C A T C H W O R D S INDUSTRIAL LAW - Termination of Employment - complaint of unlawful termination - capacity of employee - operational requirements of the undertaking. Industrial Relations Act 1988, S170 DB, S170DC, S170DE, S170EDA. RICHARD JAMES MONTGOMERY v. ZAAY NO 2 PTY LIMTED t/as STRATHLEA NURSING HOME N0. NI 783 of 1994 Before: Judicial Registrar TOMLINSON Place: Sydney Hearing Date: 27 January 1995 Judgement Date: 16 March 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N0. NI 783 of 1994 Between: RICHARD JAMES MONTGOMERY Applicant And: ZAAY NO 2 PTY LIMTED t/as STRATHLEA NURSING HOME Respondent Before: Judicial Registrar TOMLINSON Place: Sydney Hearing Date: 27 January 1995 Judgement Date: 16 March 1995 MINUTES OF ORDER THE COURT DECLARES THAT: The application is dismissed. INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N0. NI 783 of 1994 Between: RICHARD JAMES MONTGOMERY Applicant And: ZAAY NO 2 PTY LIMTED t/as STRATHLEA NURSING HOME Respondent Before: Judicial Registrar TOMLINSON Place: Sydney Hearing Date: 27 January 1995 Judgement Date: 16 March 1995 REASONS FOR DECISION The applicant was employed by the respondent as a cleaner. The respondent owned and operated a nursing home for elderly residents, many of whom suffered from dementia. By application dated 9 September 1994 the applicant sought a declaration that the termination of his employment contravened Divison VIA of the Industrial Relations Act ("the Act"). Additionally the applicant sought an order that the respondent pay compensation to the applicant and reinstatement. At the hearing of the claim the Court was advised that reinstatement was no longer sought. The basis of the applicant's case was that the respondent in dismissing the applicant infringed Section 170 DE of the Act The applicant told the Court he was 24 years of age and that he now worked as a barman and that he had been so employed since October 1994. On Thursday 1 September 1994 the applicant stated that he had been cleaning the corridors of the respondent's premises near to the TV room and he had stopped his work to speak with Nurse Sue Frazer. Suddenly he sustained a blow to the centre of his back which felt as if it had been caused by a closed fist. According to the applicant the blow caused him to stumble towards Nurse Frazer and that at the time he did not know who or what had caused the blow. By way of instinctive self-protection the applicant stated he immediately turned and pushed at whoever or whatever had hit him. Upon turning around and at the time of pushing his assailant the applicant stated that he saw that the blow had been delivered by Mr Jack Walker, an elderly resident in the care of the respondent. The applicant stated that he did not push Mr Walker hard. He shortly thereafter heard someone call his name and say: "Skip. No." The applicant then stated he turned and looked around to see who had spoken whereupon he sustained a heavy blow to the side of the jaw delivered by Mr Walker. The blow caused him extreme pain. The applicant stated he did not retaliate. The applicant did not complete his duties for that day and upon visiting a dentist learned that the blow delivered by Mr Walker had in fact fractured his jaw in two places. The following day the applicant had an interview with the Matron of the respondent nursing home and the question was posed to the applicant would he behave similarly if the circumstances were to occur again. The applicant told the Court that he replied that he did not know if he would behave similarly again, but that at the time what he did was simply a reflex reaction. The Matron then subsequently telephoned the applicant and asked him to attend a meeting on 7 September 1994. At that meeting the applicant stated that the Matron advised him that he could no longer work at the nursing home if he could not guarantee he would not behave similarly again. Whereupon the applicant was handed a cheque for holiday pay and a letter of termination of employment. The Court heard that the resident, Mr Walker, was 80 years of age and had been a resident with the respondent for some 8 months. Many of the residents of the respondent suffered with dementia and the treatment of this disease was regularly discussed with all members of staff. The applicant was cross-examined as to the fact that in dealing with the residents with dementia staff were instructed at all times simply to move away if a confrontation occurred and that a most important feature of the illness was that dementia sufferers need a lot of space around them. The Court heard that the respondent employer conducted regular compulsory lectures involving the explanation and treatment of dementia. Additionally the respondent conducted compulsory monthly staff meetings wherein the care and particular problems of the individual residents were discussed so that residents could receive the best possible care and treatment. During the cross-examination of the applicant, the Court was advised that the respondent had produced and circulated a Staff Handbook that set out the philosophy and approach to be adopted by all staff on all occasions whilst on duty. That hand book stated inter alia: "DISMISSAL Will occur in case of proven misconduct or gross neglect of duty, such as theft, bad language, physical or mental abuse of residents." Under cross examination the applicant stated that he knew it was a very serious matter to physically strike or to push the elderly residents. Further, that at the time of the incident the applicant was of the view when he pushed Mr Walker that Mr Walker may have sustained injury. The applicant stated that he was angry at the time of the incident and that he was aware that Deputy Matron Hill was trying to speak with him as he walked away. On his behalf the applicant called Ms Sue Frazer who was employed as an Assistant Nurse by the respondent and who gave evidence that on the morning in question she had been in conversation with the applicant in the corridor as alleged. Ms Frazer stated she saw Mr Walker when he was coming up the staff stairs and that she saw him punch the applicant in the back. Ms Frazer stated that she then saw the applicant move to his right and: "just push Mr Walker away." At that point Mr Walker apparently was propelled towards the opposite wall from where the witness and the applicant were standing, and he bumped into a folded wheelchair. Very shortly thereafter the witness saw Mr Walker move towards the applicant and hit him on the side of the face. At this point Ms Frazer could hear Deputy Matron Hill talking to the applicant. Under cross-examination Ms Frazer confirmed monthly staff meetings held by the respondent dealt with the treatment and care of elderly dementia residents and that at no time was force to be used in that treatment and care. Ms Frazer stated that on occasions the nursing staff were subject to bouts of physical aggression from the dementia sufferers. Deputy Matron Pam Hill gave evidence on behalf of the respondent and stated that she had worked as a nurse for some 30 years and that on the morning of the incident she had witnessed the applicant push Mr Walker over. Deputy Matron Hill stated that as a result of that push Mr Walker fell over but that he then came over towards the applicant and struck the applicant a blow to the cheek. The accounts given to the Court as to what happened then vary somewhat but for the purpose of the application the variances are of no great consequence. Deputy Matron Hill also informed the Court as to the code of conduct to be observed by staff when dealing with dementia sufferers and that retaliation is not permitted. Staff at all times are ordered to back away from exhibited signs of aggression and secondly to report such incidents straight away. Under cross-examination the witness stated that she had never seen a member of staff either push a resident or exhibit an outward manifestation of anger. Mrs Beryl Howarth also gave evidence on behalf of the respondent and stated she had been the Matron of the respondent for 18 months. She first learned of the incident very soon after it had occurred and commenced an investigation to establish exactly what had happened. A statement was obtained from Deputy Matron Hill and the Matron also interviewed the applicant. At that interview the applicant stated he could not guarantee that a similar incident would not happen again. Matron Howarth stood down the applicant from his duties pending further investigation and requested he attend for further interview. Matron Howarth interviewed the applicant again on 7 September 1994 together with Mr Bradley and the pushing incident was discussed. Responses were sought of the applicant by Matron Howarth and Mr Bradley as to future behaviour and the Court was told that the applicant indicated that he could not say what would happen if a similar incident happened again. Mr Warren Bruce Bradley on behalf of the respondent advised that he was the General Manger of Nursing Home Management and Advisory Service Pty Limited which is the management company of the Strathlea Nursing Home. Mr Bradley confirmed that at the interview he attended the interview on 7 September 1994 with Matron Howarth and at that interview the applicant stated he could not guarantee that a pushing incident would not occur again if similar circumstances arose again. Mr Howarth indicated that this statement caused him concern in light of the responsibilities of management towards the residents. By affidavit dated 24 October 1994 Mr Bradley stated: "6b. I am informed by the Director of Nursing and verily believe that she then investigated the matter. She spoke with Sister Hill, with an employee, Susan Fraser, and with the applicant. There was no apparent dispute between any party as to the circumstances of the incident. 6c. Mrs Howarth then stood down the applicant from his duties pending further investigation, and my visit to Strathlea Nursing Home on 6 September 1994 (the following Tuesday). I interviewed Mrs Howarth and Sister Hill and I also reviewed the witness accounts of proceedings along with the disciplinary interview held with Mr Montgomery. The most serious point to emerge was that Mrs Howarth told me that Mr Montgomery had not been able to give any guarantee that such an incident would not happen again. 6d. I sought advice from the Nursing Homes Association which advice was that the actions of Mr Montgomery when taken in all the circumstances, amounted to misconduct of a most serious nature. I concurred with this opinion and I was of the view I had no alternative but to summarily dismiss him. I prepared together with Mrs Howarth a termination letter on 6 September 1994, however, I held back issuing the termination letter as I wanted to give Mr Montgomery every opportunity to explain, justify, defend or excuse his conduct, or to give a guarantee that such conduct would not happen again. 6e. On 7 September 1994 I interviewed Mr Montgomery. I explained to him that Mr Walker suffers from dementia and is therefore to a large extent not in control of his actions. I explained that in caring for frail, aged and demented residents, we require absolute assurance that staff can behave in a proper fashion when confronted with difficult situations such as this and that physical abuse of a patient is entirely unacceptable, which is the nursing homes (sic) policy reinforced with the staff at every available occasion..." In giving evidence on behalf of the respondent Mr Bradley stated tht he asked the applicant at that further meeting whether or not he could guarantee that a similar situation would not occur in the future. The applicant according to the witness was unable to give the guarantee. Mr Bradley stated that he had no alternative but to terminate the applicant. I find the most salient feature of the evidence provided to the Court by Mr Bradley to be that he was of the opinion, I find correctly, that to retain the applicant as employee would have sent a message to the rest of the staff that physical assault of patients is acceptable and that a consequence would necessarily to establish a fear in the minds of the elderly and the frail. It is clear that Mr Bradley was of the view that the actions of the applicant fell into the category of serious misconduct and that on behalf of the respondent he had no alternative but to immediately terminate the applicant. Mrs Rosemary Oates on behalf of the respondent told the Court that she was an expert in the field of Nursing Home management and at the time of the hearing of the application, held the position of Executive Director of Nursing for the Comumbia Nursing Group and as such she was responsible for the overall supervision of 3 Nursing Homes and 1 Private Hospital - making a total of 462 beds. It was amply demonstrated to the Court that Mrs Oates was a specialist in the field of the nursing of eldery and frail residents. Produced to the Court and marked as Exhibit 'F' was a document entitled: "KEEPING THE QUALITY Nursing Home Standards Monitoring Guidlines Information and Publicity Unit Aged and Community Care Division Department of Human Services and Health." Standard 5.1 of that document stated the dignity of residents is to be respected by the nursing home staff and the key concepts here are inter alia appropriate staff attitudes and modes of address. Standard 7.6 states that physical and other forms of restraint are to be used correctly and appropriately. The key concepts are stated as being assessment of need, consultation with relevant others, a restraint type and review of the situation. To my mind Mrs Oates clearly demonstrated that the nursing industry has established standards of nursing care relevant to the handling of dementia patients which are to be followed at all times. CONCLUSION Section 170DE provides: "1. An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service. 2. A reason is not valid if, having regard to the employee's capacity and conduct and those operational requirements, the termination is harsh, unjust and unreasonable. This subsection does not limit the case where a reason may be taken not to be valid." On behalf of the applicant it was argued that Section 170DE had been infringed as there was no valid reason for the termination. Further it was argued that therefore the respondent bore the burden of proving there was a valid reason for the termination and during the course of the hearing of the application that had not been done. Alternately it was argued on behalf of the applicant that if the respondent proved the termination was valid, then the applicant contended that the termination was harsh and unjust. It was argued on behalf of the applicant that the facts of this case turned on the capacity of the applicant to work in a nursing home such as Strathlea. It was argued that the applicant did not have that capacity - that for 4 1/2 years the applicant had worked for the respondent without complaint on either side and that there had never been any suggestion that he had mistreated any of the residents. In dealing with the evidence it was argued on behalf of the applicant that there was no second blow ever delivered by the applicant and all that occurred was that he pushed the elderly resident away. Further, it was argued that the respondent in analysing the answers provided to the respondent at the disciplinary interview pre-supposed a version of events different from those which actually occurred. That is, it is incorrect for the respondent to argue that the answer provided by the applicant led to the conclusion that the applicant was untrustworthy. The applicant was employed in a sensitive industry involved in the nursing, care and welfare of dementia patients. From the evidence before the Court it is clear that the respondent nursing home did all it could to ensure that all staff, including the cleaning staff of which the applicant was part, were aware of the methods to be used when faced with a confrontation involving an elderly resident. In the case before the Court the applicant demonstrated he was unable to employ those methods in a personally difficult situation. Section 170DB states: "An employer must not terminate an employee's employment unless: (a) the employee had been given either the period of notice required by subsection (2), or compensation instead of notice; or (b) the employee is guily of serious misconduct, that is, misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period." Having considered the information before the Court I am of the view that the conduct of the applicant fell into the category of being serious misconduct and accordingly the application of the applicant must fail. I find that the statement of the applicant that he acted more in self-defence and reflex rather than assessing the situation to have been incorrect conduct in the circumstances. It is noted that the applicant was given every opportunity to give an undertaking as to his future conduct. In terms of Section 170 DC the employee was given an opportunity to respond to the allegation of exerting physical strength against a resident in the future. The applicant failed to meet the required industry standard however I am of the view it was not mandatory for the respondent in the circumstances to afford to the applicant that opportunity as the applicant was correctly dismissed for serious misconduct. The application is dismissed. _____________________________________ I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment of Judicial Registrar Tomlinson Associate: Jeynelle Moffat ______________ Date signed: 15 March 1995 Appearances Counsel for the Applicant : Mr Neale Solicitor for the Applicant : Tilbury & Company Counsel for the Respondent : Mr Hodkinson Solicitor for the Respondent : Ferrier & Associates Date of Hearing : 27 January 1995 Date of Judgment : 16 March 1995