Introduction

Read the full decision here.

The question I ask is: has the Fair Work Commission gone beyond its remit in ruling on an alleged case of elder abuse? The Commissioner in this matter felt it necessary to do so, in deciding on this unfair dismissal application.

I must admit, I am at a quandary with decision. Would the result be different if the respondent placed the applicant on paid suspension and called in an independent specialist investigator? Then acted on the investigator’s report. On the other hand, the respondent might well have felt that if it did nothing, this would put its funding in jeopardy, and therefore be out of business?

Apart from this, I feel the quality of the process (ie the letters and the manner in which the allegations were put) were very good. Unfortunately, for the respondent, they were not good enough.

The only way we will know for certain if the respondent appeals the decision.

Background

A registered nurse at a nursing home was summarily dismissed for elder abuse and obtaining patient records whilst on suspension (using someone else’s password). The Applicant had been employed as a registered nurse, working nightshift for over a year and had 26 years practical experience. She considered that her dismissal was harsh, unjust, and unreasonable and sought reinstatement and continuity of service and wages.

The respondent dismissed the applicant for a number of reasons, the most serious being an allegation of elder abuse, where it was alleged that the Applicant engaged in elder abuse, by using unreasonable force when undertaking a suctioning procedure to assist the resident’s breathing. In addition, it was alleged the Applicant had directed a personal support worker, (working on the shift with her) to use unreasonable force to hold down the resident’s hands, when the resident, it was alleged, was not agreeable to having the procedure performed.

The Respondent considered the Applicant’s alleged conduct constituted elder abuse and that if substantiated, would present as a contravention of the Respondent’s Senses framework, Code of Conduct, the Resident’s Charter of Rights, and the Aged Care Act 1999.

Police report

Prior to investigating the matter, the employer, assessed the conduct to be elder abuse and accordingly, the Respondent considered it necessary at that point to report the incident to the Queensland Police and the Department of Health. It was submitted that an appropriate investigation, affording the Applicant procedural fairness had not been undertaken prior to the reporting.

The first allegation letter

The allegations were put to the applicant in writing [Note: this is a very good letter]:

“It is alleged that:

  1. On or around 26 August, 2019 –
  2. You used unreasonable use of force when you were suctioning client [redacted] against her will;
  3. During the ‘sunctioning (sic) process you directed a PSW to use unreasonable force and hold down [redacted]’s hands indicating that [redacted] was not agreeable to being suctioned.
  4. On 29 June, 2019 –
  5. You were rude and abusive to HRM, [name], when she phone you at 11:00 pm and 11:30 pm to make you aware there was an important email that had been sent to you and you were required to open your emails. During this phone call you stated you were with a ‘patient’ and would not allow [name] to speak as you spoke over her and then hung up in her ear. It is acknowledged you asked [name] for her phone number, however, as [name] tried to inform you the phone call would have only taken 30 secs. It is to be noted that [name] took the option to be transferred to the After Hours Supervisor [name] on the first phone call, however, as you stated you were busy [name] waited 20 mins before making the second phone call and took the option of being transferred to the Nurses Station so she could speak to a Person Support Worker who could advise her if you were still busy and you answered the phone and again hung up in her ear;
  6. You phone the Residence Manager (RM) at 23:29 pm, following [name] phone call, and you were rude and abusive and informed her that you were being harassed by [name] and that you were trying to administer S8 medications. You also said that if [name] kept repeatedly contacting you and kept harassing you the RM would have to complete the night duty shift as you would not work if [name] constantly harassed you. It is to be noted that a review has been conducted of the S8 Medication book and the first S8 drug that you administer that night was not signed out until 11:23 pm, after [name] 2 phone calls.
  7. On 30 June 2019 –
  8. During a phone call at 4:40 am you were rude and abusive to the RM when she asked you if you had opened your email and you responded ‘No’. The RM tried to explain to you that an important email had been forwarded to you and you were to open your emails and you became argumentative, abusive would not listen to what she was saying and over talking her. You continued this abusive, argumentative manner throughout the phone call as the RM was trying to explain to you about the email and you were required to open it. You also started to ‘rant’ about [name] harassing you and that the residents could not get their S8 medication because of [name]. Due to your inappropriate behaviour the RM told you that she had to disconnect the call. It is to be noted as previously identified on a review of the S8 Medication book and the first S8 drug that you administered that night was not signed out until 11:23 pm, after [name] 2 phone calls;
  9. you lodged a vexatious claim against [name], Human Resources Manager Qld, when you completed an Incident Report claiming that [name] had bullied and harassed you during two (2) phone calls to you at 11:00 pm and 11:20 pm. It is to be noted in her role of HRM [name] had a responsibility to inform you of the consequences of you taking unapproved leave and that was the purpose of the phone calls. It is also to be noted that during their working hours, it is the responsibility of After Hour Supervisors e.g. [name] that they answer and respond to any phone calls during their shifts;
  10. you were belligerent and defiant in your manner when you informed the Registered Nurses by Message Board that ‘Admin’ had made an error as follows: ‘Just to let you know I am on leave from 30.6.2019 to 23.7.2019. Admin must have forgotten to take me off the roster. Please liaise with [name] about replacement- Thanks’; This was after speaking to the RM at 4.40 am who had rang you to reinforce and advise you to read your email from HR regarding taking unauthorised leave.
  11. On 8 September, 2019 –
  12. when you were informed that client Pat, Room 18, said she had a sore throat and couldn’t swallow you gave her 50mg Tramedol medication (note Medman indicates that this medication is for abdominal pain) and Pat did not wake up until 0500 expressing concerns regarding the medication you gave her saying words to the effect, ‘what happened? … I can remember the nurse giving me the tablet, but I can’t remember anything else after that, was I unconscious‘;
  13. you thought it was funny when you were made aware that Room 7 had buzzed for pain relief for her sore foot around 1:30 am and you forgot to give it to her until you were reminded again around 05:14 am;

III. when the client in Room 3 had buzzed for a third time to go to the toilet you answered the buzzer and told client Yvonne she had already been to the toilet and that she had to wait;

  1. when the client in Room 2 had been up to the toilet quite a few times around 2:00 am you asked the PSW if the client had any pain and the client said that he had no pain whatsoever. You stated if the client gets up again that you would just give him something although he had not requested any medication;
  2. During the night shift on 8 & 9 September, 2019 it has been alleged as follows:
  3. You left client Betty’s room in a dirty state following her cares as you left her in sheets that had faeces on them as well as leaving her used pad with faeces in it on the toilet seat;
  4. You falsified documentation and did not follow Policy as you documented that you administered Resource to (redacted) at 6:00 am as a full glass of Resource was found in (redacted) room indicating that you did not sight (redacted) taking the Resource and (redacted) not receiving the Resource;

III. Although you had been directed to ensure client (redacted) was showered during the night shift as she was going to hospital in the morning to have an operation you did not shower (redacted). The PSW on duty asked you to assist her to shower (redacted) as she was a two person assist and you told her you would not assist her;

  1. On a number of occasions, you have encouraged the PSWs who have been rostered to work with you to work outside of their scope by telling them to administer medications and they have informed you they are not able to administer medications.

Your alleged actions have compromised the health, safety and wellbeing of a number of [respondent] clients and staff.

[Respondent] views these alleged behaviours as constituting Elder Abuse. If substantiated, these actions are in clear contravention of [Respondent] Senses Framework, Code of Conduct, Residents’ Charter of Rights, and the Aged Care Act 1997. The alleged behaviour has caused stress to both clients and staff members.

Under mandatory reporting requirements, incident ‘1’ has been reported to the Queensland Police and the Department of Health.

You are therefore required to attend an investigation meeting at [respondent] on Wednesday, 18 September 2019 at 3pm. In attendance at the meeting will be [name], Regional Support Manager and myself. You may bring a support person of your choice to this meeting. If you do intend to bring a support person, please advise me directly not less than 24 hours prior to the meeting.

At this point in time, the above are allegations only and no conclusions have been reached. The purpose of this meeting is to provide you with the opportunity to respond to the allegations. This information will be vital in enabling us to assess whether the allegations are substantiated or not. Should you fail to attend the meeting without an acceptable reason, it will be assumed that you accept the validity of the allegations made against you and any disciplinary action that may result.

If not substantiated, there will be no further action. If substantiated, it could lead to one or more of the following outcomes:

  1. Counselling or Mediation
  2. Training
  3. Performance Improvement Plan
  4. Written Warning
  5. Summary dismissal

You are formally directed not to discuss the nature of the investigation with any other staff, residents, their families or any other parties associated with [respondent]; failure to adhere to confidentiality, if substantiated, may result in disciplinary action up to and including termination of employment.

Please also be aware that subjecting, or threatening to subject, any person who has been involved in this matter to any form of disadvantage or victimisation will not be tolerated.

[Applicant], it is appreciated that being the subject of an allegation and involvement in the subsequent investigation can be difficult for you. Please do not hesitate to use the Employee Assistance program on (redacted), which is a completely confidential counselling service provided at no cost to you.

Any queries you have should be directed to myself.

Yours sincerely,

[Name]

Group Manager – Human Resources”

The Applicant was suspended on pay from this date.

The second allegations letter

Subsequently, the Applicant received a second letter from the Respondent including further allegations, namely that while she was suspended:

  • The Applicant entered the Facility, accessed the IT system, printed off personal information, and removed property from the facility;
  • Her conduct breached the Respondent’s Policy and Procedure – Suspending an Employee, Respondent’s Values and Conduct, and the Applicant’s Position Description; and
  • The Applicant would be given an opportunity to respond to these allegations at the meeting.

Lack of cooperation leads to dismissal

The applicant was dismissed by letter, because she failed to cooperate with the investigation and subsequent interview meeting, in which gave a “no response” answers to question put to her.

Legal representation

Both the applicant and respondent were given permission to be represented by legal counsel.

The Applicant was represented by Ms Polina Kinchina, of Counsel, instructed by Mr Alexander Williams of Hall Payne Lawyers. The Respondent was represented by Mr Vince Rogers, Partner of Ashurst Australia (and then Landers and Rogers) instructed by Ms Patricia Ehlers, Human Resources Manager of the Respondent. Both parties were granted permission to appear pursuant to s.596 of the Act, due to the matters having some complexity and the dismissal having significant implications (with regard to the reporting of alleged elder abuse) and the potential repercussions of a finding of such, for the Applicant’s continuation as a registered nurse.

Respondent sought an 11th hour adjournment

It should be noted that the Respondent had legal representation at the Hearing, who had advised that he had been briefed, in the week before the Hearing, at a time when the Respondent participated in a Member Assisted Conciliation (MAC), before another Member. The Respondent’s legal representative sought to halt the proceedings (at the commencement of the Hearing) and sought fresh Directions to be set then, to allow for the filing of further evidence and submissions. This application was not foreshadowed at any time prior to the Hearing by the legal representative or the Respondent’s Senior Human Resources Officers. The Respondent’s senior personnel involved in this matter, had previously been put on notice by the Commission and the Applicant’s legal counsel, regarding the limited nature of the evidence they had filed. This matter was brought to the Respondent’s attention prior to the Hearing, in circumstances where the Applicant’s representatives had raised written concerns regarding imposing further costs on the Applicant. Further, the Applicant’s representative prior to the Hearing, when a MAC was under consideration, set out that delaying the matter and further costs would cause significant prejudice to the Applicant.

The Commissioner:

“At the commencement of the Hearing, both parties made lengthy submissions regarding the request on behalf of the Respondent for the late provision of new material and witnesses. I put the Respondent on notice that my provisional view was that there would be significant prejudice, to the Applicant, in allowing further material to be filed so late.

[…]

“That has meant that, and fully cognisant of the fact that the company had not complied with provisional statements in accordance with the directions and that they should’ve been provided on 13 January, and it’s a case where people internally within the organisation, for whatever reason, weren’t fully cognisant of what was required of them, notwithstanding the directions had been issued. The fact is that they did seek some guidance from in-house counsel. Unfortunately that in-house counsel within the company do not have experience in this area of the law and hence weren’t able to sort of give direction as to what approach [name], who was the person who was preparing that material, had to address.

[…]

“Taking into account all matters, after adjourning to consider the submissions, I decided (on the transcript) not to allow further material to be filed in relation to the matter (and not to allow new witnesses to be introduced, who had not provided statements of evidence)…”

Reverse onus of proof

In cases of dismissal for serious misconduct (summary dismissal or dismissal without notice), the onus is on the Respondent, in the current matter, to discharge the conduct that there was a valid reason for dismissal, on the balance of probabilities, in accordance with the principle established in Briginshaw v Briginshaw:

“The standard of proof remains the balance of probabilities but ‘the nature of the issue necessarily affects the process by which reasonable satisfaction is attained’ and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ …”

Applicant chose her right to remain silent

The commissioner’s view was that the applicant had the ‘right to remain silent” (all though there was no evidence that the applicant needed to be Mirandized (in accordance with American police TV dramas). The Commissioner:

“It was emphasised on behalf of the Applicant, that as the Respondent had contended that as the 26 August 2019 incident, was capable of constituting a criminal offence, answering the questions posed in relation to these allegations at the meeting of 18 September 2019, had real consequences. The Applicant was concerned that the answers could be relied on to prove her guilt of criminal conduct, and therefore the Applicant was entitled to claim privilege against self-incrimination”.

Right to have a support person present

Given the “criminality” of the allegations, the applicant’s union was unable to represent the applicant. This was to provide somewhat fatal to the respondent’s case, in that it failed to provide procedural fairness in allowing the applicant time to seek legal representation.

The Commissioner:

“Whilst, I am satisfied there was no unreasonable refusal to allow [the applicant] to have a support person present, however in the circumstances, the employers required timing of the meeting responses and the gravity of the allegations prevented a procedurally fair meeting for the Applicant. She was not able to have a relevant support person, that is she sought to obtain a representative, to assist in the serious discussions. She was unable in the time provided, to do this. She advised the Respondent of this, and on that basis would not be able to respond to the questions at the meeting”.

The procedure in question

The allegation of elder abuse was that the applicant forcibly undertook a suctioning procedure on a patient, ordering a subordinate to hold down the patient’s hands as the patient was resisting the treatment.

In the Commissioner’s words:

“…In this regard I accept the Applicant’s evidence that in her professional opinion the suctioning was necessary. I also accept that it was not inconsistent with the resident’s care plan which did not indicate that the suctioning should not be carried out, if it was necessary to prevent choking. In addition, whilst it is recognised that changing a sanitary pad was a necessary hygiene duty, it can be deferred for a short time and it cannot be considered to the same physical necessity level, as the requirement for the suctioning, in the circumstances of the patient, as confirmed. I prefer [the applicant’s] evidence, that suctioning was only performed where there was a medical necessity and the resident was at serious risk of choking, asphyxiation, and possibly death, if the procedure was not performed. [The applicant’s] uncontested evidence was that choking could begin in a matter of seconds. The patient’s chart demonstrated that suctioning had been performed and required in the past.

“[The applicant] is an experienced nurse and the documented evidence demonstrated that is was necessary to perform the procedure regularly. [The applicant] was the only RN on night shifts and the only one qualified to determine whether the suctioning was necessary. In making the assessment, [the applicant] was required to act quickly and without delay”.

Allegation of elder abuse not proven

The Commissioner found that this did not constitute elder abuse, finding:

“On the balance of probabilities, the allegations of elder abuse were not made out. This allegation was the primary and most serious allegation. The other allegations related to nursing matters that would regularly be dealt with in daily notifications, ward handover matters and not raised in an aggregate form sometime later. Whilst not in any way diminishing the importance care of patient duties, these allegations would not form the basis for dismissal, where the allegations had not previously been raised in a timely manner, and had formed the basis of discussions. Further allegations of insubordinate conduct towards [HR name] regarding these issues form the category of alleged rudeness and not immediately responding to her emails whilst on night duty, do not support a valid reason for the termination.

“The employer reported the allegation of elder abuse, on a premature basis. No proper investigation was conducted. The onus is on the Respondent, in establishing the basis for the criminal referral of ‘elder abuse’. The Respondent should be able to prove, to meet those tests, the basis of proving the conduct ‘beyond a reasonable doubt’. The witness evidence relied on by the Respondent in this matter in regard to the two employees that were working on the night shift with the Applicant was not cogent or credible. Their evidence demonstrated that they did not have a sound understanding of the procedure. One witness had an ulterior motive for complaining about the Applicant, rather than a genuine consideration that the Applicant had engaged in elder abuse. The other witness was not confident in her evidence about the alleged incident or her complaint”.

[…]

“Even if [the Applicant] did instruct the personal support workers to hold [the patient’s] hands tightly or firmly, in the context of her performing a medically required procedure, in the circumstances as described with this patient. I consider that such an instruction would not constitute elder abuse or excessive force. The procedure is uncomfortable and to be effective, involves precisely inserting a tube into the resident’s mouth and throat. Allowing the resident to pull at the tube, would hamper administering the procedure which, was time sensitive and necessary and if not done safely, could result in injury to the resident”.

Insubordination (rudeness over the phone)

The Commissioner found that:

“…whereby it was suggested that the Applicant was insubordinate to the manager, in circumstances where the manager repeatedly contacted her, whilst on duty on the night shift, to check her emails, the response to these matters does not adequately form a basis for the dismissal. There were reasonable alternatives to these demands to the Applicant, whilst she was on duty. The repeated contact of the primary registered nurse, responsible for the care of the residents on the night shift, cannot be considered appropriate or contribute to a valid reason for the dismissal. Whilst the Respondent stated that the Applicant’s involvement in dispensing medications at particular times during the shift did not match with those times that the Respondent called for her, the provision of medications were not the only necessary duties undertaken on shift by the Applicant”.

Accessing confidential patient records whilst suspended

Here, in a rare (part) concession to the respondent, the Commissioner noted:

“However, the employer did make a serious allegation against the Applicant, in relation to the Applicant’s accessing and removal of patient information and records, after being suspended. The Respondent considered the Applicant has engaged in a significant contravention of her general obligations to patients in relation to this matter. It is inconsistent with her evidence of her experience and knowledge as a registered nurse, that she was not aware of the strict required custody and privacy requirements of patient records. However, this must be balanced with the pressure the employer placed on the Applicant, in refusing an adjournment of the meeting, which required specific responses to defend herself, in relation to the allegations related to patient care. The allegations, had the potential to end her career as a registered nurse and to expose her to criminal investigation, by referring the elder abuse allegations without an appropriate investigation and without receiving an appropriate response from the Applicant.

“The allegations of the conduct of the Applicant in returning to the workplace and accessing patient records has been carefully considered in the context. It was submitted that the conduct was undertaken in the mitigating circumstances, in that the Applicant stated, she was not clear on the specific details of the allegations involving patients and therefore the need to check patent records to verify such. The Applicant said she was unclear on the parameters of the suspension from the workplace and that she was not advised, that she was not able to return to the workplace, while suspended. Further that she was directed to respond to a series of serious allegations, that directly affected her ongoing registration, in her long-term vocation. The real concern regarding criminal charges being laid, in the circumstances, provided significant pressure to be able to have the relevant documentation to address and defend the allegations. The decision to access the records was taken in circumstances, where it can be considered that the Applicant was under real duress given, she did not have any representation at that time and the timeframes in which she was being required to respond were short. She was also without representation”.

[…]

“…The allegations have not been made out, this matter of itself does not constitute a valid reason for dismissal. Notwithstanding this, the breach of conduct in accessing and copying patient records, forms a serious matter”.

Conclusion

The Commissioner summarised as follows:

“Having determined that there was no valid reason and that the Applicant’s dismissal was procedurally and substantively unfair, it is necessary to consider the question of remedy. As required by s. 390 of the Act, I am satisfied that the Applicant was protected from unfair dismissal and that she was unfairly dismissed. I am also of the view that the Applicant should receive a remedy for her unfair dismissal”.

Reinstatement or no reinstatement?

The applicant was insistent that she wished to be reinstated to her former position.

On the other hand, the respondent argued that there was a loss of trust and confidence.

The Commissioner:

“Reinstatement is the primary remedy for unfair dismissal, and compensation can only be awarded where the Commission is satisfied that reinstatement is inappropriate. In the present case the Applicant is seeking reinstatement as the remedy. The Respondent submitted that reinstatement was not an appropriate remedy, given the further conduct of interference with patient records. The parties were, further to the Hearing and the subsequent Directions, were afforded a further opportunity to address remedy and to make submissions in relation to remedy as requested. The Respondent provided an additional more recent statement in relation to remedy. This evidence did not indicate any impediment (bar the issue of trust and confidence addressed later) to the Applicant’s reinstatement.

Adding:

“However, the elevated criminal test would be relevant if the matter was considered in circumstances beyond the Commission findings, that provided for the Applicant losing her certificate to practice nursing.”

Reinstatement: The precedents

The Commissioner provided useful information in what to consider when determining whether reinstatement should be granted.

“…The relevant legislative provisions for consideration of a remedy are set out in s.390, s.391 and s.392 of the Act…In considering whether reinstatement is appropriate in all of the circumstances, the issue of the loss of trust and confidence raised by the Respondent must be considered. The following observations regarding the issue of loss of trust and confidence in Australia Meat Holdings Pty Ltd v McLauchlan, are relevant:

‘In our view a consideration of the appropriateness of reinstatement involves the assessment of a broader range of factors than practicability…

We accept that the question of whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. It is one factor to be taken into account, but it is not necessarily conclusive.

In Perkins v Grace Worldwide (Aust) Pty Ltd, the Full Court of the Industrial Relations Court said:

“…We accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of loss of confidence in the employee.

Each case must be decided on its own merits.”

“In assessing the evidence, there were no impediments to reinstatement made out on the evidence”.

The outcome

The Commissioner finding:

“For all of the aforementioned reasons, it is determined that the Applicant was unfairly dismissed…I consider the Respondent’s reasons for dismissal, in that it considered that the Applicant had engaged in the alleged misconduct of elder abuse is not substantiated. The other allegations also were not made out and would not equate to a valid reason, as set out. No loss of trust and confidence in returning to undertake her duties has been made out. It is appropriate, based on the evidence and submissions, to make an order…for reinstatement to the position in which the Applicant was employed, immediately before the dismissal [and] to maintain the continuity of the Applicant’s employment and to ensure the period of continuous service.

“In the circumstances, where it is considered that there is no valid reason for the termination, but a breach due to the accessing of patient records and it is considered that the termination was harsh, unjust and unreasonable. It is therefore considered appropriate to make an Order for compensation, as set out, this does not restore the Applicant’s lost remuneration in terms of ordinary time wages for the period between the dismissal and the reinstatement. The Order, as explained reduces the amount in recognition of the conduct of accessing the records.

“I have determined that in the circumstances of this case, it is appropriate to make a 75% deduction, from the amount awarded for lost renumeration, on the basis of the Applicant’s conduct in accessing and removing confidential patient records from her workplace without authorisation. This conduct was inconsistent with her employee obligations; however, I do not consider this conduct alone amounted to a reason for the dismissal, although it is considered sufficiently serious, as to warrant a significant reduction in interim renumeration”.