Jasmin Soulsby v Knoxville Residential Care Pty Ltd t/as Knoxville Hostel [1995] IRCA 534

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 3060 of 1995 B E T W E E N : JASMIN SOULSBY Applicant AND KNOXVILLE RESIDENTIAL CARE PTY LTD T/AS KNOXVILLE HOSTEL Respondent Before: Judicial Registrar Millane Place: Melbourne Date: 3 October 1995 REASONS FOR DECISION This is a case where the Respondent, who having conceded that there was a termination of the Applicant's employment on 18 May 1995 at its initiative, has failed to call appropriate evidence to discharge the burden of proof it carries pursuant to sections 170DE(1) and 170EDA(1) of the Industrial Relations Act 1988 (the Act) of proving there was a valid reason justifying its actions. Between February 1995 and 18 May 1995 the Applicant was employed by the Respondent as a permanent part-time Personal Care Attendant at the Respondent's hostel. This employment involved the Applicant in working night shift from 10.00pm to 7.30am on Sunday, Monday, Wednesday and Thursday. Her duties included attending upon the 54 residents of the hostel when and if they sought or required assistance during the night. She was also engaged in cleaning duties in the kitchen and performed tasks such as washing residents' laundry as well as vacuuming the dining room. However, if the residents sounded a buzzer she may be called upon to administer medication or assist them in some other way. Some of the residents were and are debilitated in various ways such as suffering from Parkinson's disease or dementia; although they are not necessarily elderly. During the period of her employment with the Respondent the Applicant was in receipt of some $800 gross per week and also worked as a nursing assistant at the Surrey Hills Nursing Home. She has remained in the lastmentioned job until now but otherwise seeks compensation for the unlawful termination of her employment. The Respondent was represented by a director of the company, Kerry Bishop (Bishop) who also gave evidence that on or about 18 May 1995 she authorised summary termination of the Applicant's employment after receiving a report from the supervisor, Lynette Frances Wilkinson (Wilkinson) that a number of irate residents had complained to Wilkinson that morning that the Applicant had fallen asleep on her shift on 17 May 1995 and had not attended to their buzzer calls or had attended on them after long delays. I accept the Respondent's evidence that the hostel owes a duty of care to its residents, who rely on it to have staff available over a 24 hour period to attend their needs and those needs are important both in a medical and practical sense. Moreover, the Respondent has contractual obligations to the Commonwealth vis-a-vis the provision of hostel services for aged and disabled persons and those contractual obligations could be jeopardised by employees who sleep during their shift hours leaving residents unattended and unassisted. Notwithstanding these observations it is equally important for the Respondent and the operators of the hostel to act fairly in investigating and terminating the employment of an employee when and if a complaint concerning an employee is received. Wilkinson told the Court that on 18 May 1995 she was confronted by "a series of residents quite upset that their needs had not been met on the evening of 17 May 1995". As supervisor she had some concerns for the residents' welfare and investigated the complaints some of which she says involved residents being unable to make the Applicant hear their buzzer calls for attention. She alleges that she was told by some unnamed residents that the Applicant had been asleep. Prior to the abovementioned incident there had been complaints concerning staff sleeping on shifts but none of the complaints were sheeted home to the Applicant and certainly none were raised with her personally. The Respondent sought to produce statutory declarations from residents to substantiate the alleged complaints concerning the Applicant on 17 May 1995. Not surprisingly Counsel for the Applicant objected to not only the hearsay content of Wilkinson's evidence but the failure to give any notice to the Applicant that the Respondent intended to rely on any exceptions to the hearsay rule in accordance with sections 63 and 67 of the Evidence Act 1995 (Commonwealth). I upheld the objection as there were no circumstances properly before the Court to convince me that I should do otherwise. When the Applicant arrived for her night shift on 18 May 1995 Wilkinson, who alleges that she attempted to contact the Applicant during the day, conferred with the Applicant telling her that she had some "bad news" for her and proceeded to set out a number of complaints as follows:- 1. that the Applicant's duties on vegetable preparation and cleaning had not been performed to a satisfactory level; 2. that there were a series of complaints by residents and one in particular concerning the giving of medication on request to a resident with Parkinson's disease; 3. that the Applicant had allowed an epileptic resident to peel and cut vegetables when the kitchen was off limits to residents and particularly ones who might be injured in the cutting and peeling process; and 4. that she had been sleeping on night duty. In raising matters other than those alleged to be the basis for the allegation of serious and wilful misconduct justifying summary dismissal the Respondent clearly ignored its own disciplinary procedures for giving the Applicant warnings (see Exhibit A2). It was agreed by the Respondent that the complaints referred to in 1. to 3. inclusive were not sufficiently serious to warrant summary termination and should have been the subject of warnings. So far as Bishop and Wilkinson were concerned after their discussions on 18 May 1995 and before the Applicant had been interviewed by Wilkinson the principal reason for termination was the allegation that the Applicant slept whilst on duty and this was a serious breach of her duties as a Personal Care Attendant warranting summary dismissal. I am satisfied on Bishop's and Wilkinson's evidence that the decision to terminate the Applicant had been made prior to interviewing her or giving her an opportunity to defend herself against the allegations made. It was contended by Wilkinson that the Applicant admitted that she had slept on night duty but had told Wilkinson that others had also done this. The Applicant denied this contention pointing out that on 16 May 1995 because her colleague, Angel Faye Sinclair (Sinclair) had been ill the Applicant, who did not usually work on Tuesday nights, filled in for Sinclair. To prepare for this she arrived one hour earlier than required and arranged with another staff member to be woken when it was time for the Applicant to commence her night shift. She slept on the residents' lounge until she was awakened. Wilkinson accepted this explanation concerning the 16 May 1995 shift but did not accept the Applicant's denial that she had not slept at all on 17 May 1995 and that sometimes the buzzer in the front area could not be heard if the Applicant was working in the kitchen and performing tasks such as vacuuming in the dining room. It seems on the evidence that the precise allegations of each resident who complained to Wilkinson were not directly put to the Applicant. Moreover the course adopted by the Respondent was to make its decision to terminate the Applicant without any reasonable opportunity being given to explain her conduct. I am not satisfied that even if sleeping on the job amounts to serious misconduct there was any basis for saying that the employer in this case could not reasonably be expected to give the Applicant the opportunity to defend herself before terminating her employment (see s.170DC(b)). On the evidence there was neither a valid reason for termination nor was procedural fairness afforded to the Applicant in detailing the precise allegations made against her. Accordingly, the Applicant's application must succeed. Remedy On the question of remedy the Applicant was unable to specify any grounds for preferring a compensatory remedy to reinstatement as provided for in s.170EE(1) of the Act. The Respondent told the Court that there was no impediment to reinstating the Applicant to day or early evening shifts where she could be supervised. Of course, the qualification relied upon by the Respondent to avoid reinstating the Applicant to her former position on night shift is premised on the Respondent holding fast to the unsubstantiated view that the Applicant had been seen to be sleeping on night shift. This cannot be a basis for denying the Applicant the primary remedy of reinstatement to her former position together with ancillary orders for lost remuneration and continuity of employment. MINUTES OF ORDERS THE COURT DECLARES THAT: 1. The termination of the Applicant's employment contravened Division 3 Part VIA of the Industrial Relations Act 1988. AND THE COURT ORDERS THAT: 2. The Respondent reinstate the Applicant to the position in which she was employed immediately before termination of her employment on 18 May 1995. 3. For all purposes the Respondent treat the Applicant as having been continuously employed by it from the date of termination to the date of reinstatement. 4. The Respondent pay the Applicant the remuneration she would have received from the Respondent but for the termination of her employment by the Respondent. 5. There be liberty to both parties to apply to the Court on the giving of reasonable notice. 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 seven (7) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: Dated: 3 October 1995 Solicitors for the Applicant: Ryan Carlisle Thomas Counsel for the Applicant: K. Sweeney Respondent in person: Kerry Bishop Date of hearing: 2 October 1995 Date of judgment: 3 October 1995