Industrial Relations Commission of New South Wales CITATION: Doyle v Kempsey Workpool [2005] NSWIRComm 1029 APPLICANT: Ms. G. Doyle PARTIES: RESPONDENT: Kempsey Workpool Inc. FILE NUMBER(S): 5296 of 2004 CORAM: Ritchie C Application for unfair dismissal Application for reinstatement Applicant terminated for misconduct Claim applicant struck fellow worker and applicant failed to complete an incident report CATCHWORDS: Investigation by respondent unsatisfactory Applicant misled by respondent's documents Applicant stated that action part of a demonstration, no malice involved Applicant did not think of completing a form as client advised -okay Found that termination was harsh, ,unreasonable ,unjust. Order to reinstate with backpay. Industrial Relations Act LEGISLATION CITED: 1996 HEARING DATES: 02/14/2005 DATE OF JUDGMENT: 03/10/2005 Applicant: Ms. G. Doyle LEGAL REPRESENTATIVES: Respondent: Ms. B. Pimm of Jobs Australia Ltd DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE C 10 March 2005 Matter No IRC 5296 of 2004 IN THE MATTER OF : Geraldine Antonia Doyle and Kempsey Workpool Inc. Application by Geraldine Antonia Doyle re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2005] NSWIRComm 1029 Background. 1 Ms. Geraldine Doyle (the applicant ) commenced employment with Kempsey Workpool Inc (the respondent) in January 1997 and was terminated for misconduct on 19 August 2004. The respondent is a community group who provide a service to 20 adult clients who have an intellectual disability. The respondent from their centre hold classes for the clients which the applicant assisted to run. Classes are held in craft, art, music, dancing, singing and cooking. The applicant, who was classified as a Support Worker was a part time employee working 15 to 25 hours a week. The applicant as part of her responsibilities would collect the clients in her van, from their homes and drop them back home at the completion of their classes at the end of the day. The applicant had a spotless record up until she received her first formal warning on 24 June 2004. The issues that were contained in that letter did not play any part in the reasons for her termination in August 2004. Case for the applicant. 2 The applicant had filed a statement which became Ex. A and two other documents which responded to the respondent's witnesses statements. which became Ex. B and C. Ex A was a detailed document covering issues that were not connected to her termination. 3 The applicant was terminated by the respondent for misconduct as a consequence of incidents that occurred on 1 July and 5 July 2004. 4 On Thursday 1 July the applicant attended the first of the weekly monitoring sessions that had been put in place as a consequence of a First Official Warning Letter being issued on 24 June 2004 by Ms. Sue Barton Coordinator. Present at the meeting were the applicant, Ms. Barton and Mrs. Kim Cameron-Love. One of the issues raised at this meeting was the requirement of the applicant to ensure that the clients during a class maintained their interest in the proceedings. It was the applicant 's need to know, from Ms. Barton how this was to be done ? During this meeting Mrs. Cameron-Love left the meeting. 5 The applicant was talking to Ms. Barton and she demonstrated by pushing Ms. Barton on the arm as to how one would get the attention of a client. The applicant was seeking a specific instruction from Ms. Barton. The applicant did not seek to hurt or intimidate Ms. Barton. The conversation ended a few minutes later. Nothing further happened and the applicant continued to work as normal. 6 On 5 July 2004 the applicant was taking two of their clients home . As one of the clients was getting into the back of the van, the other client shut the van door catching the other clients hand. The client called out . The applicant went around the van and looked at the clients hand. She stated that on examining the hand there was no bruising ,no skin off and no redness. She asked the client if she was okay and was advised that " oh, it's alright". She put the seat belt on the client and drove her and the other client home. During the trip she did not complain about her hand. The applicant dropped the client at home said "goodnight " to her and went home herself. 7 The applicant said that it did not cross her mind to complete an incident report form about this incident. She saw the client a few days later and inquired how her hand was, but by this stage Ms. Barton had spoken to the applicant about the incident. 8 On 7 July 2004 Ms. Barton spoke to the applicant and advised that she had gone to the client's house on the night of 5 July, as a consequence of receiving a phone call from the client's mother, and had applied ice to the client's hand. Ms. Barton was critical of the applicant not completing an incident report form. The applicant saw the client on 8 July and inquired about her hand and was told it was "still a bit tender." 9 On 12 July 2004 the applicant was informed by Mrs. Cameron-Love that the Committee that runs the centre had directed a committee person to meet with her and a union official. 10 On 23 July 2004 the applicant received a letter dated 15 July signed by Ms. Jennifer Williams. Ms. Williams had been asked by the Committee "to look into this matter and these are the areas of concern." The letter then proceeds to list a number of grievances. A counselling meeting was to be held on 30 July. The applicant left a message for a union official Ms. Linda Ansford from the Australian Services Union (ASU). The applicant did not hear from Ms. Ansford so she called the ASU office and spoke to a Mr. Colin Lynch. The applicant sent a copy of the 15 July letter to Mr. Lynch. Mr. Lynch said that there were numerous accusations and that she should consider resigning. He said to write a response and that he had already cancelled the 30 July meeting. 11 The applicant sent her response to Mr. Lynch who after approving it, she gave copies to the Committee on 4 August 2004. 12 On 15 August 2004 the applicant received a phone call from Mr. Jack Barton who was the President of the Committee to advise that she had been suspended with pay until 19 August when she was required to attend a meeting along with her union representative. The applicant contacted Mr. Lynch who advised she should resign and that the union would not be supporting her if the matter went further. 13 On 19 August 2004 the applicant went to the meeting with her husband. Mr. Barton and Mrs Cameron-love were present. She was asked to resign but refused so she was terminated. She was paid pro rata long service leave and notice by cheque which had already be made out. 14 On 27 August 2004 the applicant received her official letter of termination. It stated that there were three misconducts which warranted instant dismissal. The two and one half pages set out the reasons for termination. A separation certificate gave "misconduct" as the reason and stated: Failing to provide duty of care Striking another worker Extending client shift without notification. 15 In her application the applicant sought "reinstatement to her former position." She maintained her desire for reinstatement throughout her case. 16 In summary the applicant said that the incident with Ms. Barton was not innately aggressive or intentionally intimidating nor did it cause Ms. Barton any physical harm. The matter of completing incident reports had been made clear and she had completed such forms post 5 July and pre termination so this is no longer an issue. Case for the respondent. 17 The respondent had three witnesses: Ms. S. Barton Mrs. Kim Cameron-Love Mr. C. Lynch (by summons) 18 Ms. Barton stated that the respondent is a non profit organisation that had commenced in 1992 to provide services for people with an intellectual disability. It is funded by grants from The Department of Ageing Disability and Home Care. The Committee is made up of 7 members. The respondent has no human resources or administrative staff except for herself and the assistant co-ordinator. 19 On 1 July 2004 Ms. Barton stated that she conducted a monitoring session with the applicant. They were discussing strategies concerning the need to actively engage some of the clients in the activities. The applicant said to her : " what do you want me to do ? Say HEY to them ? (referring to the services users) " 20 When the applicant said "HEY " , she punctuated the remark by striking Ms. Barton on the right shoulder with the heel of her hand. The blow was hard and rocked Ms. Barton in her seat. She said she was stunned but did not say anything back to the applicant. At the end of the meeting she reported the incident to the union delegate Mrs. Cameron-Love. She felt intimidated by the blow. 21 On 5 July 2004 it was reported to Ms. Barton that an incident had occurred where a client had a car door closed on her hand. The applicant was there but did not report this to the co-ordinator. The requirement is for all incidents relating to any situation where a client is injured or is involved in an incident that may lead to an injury to be reported. The applicant fell short of the standard of care required. Ms. Barton contacted the client and was told that she was alright. Ms. Barton went to the client's home and applied an ice pack to the hand. 22 The applicant was sent a letter dated 15 July 2004 relating to these incidents. On 19 July 2004 Ms. Barton had a conversation with Mr. Lynch of the ASU . He advised that all matters relating to the allegations, including those upon which the initial process was based, be included in this letter. Ms. Barton spoke again with Mr. Lynch and cancelled the 30 July meeting. The applicant responded to the respondent's letter by correspondence dated 4 August. 23 On 12 August 2004 the Management Committee met and considered the applicant's written response. The applicant's response was considered not satisfactory and did not alley the fears of the Management Committee. The Committee suspended the applicant on full pay and organised another meeting on 19 August 2003 which Ms. Barton did not attend. She was advised after that meeting that the applicant had been terminated. 24 Mrs. Kim Cameron-Love gave evidence to state that she had been in attendance at the 19 August meeting with Mr. Barton, the applicant and her husband. At that meeting the applicant stated that she no longer wished for the ASU to represent her. At the meeting the applicant gave no further explanation and the Management Committee had felt that the written response provided to the allegations had been insufficient and the applicant was therefore terminated. 25 Mr. Colin Lynch gave evidence by way of summons. He stated that he was contacted by the applicant. He said that he sought more time for the applicant to reply to the accusations. He received the applicant's response and reviewed same. Mr. Lynch said the allegations went for two and one half pages. He said in response to questions from the Commission that in totality he gave the applicant some options. One he could seek to negotiate a settlement through the payment of some monies and she resigned or she acknowledged and took some responsibility for her behaviour and the Union would insist that training be provided to the applicant. The third option was to go for unfair dismissal but the Union would not run it. The Union would not run an unfair dismissal case because the applicant's responses were not adequate to defend them. 26 It was the respondent's final submission that the process that led to termination was fair and that the reasons for termination were valid. Consideration and Decision. 27 From the submissions of the respondent the applicant was terminated because of two and only two issues. This was contrary to the letter generated by the respondent which the applicant was required to reply and also contrary to the letter of actual termination which the advocate for the respondent accepted as being misleading. In the conversation between Ms. Barton and Mr. Lynch of the ASU, Mr. Lynch sought that the respondent write to the applicant and list all the issues that the respondent had with the applicant. This she did and the applicant responded in detail to all the issues. It was unfortunate that this listing of irrelevant issues to the termination, resulted in a great deal of written correspondence being generated when it was quite unnecessary. 28 The applicant was terminated for misconduct due to her striking Ms. Barton on 1 July 2004 and not completing an incident report form when a client's hand was caught in a car door on the night of 5 July 2004. 29 Ms. Barton reported the two incidents to the Management Committee that have the responsibility to manage the centre. The Management Committee then directed a committee person Ms. Williams to investigate the issues. The investigation was carried out by the applicant putting in writing her views and that document then being placed before the Committee. The Committee then concluded that the applicant should be terminated post a meeting with the Chairman of the Committee taking place on 19 August 2004, if no further information came to hand. 30 It is unfortunate that the applicant's union did not fully appreciate exactly what the particular issues were that the termination was based on, and did not physically meet with the respondent and their member. If they had carried out their own independent investigation they may well have arrived at another point of view. 31 Did the actions or non actions of the applicant on 1 July and 5 July 2004 respectively warrant instant termination ? The action of the applicant on 1 July in striking Ms. Barton on the shoulder was done, in the view of the applicant, as a demonstration of getting a client's attention. When the applicant struck Ms. Barton they were facing each other. Ms. Barton stated that she was shocked and intimidated by the action and that later her shoulder was sore. The applicant stated she that did not seek to hurt or intimidate. After considering all the evidence and noting the witnesses I do not believe that the applicant sought to hurt or intimidate Ms. Barton. This was not a case of the applicant physically attacking Ms. Barton but just a demonstration of getting a client's attention. I believe the demonstration by the applicant caught Ms. Barton off guard and therefore surprised her. If the assault had been of such a physical nature, it would have been appropriate for the applicant to have been immediately suspended on pay pending a thorough investigation. The applicant continued to work as normal up until 15 August 2004 when she was suspended. It was also accepted that the applicant had never shown any aggression towards any other fellow employee or client in the previous seven years of employment. 32 Both prior and post 5 July 2004 the applicant had completed incident report forms. Immediately after the client had had her hand caught in the car door the applicant physically checked her hand and asked how she was. There was no break of the skin and there was no swelling. The client responded that she was "okay". During the short trip home the client did not complain about her hand.Later that same night Ms. Barton rang the client to find out how she was and again Ms. Barton was told that she was "okay". As to why the applicant did not raise the appropriate form she stated that it just did not cross her mind. Ms. Barton advised the Commission that the applicant had never not filled out an incident report form when she should have. 33 I accept that the respondent has to be ultra careful in dealing with their clients and that employees raising an incident report form allows management to keep abreast as to what has happened and what action if necessary should take place. That the applicant had previously raised such forms shows that she was aware of the procedure. The applicant has since recognised her failure on the night and has promised no repeat. 34 I believe that the respondent was misguided by the union in corresponding with the applicant and listing all issues. In essence there were only two issues that the Committee required the applicant's view. At no stage did the Committee or the person nominated by the Committee to investigate ever sit down face to face and talk with the applicant. If a proper investigation was to take place, then Ms. Williams should have separately spoken with the applicant and Ms. Barton. Only by doing this could Ms. Williams have had a full picture as to what occurred and more importantly why it occurred. 35 I also believe that it was inappropriate for Mr. Barton to be involved in the termination when he was related to the complainant. A conflict of interest clearly existed. Whilst I appreciate that the Committee is small and a number of the Committee members have relatives as clients an alternative should have been appointed. 36 Whilst the respondent may have set out with the best of intentions in seeking to investigate the issues against the applicant I am not satisfied that the process was fair to the applicant. The letter she was required to reply to did not centre on the two issues that resulted in her termination but covered a number of issues. The investigation was based on the applicant's reply to this letter without the applicant being spoken to face to face. The respondent should have sought advice from their employer association that they belong to being Jobs Australia Ltd. No reason was given to the Commission as to why they were not sought out for advice prior to the termination taking place. 37 The applicant seeks to be reinstated to her former position. I have not been persuaded that the relationship between the applicant and Ms. Barton or any other fellow employee had broken down to the point that a professional working relationship between the parties could not exist in the future. 38 In summary I believe the termination of the applicant for what occurred on 1 and 5 July 2004 was harsh, unfair and unjust. The applicant stated that post her termination she received some casual work in December with another community organisation. In January and February 2005 the applicant said that she had averaged about ten hours a week. 39 I therefore make the following order : ORDER 1. Pursuant to s89(1) of the Industrial Relations Act 1996, that Kempsey Workpool Inc shall reinstate Mrs. G. A. Doyle to her former position on terms no less favourable to those which would have applied had she not been dismissed on 19 August 2004. 2. That Mrs. Doyle be reinstated within fourteen (14) days of today. 3. Pursuant to s89(4) of the Industrial Relations Act 1996, that the applicant's period of service be treated as not to have been broken by the dismissal . 4. Pursuant to s89((3) and(6) of the Industrial Relations Act 1996, that Kempsey Workpool Inc pay to Mrs. G. A Doyle a sum of money equal to what she would have worked from the date of her termination to the date of her reinstatement less any termination monies she has already received from Kempsey Workpool Inc and any monies she has received from alternative employment in the intervening period. 5. The amount in Order4 shall be paid within twenty eight (28) days of today. 6. These proceedings are now concluded. D. RITCHIE COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.