INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1433 of 1995 B E T W E E N : MARK SYME Applicant AND COMMUNITIQUE PTY LTD Respondent Before: Judicial Registrar Murphy Place: Melbourne (heard in Geelong) Date: 29 September 1995 REASONS FOR DECISION This proceeding under Division 3 of Part VIA of the Industrial Relations Act (the Act) concerned an incident that occurred on 21 January 1995. The circumstances surrounding the incident illustrate the innovative way that the community has responded to road trauma. Background evidence The Respondent, a supplier of attendant care services, in January 1993 employed the Applicant as an attendant care worker. The Applicant was part of a team of 10-12 such workers that provided 24 hour/day, 7 days/week attendant care to a particular client, David. The client resided in the Queenscliff Manor (the Manor), a residential accommodation facility for people with various disabilities. The Applicant's wife, Jenny Syme (Syme), was the day manager of the Manor. The clinical director of the Manor was Mr Carl Bucovaz (Bucovaz), a consultant clinical neuropsychologist. The Manor, and in particular Bucovaz, was responsible for the provision of a Management Program for David but that program was to be carried out by the Respondent. David, the client at the centre of these proceedings, is a 36 year old male who sustained brain damage in a motor vehicle accident. As a result of the accident he also lost one leg above the knee. The brain damage was such that he lost his short term memory. He was also incontinent and had to be assisted with virtually every daily task including toileting, walking, bathing and dressing. His behaviour was at times uncontrollable, or, as one witness described it "challenging". Prior to taking up residence in the Manor in late 1992 David may have been destined for a padded cell in some institution. The Management Program was devised by Bucovaz, administered on a daily basis by Syme and the Respondent's staff and designed to provide David with worthwhile activities and also to attempt to address his behavioural problems. The activities were varied and there was an emphasis on exercise. The exercise activities were designed to prevent weight-gain, promote bowel activity, and to stabilise sleep patterns. The Applicant usually worked four 12 hour shifts per week. Those shifts were usually from 7.00pm to 7.00am. The Applicant was responsible for evening activities of David and then putting him into bed around 10.00pm. He would then sleep in the unit with him until morning when another carer would attend to dressing him and discharge the daytime activities. One of the workers of the Respondent was Brendan Potter (Potter). Potter had been working about one day a week or fortnight for the Respondent from September 1994 as a carer for David. Potter was rostered on 21 January 1995. In the period from when David commenced at the Manor until he left there was tensions between the Manor and the Respondent. At the time the Applicant actually commenced employment with the Respondent, Bucovaz was acting as an agent of the Respondent for the purposes of retaining employees. Thereafter the Respondent had its own staff involved in the direction of its employees and the Geelong region co-ordinator was Debbie Sytema (Sytema). As a result of Bucovaz devising and monitoring the Management Program for David, and the Respondent actually providing the staff to carry out the program, there was a blurring of responsibility between the Manor and the Respondent. Although the Manor provided the program, accommodation and food for David the proper discharge of their duties by the Respondent's workers was critical to the success of the program devised by Bucovaz. There were monthly meetings of the workers involved with David. Every second month these meetings took place at the Manor and Bucovaz would attend. The meetings were chaired by Sytema. From time to time Syme would write memoranda to the Respondent's workers relating to various aspects of the care of David. On a day to day basis the activities of the workers included taking David to various outside excursions such as to the Wool Museum, the beach, the shops or to visit peoples' homes. A particular activity prominent in the program was swimming. Two or three days a week this was undertaken at a centre known as Splashdown. As the school holidays commenced this activity became a source of anxiety for David as he reacted to the numerous children present. Syme had at this time also been concerned that some of the carers were not getting the most out of this particular exercise program. She recorded her concerns about this and other aspects of the Respondent's discharge of its responsibilities in memoranda to the Respondent dated 25 November and 19 December 1994. As a result of these concerns Syme decided to trial a different pool from the one that had been used previously. This pool was at a centre conducted by the Salvation Army and the aim was "to give inexperienced carers the opportunity of presenting David to water activity without the benefit of an audience". The first day for use of the new pool, located at Belmont, was 21 January 1995. The events of 21 January In a memorandum to the Respondent dated 19 January Syme advised the Respondent about the new location for swimming and indicated that she would attend the first day to evaluate it. Syme decided to take the Applicant along as well. They arrived at Belmont at the pool at about 9.00am. They were met by Patricia Stennett (Stennett) who was in charge of the community access program of the Salvation Army. David and Potter arrived in Potter's car at about 9.30am. By that time Stennett and Syme had checked the temperature of this outdoor pool. The previous couple of days had been hot and they found the water to be warm. The air temperature was about 18-20 degrees with a cool breeze blowing. David was brought to the edge of the pool in his wheelchair by Potter. He was then assisted out of the wheelchair and assisted to remove his clothes, leaving his swimming trunks on. The actual pool was, unlike the Splashdown pool, a conventional small pool. It was apparently approximately 15 metres long and about 10 metres wide. It had steps to get down into the water. After David was placed on the edge of the pool he was, according to Potter, then "bum hopped" down the steps into the water. As he entered the water he protested that it was cold. As he got down into the water he struck the Applicant with his fist. The Applicant diverted his attention and then walked him out into the middle of the pool to do some exercises. The fact that David struck the Applicant was not an infrequent occurrence. Incident reports in evidence indicate that on a number of previous occasions David struck his carers, including the Applicant. He would also lash out and damage property. The technique that all the carers used to address this issue was to divert his attention, usually by talking to him or proposing a different activity. The technique used was not dissimilar to that used by adults with errant young children. Stennett gave evidence that the Applicant did not respond aggressively when David struck him. Potter said that later in the exercises David again struck the Applicant. At some stage, according to Potter, the Applicant was assisting David to perform a number of exercises in the middle of the pool when "out of the blue" the Applicant, using his right hand on David's head "duck dived" him. When David emerged spluttering, the Applicant said "sorry, I forgot to tell you to hold your breath". The Applicant then did it again. Subsequently, towards one end of the pool, Potter claims that the Applicant lifted David with both hands bodily out of the water and threatened that unless he behaved he would be thrown into the water. Stennett's evidence was that soon after she observed David strike the Applicant she left the pool to look for a key for a change room. Syme's evidence was that she was present sitting on a seat at the side of the pool watching the activity and talking to David as well as the Applicant. Potter said that at one stage while the Applicant and David were in the pool he took over the activities of assisting David from the Applicant. The Applicant emphatically denied the duck diving incident alleged by Potter. He admitted that he did, with David, perform a duck diving exercise that involved his left hand on David's chest and his right hand on his buttocks. He said that the exercise involved getting David to bend and then straighten his one leg and then be guided down under the water and then up again. He said that he did this and when he did so he told David to hold his breath. He said that on one occasion he did come up spluttering but he denied the circumstances as alleged by Potter. His evidence in this respect was corroborated by Syme. The Applicant emphatically denied any bodily lifting of David from the water and threatening to plunge him into the water. It was Potter's evidence that the water was cold and unsuitable for these exercises in an outdoor pool. He said that David appeared red in the face as a result of the cold and extremely agitated as a result of what he said was rough treatment by the Applicant. He made no comment about this to the Applicant, Syme or Stennett. His reason for this was that he saw his reporting relationship to Sytema. After the alleged threat to plunge David into the pool the exercise ceased. David was then dressed, the parties exchanged conversation near the pool, and then Potter assisted David to his car and drove back to the Manor. Potter later that day made an entry in the day book kept at the Manor that said that "other than cold conditions all went well". He further wrote "Dave in excellent mood on waking". Late that night Potter attempted, unsuccessfully, to contact Sytema. The next day he contacted her and told her what had happened. She asked him to write a report, which he did. Potter's report refers to the unsuitable weather conditions at the pool. It also says that David was taken forcibly down the steps. It refers to him being made to perform exercises but not relaxing and enjoying himself as he had done at Splashdown. The report said that David appeared under duress all the time, that his response went beyond anxiety to aggression and that he struck out at the Applicant a number of times. It records that he was forcibly duck dived and was lifted clear out of the water and threatened "that if he didn't co-operate he would be thrown forcibly down into the water". On receipt of that report Sytema consulted with the directors of the Respondent in Melbourne, sought advice and on 27 January called the Applicant in. She then presented him with a letter that she had prepared. That letter referred to a number of matters relating to the Applicant's performance. It referred to the Applicant intervening in "David's attendant care program when (he) was not rostered on" in March 1994. It refers to a meeting in November 1994 regarding concern from David's mother about the way David reacted to the Applicant. It stated that the Respondent had further concerns as to the Applicant interfering in David's care program and that his treatment appeared "unnecessarily rough". It referred to the incident at the pool and said that David's anxiety was "quite extreme". It also said that it had been reported to the Respondent that the Applicant had "used undue force and tactics which caused David emotional stress when participating in exercises". The Applicant was then invited briefly to comment on the matters and then advised that his employment was terminated. Findings on the evidence It was common ground that the central question in this proceeding was to ascertain what actually happened at the pool on 21 January. It was the Respondent's contention that Potter's version disclosed a serious breach of the duty of care owed by the Applicant to David and that this justified his termination. Counsel for the Applicant did not really contend that if the incidents as alleged by Potter was made out that termination was not a valid response by the Respondent. The Applicant's denials of the allegations by Potter were corroborated by his spouse Syme. Spousal corroboration of denials of criminal or quasi criminal activity must always be scrutinised with the utmost care. The Applicant's evidence that there was nothing untoward about the way that David entered the pool and his lack of an aggressive response to David striking him was corroborated by Stennett. Each of the Applicant, Syme and Stennett gave evidence in a frank and convincing manner. Potter's evidence was also frank but less convincing. I have decided to prefer the version of the Applicant and his witnesses over that of Potter as to what happened at the pool. My reasons for this relate both to the demeanour of the witnesses and to the unlikelihood of the Respondent's version of events, given the long history of contact between the Applicant and David. It is clear from the day book of the Respondent that the Applicant had extensive contact with David in the period that he was at the Manor. It is also clear that in that contact David had, on a number of occasions, assaulted him, as he had assaulted other workers. It is clear, however, that the Applicant had a very good relationship with David and was able to manage his behaviour. He used the technique that others used, namely diversion. He was called in by other workers when they had difficulties with David. There is some unlikelihood in the Applicant duck diving David in the manner alleged as it is likely that it would only have provoked David to strike him. Further, there is an unlikelihood in the manner that Potter alleged that the Applicant threatened David. David's mental faculties were such that threats were of no use to a carer dealing with him. He was like a child. The Applicant, from long experience, must have known this. Further, the evidence was that David weighed 90 kilograms. Although the Applicant is strongly built this evidence that the Applicant lifted him bodily out of the water had an air of incredibility about it. Another consideration is that Potter never raised what happened at the pool with those present on the day. He gave as his explanation for this the fact that he reported to Sytema. Potter however is a person who on the evidence is in business and appears able to speak up for himself. It strikes one as strange that while he did not officially work for, consult or report to Syme, if he was so outraged by the Applicant's behaviour he could quite easily have made a comment to either Syme, the Applicant or Stennett. Looking at Potter's report, the report is prefaced on the proposition that the water was cold. This is contradicted by Stennett, Syme and the Applicant. Further, the reports' overall thrust is to criticise the whole of the activity rather than to focus on the two alleged egregious actions by the Applicant. Having regard to all these matters, and to the seriousness of the allegations made, I am not satisfied that the Respondent has discharged its onus of proof under s.170EDA(1) that it had, pursuant to s.170DE(1) of the Act, a valid reason to terminate the Applicant's employment. Remedy The Applicant did not seek reinstatement to his position with the Respondent. It appears that in July this year David was transferred from the care of the Manor to another facility in Wantirna. The Applicant has been unable to obtain other employment. He has, however, been continuing to reside at the Manor and at a successor location. He, over the time he was employed by the Respondent, was also employed by the Manor. The level of his remuneration from the Manor has remained unchanged since he ceased employment with the Respondent. The Applicant's loss as a result of the termination of his employment would therefore appear to be the amount that he would have earned with the Respondent. It is appropriate to have regard to the fact that the Respondent, from July, ceased to care for David. The evidence was that there was no other suitable work available from the Respondent attending to another client. In the period from 1 July 1994 to 30 January 1995 the Applicant was paid a gross amount of $15,050. This included $842 termination pay and $1,115.18 travel reimbursement. Deducting those two amounts it would appear that the Applicant's earnings for the 7 months prior to his termination were approximately $12,690, a monthly average of $1,813. The evidence in relation to the actions that the Applicant took to mitigate his loss was somewhat vague but I am satisfied that he has sustained losses at the rate of $1,813 per month as a result of the termination of his employment by the Respondent. The amount that he would have earned had he not been terminated in the following five months (the period that David remained at the Manor) was, I find, approximately $9,065. He was paid $842 termination pay. This leaves a loss of approximately $8,223. Although there was obviously tension in the relationship between the Manor and the Respondent over the period from November 1994 to July 1995 I am not satisfied that this tension would have resulted in the cessation of the Applicant's employment. It follows from this that $8,223 is the measure of loss of the Applicant as a result of the unlawful termination of his employment and I propose to order that the Respondent pay to the Applicant that amount in compensation. Costs against third party The Respondent in this proceeding also seeks costs against Bucovaz arising out the return of three subpoenas issued out of the Court. The subpoenas were to produce documents and were returnable on 28 July, 22 August and 7 September. They were addressed to "Mr Carl Bucovaz (or a representative of Barwon Valley Manor), Proprietor, Barwon Valley Manor, 2A Settlement Road, Belmont, Vic 3216". The subpoena returnable on 28 July was served on Bucovaz's wife on 27 July 1995. In a letter to the Court dated 21 August, Bucovaz, who did not appear at any stage although advised of the costs application, claimed that he first had the subpoena brought to his attention at 9.30am on 28 July. The subpoena was returnable in Melbourne on that day, which was the day that this proceeding was originally listed for trial. The description of the documents sought in the subpoena is very wide. There was no correspondence from the solicitor from the Respondent which narrowed down the scope of the subpoena. Further, service on Bucovaz's wife does not conform strictly with the Rules. In addition it was common ground that Bucovaz was on leave, apparently overseas, until 26 July. As a result of the failure of Bucovaz to attend Court on 28 July to produce the documents sought the trial of this proceeding was adjourned on that day. Although the Court has power under Order 37, Rule 1 to order costs when there has been a failure to comply with a subpoena I decline to make any order for costs against Bucovaz for that day on the basis that the subpoena was served too late and was in any event too wide. Following the adjournment of the trial to 11 September in Geelong, the solicitor for the Respondent tried again to seek production of what were said to be documents relevant to this proceeding. There was communication between the solicitor and Bucovaz and the actual documents which were said to assist the Respondent's case were more precisely identified. A further subpoena was issued and served on Bucovaz's wife returnable on 22 August. Prior to that date there was communication between Bucovaz and the solicitor for the Respondent. In the course of those discussions Bucovaz declined to indicate that he would be complying and indicated that the solicitor would have to wait and see. Not surprisingly the solicitor for the Respondent retained Counsel for the return of the subpoena on 22 August. On 21 August Bucovaz wrote to the Court protesting about the position regarding the subpoena. He also forwarded to the Court a copy of some documents which he said were relevant, but did not appear. I am satisfied that Bucovaz had the subpoena properly brought to his attention. There was no suggestion that he did not receive it. He failed to comply with it and the Respondent has incurred costs as a result. Pursuant to Order 37, Rule 1(1)(f) Bucovaz ought to pay the costs occasioned by his default. The Respondent has claimed what I regard as a reasonable amount in costs and disbursements namely $445. Bucovaz is ordered to pay that amount. As a result of the failure of Bucovaz to respond adequately to the second subpoena, the Respondent issued a further subpoena returnable on 7 September in Melbourne. The early return of the subpoena was to allow the Respondent to peruse the relevant documents prior to the trial which was fixed to commence on 11 September in Geelong. Again Bucovaz was non-cooperative to the extent that he failed to advise the solicitor for the Respondent whether he intended to comply with the subpoena. The solicitor, properly, contacted Mr Bucovaz's office and was told by a secretary that she was unable to advise him of the position. In these circumstances the solicitor, not unreasonably given the history of the matter, retained Counsel to appear on the return date of 7 September. At some time on or prior to 7 September Bucovaz delivered to the Court a lever arch folder of documents in compliance with the subpoena. Pursuant to Order 37, Rule 1(1)(f) Bucovaz has complied with the subpoena and thus there is no jurisdiction to order costs against him under that rule. The Court has, however, inherent power to award costs against third parties: Canceri v Taylor (1994) 1 IRCR 120, Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199. By failing to communicate with the solicitor for the Respondent to advise the solicitor what the position was, Bucovaz has caused that solicitor to incur unnecessary costs. He should be ordered to pay those costs. The amount claimed is a reasonable amount of $469 and Bucovaz is ordered to pay that amount. The Order of the Court 1. That within 21 days of this date the Respondent pay to the Applicant the sum of $8,223. 2. That within 21 days of this date Mr Carl Bucovaz pay to the solicitor for the Respondent, Mr Renato Marasco, Solicitor, Level 3, 50 Burwood Road, Hawthorn the sum of $914. MINUTES OF ORDERS THE COURT ORDERS: 1. That within 21 days of this date the Respondent pay to the Applicant the sum of $8,223. 2. That within 21 days of this date Mr Carl Bucovaz pay to the solicitor for the Respondent, Mr Renato Marasco, Solicitor, Level 3, 50 Burwood Road, Hawthorn the sum of $914. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding fifteen (15) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy. Associate: Dated: 29 September 1995 Solicitors for the Applicant: Harwood Andrews Counsel for the Applicant: Mr Jaymie Fisher Solicitor for the Respondent: Mr Renato Marasco VECCI Counsel for the Respondent: Mr S. Wood Date of hearing: 11 & 12 September 1995 Date of judgment: 29 September 1995 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - VALID REASON - COMPENSATION INDUSTRIAL LAW - PRACTICE & PROCEDURE - COSTS - costs against third party on failure to comply with subpoena Industrial Relations Act 1988 ss.170DE, 170EDA Industrial Relations Court Rules 1994 O37,r1 CASES: Canceri v Taylor (1994) 1 IRCR 120 Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199 MARK SYME -v- COMMUNITIQUE PTY LTD No. VI 1433 of 1995 Before: Judicial Registrar Murphy Place: Melbourne (heard in Geelong) Date: 29 September 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1433 of 1995 B E T W E E N : MARK SYME Applicant AND COMMUNITIQUE PTY LTD Respondent MINUTES OF ORDERS Judicial Registrar Murphy 29 September 1995 THE COURT ORDERS: 1. That within 21 days of this date the Respondent pay to the Applicant the sum of $8,223. 2. That within 21 days of this date Mr Carl Bucovaz pay to the solicitor for the Respondent, Mr Renato Marasco, Solicitor, Level 3, 50 Burwood Road, Hawthorn the sum of $914. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.