Michael Longford v Aboriginal Elders & Community Care Services Inc T/A Aboriginal Elders Village FWC 1480. (U2014/8955). COMMISSIONER WILSON. MELBOURNE, 3 MARCH 2015
The applicant was employed as a chef at its Davoren Park aged care facility. He was dismissed after an allegation of serious misconduct.
The applicant, presented to two residents a birthday cake that he agrees was substandard and should not have been presented.
A Personal Care Worker, complained about the presentation of the cake to the residents by lodging a written complaint form. Standard procedure was for the form to go to the Facility Manager, which it did. Amongst Ms Behan’s feedback was that the cake was “yuk” and “discusting” (sic).
It would appear that the applicant took umbrage to the complaint and began giving the PCA a hard time. The PCA subsequently complained to management as she felt quite intimidated by the applicant. The matter was investigated by an independent person.
The applicant was advised on the investigation in writing and warned not to approach the PCA in question. Despite this warning he did so and was therefore dismissed due to this breach.
As with these matters there was contradictory evidence to which the Commissioner stated:
“Having been dismissed for misconduct, the Commission is first required to find whether on the balance of probabilities (my emphasis) the alleged misconduct actually occurred. In doing so, it is necessary for the Commission to take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities. The Commission will also take into account the need for honesty on the part of the Applicant during the course of an investigation.”
The commissioner subsequently found:
“I am satisfied that, on the balance of probabilities, the misconduct related in the termination letter of 15 August 2014 took place and that it was sufficiently serious for dismissal. Accordingly I find that Aboriginal Elders Village had a valid reason for Mr Longford’s dismissal related to his conduct.”
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