – dismissal not deemed unfair – application dismissed.

Introduction

[1] On 3 October 2019, Ms Chadissa Whale (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy with respect to her dismissal by CPL – Choice, Passion, Life (the Respondent). The Applicant seeks compensation as a remedy.

[2] The matter was heard on 2 and 3 September 2020 at Brisbane. The Applicant represented herself in the proceedings. The Respondent was represented by Mr Troy Spence of counsel, instructed by Mr Andrew Ross of Australian Business Lawyers & Advisors. I dealt with the issue of permission to appear by way of email, ahead of the hearing. The Respondent’s representative wrote to my Chambers on 6 March 2020 seeking that permission be dealt with as soon as possible to ensure proper preparation for the final hearing. I advised the parties by email on that same day, that permission for the Respondent to be represented in this matter was granted. I will deal more with the issue of permission later in this decision.

[3] The Applicant gave sworn evidence at the hearing. Ms Jan Mussett also filed a witness statement in support of the Applicant’s application, however further to objections raised by the Respondent, Ms Mussett was not called to give evidence at the hearing. I have accepted Ms Mussett’s witness statement, and in light of objections made, will give appropriate consideration to the weight of her evidence. The Respondent relied on evidence of the following persons, who filed witness statements in this matter and appeared and gave sworn evidence at the hearing:

•  Mr Murray Sandon, General Manager of the Respondent;

•  Ms Kathryn Dunn, Health Liaison Officer of the Respondent;

•  Ms Sarah Mobbs HR Business Partner of the Respondent;

•  Ms Lisa Snailham, Service Facilitator of the Respondent; and

•  Ms Leanne Dempsey, Area Manager of the Respondent.

[4] It is not in dispute that the application was made within time (s.396(a)); the person was protected from unfair dismissal (s.396(b)); the Small Business Fair Dismissal Code does not apply (s.396(c)); and the dismissal did not involve a genuine redundancy (s.396(d)). These matters were not raised by the parties and I find that these issues are not a point of contention.

Background

[5] The Respondent is a not-for-profit organisation providing support and services to children and adults with disabilities across Queensland and Northern New South Wales. The Respondent is a registered provider under the National Disability Insurance Scheme (NDIS) and is required to operate within the NDIS’s Quality and Safeguarding Framework. The NDIS Quality and Safeguards Commission oversees the implementation of the NDIS Quality and Safeguarding Framework.

[6] The Applicant was employed by the Respondent on a part-time basis as a Direct Support Worker from July 2018 until her dismissal on 1 October 2019. Prior to her employment with the Respondent, the Applicant was employed by another disability support provider, FSG Australia (FSG), from 2015 until 2018 when the company was placed under voluntary administration. The Respondent was allocated some of FSG’s clients by the Queensland Department of Communities to ensure continuity of service to the affected clients. Many FSG employees, including the Applicant, were offered employment by the Respondent.

[7] The Applicant provided care to three of the Respondent’s clients at Dunstan House, based on the Gold Coast. One of the clients was ML 1 who suffered several medical conditions, including chronic renal failure. The Applicant was not the sole support worker providing care at Dunstan House, but worked alongside a number of other staff members employed by the Respondent.

[8] On 14 September 2019, the Applicant was advised by a colleague, just prior to the end of her shift, that ML had a shoulder injury of a certain nature. It is a point of contention between the parties as to the nature of the shoulder injury. It was the Applicant’s view that the injury was a blister, and the Respondent’s view that it was a burn. That same colleague told the Applicant to write an incident report to cover herself. The Applicant was due to complete her shift at 4:00pm that afternoon, and she sent the incident report at 4:06pm and left Dunstan House at 4:15pm.

[9] On 16 September 2019, the Respondent’s management were notified of the incident involving ML’s injury. The Applicant was contacted by the Area Manager, Ms Leanne Dempsey, to obtain further information regarding the incident. It was unclear to the Respondent when the injury was sustained by ML and why appropriate steps were not undertaken by staff on duty to provide medical attention and reporting. The Respondent accordingly determined that a full investigation would be conducted.

[10] All nine staff members working at Dunstan House during the weekend of 13 September to 15 September 2019 were stood down on full pay pending the investigation, effective on 16 September 2019. The Applicant was initially notified by telephone by Ms Dempsey of her suspension on or around 6pm that evening. A letter dated 16 September 2019 confirming the suspension was sent to the Applicant and other staff members who had been stood down.

[11] On 17 September 2019, a formal meeting was held between the Applicant, Ms Dempsey, and Ms Sarah Mobbs, HR Business Partner of the Respondent. The purpose of the meeting was to discuss and further investigate the events which led to the injury sustained by ML.

[12] On 23 September 2019, a Show Cause letter was issued to the Applicant requesting the Applicant provide a response why her employment should not be terminated. The Applicant provided her response to Ms Dempsey on 24 September 2019.

[13] On 26 September 2019, a Show Cause meeting was held with the Applicant, Ms Dempsey and Ms Mobbs in attendance. A discussion was held regarding the Applicant’s Show Cause response and to further discuss the investigation.

[14] A further meeting was held on 1 October 2019, between the Applicant, Ms Dempsey and Ms Mobbs, at which the Applicant was provided a notice of termination of employment letter, which stated:

“This letter is to advise you that your employment with CPL has been terminated, effective from 1 October 2019. Your employment has been terminated because you have failed to adhere to the CPL Staff Code of Conduct. In your role of a Direct Support Worker, you are required to provide safe effective assistance to CPL clients in an autonomous manner. As a result of a recent Incident and subsequent investigation CPL has lost all trust and confidence in you performing your role in an autonomous manner.

On 16 September 2019 you were suspended with pay pending an investigation into a client (ML) sustaining a serious injury. On the 17 September you attended a formal meeting to discuss the actions you took while on shift on the weekend of the 13 September 2019 to the 15 September 2019. On the 23 September you were Issued a show cause letter. You provided a written response to this show cause letter on the 25 September 2019. On 26 September 2019, you attended a show cause meeting with Sarah Mobbs, HR Business Partner and I, to discuss the actions you took when supporting client {ML) following the identification of a serious Injury.

During the meeting you were asked if you had anything you wished to say or to respond to the allegations. You stated that you did not seek medical treatment or call CPL on-call to report the identified burn to the client (ML). You stated that you did not ask the client (ML) if she was in pain or offer the client (ML) any pain relief.

CPL considered matters raised by you as part of the show cause process and is of the view that you failed to follow CPL reporting procedures and failed to seek medical assistance for a significant injury to a client. The actions and decisions you made while on shift with a CPL client (ML) do not mitigate the treatment of the client. The care and safety of clients is paramount at CPL where people with a disability are treated with dignity and respect. Your conduct poses a significant risk to the operation of services at CPL and is unacceptable to the point where the organisation can no longer continue your employment.

Please accept this letter as your termination where CPL will pay you in lieu of two weeks' notice. You will also be paid any outstanding remuneration that Is applicable, within three days of the termination date, as per CPL’s Enterprise Agreement.

We remind you of your ongoing contractual obligations with respect to confidentiality. Please be advised It Is a requirement of the Disability Services Act that you complete a No longer with Organisation (for applicants/cardholders) form and a Change of details of positive notice/card or positive exemption notice/card holder DOC 10-4 form and send them directly to the Department as soon as possible. I have enclosed these forms for your convenience.”

Applicant’s submissions

Alleged misconduct

[15] As to the misconduct alleged against the Applicant, the Applicant submitted that she did the “best job possible in the time frame [she] had”. 2 She submitted she was in shock, as her day working with ML had been, she believed, one of her best. She stated ML only had one kidney and became tired easily, but that they had an awesome ‘customer worker’ relationship.

[16] The Applicant submitted she believed ML had “naturally accruing” blisters, not significant burns. 3 She submitted she had noticed the same blisters on another ‘customers’ fingers, and that on enquiries with other staff she was told the mother and doctors did not know how the blisters occurred, and “nobody can be blamed for them”.4

[17] The Applicant submitted her colleague had noticed the blisters on ML first, as her colleague had changed ML’s clothes. The Applicant submitted her colleague told her to take a look, and pointed to ML’s shoulder. The Applicant stated her understanding was that an employee who notices an incident must report it. However, she was told by her colleague to write an incident report ‘to cover herself’. The Applicant conceded that she wrote the incident report to explain how the blisters appeared on ML’s shoulder, however she submitted:

“Rhoda spotted ML’s shoulder injury and pointed at it and said, “look”. Therefore Rhonda should have written the incident report and phoned after hours. ML never mentioned anything about her shoulder all day and then I am told, ‘hey look at this’. What would you do? How would you feel if somebody is talking to you as if you created it? I have entered into a situation I knew nothing about which was not in my control, a tornado!” 5

[18] The Applicant further submitted:

“I felt my energy was spent doing the following.

•  trying to process what I have just seen

•  Trying to prove my innocence to Rhonda

•  Trying to explain what ML and I did that day

•  Plus write an incident report

•  My mind was over working as something never felt right. Now I know I should not have written the incident report. That was Rhonda’s responsibilty.

•  It was as if I could not think for myself. Words were being drummed into my head about the injury being a blister.

•  Then I was told to go home.” 6

[19] The Applicant stated she had written incident reports in the past when incidents had occurred, and she did not have a problem making phone calls to on-call, doctors or hospitals. However, the Applicant submitted that in writing the incident report about ML, she “did more than [she] was expected to, considering [she] never spotted the shoulder injury”. 7 She stated she was put under pressure to write that report, being told by her colleague that she needed to ‘cover’ herself. The Applicant reiterated that she believed her colleague should have written the incident report, as her colleague was the staff member who first identified the incident.

[20] As to the nature of ML’s injury, the Applicant submitted she did not believe ML had ‘burns’ on her shoulder, rather they were blisters. She stated another name for these blisters is “Bullous pemphigoid which is an autoimmune disorder”. 8 She stated these occur when the body’s immune system attacks the layer of tissue below the top layer of skin. Further, she submitted the cause is not known but can sometimes be triggered by certain medications, including ‘penicillamine’.

[21] The Applicant submitted that herself and four other employees (ex-FSG employees) had been misinformed and terminated over “a natural occurring blister”. 9 She submitted she believed this was a cost-saving decision by the Respondent as ex-FSG employees are paid at ‘level 2.2 upwards’ per hour.

Informed of and opportunity to discuss misconduct

[22] The Applicant confirmed she received a telephone call from Ms Dempsey on 16 September 2019, to ask about the incident that took place on the Saturday. The Applicant was advised that day that she was suspended. She submitted that at the time of being informed of her suspension, she was “in hospital praying for sick people which is another job I like to do in my spare time”. 10 She confirmed an email was sent out that same time, confirming her suspension.

[23] The Applicant stated she attended a formal meeting on 17 September 2019, with Ms Dempsey and Ms Mobbs, to discuss her actions while on shift. She confirmed a show cause meeting was then held on 26 September 2019. The Applicant submitted that Ms Dempsey stated Dunstan House had been under investigation for six months, as ML had often had “unexplainable bruises appear”. 11 As to this matter, the Applicant submitted she “immediately knew [she] was not a suspect”.12

[24] The Applicant submitted she is a cool person and remained calm during these meetings; however, she found Ms Mobbs to be ‘unprofessional’ as she laughed when the Applicant told her that ML called her “black one”. 13

[25] Further, the Applicant submitted that Ms Dempsey appeared uncomfortable when the Applicant mentioned she had spoken to her first aid teacher about burns and blisters. The Applicant submitted that employers cannot terminate a worker for ‘not reporting a blister’, and reiterated that she believed the Employer sought to “get rid of FSG workers quickly, therefore they us [siq] used the words ‘significant burns’, to scare and put fear into us”. 14

Warnings regarding her performance

[26] The Applicant submitted no warnings were given to improve her performance, nor was she offered any training to improve her performance or reporting procedures.

[27] The Applicant submitted that she at all times provided safe and effective care to her ‘customers’.

Support person

[28] The Applicant submitted that she did not ask to have a support person at the meetings relating to her suspension or the show cause process.

Why was the dismissal unfair

[29] As to the unfairness of her dismissal, the Applicant submitted:

“1. We were not given any warnings

2.The dismissal was unfair and unjust because 4 other FSG workers were terminated for the same incident.

3. I worked with those customers because I thought I was helping .

4. I am a single mother with two sons and a mortgage

5. CPL were looking for a scape Goat to save on wages to make more profits.

6. I did absolutely nothing!” 15

Remedy and mitigating factors

[30] At the time of filing her submissions, the Applicant stated she had not found full time work since her dismissal by the Respondent.

[31] She submitted she could not longer trust the Respondent, and did not seek reinstatement. As to compensation, she submitted she believed she would have remained employed by the Respondent for a further 4 to 8 years if not for the dismissal, and therefore seeks the maximum of 26 weeks’ wages.

[32] As to any work she had undertaken since her dismissal she submitted:

“I had another job in disability that lasted for two weeks. CPL have scarred me and I will never be able to step foot in another disability company due to my experience at CPL.

I have started a part time job working as a landscape gardener.” 16

Applicant’s evidence

[33] The Applicant filed a witness statement in support of her application.

[34] The Applicant gave evidence that she worked for FSG as a direct service employee from 2 October 2015, until 17 July 2018 when the Respondent took over the FSG workforce of 500 staff and 2000+ customers.

[35] She gave evidence that she worked for the Respondent as a direct service worker, and had worked with the Dunstan House customers for 4.5 years. The Applicant’s evidence was that she was known as the Respondent’s “awesome staff member”, and noted the Respondent’s shift fill would always call her if shifts needed covering.

[36] Regarding the weekend of 13-15 September 2019, and the events leading up to her dismissal, the Applicant gave evidence as follows.

[37] On the weekend of 13-15 September 2019, a customer was found to have an injury on her left shoulder. A senior worker brought the injury to the Applicant’s attention shortly before the Applicant’s shift ended at 4pm. The senior worker pointed to the injury and said ‘What is that?’ and told the Applicant to write an incident report, which she did.

[38] As to the type of injury she reported, the Applicant’s evidence was that she did not identify the injury as a burn as there were no red marks, rather two pockets of fluid which looked like blisters. Her evidence was that she wrote the incident report based on this assessment. She further gave evidence that she believed ML to have suffered ‘Bullous dermatoses’, which are blisters that form on the skin at the end stages of renal disease.

[39] The Applicant’s evidence was that she did everything possible to follow procedure and to meet her duty of care. The Applicant stated that the senior worker, who had known the client for 8 years, was the employee who first identified ML’s injury and brought the injury to the Applicant’s attention. She stated the senior worker should have written the incident report as she saw the injury first. The Applicant’s evidence was that up until that point, she had no awareness of any injury.

[40] The Applicant gave evidence that the senior worker thought the Applicant was the cause of ML’s blisters, and the senior worker therefore did not allow the Applicant to get too close to ML. The Applicant’s evidence was that ML did not appear to be in any distress or pain.

[41] The Applicant’s evidence was that she stayed back an extra 15 minutes past her shift end, and sat opposite ML and the senior worker, and made sure everything was okay. The Applicant stated she was told by the senior worker to go home, as the Applicant could not do anything.

[42] The Applicant stated she left the premises under the impression that ML was in the safe care of the senior worker.

[43] When Ms Dempsey phoned the Applicant on Monday 16 September around 4pm, she asked the Applicant ‘why did you write the incident report?’. That Applicant’s evidence was that Ms Dempsey knew whoever spotted the incident should report it first.

[44] The Applicant’s evidence was that the Respondent claimed ML sustained a significant burn to her left shoulder that was identified while the Applicant was on shift on 14 September 2019. The Applicant was suspended on 16 September 2019 on full pay pending an investigation into the events that took place over the weekend of 13-16 September 2019 and the cause of the injury.

[45] As to the meeting of 17 September 2019, the Applicant gave evidence that she was advised she could bring a support person, but she attended all meetings on her own “as I did nothing wrong!” The Applicant also gave evidence that she was advised she could seek help from the employee assistance program provider, Life Works, but she did not need help as she did nothing wrong.

[46] The Applicant gave evidence that on 23 September 2019, she was advised in writing that the following was believed to have occurred. She was advised her conduct was in breach of the Respondent’s Staff Code of Conduct, and warned of disciplinary action from a written warning to dismissal. She was asked to show cause by 25 September 2019 as to why she should not be terminated in relation to the breaches of Code of Conduct. Her evidence confirmed that she provided a written response by 25 September 2019 and attended a show cause meeting on 26 September 2019. After the show cause response, the Applicant stated she was terminated in the meeting.

[47] The Applicant stated the Respondent never asked its staff, who saw the Applicant and ML out in the community on 14 September 2019, any questions. The Applicant stated the Respondent therefore did not properly investigate the case. Further, the Applicant’s evidence was that ML was sleeping and needed to be woken up by herself and the staff. She stated “When you have a burn, the pain is uncomfortable and you cannot sleep”.

[48] The Applicant further stated the Respondent advised it had been investigating Dunstan House workers for six months. She stated however she only worked at Dunstan House one to two times per month and was not classed as a regular worker. She gave evidence that if staff at Dunstan House were guilty of harming customers, she was not aware. She stated she had never asked the customers at Dunstan House to take off their clothes so that she could inspect their bodies while on shift.

[49] The Applicant gave evidence that on 7 November 2019, following her dismissal by the Respondent, she started a new job. At this new job she saw a customer with the same blisters as were on ML’s shoulder, however this customer had the blisters on their knuckles. She stated she made enquiries to which she was told the blisters were “naturally occurring” on this customer who was taking medication daily and also had only one kidney. The Applicant stated she was told neither the doctors nor the customer’s mother knew how they appeared. The Applicant’s evidence was that: “This is when I realized CPL was abusing their power as a big company”.

[50] The Applicant’s evidence was that for these reasons, she sought the maximum compensation of 26 weeks’ wages, as she is “convinced that [she] was the victim of a great injustice”.

[51] Her evidence was that the further work she acquired had now ceased. She stated in order to progress her application and attend conciliations, she needed to take time off work as full time work was too hard to maintain while progressing this application in the Commission.

[52] Additionally, she gave evidence that the Respondent had taken actions which impacted her ability to work and earn an income. She gave evidence that in December 2019, a different customer from Dunstan House’s family requested that she work with their daughter. She stated this customer’s family ‘hunted around’ for her, and she signed up to work for this customer through a different company. She gave evidence that, out of respect, she asked the family to ask the Respondent if this working arrangement would be okay. Her evidence was that the Respondent asked the family to supply a name, and that the Respondent stated “if it is who we think it is, this would be a conflict of interest if she came to the house” and the Respondent said no.

[53] The Applicant’s evidence was that she had been a dedicated worker for the Respondent; and further stated she is a single mother of two boys and has a mortgage to pay. Her evidence was that she was terminated unfairly and therefore seeks the maximum compensation as remedy.

Witness statement of Jan Mussett

[54] Ms Jan Mussett, previous employee of the Respondent and terminated in September 2019, filed a witness statement in support of the Applicant’s application.

[55] Ms Mussett was employed as a Disability Support Worker of the Respondent for 14 months prior to her dismissal in September 2019, and she has 15 years experience in the disability industry.

[56] Her evidence was that ML had a tendency to wake up during the night and wander around Dunstan House. She stated ML would sometimes snack on food and try to get into cleaning products, and would leave many cups of water around the house. She stated ML was minimal with her speech, and if she was frustrated she would stamp her feet and shout out. Her evidence was that ML was known to have an intellectual disability, chronic renal failure, hypertension, hypothyroidism and bipolar effective disorder.

[57] As to management at Dunstan House, Ms Mussett stated the managers were always watching the staff, and would interrogate staff about mistakes even if they were absent when the events happened.

[58] Regarding the Applicant, her evidence was that the Applicant was a team leader and ran children’s dance and art activities during vacation care for the Respondent and previously for FSG. She stated this meant the Applicant was a key worker. Her evidence was the Applicant was highly respected by staff, customers and their families. She stated the Applicant is a friendly helpful person who is knowledgeable, and a great person to have in the workplace. She stated the Applicant is also known as a fitness guru, artist and makeup artist outside of her work for the Respondent.

[59] The bulk of Ms Mussett’s witness statement went to the circumstances of her own dismissal, and did not have particular relevance to the matter to be decided here regarding Ms Whale’s dismissal and I have considered it accordingly.

Respondent’s submissions

[60] The Respondent submitted that on Monday, 16 September 2019, it became aware that the client ML had sustained an injury to her shoulder which was determined to be a burn of significant size, and required medical attention.

[61] It submitted that on becoming aware of the injury, it determined that all staff who were rostered to work at Dunstan House between 13 and 15 September 2019 were to be suspended from work on full pay, pending an investigation. This included the Applicant.

[62] The Respondent submitted the investigation involved:

“(a) an initial telephone discussion with the Applicant advising of the suspension and requesting that she attend a formal meeting to discuss the injury sustained by Client ML;

(b) a suspension and formal meeting request letter being sent to the Applicant on Monday, 16 September 2019;

(c) a formal meeting being held with the Applicant on Tuesday, 17 September 2019; and

(d) the Applicant providing a written response to the allegations on 17 September 2019.”

[63] And the Respondent submitted that following the investigation, the following was clear:

“(a) the injury sustained by Client ML was serious in nature;

(b) the mechanism of injury, as reported by the Applicant, was inconsistent with the nature of Client ML’s injury;

(c) the Applicant understood the Respondent’s incident reporting process but failed to follow that process in relation to Client ML; and

(d) the Applicant failed to seek immediate medical advice or treatment for Client ML, even though this should have been automatic for a Direct Support Worker; and

(e) the Applicant failed to exercise sound judgment in relation to Client ML.”

[64] The Respondent confirmed the Applicant was afforded a show cause process, and that the Applicant provided her show cause response. However, further to the investigation and show cause process, the Respondent submitted it decided to terminate the Applicant’s employment due to misconduct, which was communicated to the Applicant during a meeting on 1 October 2019. It submitted the Applicant was provided written reasons for the termination of her employment.

Valid reason

[65] The Respondent submitted the Applicant was dismissed for misconduct following an investigation which demonstrated the Applicant failed to:

“(a) adhere to the Respondent’s Staff Code of Conduct;

(b) seek medical treatment for Client ML and/or provide first aid in relation to a significant injury;

(c) call on-call when Client ML’s injury was identified; and

(d) follow the Respondent’s incident reporting process.”

[66] The Respondent submitted the Applicant’s misconduct was particularly serious given she generally worked autonomously, requiring her to exercise sound judgment in relation to client care, she worked with vulnerable clients, a number of whom were unable to verbalise when they were injured or in pain, and the Applicant had received proper training in the policies and procedures of the Respondent.

[67] Regarding the obligations of the Applicant regarding the care and wellbeing of Client ML, the Respondent made reference to the decision of Sangwin v Imogen Pty Ltd, 17 where it was stated:

“An employer of a health care worker or a child care provider against whom an allegation of serious physical abuse that threatened the health and safety of those in that person’s care would be duty bound to act to protect those under care. If, after sufficient inquiry, the employer honestly believed on reasonable grounds that the allegation was correct the employer would be in dereliction of duty to those in care if the employee were allowed to return to duty”.

[68] The Respondent submitted the fact that the Applicant did not see the injury first is irrelevant in terms of the Applicant’s reporting obligations and duty of care to Client ML. It further submitted the Applicant’s colleague who discovered the injury was not more senior than the Applicant, and that colleagues actions should not have impacted how the Applicant handled the situation with ML, including following the Respondent’s incident reporting procedure after the injury was identified. Further it submitted the Applicant’s view that the injury was a blister and not serious in nature did not accord with the medical evidence.

[69] The Respondent submitted that on the balance of probabilities, it was found the Applicant had engaged in misconduct and this satisfied a valid reason for the termination of the Applicant’s employment. It submitted that there are no significant mitigating factors that would give rise to a finding that the termination was harsh, unjust or unreasonable, particularly having regard to the Applicant’s misconduct in the context of her employment involving vulnerable clients for whom the Applicant was responsible.

[70] The Respondent submitted the Applicant’s rate of pay at the time of her dismissal, had no impact on its decision to terminate her employment. It submitted her rate of pay was consistent with that of other employees of the Respondent performing the same type of work.

Notification of the reason for dismissal

[71] The Respondent submitted the Applicant was provided a show cause letter which set out the sections of its Staff Code of Conduct which the Applicant was alleged to have breached, and warned that breaches may lead to action including termination of employment. It submitted the Applicant attended a show cause meeting, where the alleged misconduct was put to the Applicant for response. The Applicant was also notified of the grounds for termination at the meeting on 1 October 2019, and provided with a letter of termination setting out the reasons for her dismissal.

Opportunity to respond

[72] The Respondent submitted the Applicant was given an opportunity, and strongly encouraged, to respond to each of the reasons for which it was considering terminating her employment. It submitted these opportunities for response arose over a two week period, during the investigation and show cause process.

[73] The Respondent submitted in response to its show cause letter, the Applicant provided a written response, further to which the Applicant attended a show cause meeting and was again given an opportunity to provide response. It further submitted that “before, during and after” the show cause meeting, the Applicant provided additional written responses which were considered by the Respondent prior to the decision being made to terminate the Applicant’s employment.

Support person

[74] The Respondent submitted the Applicant was offered to have a support person present during all meetings held, however the Applicant declined to bring a support person.

Size of the enterprise and human resources specialists

[75] The Respondent submitted it employs approximately 2,300 employees across Queensland and Norther New South Wales and has a dedicated human resources team.

Other relevant matters

[76] The Respondent submitted the Applicant has not raised any procedural flaws regarding the process giving rise to the termination of the Applicant’s employment. However, the Respondent cited the decision of the Full Bench in Anthony Farquharson v Qantas Airways Limited 18 as follows:

"The fact of unfairness in the employer's decision-making process, even if it involves a breach of a term in a certified agreement, is but a factor to be taken to account in determining whether a termination of employment was harsh, unjust or unreasonable. In circumstances where, as here, the merits of a termination of employment based on misconduct have been the subject of a full hearing in the Commission (in which the employer must establish the alleged misconduct on the balance of probabilities) and the dismissal has been found to be justified, it will be rare for a defect in an internal disciplinary process that proceeded the termination justifying a conclusion that the termination was harsh, unjust or unreasonable. This is so because, almost invariably in such circumstances, it may be inferred that the outcome of the disciplinary process would have been the same even if there had been no such defect.”

[77] The Respondent submitted therefore that if the Commission were to find there were any procedural flaws with the process followed, which it denies, such flaws would not invalidated the decision ultimately made by the Respondent in this case.

[78] As to the additional matters raised by the Applicant, the Respondent submitted as follows.

No written warnings

[79] The Respondent submitted that no warnings were required, as the alleged conduct did not involve unsatisfactory performance, rather it was misconduct for which the Applicant was dismissed following a formal investigation and show cause process.

Applicant is a single mother with two sons and a mortgage

[80] The Respondent submitted these matters were not raised during the show cause process by the Applicant. It submitted that if raised, these factors would have been taken into consideration by the Respondent when making the decision whether to terminate the Applicant’s employment.

[81] It submitted, however, the Applicant’s responsibilities do not displace the fact that the Respondent and its employees are responsible for the care of vulnerable persons and it therefore had a duty to ensure its employees discharge their duty of care towards clients. It submitted the Applicant’s personal circumstances could not outweigh these considerations.

Applicant was not provided with training

[82] The Respondent submitted that as part of its onboarding process, all new employees are required to attend a training and induction process which includes a session on incident reporting. It submitted its training records show the applicant completed the relevant training sessions on incident reporting.

[83] However it submitted that even if the Applicant had not received this training, the Applicant demonstrated she had knowledge of the Respondent’s incident reporting procedures and understood her obligations under that procedure by stating in the show cause meeting that:

““if you looked back in the past I have phoned first with other incidents. It is usual to call”; and

"I didn't call on-call, I forgot that step"”

[84] The Respondent submitted the Applicant had received proper training regarding, and understood, her incident reporting obligations and there is no reasonable explanation why the Applicant failed to follow the correct procedure on 14 September 2019.

Respondent wanted a scapegoat and to save on wages

[85] The Respondent denied the allegation it was seeking to use the Applicant as a ‘scapegoat’, noting the Applicant was not the only employee investigated and dismissed as a result of the incident involving Client ML.

[86] Further, the Respondent submitted its evidence shows the Applicant was submitted for misconduct, following an investigation and show cause process, and was not dismissed to ‘save on wages’.

Reinstatement

[87] The Respondent noted the Applicant did not seek reinstatement, however submitted that this remedy would be inappropriate given the loss of trust and confidence between the Respondent and the Applicant.

Compensation

[88] As to any award of compensation to the Applicant, the Respondent submitted regard should be had to the Applicant’s misconduct which would require a substantial reduction in any awarded amount.

[89] Further, it submitted any compensation should be reduced having regard to the income received by the Applicant since the termination of her employment.

Respondent’s evidence

•  Murray Sandon

[90] Mr Sandon, General Manager of People, Learning, Culture for the Respondent, filed a witness statement in this matter.

[91] Mr Sandon’s evidence was that as part of his role as General Manager, he works alongside the Chief Operating Officer and Chief Executive Officer, and has authority to approve terminations and to stand employees down with pay in accordance with disciplinary processes.

[92] Mr Sandon’s evidence included that following her employment with FSG, the Applicant was engaged with the Respondent at Level 1.1 under the terms of the Respondent’s enterprise agreement. He stated she was then reclassified to Level 2.2 on 1 December 2018. His evidence was that the Applicant’s rate of pay was the same as other employees in the same role as the Applicant.

[93] He attached to his statement the Applicant’s training records, which included her attendance at the Client Services Induction on 24 July 2018. Part of that training included training on incident reporting procedures.

[94] Mr Sandon stated on or around Monday 16 September 2019, he became aware of an incident involving injury of a client, and that the Respondent was therefore required to report the incident to the NDIS Quality and Safeguards Commission. He stated in the case of any suspected abuse or neglect, these incidents must be reported within 24 hours of the provider becoming aware of the allegation. He stated the Respondent’s reporting duties are carried out by the General Manager of Quality Assurance, Mr Robert Irvin.

[95] As to the injury to ML, he stated Ms Kirsty Austin, Regional Manager, showed him photos of the injury which appeared to be two large marks on ML’s shoulder that were ‘red in colour and bumpy’.

[96] He stated that based on the information provided to him, it appeared that no one working with ML over the weekend had taken steps to treat the injury. Mr Sandon provided that as a result of viewing the photographs and the lack of information as to the cause of the injury, the potential abuse or neglect of the client and the failure of staff to take steps to manage the injury, he approved a stand down of 9 employees who had provided direct care support to ML over the preceding weekend. The Applicant was one of these employees.

[97] His evidence was that at this time, he determined an investigation into the incident should take place. Ms Sarah Mobbs, HR Business Partner, in conjunction with Ms Leanne Dempsey, Area Manager, undertook the investigation.

[98] Mr Sandon gave evidence that throughout the investigation process, no employee was able to describe the mechanism of injury or able to confirm that any medical attention had been provided to ML.

[99] As to the Applicant, Mr Sandon’s evidence was he was particularly concerned as the mechanism of injury stated in the report (that a seat belt was the cause) appeared inaccurate, and she had taken no steps to provide care or medical attention to ML after observing the injury and she had not contacted on-call. He stated this demonstrated a lack of judgment and empathy for ML.

[100] Following a telephone conference on 20 September 2019, Mr Sandon confirmed he determined 5 employees should be issued show cause letters for misconduct, including the Applicant.

[101] As to the Applicant’s dismissal, his evidence was that on 27 September 2019, he met with ‘Sarah, Kirsty and Wendy’ to review the outcome of the show cause process, and he reviewed a copy of the meeting notes from the show cause meeting with the Applicant as well as the Applicant’s written responses. He confirmed he made the recommendation that the Applicant’s employment be terminated for misconduct and he approved the termination of her employment. He confirmed the reasons for her dismissal were captured in her letter of termination of employment.

•  Kathryn Dunn

[102] Ms Dunn, Health Liaison Officer of the Respondent, filed a witness statement in this matter.

[103] Ms Dunn stated she commenced her role with the Respondent in May 2019, and that the purpose of her role is to:

(a) Provide health care assessment, planning, training and health education to clients and Direct Support Workers in order to optimise the prosivion of health care and lifestyle support to people with disabilities and complex health care needs, who reside in the community; and

(b) Support continuous improvement in the business performance of the Respondent and effectively contribute towards achievement of the organisation’s vision and purpose.

[104] Her evidence was that she does not provide clients with treatment, however given her background in wound care, she has comprehensive and competent understanding of identification of wound stages, wound types and wound management.

[105] Ms Dunn’s evidence outlined ML’s diagnoses and the medications she was taking. Her evidence confirmed that ML’s medical conditions and medications could impact on and alter the integrity of her skin. Her evidence was, however, that it would not cause spontaneous injuries to ML’s skin, and there would need to be some mechanism of injury for a burn or blister to occur.

[106] At a meeting with Ms Dempsey and Ms Snailham, Service Facilitator, on 16 September 2019, Ms Dunn stated she was asked to read the incident report relating to ML. Her evidence was that after reading it, she sated “I need to see the wound. This doesn’t sound quite right to me”, as it didn’t seem plausible that the injury described could have occurred by a person sitting on the side of her buttocks and having the seat belt rubbing on her skin.

[107] Her evidence was she was shown two photos of the injury to which she replied “This is a burn”, meaning some heat source had come into contact with ML’s skin. Her evidence was she could tell it was a burn based on the shape of the wound, the bra stap running through the burn and the fluid underneath the skin. She stated it was consistent with how a burn heals.

[108] Ms Dunn’s evidence was that in her medical opinion, the burn was a ‘partial thickness burn’ meaning it went down to the basal layer of the skin. She stated from the photos, it appeared to be in the ‘proliferation phase of healing’, meaning it was ‘granulating (new cells are growning’ which is a process that can last several days. In her opinion, the burn appeared about 48 hours old.

[109] Ms Dunn gave evidence that on 17 September 2019, she attended Dunstan House with ML’s brother and sister-in-law and examined ML’s injury. She stated the wound was ‘soggy’ because there was Silvadene cream applied. She stated this type of cream is usually used to treat burns as it acts as a cooling agent and stops the wound getting infected.

[110] She stated on observation of the wound, she determined it was in ‘stage 3’ of 5 of the healing process of a burn. She stated ML appeared to be in discomfort, and when she lightly peeled back the dressing, ML ‘winced/whimpered’.

[111] Ms Dunn’s evidence was she was informed ML had visited her GP who had prescribed the Silvadene cream and dressed the wound with a non-adhesive bandage. She stated after she viewed the wound, she replaced the dressing and was of the understanding ML would be returning to the GP the next day to have the sound redressed and monitored.

[112] Ms Dunn stated she did not believe a seatbelt could have caused such a burn, and there was no mark on ML’s shoulder that was indicative of a seatbelt.

[113] Her evidence was that she sent a wound report on 18 September 2019, which attached a photo she had taken of the injury on 17 September.

•  Sarah Mobbs

[114] Ms Mobbs, HR Business Partner of the Respondent, filed a witness statement in this matter.

[115] Further to the witness evidence outlined above, Ms Mobbs confirmed that further to the decision to stand down 9 employees, she drafted the 9 letters including to the Applicant, advising of suspension on full pay and that an investigation would take place.

[116] She confirmed that Ms Dempsey and herself took the Applicant and the other 8 employees through the formal investigation and disciplinary process. She stated she believed procedural fairness was afforded to all staff members at every stage of the investigation.

[117] As to the interview questions as part of the investigation process, Ms Mobbs gave evidence that she drafted the appropriate interview questions for Ms Dempsey and herself to ask and obtain information from the stood down employees. She confirmed she took notes during the formal meetings, and Ms Dempsey facilitated the conversation.

[118] Ms Mobbs’s evidence was that during her interview, the Applicant was cooperative but did not seem to realise the seriousness of the situation. She stated based on the Applicant’s responses, she believed the Applicant considered herself a victim in the situation. She stated during the interview she didn’t witness any empathy by the Applicant for ML, nor did the Applicant display contrition for her conduct. Her evidence was that when Ms Dempsey asked the Applicant if she believed her behaviour or actions were in breach of the Respondent’s Code of Conduct, or any policies and procedures, and the Applicant responded with words to the effect of “I feel that I have done the best I could”. Ms Mobbs stated the Applicant made this statement despite earlier stating she “just did not think to” call the office regarding ML.

[119] As to the Applicant’s evidence that Ms Mobbs laughed when the Applicant stated ML called her “black one”, Ms Mobbs stated she had been taken aback by this statement but did not laugh.

[120] Ms Mobbs’s evidence was that Ms Dempsey and herself recommended to Mr Sandon to issue a show cause letter to the Applicant. The letter was drafted by Ms Mobbs, approved by Mr Sandon and issued by Ms Dempsey on 23 September 2019.

[121] Ms Mobbs gave evidence that the Applicant’s written response to the show cause letter was concerning as the Applicant’s response mostly related to her belief that she was not the right person to have completed the incident report. There was no response relating to why the Applicant failed to follow proper procedure and provide medical attention to ML.

[122] Ms Mobb’s evidence was that when the Applicant was asked why she didn’t call on-call or take steps to treat ML’s injury, the Applicant said words to the effect of:

“My mind wasn’t thinking…I didn’t call on-call, I forgot that step…I had been told to go home, because Rhonda was there. And if she thought medical should have been called. I don’t know what time it was, I was just finishing my shift and Rhonda should have called”.

[123] Her evidence was the Applicant demonstrated she knew the reporting procedure, stating in the past she had phoned on-call.

[124] Ms Mobb’s evidence was that after the meeting with the Applicant, Ms Dempsey and herself determined that despite the Applicant knowing the incident reporting procedure she failed to comply with the process. They agreed to recommend to Mr Sandon to terminate the Applicant’s employment due to a loss of trust in her ability to work autonomously with vulnerable clients and following the incident reporting procedure.

Ms Lisa Snailham

[125] Ms Snailham, Service Facilitator of the Respondent, provided a witness statement in this matter. Ms Snailham reports to Ms Dempsey.

[126] Ms Snailham’s evidence confirmed that Dunstan House provides care to three clients on a 24-hour basis, seven days a week, which includes assistance with medication administration, personal care, mealtime management, and assistance to medical appointments.

[127] Ms Snailham’s evidence was that on 18 February 2019, she sent an email to the Dunstan House email address confirming contact numbers for after-hours contact (on-call). She stated this email was also printed and placed on the Dunstan House Notice Board for all staff to review. She confirmed this email remains pinned to the Dunstan House Notice Board.

[128] She further provided that on 26 February 2019, she conducted a house meeting, which included discussing staff obligations for incident reporting. Following that meeting, a copy of the meeting minutes was pinned to the Dunstan House Notice Board. She conceded the Applicant was not at this meeting, however she stated she expected that when the Applicant next attended at Dunstan House that she would have checked the house diary, notice board and other relevant documents in the office for any new information.

[129] Her evidence confirmed ML’s medications and personal care requirements. Her evidence confirmed that ML expressed how she felt through behaviours, including that when she was irritated she would scream, push people away, say she hated everyone. Her evidence was that ML displayed these behaviours once in response to a foot blister which she advised of/reflected through her behaviours. Her evidence was that she reviewed notes around ML sustaining her injury, and no such behaviours were recorded.

[130] Ms Snailham gave evidence that on 16 September 2019, she attended at Dunstan House and that when a staff member and ML arrived back at the house during her visit, she engaged in a conversation with Diane to the following effect:

“Me: “How did the appointment go?”

“Diane: “The doctor updated the medication chart and also dressed the blister on ML’s shoulder”

Me: “What blister are you referring to?”

Diane: “There’s an incident report in one of the office trays about it. It’s a friction burn from a seat belt. Dr Vien said he was suspicious that the cause of the injury was listed as a burn from a seat belt rubbing”

[131] Ms Snailham stated she asked to see ML’s shoulder and ML consented. She stated it had cream on it, and was a raised blister and was red. She stated the blister was significant in size. Her evidence was she could not understand how this would have occurred from a seat belt rubbing.

[132] Her evidence confirmed that she discussed the injury with Ms Dempsey, and shoed a photo of the injury Ms Dunn who replied “This is a burn”.

[133] Ms Snailham gave evidence that she returned to Dunstan House on 17 September, and checked the temperature of the water in the shower, running her hand under the water for 5 minutes. She stated the hot water temperature control was working correctly, and was unlikely to be the cause of injury.

[134] She gave evidence that she checked the taps in the bathroom, kitchen, laundry, and all were working corrected. She turned them all on the hottest temperature, waited 5 minutes, and put her hand under the water but her hand did not turn red.

[135] Her evidence was that she looked for other things that could have caused a burn, however at the time there was no working iron in the house, and no hairdryers or hair straighteners. She stated none of the clients used hair removal products, and there were no creams or lotions in the bathroom that could have caused injury.

[136] Her evidence was the only heat source in the house was the cooker and kettle in the kitchen.

[137] She further gave evidence that there was no history of such blisters at Dunstan House, with only a foot blister previously reported in relation to a client wearing new shoes.

•  Leanne Dempsey

[138] Ms Dempsey, Area Manager of the Respondent, file a witness statement in this matter. She confirmed that one of her direct reports is Ms Snailham.

[139] Her evidence was that she has a comprehensive understanding of the support and care that is required for clients in the region she supports, including those with behavioural complexities and complex medical needs.

[140] Her evidence was that she visits Dunstan House from time to time, however that Ms Snailham is the main person that visits the house.

[141] She stated she would have expected staff to apply first aid to the injury to ML’s shoulder, and telephone on-call to receive further directions.

[142] As to the events of 16 September 2019, she gave evidence that on being advised by Ms Snailham that a support worker had notified her of a friction burn on ML’s shoulder, Ms Dempsey knew she had to escalate the matter because:

(a) The injury was serious in nature;

(b) There had potentially been abuse or neglect of client ML; and

(c) There had been several instances in the house where staff had not seen anything, heard anything or reported anything when incidents occurred.

[143] Ms Dempsey gave evidence that she asked Ms Snailham to return to the house to take photographs of ML’s injury, and that on 16 September 2019, she met with Ms Snailham and Ms Dunn to get Ms Dunn’s medical opinion of the injury.

[144] She further had discussions with Ms Wendy Lavelle, CEO, and Mr Sandon. And while waiting on further communication, she stated she logged the incident in the Respondent’s incident management reporting system, ‘Riskman’.

[145] Her evidence confirmed the decisions relating to the stand down and the investigation process.

[146] She gave evidence that she contacted the Applicant on 16 September to request a formal meeting on 17 September; and she stated when she spoke with the Applicant on this occasion, she did not ask her any questions about the incident. The purpose of her call was to tell the Applicant she was stood down on full pay, and needed to attend a formal meeting. Her evidence was that the Applicant started to give details of the day in question, but that she cut the Applicant off and said words to the effect of “This is why we are having a meeting. Please keep all this for the meeting”. She denied stating that Rhonda should have written the incident report, but recalled the Applicant saying words to the effect “Rhonda saw it first so Rhonda should have written the incident report. Why didn’t she ring on-call or give first-aid?”.

[147] Ms Dempsey’s evidence was that at the meeting of 17 September, they discussed with the Applicant in detail what the shift on Saturday, 14 September 2019 entailed. She confirmed the discussion included:

(a) The clothing Client ML wore that day;

(b) The picnic outing to Currumbin and if anyone had hot drinks or hot food;

(c) How long Client ML was out in the sun;

(d) Details of transport;

(e) Client ML’s sleeping patterns throughout the day;

(f) Whether any other hot objects may have come into contact with Client ML; and

(g) The details surrounding the time the injury was discovered and what action was taken thereafter.

[148] Her evidence confirmed she asked most of the questions, and that she was trying to run the Applicant through every possible scenario to find out how the injury might have occurred.

[149] She stated that as to any care required for the injury, the Applicant put her hands in the air and said words to the effect “I would leave it out in the air to dry”.

[150] She recalled the Applicant feeling she was being blamed for the injury, which Ms Dempsey provided was not the case. Her evidence was that she said words to the effect:

“The focus of this is not whether you are responsible for the injury, but the lack of first-aid given to Client ML, as well as the failure to contact on-call and discuss with Rhonda who would make this call”.

[151] Her evidence was that at the meeting, she formed the view that the Applicant understood the reporting process.

[152] Ms Dempsey stated that after finalising all interviews, a discussion was had with the relevant representatives of the Respondent, to the effect that given the severity of the injury, the Applicant’s failure to immediately notify on-call or seek medical advice or treatment, and her failure to follow procedure indicated a show cause letter should be provided to the Applicant and five other employees.

[153] As to the show cause process and the show cause meeting held, Ms Dempsey’s evidence included that she asked the Applicant what her understanding of “duty of care” was and that the Applicant responded to the effect:

“The customers are to be looked after, and if anything is not right, I have to report it and speak to somebody and make sure I can do the best job for that person”.

[154] Ms Dempsey stated she asked why the Applicant didn’t contact on-call on that day, and the Applicant stated words to the effect:

“I was told by Rhonda that I had to write an incident report. My mind wasn’t thinking. Rhonda was telling me I had to cover my ass. I was running back and forth to my car wondering how had this happened. I didn’t call on-call, I forgot that step. I was finishing my shift, Rhonda should have called to seek medical advice”.

[155] She stated she asked the Applicant if the situation occurred again, what she would do differently and the Applicant responded to the effect “I would be phoning everyone, a doctor, on-call”.

[156] Ms Dempsey noted in her witness statement that after the meeting of 26 September with the Applicant, she “could not move past the fact that [the Applicant] understood her reporting responsibilities and chose not to follow the process”.

[157] She stated the investigation and show cause process demonstrated to her that despite knowing the incident reporting process, the Applicant did not think about seeking medical attention on the day ML had an injury. It was not until the Applicant thought she was in trouble that she stated she should have sought medical attention.

[158] Her evidence was on review of the available information, she:

(a) Felt as though the Applicant failed in her duty of care to Client ML by failing to follow the procedure and failing to seek immediate medical attention for the client and contact on-call;

(b) Had grave concerns about the Applicant’s ability to exercise sound judgment and make good decision in the future about client care;

(c) Had grave concerns about the Applicant’s ability to follow the procedure in the future; and

(d) Had lost trust in the Applicant performing her role as a Direct Support Working in an autonomous manner.

[159] She confirmed a recommendation was given to Mr Sandon for termination of the Applicant’s employment and she confirmed she signed off on the letter of termination of employment.

[160] At the meeting of 1 October 2019, Ms Dempsey explained to the Applicant the outcome of the investigation and show cause process and advised of the decision to terminate her employment. She provided the Applicant her letter of termination of employment at that meeting.

Relevant Law

[161] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.

[162] Section 387 of the Act provides that, 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.

[163] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 19

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

What constitutes a valid reason?

[164] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 20 and should not be “capricious, fanciful, spiteful or prejudiced.”21 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.22

[165] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.²³ That is:

“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 24

[166] In Edwards v Giudice it was held that:

“The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee may elect to contest the termination in the arbitration on the basis that the conduct took place but it did not provide a valid reason and perhaps by relying on the other grounds in [the section].” 25

[167] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:

“Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;

Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or

Unreasonable – because it was decided on inferences that could not reasonably have been drawn from the material before the employer.” 26

[168] While the three criteria above each have a unique ambit, they have the propensity to intersect in practice, as stated in Byrne v Australian Airlines: 27

“It may be that the termination is harsh but not unjust or 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.”

[169] The Respondent asserts that it conducted a robust investigation where they established, to their satisfaction, that on the balance of probabilities that the Applicant’s conduct was misconduct. Further, following a show cause process it weighed up the appropriate response and determined that the Applicant’s employment should be terminated.

[170] The Respondent identified four elements of the misconduct:

(a) Not adhering to the Code of Conduct;

(b) Not seeking medical treatment and /or providing first aid to a significant injury;

(c) Not calling the on-call person when injury of client identified; and

(d) Not following the incident reporting process.

[171] The Respondent’s evidence is outlined principally in the statement of Mr Murray Sandon, as outlined above, which provides the events that led to the termination as follows.

[172] On the Monday 16 September 2019, he became aware of a notifiable incident that involved the injury of a client. The incident was required to be reported to the NDIS Quality and Safeguard Commission. Under the NDIS Framework providers need to report to the Commission any suspected abuse or neglect within 24 hours.

[173] The Regional Manager provided photographs of two large marks on the client’s shoulder that were red and bumpy. She further said an incident report had been provided indicating that the injury was the result of a seatbelt rubbing.

[174] On the Applicant’s evidence, she confirmed that she took ML out for the day on 14 September 2019 and reported that the client seemed her normal self and the day went well. At the conclusion of the day just prior to the Applicant’s shift ending at 4 pm, another worker (Rhonda) noticed a patch of blistering on ML’s shoulder and brought it to the Applicant’s attention. The Applicant has stated that on suggestion by Rhonda, she wrote an incident report and as she did not know the cause of the injury, she put down what she thought might have been the cause, a seatbelt rubbing on her shoulder.

[175] On the Applicant’s evidence, the client did not seem in any pain or distress at that time.

[176] The Applicant went off shift and the next day was contacted by Ms Dempsey asking about the incident report. On the evidence, the Respondent regarded the injury as significant and determined it was likely a burn.

[177] Mr Sandon made the decision, based on the injury being incongruous with the described cause and the potential of abuse or neglect, to stand down nine employees who had provided care to the client over the weekend, including the Applicant. Further Mr Sandon authorized an investigation to be undertaken. The investigation was conducted by an HR Business Partner and the Area Manger.

[178] In accordance with the investigation process, the Respondent held meetings with the Applicant, however the investigation was unable to identify the mechanism of injury to the client or confirm any medical attention had been provided. In the case of the Applicant who had provided the incident report, which indicated that the mechanism of injury was a seatbelt, this was seen to be improbable and further the Applicant had not provided any medical care or called the weekend on-call phone line.

[179] In Mr Sandons own words:

“I told the group that I found Chadissa's incident report to be implausible because on the balance of probabilities the injury I viewed could not have been caused by a seat belt. The location of the injury, the intensity of the wound, the distance travelled by the client as part of the activity on that day, the weather and clothing worn by the client did not support such injury. When relaying this to the group, I relied on Kate's initial advice that the injury was a burn. Nothing I saw throughout the investigation changed my view that Client ML had sustained a burn, as per Kate's advice.”

[180] Five employees were issued show cause letters for misconduct. The Applicant attended a show cause meeting and provided written responses to the show cause letter.

[181] Further to the investigation and the show cause process, Mr Sandon discussed the stood down employees, and having considered the responses by the Applicant and the interview notes relating to her show cause process, he approved the termination of the Applicant’s employment, along with several other employees in relation to the same incident.

[182] The termination letter stated that due to failing to follow CPL Reporting policy and failing to seek medical assistance for a significant injury to a client that her conduct posed a significant risk to the operation of services at CPL and was unacceptable to the point that the organisation could no longer employ her. The Applicant was terminated for misconduct.

[183] Where the matter involves misconduct the Commission is required to make a finding on the balance of probabilities that on the evidence presented that the conduct occurred. 28

[184] The Applicant alleges that she did not discover the injury, and it should have been the other care worker who discovered the injury that had the onus of writing the report and undertaking any actions needed to support the client. The Applicant did not seem to take any responsibility, shared or otherwise, for the care of the client. The Applicant did complete the report but she states that she was instructed to do so by the more senior person, in her words, to cover her. This behaviour of doing just as she was asked and not taking care of the client is at the heart of this matter.

[185] The Respondent states that standard protocol and process required that a call should have been made, and that the Applicant was well aware of the weekend on-call line. Further she should have treated the injury or at least requested medical attention. None of these actions were undertaken by the Applicant. The Applicant seems not to understand the requirements of care for this vulnerable client. This is unusual as the Applicant had much experience in caring and acting in the role of a support worker.

[186] Furthermore, the Applicant’s actions, or lack of action, are particularly concerning as the client was a vulnerable client with limited language skills who had been in care for most of her life. The client was wholly reliant upon the care being provided to her. In this matter, the Applicant does not seem to have recognised that she wholly failed the client at this point, as well as her employer.

[187] The facts indicate that the Applicant may not have fully comprehended the scope of her obligation to provide care. This obligation is not one of artificial importance; it is borne from the high level of care the Respondent is required to provide and is expected to be provided to those who are elderly and suffering a disability.

[188] The Respondent’s obligation in providing full time care of the client is a live one, as expressed in the decision of Sangwin v Imogen Pty Ltd: 29

"An employer of a health care worker or a child care provider against whom an allegation of serious physical abuse that threatened the health and safety of those in that person's care would be duty bound to act to protect those under care. If, after sufficient inquiry, the employer honestly believed on reasonable grounds that the allegation was correct the employer would be in dereliction of duty to those in care if the employee were allowed to return to duty."

[189] Against this background and where the Applicant has had training in the policies and procedures of the Respondent, and had been working as a Support Worker for many years, it is hard to explain why the Applicant did not act appropriately in call the on-call line as soon as the injury was discovered, or providing any first aid or arranging medical treatment. If the Applicant had called in the injury at the time, the Respondent would have had the opportunity to provide guidance and support to the Applicant, and would have been able to discharge their duty of care to the client. They were prevented from doing this by the actions of the Applicant.

[190] The Applicant in attempting to share the blame has not recognised that she had an important and vital role to play. The Respondent did also several other employees involved in this matter following the same investigation that the Applicant was subject to. The actions of the Applicant in failing to report the incident where wholly unacceptable and I find that the Respondent had a valid reason to terminate the employment of the Applicant.

[191] It must be reiterated that there was no insinuation that A caused the injury and this was not the reason for her dismissal. In giving evidence, the Applicant seemed invested in the service she provided to patients – she presented honestly and without embellishment. What was apparent is that she did not properly evaluate the scope of her duty of care – this is evidenced by her failure to call on-call, even in a precautionary manner. It is this failing, in an industry with an exceptionally high bar for care, that provides a valid reason for dismissal.

Notification of reasons for the dismissal and opportunity to respond (s.387(b) and (c))

[192] The Applicant had been subject to an investigation by the Respondent that was an extensive and thorough one, running over a two-week period. The Applicant was notified of the allegations and attended a show cause process, giving her the opportunity to respond. The Respondent considered her responses and after a process of review determined to terminate her employment. She was provided a termination letter that outlined the reasons for her termination.

[193] I am satisfied that the Applicant was notified of and had the opportunity to respond to the reasons for dismissal.

Was there an unreasonable refusal to have a support person (s.387(d))

[194] It is not disputed that the Applicant was allowed the opportunity to have a support person at the relevant meetings but chose not to do so.

Considerations in s.387(e)-(g)

[195] The dismissal relates to conduct and not performance and so a consideration under s.387(e) which relates to dismissal for unsatisfactory performance is not engaged.

[196] The Respondent is a reasonably large organisation of 2,300 employees and has dedicated Human Resources staff. No submissions were made by the Applicant regarding s.387 (f) and (g) as factors for consideration and this is therefore weighted as neutral.

Any other matters the Commission considers relevant (s.387(h))

[197] The Applicant raised several other matters including that she was not provided with warnings, which, given she was terminated for misconduct is not relevant. She also raised the fact that she is a single mother with two sons and a mortgage, however during the discipline process this was not raised. In any event, given the gravity of the misconduct involving a vulnerable person in care, this would not in my view reduce the discipline outcome of termination. The Applicant further raised the issue of training and that she should have had access to training, which upon the Respondent’s evidence it was demonstrated that she had completed the relevant sessions on incident reporting during her time with the Respondent.

[198] Finally, I make comment upon the gravity and the proportionality in this matter. Clearly the Applicant had care of a vulnerable person who had spent her life being cared for, and the Applicant breached the duty of care she had as a Support Worker. The matter on its face and after examination was serious misconduct and presented a valid reason for termination. That several other employees also part of the same investigation were also terminated demonstrates that the termination of the Applicant was a proportional response by the Respondent.

Conclusion

[199] I am satisfied that there was a valid reason for the termination of the Applicant’s employment. The investigation of the matter by the Respondent was thorough, fair and I could not find any procedural flaws in the Respondent’s process. The dismissal was a proportionate one in response to the conduct.

[200] In considering all the material and the various factors in s.387 I consider that the dismissal was not unfair. The application for an unfair dismissal remedy is dismissed. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

<PR726051>

 1   For privacy purposes, the name of the Respondent’s client will be anonymised and will be known as “ML” throughout this decision.

 2   Applicant’s outline of argument – merits, at 4c.

 3   Applicant’s outline of argument – merits, at 4c.

 4   Applicant’s outline of argument – merits, at 4c.

 5   Applicant’s outline of argument – merits, at 6a.

 6   Applicant’s outline of argument – merits, at 6a.

 7   Applicant’s outline of argument – merits, at 6a.

 8   Applicant’s outline of argument – merits, at 5b.

 9   Applicant’s outline of argument – merits, at 4c.

 10   Applicant’s outline of argument – merits, at 5d.

 11   Applicant’s outline of argument – merits, at 4f.

 12   Applicant’s outline of argument – merits, at 4f.

 13   Applicant’s outline of argument – merits, at 4f.

 14   Applicant’s outline of argument – merits, at 5c.

 15   Applicant’s outline of argument – merits, at 6d.

 16   Applicant’s outline of argument – merits, at 7d.

 17   [1996] IRCA 100.

 18   (2006] AIRC 488, [41].

 19   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

 20   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 21   Ibid.

 22   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

23 Edwards v Justice Giudice [1999] FCA 1836, [7].

 24   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

 25   Edwards v Justice Giudice [1999] FCA 1836.

 26   Mr Stanley Sully v CBMG North Pty Ltd [2020] FWC 3509, [13], quoting Bista v Glad Group Pty Ltd.

 27   Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465 (McHugh and Gummow JJ) (Byrne).

 28   Edwards and Guidice (1999) 94 FCR 561, 564; King v Freshmore, Print S4213, [24].

 29   Sangwin v Imogen Pty Ltd, unreported, 24 August 1995.