DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jasmeen Kaur
v
The Frank Whiddon Masonic Homes of New South Wales T/A The Whiddon Group
(U2016/4852)

Application for relief from unfair dismissal.

[1] Ms Jasmeen Kaur has applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against her former employer, The Frank Whiddon Masonic Homes of New South Wales T/A The Whiddon Group (Whiddon). Whiddon operates several aged care homes. Before her dismissal, Ms Kaur worked at one of these homes as a registered nurse.

[2] This matter was heard on 7 June 2016 and 22 July 2016. At the hearing, Ms Kaur appeared in person, with Mr Cheema. Whiddon was represented by Mr Boyce of counsel and Mr Brown of Leading Age Services Australia, an employer association of which Whiddon is a member.

[3] Ms Kaur tendered:

• her own witness statement; 1



• a bundle of documents relating to an incident involving one of the residents of the aged care home (the incident); 2 and

a photograph from the Facebook account of another employee of Whiddon. 3

[4] Whiddon tendered:

• a letter written by Ms Gwen Ocampo, an assistant in nursing (AIN) employed by Whiddon at the time of the incident, to Whiddon in the course of the investigation Whiddon conducted into the incident; 4



• minutes from a meeting between Ms Ocampo and a member of its human resources staff, Ms Tracy Allen, that took place as part of the investigation into the incident; 5



• a witness statement of Ms Jyoti Bartaula, an AIN employed by Whiddon; 6

a witness statement of Ms Katrina Churchill, an AIN employed by Whiddon; 7

a witness statement of Ms Roslyn Lata, an AIN employed by Whiddon; 8 and

• a witness statement of Ms Lauren Cauchi, People and Culture Manager at Whiddon. 9

[5] Ms Kaur, Ms Ocampo, Ms Bartaula, Ms Churchill, Ms Lata and Ms Cauchi were all cross-examined.

Background

[6] Many of the relevant facts in this matter were contested, and thus my determination of the application largely turns on whose evidence I prefer. The following includes necessary findings of fact.

[7] Ms Kaur’s answers under cross-examination were often evasive and unresponsive to the questions being asked. 10 Her evidence was at times inconsistent with answers she had provided to Whiddon when it conducted its internal investigation.11

[8] Whiddon terminated Ms Kaur’s employment on 11 February 2016 following an incident on 9 January 2016, in which a client, a resident of the nursing home at which Ms Kaur worked, had a fall. Ms Kaur sent the client to hospital the next day, where it was revealed that the client had a broken hip.

[9] Relevantly, Ms Kaur’s letter of termination said:

‘Based on the information that The Whiddon Group obtained through our internal investigation processes, and the information provided by you during your meeting, and your subsequent email on 1 February 2016, we have found on the balance of probabilities that allegations 1, 2 and 3 did occur and have been substantiated.

These allegations are as follows:

1. A breach of Registered Nurse professional conduct.

• As the Registered Nurse on duty you did not complete any documentation regarding a fall or an incident.



• As the Registered Nurse you did not complete an incident report after the incident.

There is no evidence of appropriate documentation of the Whiddon client, [name redacted] after the event on 9 January 2016.

2. A breach of the Whiddon’s Group’s Falls Management Process, in particular clinical assessment.

• As the Registered Nurse you did not follow the Falls Management process.



• As the Registered Nurse you did not conduct a full assessment of a client after the alleged fall.

There is no evidence of an appropriate assessment of the Whiddon client, [name redacted] after the event on 9 January 2016.

3. Breach of the Whiddon’s Group Code of Conduct; particularly in relation to personal and professional conduct.

• On Tuesday 12 January 2016 around 4.45pm it is alleged you told an AIN “not to tell anyone and not to put you in trouble”.



• On Tuesday 12 January 2016 and Wednesday, 13 January 2016 you were interviewed by Tracy Allen as part of the overall investigation process relating to the client’s injuries. You advised Tracy on both occasions that [client’s name redacted] was heavy when walking; she was assisted back to bed, but had not suffered a fall.

Your responses to these allegations are not consistent with the witness statements obtained during the investigation.

4. Failure to act in a manner consistent with The Whiddon Group’s Mission and Values

After the investigation into the events on 9 January 2016 and 12 January 2016 and in your response to the show cause letter, we found that your conduct was viewed as serious misconduct by The Whiddon Group.’

[10] The incident of 9 January 2016 referred to in the letter of termination occurred while Ms Bartaula and Ms Lata were walking a client to bed. They were walking on either side of her, supporting her. Ms Lata left Ms Bartaula with the client in a corridor to get some supplies that they would need to use while putting the client to bed. While Ms Lata was away, the client became unsteady on her feet and fell down. On several witness accounts, there was a loud noise, a ‘bang’. It is not entirely clear what caused this, but I am willing to infer it was the client hitting either the wall or floor as she fell. Ms Bartaula cried out. Ms Lata came out quickly. Ms Churchill, who was looking after other clients down the corridor, also came quickly when she heard the noise. The three of them were there with the client when Ms Kaur arrived shortly thereafter. Ms Ocampo, who was on a break in the staff room at the time, looked through its glass door when she heard the noise and observed the client on the floor in the care of (then) two AINs. Ms Kaur examined the client and directed that she be taken to bed in a wheelchair.

[11] Ms Kaur’s evidence was that when she arrived, the client was not on the floor, but rather ‘near to the floor’. 12 She said that Ms Bartaula and Ms Lata were holding the client partially upright by hooking their arms under hers. All the AINs said that the client was still on the floor when Ms Kaur arrived. Ms Bartaula further said that she told Ms Kaur that the client had fallen.13 I accept the AINs’ evidence.

[12] I am in no doubt that the client fell. Indeed, Mr Kaur did not proffer any other plausible explanation for the client’s broken hip, though she would not expressly concede with the benefit of hindsight that that must have been what happened. Rather, she repeated throughout the hearing that she did not know exactly what happened that night because she was not there when the incident occurred. It is not disputed that Ms Kaur was not there at the time the client fell. But if, as I have accepted, the client was on the floor when she arrived and Ms Bartaula told her that the client had fallen, it is disingenuous to suggest that she did not know that the client had fallen.

[13] As her letter of termination indicates, Ms Kaur was dismissed not only because she failed to properly document the incident and follow Whiddon’s falls management process, but also because she had tried to convince another staff member not to speak to Whiddon about the incident. In this regard, I accept Ms Ocampo’s evidence that Ms Kaur approached her in the staff room a few days after the incident and asked Ms Ocampo not to get her in trouble by providing more information to Whiddon about the incident or speaking to other nursing staff about it. 14 Ms Ocampo was an impressive witness. Her evidence was straightforward and consistent both throughout the investigation and under cross-examination.

[14] During the hearing, much of Ms Kaur’s efforts were directed towards establishing that other employees were negligent and/or more responsible for the client’s fall than she was, and asserting that they should therefore have been disciplined before or alongside her. She put more effort into this than into refuting the allegations that led to her dismissal. Primarily, she sought to place the blame for the client’s fall on the AINs who were walking the client to bed. She also submitted that the registered nurses who were on shift between when she finished her shift and when the client was sent to hospital should have been investigated and/or suspended too for failing to send the client to hospital sooner.

[15] Ms Kaur also said that her manager, Abha Verma, had told her there was no need to do an incident report or even a near miss report, but that it would suffice to write in the clinical notes that the client was having heavy difficulties in walking. She said she was simply following Ms Verma’s advice.

Consideration

[16] It is not in dispute that Ms Kaur is a person protected from unfair dismissal. I am satisfied that she is so protected.

[17] Section 385 of the Act provides:

‘385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.’

[18] Section 385(a) of the Act is satisfied. It is not in dispute that Ms Kaur has been dismissed.

[19] Section 385(c) of the Act does not apply in this case, as Whiddon is not a small business.

[20] Section 385(d) of the Act is satisfied. Neither party contended that Ms Kaur had been made redundant.

[21] I must therefore consider whether Ms Kaur’s dismissal was harsh, unjust or unreasonable. Section 387 of the Act provides:

‘387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.’

Valid reason: s.387(a)

[22] I consider that Whiddon had a valid reason for terminating Ms Kaur’s employment. I am satisfied that she failed to document the fall, in accordance with Whiddon’s Falls Management Process, and subsequently tried to persuade other employees to ‘cover up’ the incident. What other employees did or did not do does not change that. Further, even Ms Kaur eventually accepted under cross-examination that, even if AINs were permitted to document incidents such as this, 15 as the registered nurse (being more senior to the AINs), she was the most appropriate person to have documented it.16 She failed to do so.

[23] I accept Whiddon’s submission that the applicant’s behaviour reasonably called into question whether it could place trust and confidence in her. This is particularly germane given that her core duties involve caring for aged clients who are often vulnerable.

[24] I should separately note that Ms Kaur sought, by tendering a photograph said to be from another employee’s Facebook account, 17 to show that another employee had breached another policy that Whiddon had in place, relating to social media. The photograph shows two women in the foreground with an older woman in the background. Ms Kaur said that it was against the relevant policy to post photographs depicting Whiddon clients on social media without their consent. I understand her submission in this regard to be that since that other employee was not dismissed for breaching the social media policy, Ms Kaur’s own breach of Whiddon’s falls management process was not a valid reason for her dismissal. I reject this submission. Apart from the lack of evidence to substantiate that submission,18 there was nothing to persuade me that breaching that policy is equivalent to breaching Whiddon’s falls management process.

Notification of that reason and opportunity to respond: ss.387(b) and (c)

[25] Ms Kaur was suspended with pay while Whiddon investigated the incident. She was told what aspects of her conduct were to be investigated at the outset of that suspension. 19 She was asked to discuss the incident in a meeting on 19 January 2016 and took that opportunity.20 She was also given an opportunity to further respond in writing, which she did on 1 February 2016.21 I am satisfied that Ms Cauchi took Ms Kaur’s responses, both verbal and written, into account in preparing the investigation report, which was in evidence.22

[26] I note Ms Kaur’s submission that she was not afforded procedural fairness because Whiddon did not sufficiently involve Ms Verma in the investigation. It is true that the investigation report as tendered does not contain a witness statement from Ms Verma. However, I also note that Ms Cauchi gave evidence that Ms Verma was involved in the investigation. 23 More saliently, I accept Whiddon’s point (ultimately conceded by Ms Kaur) that the advice Ms Verma provided to Ms Kaur would have been based on the information Ms Kaur had given her about the incident.24 If Ms Kaur told Ms Verma, as she says she believed at the time, that the client had not in fact fallen but merely had difficulty walking, it is entirely reasonable to conclude that Ms Verma would have agreed there was no need to report that she had fallen.

Unreasonable refusal of support person: s.387(d)

[27] Mr Cheema was Ms Kaur’s support person in the meeting on 19 January 2016.

Warnings about unsatisfactory performance: s.387(e)

[28] This factor is not applicable to Ms Kaur’s application. Ms Kaur was dismissed for misconduct, not poor performance.

Size of employer’s enterprise and absence of human resource management expertise: ss.387(f) and (g)

[29] Whiddon is a sizeable enterprise with dedicated human resource staff, some of whom were involved in investigating the 9 January 2016 incident.

Other relevant matters: s.387(h)

[30] I do not consider that there are any other relevant factors that I should take into account.

Was the dismissal harsh, unjust or unreasonable?

[31] Ms Kaur’s omission must be seen in light of the severity of the potential consequences that could flow from a failure to document incidents where an aged care client has a fall, and so constitutes a valid reason for her dismissal. In this case, unfortunately, those consequences were borne out and a client’s significant injury was not dealt with promptly. Further, Ms Kaur’s attempts to ‘cover up’ her actions justifiably damaged Whiddon’s trust in her. I am satisfied that Ms Kaur was afforded procedural fairness during the investigation process. On balance, Ms Kaur’s dismissal was neither harsh, unjust nor unreasonable.

Conclusion

[32] Ms Kaur was not unfairly dismissed. The application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

J Kaur, the applicant, in person with M Cheema.

G Boyce of counsel with K Brown for The Whiddon Group.

Hearing details:

Sydney.

2016.

June 7, July 22.

 1   Exhibit K1.

 2   Exhibit K2.

 3   Exhibit K3.

 4   Exhibit W1.

 5   Exhibit W2.

 6   Exhibit W3.

 7   Exhibit W4.

 8   Exhibit W5.

 9   Exhibit W6.

 10   See e.g. PN108-PN134.

 11   For example, Ms Kaur stated during the hearing that she did not hear the ‘bang’ that is presumed to be the client hitting the wall or floor as she fell: PN274-PN275. However, the minutes of the meeting she attended indicate that she stated both she and Ms Churchill heard the bang, and that she considered the noise to be normal: Exhibit W6 attachment ‘Exhibit LC-1’ tab L.

 12   PN289, PN317-PN319, PN342, PN368, PN392.

 13   PN752-PN756.

 14   PN617-PN619; exhibits W1 and W2.

 15   There was insufficient evidence before me to confirm that this was the case – but in any case, it is not necessary for me to determine the issue.

 16   PN218-PN248.

 17   Exhibit K3.

 18   Ms Kaur led no evidence to prove that the photograph was in fact uploaded to that other employee’s Facebook account, that Whiddon has a social media policy that prevents such an action, that the older woman in the photograph was a Whiddon client, that if she were a Whiddon client she had not consented to the photograph being uploaded, or that the employee said to have uploaded the photograph remained in employment with Whiddon.

 19   Exhibit W6 attachment ‘Exhibit LC-1’ tab O.

 20   Exhibit W6 attachment ‘Exhibit LC-1’ tabs L and O; exhibit K1 para 65 and annexure B.

 21   Exhibit K1 para 67 and annexure D.

 22   Exhibit W6 attachment ‘Exhibit LC-1’.

 23   PN1575-PN1593.

 24   PN309-PN315.

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