Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Chioma Okoye
v
SACARE Supported Accommodation and Care Services T/A SACARE
(U2019/11261)

Application for an unfair dismissal remedy – summary dismissal - alleged failure of duty – valid reason – dismissal disproportionate response - procedural unfairness - dismissal harsh – reinstatement inappropriate – compensation ordered

[1] Ms Chioma Okoye (the applicant) has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to her dismissal by SA CARE Supported Accommodation and Care Services ABN 94 504 257 933 (SA CARE or ‘the employer’). She claims to have been unfairly dismissed on 13 September 2019. At the date of dismissal she was employed as a facilities support worker.

[2] SA CARE oppose the application.

[3] No jurisdictional issues arise in determining this matter.

[4] On 7 November 2019 conciliation of the application was conducted by a Commission-appointed conciliator. It did not resolve. It was referred to me for hearing and determination.

[5] On 3 December 2019 I directed that the hearing deal with all issues in dispute (merits and remedy) and made directions for the lodgement of materials.

[6] I heard the matter by formal hearing on 5 February 2020. Ms Okoye and SA CARE were self-represented (SA CARE by former board chairperson and now Executive Director Corporate Services Ms Monika Leniger). At the conclusion of the hearing I reserved my decision.

[7] I received oral and documentary evidence from both parties. Three persons gave evidence.

[8] Ms Okoye gave evidence in her own right. SA CARE called evidence from Ms Klade Thomas (former Manager, The Gums facility) and Ms Leniger.

[9] Ms Okoye’s evidence was delivered in a calm and straightforward manner, with only limited gloss. 1 She displayed a relatively sound recall of events.

[10] Ms Thomas’s evidence was also calmly and conscientiously delivered. Her recall of events was relatively sound although not quite as instinctive as Ms Okoye.

[11] Ms Leniger’s evidence was presented with clarity but is of limited value as it was largely hearsay. At the time of relevant events, Ms Leniger was chairperson of the board, not an employee. She had no involvement in the dismissal or the events leading to dismissal. She was able to give evidence about company policy, but her evidence about operational or training practices generally or as they related to Ms Okoye was second and third hand. Her evidence about events leading to dismissal were extracts of case notes made and placed by others on Ms Okoye’s file.

[12] Aside from Ms Thomas, SA CARE did not call other persons directly involved in the events leading to dismissal, the investigation or the decision to dismiss.

[13] I make findings based on the demeanour of witnesses, the tone and manner of giving evidence, the consistency (or otherwise) between oral evidence and witness statements, the existence (or otherwise) of corroborating evidence, and the inherent plausibility of versions of events. I place reduced levels of weight on hearsay evidence except where facts are agreed or consistent with direct evidence.

The Facts

[14] The factual narrative is largely agreed except in four important areas:

1. Ms Okoye says that training certification for support workers is not client (resident) specific, whereas the employer says it is;

2. Ms Okoye says that she was granted permission by Ms Thomas to perform gastronomy care on clients at The Gums, whereas Ms Thomas denies having done so;

3. Ms Okoye says that she frequently performed gastronomy care on clients at The Gums whereas the employer says it was only occasional; and

4. Ms Okoye says that on the day of dismissal she was given no more than five minutes to explain herself before a five minute break was held after which she was dismissed whereas the employer says that a longer period transpired.

[15] On these disputed matters, I make findings in the course of this decision.

[16] On agreed or non-disputed matters, I make the following findings.

[17] SA CARE is a privately operated South Australian provider of housing and support services for people living with disability (physical and intellectual). It operates facilities across multiple sites in Adelaide. Two such facilities are in the suburbs of Kingswood (Briarholm) and Salisbury (The Gums).

[18] Ms Okoye was employed by SA CARE between 10 October 2018 until being summarily dismissed on 13 September 2019. For the first month she was a community support worker, providing care to clients living in private homes. After a month (from November 2018) she was a facilities support worker providing care across two facilities: at Kingswood (until May 2018) and The Gums (from May 2018 until dismissal).

[19] Ms Okoye was a casual employee covered by the Social, Community, Home Care and Disability Services Industry Award 2010. She worked regularly from week to week and averaged between 36 to 40 hours per week.

[20] Ms Okoye was a support worker providing care from amongst the pool of casual support workers. She was not a registered nurse.

[21] Shifts were allocated in advance by the facility manager in conjunction with the head of nursing. Clients had care plans and shifts were allocated to have appropriately qualified staff on each shift to cater for client care plans. When a staff member was allocated a shift a client or a group of clients they were to care for were identified on the roster though staff helped out with the care of other clients during a shift if the need arose.

[22] Ms Okoye was transferred from Kingswood to The Gums in May 2018 after an investigation into whether she had used excessive force on a client. The investigation proved inconclusive. Its outcome was a move from one facility to another. No disciplinary action arose. Although not initially happy about being moved, Ms Okoye quickly came to enjoy working at The Gums.

[23] Aside from the circumstances of the change in work location, there was no other concern by SA CARE with the work or work performance of Ms Okoye, until the events of September 2019 leading to dismissal.

Events leading to dismissal

[24] On 11 September 2019 at 4.30pm Ms Okoye received an email from the Director of Clinical and Complex Care, Stewart Pope. The email informed Ms Okoye that she has been observed providing gastronomy care to a client at The Gums and that she may not have current competency to do so and may be acting in breach of SA CARE policy. The email read: 2

“Hello Chioma,

It has been bought to my attention by SACARE Quality and Compliance, and also HR, that you have provided gastrostomy care to a client, or clients at The Gums following the Gastrostomy Theory only session that I delivered at Briarholm.

At this session, I had made it clear that this session was a refresher session for those already holding current competency, and an initial session for those who do not have current competency. For those who do have current competency they can go on to provide this care until I or the RN has reviewed competency. For those who do not hold a current competency in Gastrostomy Care, they must not provide this care until they have their competency evidenced.

I have been informed that you may fit into the second category, and therefore should not be delivering this service as it is a clear breech of SACARE policy.

Could you please confirm if you have evidence of current competency with the client or clients you have supported at The Gums?

Until we have resolved this matter you are directed to cease providing this service and report that you have done so to your current line manager and HR.

Thank you.”

[25] At 5.00pm that day Mr Pope re-sent the email to Ms Okoye, this time copying in the Human Resources Manager, Brittney Bakaj and one other person. 3

[26] At 6.34pm that day, Ms Okoye responded to Mr Pope by email as follows: 4

“Hi Stewart,

During my time at Briarholm Kingswood, I had been signed off for PEJ training to work which was how I was able to work with (Mrs B). We were signed off at Disability SA Highgate and the competency sheets were sent to Fiona the then Manager. Working at the Gums I informed Klade that I was credentialed for PEJ at Kingswood and she said it was ok for me to attend to gastronomy care and that I should just attend the training you provided as a refresher. It was based on the competency I got from Kingswood that I attended to clients at the Gums. You can verify from the team leaders from Kingswood as this was the main reason why I was assigned to (Mrs B) on most of my shifts. I have also copied Klade in the email for verification.

Regards

Chioma Okoye”

[27] Mr Pope replied the next morning, 12 September 2019 at 8.48am:

“Thank you Chioma,

We will need to discuss this with Klade. Ordinarily Level 3 Procedures are competency assessed to specific clients against their Care Plans, ie competency is 'Client Specific' and delegated by the RN. I would need to verify if Klade had made a decision to delegate the task. I do appreciate that The Gums has been light on staff to be able to access this training, and we are working to provide this. This process needs to be clear however to avoid these issues.

Thank you for this information Chioma. Could I please ask though that you suspend providing this task until this is all sorted.

Thank you

Kind Regards

STEWART POPE

Director Clinical and Complex Care”

[28] The next Ms Okoye heard of the matter was at 2.45pm during her shift on 13 September 2019. Her shift was due to conclude at 3.00pm. A manager met her in a corridor and asked her to come immediately to a meeting. She was not told what the meeting was about. She went to the meeting room where Ms Bakaj was seated, with another manager.

[29] Ms Okoye was told by Ms Bakaj that the company did not believe that Ms Okoye had a certificate of competency to perform gastronomy care and that she had provided such care without certification. She was asked if she could produce a certificate. Ms Okoye said that she had attended a training course in November/December 2018 and a refresher course in mid 2019; that following the 2018 training she was authorised to provide gastronomy care to a client Mrs B at Kingswood; that her manager at The Gums Mrs Thomas had given her permission to perform gastronomy care on clients; and that when the need arose at The Gums she did so after being rostered on shifts that included gastronomy care clients. She agreed that she did not have a certificate but said that she didn’t think she had done anything wrong.

[30] The meeting at this point had taken five minutes (there being no evidence called by SA CARE to the contrary, I make that finding as Ms Okoye’s evidence of the timing of these meetings was clear, reliable and plausible).

[31] Ms Bakaj and the manager stepped out of the meeting room for approximately five minutes. Although the case notes on Ms Okoye’s file indicate that Ms Bakaj telephoned Mr Pope, and may have done so, in the absence of evidence from Mr Pope or Ms Bakaj, I make no such finding.

[32] Upon returning to the meeting room, Ms Bakaj handed Ms Okoye a letter of summary dismissal. It was typewritten and signed by herself. It read:

“Delivered in person on 13/09/2079

Dear Chioma,

Confirmation of Termination of Casual Employment

We refer to an email distributed concerning an allegation of serious misconduct dated 11^th September 2019.

On the 11^th September 2019 you provided a written response to the allegation of serious misconduct.

The allegation, together with our findings, are noted following:

It is alleged that on 8^th September 2019 you wilfully and deliberately performed and signed off on a complex health care procedure (gastrostomy) on a vulnerable participant which you were not suitably trained to undertake. In performing the procedure, you disobeyed a strict direction by a Senior Clinical not to perform the procedure. If substantiated, this allegation Is considered serious misconduct under the Fair Work Regulations. Such conduct is inconsistent with the continuation of your contract of employment and has the potential to cause a serious and imminent risk to the health or safety of a person, as the participant could have died or been seriously injured, and the reputation, viability or profitability of SACARE as a business.

You responded denying that the allegations raised and confirmed that you were instructed by a direct Line Manager to complete the task. The understanding of this instruction was incorrect and was further reiterated by the instruction by the Trainer /Senior Clinician who specifically advised all training attendees not to undertake the procedure until fully assessed and credentialed. It was clearly evidenced on the employee list distributed across the facility that you were not suitably trained to perform the procedure for the clients at that specific facility.

At that meeting you were advised that, in view of the above matters, that we proposed to terminate your employment summarily and you were provided with an opportunity to respond to that proposal.

In the circumstances, and for the reasons as outlined above, we maintain the view that it is appropriate that your employment should be terminated with immediate effect and without notice. Your outstanding wages will be paid to you in due course

If you have any enquiries in relation to this matter, please contact me.

Yours sincerely,

BRITTNEY BAKAJ

Human Resources Manager”

[33] Ms Okoye was shocked. Ms Bakaj confirmed that she had been summarily dismissed and was required to leave the premises immediately. There was no further discussion. Ms Okoye was escorted off the premises in the knowledge and view of clients and staff causing her further distress.

[34] Ms Okoye wrote a letter of protest to SA CARE the following day (14 September 2019). 5 It repeated and expanded on her explanations and denied that she had disobeyed a direct instruction.

[35] On 16 September 2019 Ms Okoye received a response from SA CARE’s General Manager Client Relations and Service Delivery, Chloe Kempe. It said in part:

“A thorough investigation took place in relation to the incident you have referred to and the outcome of this investigation was termination of your contract. This will not be overturned due to the factual evidence that was presented and substantiated during this investigation.”

[36] Ms Okoye engaged a solicitor to provide advice. On 30 September 2019 her solicitor wrote to SA CARE foreshadowing an application to the Commission in the absence of an agreed settlement. 6 SA CARE replied on 1 October 2019 rejecting the assertion of unfairness.7

[37] On 2 October 2019 Ms Okoye received an email from a Registered Nurse (Annette White) employed by the Department of Human Services who had provided the training to Ms Okoye in November 2018. The email read:

“This email is to confirm that Chioma , attended Gastrostomy Theory Training on the 12th December 2018. The theory contained management of gastrostomy, attending to feeds, medication via gastrostomy, and general care of gastrostomy stoma.

Kind regards

Annette White

Registered Nurse/Acting health Liaison”

[38] On 4 October 2019 Ms Okoye filed these proceedings via her solicitor. The solicitor subsequently came off the file (on 29 November 2019).

Consideration

[39] The issue for determination is simply put: was Ms Okoye’s dismissal “harsh, unjust or unreasonable” having regard to the considerations in section 387 of the FW Act and, if so, is it appropriate to order a remedy by way of reinstatement or compensation?

[40] An overall assessment as to the nature of the dismissal must be made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be weighed in totality.

[41] Section 387 of the FW Act provides as follows:

“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.”

[42] I am under a duty to consider each of the criteria in section 387 of the FW Act,⁸ and now do so.

Valid reason

[43] A valid reason is one that is sound, defensible and well founded. It should not be capricious, fanciful, spiteful or prejudiced. 9

[44] In respect of conduct matters (other than in small businesses) the Commission’s role is not to consider whether an employer had reasonable grounds for concluding that a dismissed employee had committed acts of misconduct. It is the Commission’s role to consider whether the conduct itself occurred, and whether it constituted a breach of duty and a valid reason for dismissal. 10 The Commission is tasked to consider whether, to a reasonable degree of satisfaction on the evidence before it, misconduct occurred on the balance of probabilities. The more serious the alleged misconduct, the more stringent the civil burden of proof.11

[45] Ms Okoye was summarily dismissed without notice. The letter of dismissal 12 makes two allegations:

“1. On 8 September 2019 you wilfully and deliberately performed and signed off on a complex health care procedure (gastronomy) which you were not suitably trained to undertake; and

2. In performing the procedure you disobeyed a strict direction by a Senior Clinician not to perform that procedure.”

[46] It is necessary to consider whether either or both of the alleged breaches were a valid reason for dismissal, individually or in combination.

[47] Did Ms Okoye perform gastronomy care without suitable training or permission?

[48] Ms Okoye does not deny that she performed gastronomy care on clients. The evidence before me (oral evidence of Ms Okoye as well as Gastronomy Feed Regime records 13) is that she did so at least as follows:14

•  During December 2018 (on client Mrs B);

•  7 and 21 July 2019 (on client Mr K, once each day); and

•  7, 8, 10 and 11 September 2019 (on client Mr R, twice on each day).

[49] Ms Okoye says that, in practice, she performed gastronomy care on Mr K and Mr R more frequently than identified on the feed regimes. Whilst this may be so, I do not make that finding nor need to do so. SA CARE’s policy and practice required a staff member to initial the feed regime immediately after providing the care. Mrs Okoye did so on the abovementioned days. Other staff did so on other days.

[50] The allegation of misconduct can only be sustained if it can be established that Ms Okoye was neither suitably trained nor permitted to perform gastronomy care on the relevant days.

[51] I make the following further findings of fact.

[52] Clients in SA CARE facilities have a diverse range of needs. Some clients require gastronomy care. Gastronomy care involves the feeding of food through a tube into the stomach; the clearing of the tube and the provision of related medication.

[53] Gastronomy care is regarded as a complex health care procedure. As a matter of policy, SA CARE requires gastronomy care to only be delivered by a suitably trained and qualified support worker or nurse.

[54] During the period of Ms Okoye’s employment, there was at least one client requiring gastronomy care at Kingswood (Mrs B) and at least two clients at The Gums (a Mr K and a Mr R).

[55] During her employment, Ms Okoye undertook two programmes of training in gastronomy care at the suggestion of the employer.

[56] The first was on 12 December 2018 (conducted by an external training provider at Highgate Park as part of industry wide training delivery). At around that time a new client Mrs B came into the Kingswood facility. Ms Okoye and certain other SA CARE workers were asked to complete a gastronomy training course in order to be able to provide care to Mrs B. Ms Okoye completed the external theory training. She did not receive a formal certificate as the external training was a theory training component only. To complete the competency she needed to have her practical on-site care observed and certified to a satisfactory level by a clinician.

[57] On returning to the Kingswood facility Ms Okoye was rostered to provide gastronomy care in December 2018 to Mrs B and did so. She did so in the full knowledge of other staff including the clinical nursing staff. She was not informed that her practical work was or had been unsatisfactory. However, no certificate was, in fact issued to or received by her.

[58] There is a dispute as to whether the training provided to Ms Okoye was client specific, in other words training only for care of a particular client. The evidence of Ms Okoye was that she understood that SA CARE only asked her to undertake the December 2018 training in order to be able to care for Mrs B. I accept that this was so. However, it is a separate question whether a training competency issued upon satisfactory completion of the theory and practical components is client specific. On the basis of Ms Thomas’s evidence, 15 I find that a certificate of competency, when issued, is not client specific, although an employer may provide an instruction that care only be provided to a specific client. This is what occurred with respect to the care provided by Ms Okoye whilst she was at Kingswood; she did not provide gastronomy care to any client at Kingswood other than Mrs B.

[59] Relevantly though, SA CARE permitted, indeed rostered and required Ms Okoye to provide gastronomy care to Mrs B even though Ms Okoye had not received a certificate of competency, but had simply completed the theory component of the training.

[60] Upon working at The Gums six months later, from time to time Ms Okoye noticed requests on an internal messaging app for staff to volunteer to cover a shift requiring the provision of gastronomy care. 16 Ms Okoye drew to Ms Thomas’s attention that she (Ms Okoye) had undertaken gastronomy training and had performed gastronomy care on a client at Kingswood, and was happy to do so at The Gums and take shifts where such care was required.

[61] Ms Thomas told Ms Okoye that she (Ms Thomas) would check her credentials with Kingswood. Ms Thomas was told by management at Kingswood that Ms Okoye did not hold a formal certificate but had completed the theory training.

[62] What occurred next is in dispute. Ms Okoye claims that she approached Ms Thomas to ask about the outcome, and Ms Thomas said words to the effect ‘you don’t have the certificate but you have permission to provide the care because you completed the theory training’. In other words, Ms Okoye says that Ms Thomas gave permission. In contrast, Ms Thomas says that she told Ms Okoye that her training was incomplete and that she needed to do a short refresher and then be certified in order to be competent. She denies that she gave permission.

[63] Both Ms Okoye and Ms Thomas were credible witnesses and each genuine and plausible in their recall. The discussion occurred some six months before each gave evidence to the Commission. Both recall it being a brief discussion. The difference in evidence is, in my view, a misunderstanding borne of a lack of clarity in what was said at the time, and the effluxion of time in exact recall. I do not find that Ms Thomas said words such as “okay” or gave express permission to Ms Okoye. Equally, I do not find that Ms Okoye was told not to provide gastronomy care. She was told to enrol for the refresher which she did. She was told a chart would be displayed showing the status of all staff concerning gastronomy care, and her status would be recorded as “incomplete”. That chart was in fact subsequently displayed on a notice board (at least by 9^th August 2019), and is in evidence. 17

[64] The misunderstanding concerned the practical implication of being classed as “incomplete”. Ms Okoye considered that this meant that she needed to complete her training (via the refresher) but could in the interim continue to provide gastronomy care (as she had done for Mrs B with SA CARE’s knowledge and permission). Ms Thomas considered that “incomplete” meant that care could not be provided until competency was secured and a certificate issued.

[65] As a matter of fact, Ms Okoye enrolled in the refresher course. As a matter of fact, she provided gastronomy care on at least ten occasions across six days between July and September 2019 to two separate clients at The Gums. It was her care of Mr R on 8 September 2019, apparently observed by another staff member, which led to an issue being raised with Mr Pope which then led Mr Pope to write his email of 11 September 2019.

[66] Was Ms Okoye suitably trained to perform gastronomy care?

[67] I conclude not. Although I have found that certification is not client specific, Ms Okoye did not hold a certificate of competency (whether specific or general). She had completed the theoretical training, apparently satisfactorily. She had completed the refresher programme, apparently satisfactorily. However, the practical component that would have led to the issue of a certificate of competency had not been signed off by a clinician and therefore the certificate had not been issued.

[68] There was no explanation given by SA CARE as to why this had not happened. It did not call Mr Pope who may have been able to explain whether the non provision of a certificate after the December 2018 training and provision of care to Mrs B was advertent or inadvertent.

[69] Was Ms Okoye given permission by SA CARE to provide gastronomy care to clients?

[70] With respect to Mrs B at Kingswood, I find that she was. However, I find on the basis of Ms Okoye’s evidence that she was informed at the time of that training that permission was specific to the care of Mrs B.

[71] I have not found that Ms Okoye was given express permission by Ms Thomas at The Gums. However, Ms Okoye did not hide the fact that she was providing the gastronomy care to Mr K and to Mr R. She did so with the knowledge of other staff. Ms Thomas claimed she did not know Ms Okoye was doing so, but even if not, it was her duty to be so informed. If she had read the Gastronomy Feed Sheets that were completed by staff (including by Ms Okoye), she would have seen Ms Okoye’s initials on at least ten occasions.

[72] In these circumstances, was there a valid reason for dismissal?

[73] An employee performing a medical procedure on a client and doing so knowing that they do not hold a required qualification would, in the ordinary course, be committing an act of serious misconduct that would justify summary dismissal.

[74] However, in the somewhat unique circumstances of this matter, there are significant factors that mitigate the seriousness of the conduct. These are:

•  Ms Okoye had been permitted by SA CARE to perform gastronomy care on Mrs B with SA CARE fully aware that she did not hold a formal certificate. In that sense, SA CARE cannot reasonably say that the provision of such care without a formal certificate is, by definition, misconduct;

•  Ms Okoye had completed a theory training programme and a refresher programme;

•  No explanation was provided by SA CARE to Ms Okoye at the time of dismissal or at the hearing as to why a certificate had not been issued to her in light of this training;

•  The care provided by Ms Okoye at The Gums was known to staff and performed in good faith by Ms Okoye and recorded in a way that was transparent to attentive managers and clinicians;

•  When Ms Okoye first raised the issue with her manager at The Gums, the communication by Ms Thomas to Ms Okoye at The Gums was ambiguous, and did not clearly explain the consequences of her status being recorded as “incomplete”;

•  Mr Pope acknowledged in his email of 12 September 2019 that “The Gums has been light on staff to be able to access this training”. This supports Ms Okoye’s evidence that it was she who came forward and volunteered the care in response to group requests by other staff for shift covers.

[75] Ms Okoye can be reasonably criticised for making assumptions about her right to provide gastronomy care to clients given that she knew her training had been conducted for the specific purpose of Mrs B, and especially after her status was recorded as “incomplete” by Ms Thomas.

[76] However, it was ultimately the employer’s responsibility to explain to its staff what they were permitted to do (or continue doing) once their training was recorded as “incomplete”. It was also the employer’s obligation to keep abreast of what staff were doing and what they were recording on feed sheets. As early as 7 July 2019 when Ms Okoye completed the Gastronomy Feed Sheet for Mr K, the employer was on notice that Ms Okoye was performing such care. It was within SA CARE’s capacity to specifically direct her not to do so.

[77] Nor do I find that Ms Okoye “disobeyed a strict direction by a Senior Clinician”, as alleged. I have found that no such strict direction was given by Ms Thomas. At the hearing, the employer did not explain, let alone lead evidence, if any other manager was alleged to have done so. SA CARE failed to issue such a direction until Mr Pope’s email of 12 September 2019 in which he asked that Ms Okoye “suspend providing this task until all sorted”. Ms Okoye complied. She did not provide further gastronomy care after receiving that email until dismissed the next day.

[78] In these circumstances, on balance I find that a valid reason for dismissal existed, but that the seriousness of the breach was substantially mitigated by context and factors that were within the employer’s control.

Notification

[79] Ms Okoye was notified of dismissal when handed the letter of termination on 13 September 2019. That letter outlined the reason for dismissal, a reason which Mr Okoye contested.

Opportunity to respond

[80] Ms Okoye was provided an opportunity to respond to the allegation, but in the context of her dismissal being a live issue, that opportunity was limited.

[81] The opportunity to respond occurred after Ms Okoye was notified of the allegation via Mr Pope’s email of 11 September 2019. Ms Okoye took that opportunity, and within two hours had sent an initial response (expressing her belief that she had permission from Ms Thomas and had completed training whilst at Kingswood). She then complied with the request not to perform further gastronomy care “until sorted”.

[82] Relevantly, her response was met with a tone that gave no hint of dismissal or disciplinary action. Mr Pope thanked Ms Okoye for her explanation. The first words in his email of 12 September 2019 were “we will need to discuss with Klade” (Ms Thomas).

[83] The next Ms Okoye knew of the situation was being called into a disciplinary meeting the next day whilst on shift, where she was asked to produce a certificate of competency, and when she could not do so, then dismissed.

[84] This was a denial of procedural fairness.

[85] Firstly, the employer failed to do what Mr Pope said in his email that it “needed to do”, that was, speak to Ms Thomas. Ms Thomas’s evidence was that she was on leave that week and did not receive a phone call from any company officer on either 11, 12 or 13 September 2019 seeking to clarify or confirm the explanation given by Ms Okoye (that Ms Thomas had given permission). 18 I prefer this oral evidence given on oath by Ms Thomas, which was tested in the witness box, to the untested case note which states that Ms Bajak spoke to Ms Thomas about the subject in person at The Gums on 12 September 2019.19 As noted, the employer did not call Ms Bajak or Mr Pope. In this respect, Ms Okoye was misled. She was told that Ms Thomas would be contacted to verify her story, but in fact she wasn’t. Ms Thomas’s evidence was that she learned of these matters (the dismissal) upon her return from leave, the following week.20 The fact that Ms Thomas may not have verified the story is not to the point; the investigation failed at the first hurdle.

[86] Secondly, within 48 hours the employer escalated the issue from an operational matter that needed “sorting” into a disciplinary matter without any specific warning to Ms Okoye.

[87] Thirdly, the evidence has a strong flavour of predetermination in the decision to dismiss before the opportunity to respond at the disciplinary meeting was provided. Even if the decision to dismiss was made in the five minute break held on 13 September 2019, this was a wholly inadequate period to consider what Ms Okoye was saying and to weigh disciplinary options. By asking Ms Okoye to explain herself in the terms demanded, SA CARE was going through the motions. It provided superficial but not substantive procedural fairness. The letter of termination itself says that Ms Okoye’s “understanding of this instruction was incorrect” yet the employer appears to have given no weight to the factors that may have led its employee to be either confused or misguided about their obligations.

[88] I take into account that the disciplinary process contemplated by the FW Act does not require any particular formality and is to be applied in a common sense way to ensure the employee has been treated fairly. 21

[89] In the circumstances of this matter, rather than being provided a real opportunity to respond Ms Okoye was provided an opportunity in name only; one in which she was being summonsed to participate in an ambush of her employment if she didn’t do what the employer already knew she couldn’t do – provide a certificate of competency.

Support person

[90] SA CARE did not refuse a request for a support person, as none was made. None was made because Ms Okoye was given no notice of the disciplinary meeting.

[91] Nonetheless, in its haste, and in failing to provide Ms Okoye a clear line of sight that her employment was at risk, the employer in practice denied Ms Okoye the opportunity to seek advice let alone the assistance of a support person. In so doing, it acted contrary to its own policy on Code of Conduct breaches: 22

“At all stages of the disciplinary process, the employee will be entitled to be accompanied by another person of their choice at any formal meetings with management.”

[92] This was a further element of procedural unfairness.

Performance warnings

[93] Ms Okoye had no warnings or counselling on her record during her year of employment. An incident had arisen of alleged misconduct leading to her transfer from Kingswood to The Gums, but upon investigation was unsubstantiated.

[94] There was no evidence before me that Ms Okoye performed her duties (including the provision of gastronomy care) in an unsatisfactory manner or failed to comply with instructions.

Size of employer’s business and human resource specialists

[95] Although SA CARE is a family operated business, it employs approximately 400 employees across multiple sites. It operates in a regulated industry and cannot be said to be unfamiliar with its compliance obligations and duties to clients, staff or the disability sector.

[96] It has human resource capability. The Human Resource Manager conducted the disciplinary meeting that led to Ms Okoye’s dismissal, and signed the letter of termination.

Other matters

[97] Not having called any evidence of those who made or advised on the decision to dismiss, I am unable to test the assertion in the letter of termination that the clients to whom Ms Okoye provided gastronomy care “could have died or been seriously injured” with consequent impact on the employer’s “reputation, viability or profitability”.

[98] I am not indifferent to the complexity of a business operating in the highly regulated disability care sector and meeting the multitude of regulatory and day to day obligations imposed by regulators, clients, family members and staff. None of that complexity, however, excuses or sets aside obligations to provide substantive and procedural fairness to employees in considering whether they should or should not be dismissed.

[99] In its closing submission, SA CARE alluded to the fact that Ms Okoye was a casual and that it could dismiss a casual without particular formality. I reject this submission. A casual employee who is regularly and systematically employed and has reasonable expectation of ongoing employment on that basis has a lawful right to access this jurisdiction. Once that employee does so, and has served the minimum employment period, they are protected from unfair dismissal, including a dismissal that is unfair on substantive or procedural grounds.

[100] Further, to use the extreme and emotive language of the termination letter, but not lead any evidence to advance the proposition that Ms Okoye had put clients at such risk, was unfair and potentially misleading to her future employers.

[101] There are no other relevant matters that have not been otherwise considered.

Conclusion on merits

[102] The FW Act requires a global assessment having regard to the various relevant statutory considerations. In that context, procedural unfairness is an important consideration given the provisions of the FW Act but does not necessarily mean that the dismissal was unfair. 23

[103] Ms Okoye’s conduct and assumptions materially contributed to her undoing, and to the employer’s loss of confidence in her. However, I have found, on balance, that there was a valid reason for Ms Okoye’s dismissal but that significant factors in mitigation, including action and inaction by the employer, lessened the seriousness of Ms Okoye’s breach of duty.

[104] I have also found significant procedural unfairness and a strong flavour of haste and predetermination in the decision to dismiss. These factors render the dismissal process inconsistent with the employer’s own Code of Conduct which provided: 24

“Natural justice requires an absence of bias, the presentation of substantial reliable evidence, and the right of the person affected to hear all the material evidence and be given adequate time and a fair and reasonable opportunity to respond. These principles are particularly important if the decision has negative consequences for the staff member involved.”

[105] Ms Okoye was not provided “substantial reliable evidence” because Ms Thomas had not been spoken to by the investigator. Even though dismissal was being actively considered (if not already having been determined or determined in principle) she was not given an adequate opportunity to respond, nor was her explanation objectively considered.

[106] I also conclude that the dismissal was a disproportionate sanction particularly as Ms Okoye was dismissed summarily and without notice. There was no immediate need for summary dismissal. Ms Okoye had complied with Mr Pope’s request to not provide further gastronomy care until the matter “was sorted”. The employer could have readily allowed Ms Okoye to be rostered to perform her regular duties (that did not involve gastronomy care) and wait for Ms Thomas to return from leave the next week to assess whether her explanation stacked up. The employer did not do so.

[107] In its haste to judgment, SA CARE took a black and white view of the matter – either a certificate of competency needed to be produced, or dismissal. Yet the matter was not black and white. The employer itself had introduced grey into the equation – by allowing Ms Okoye to perform gastronomy care at the Kingswood facility without having a certificate of competency and by not stopping her from doing so at The Gums once she declared having done so on feed sheets. Ms Okoye was not blameless, but managers added to the greyness by action and inaction, including a lack of clarity in communication.

[108] For these reasons I consider the dismissal to have been harsh.

Remedy

[109] Ms Okoye seeks an apology and compensation for having been unfairly dismissed. She does not seek re-employment with SA CARE, having (a month after dismissal) secured alternative (but less remunerative) casual employment in the sector, via an agency. She also seeks to correct what she considers to be an incorrect accusation of wrongdoing.

[110] I consider it appropriate to order a remedy. The circumstances giving rise to the employment relationship ceasing are real and substantive. It would not be in the interests of justice for an employee, in light of these findings, to be denied a remedy at least for identifiable and compensable economic loss, within statutory limits.

[111] I do not consider that reinstatement in the same or an alternate role to be appropriate. Neither party sought such an order. It was apparent from the proceedings that whilst Ms Okoye remained respectful of SA CARE, she would be uncomfortable returning to the workplace, and that SA CARE had lost confidence in Ms Okoye.

[112] In these circumstances I consider that a remedy in the form of compensation as provided by statute is appropriate.

[113] Section 392 of the FW Act provides as follows:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[114] I note that the discretion to award compensation is not at large; it is a discretion guided by statute. A Full Bench in McCulloch v Calvary Health Care Adelaide 25 confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg v Paul Licensed Festival Supermarket26 remains appropriate. I adopt those principles and that approach.

[115] I now consider each of the criteria in section 392 of the FW Act.

Viability: section 392(2)(a)

[116] There is no evidence before me to suggest that a compensation order will adversely affect the viability of SA CARE.

Length of service: section (section 392(2)(b))

[117] Ms Okoye worked for SA CARE for eleven months.

Remuneration that would have been received: section 392(2)(c)

[118] This involves, in part, consideration of the likely duration of Ms Okoye’s employment in the absence of what I have found to be an unfair dismissal. That is, the establishment of an anticipated period of employment. 27

[119] Ms Okoye had been rostered to work regularly 36 to 40 hours per week at The Gums. She was a keen and willing staff member who made herself available for shifts and covers. Albeit on a casual basis, she had a reasonable expectation of continuing work on a regular and systematic basis at around this quantum of hours.

[120] Relevantly, Ms Okoye’s roster was not dependant on her providing gastronomy care to clients or being certified to do so. The occasions when she provided gastronomy care were sporadic and incidental to the general care she provided to clients on the roster, most of whom did not require gastronomy care.

[121] However, by September 2019 a material issue had emerged concerning her employment that needed to be dealt with – whether she had training or permission to provide gastronomy care and, if not, the extent to which her decision to provide such care in the absence of training or permission had reasonably damaged the employer’s confidence in her.

[122] Considered objectively, there is some basis for the employer having lost confidence, given the assumptions Ms Okoye mistakenly made about her authority to administer gastronomy care.

[123] I must factor in a contingency that a fair process would have considered other options short of dismissal. A level-headed intervention could have readily sorted out the situation – to issue a warning to Ms Okoye for having made assumptions that her incomplete training provided ongoing authority to administer gastronomy care, to provide clarity on how and when she could be formally certified after the refresher, and by acknowledging that the employer’s lack of clarity in communication had contributed to the misunderstanding.

[124] Had confidence not been able to be restored, either through the securing of certification (theory via the refresher and practical by a clinician) or working exclusively with non gastronomy care clients, dismissal would have been one of a number of options. Ultimately it would have been the employer’s decision if it had an ongoing job for Ms Okoye, as there was no obligation on SA CARE to roster any casual employee to provide care to gastronomy clients, certified or not.

[125] A reasonable future period of employment, even if confidence could not be restored, would have been:

•  Time for SA CARE to fairly conduct its investigation, including speaking to Ms Thomas, as it needed to;

•  Time to then report the outcome to Ms Okoye and decide if the matter should properly be escalated to a disciplinary level;

•  Time to allow Ms Okoye to take advice and, if a disciplinary issue, secure assistance of a support person if she wished; and

•  Time to make an informed decision including consideration of both dismissal and non-dismissal options.

[126] Taking these factors into account, plus the prospect that options short of dismissal may have been invoked if the employer applied less haste, I consider that Ms Okoye would have been employed for at least another month (4 weeks) working about 36 hours per week.

Mitigating efforts: section 392(2)(d)

[127] Although shocked by her dismissal, Ms Okoye moved efficiently to secure alternative employment in the industry. She registered with an agency, and two months after dismissal (mid November 2018) had secured alternative casual work.

[128] I make no discount to the compensation payable on that account.

Remuneration earned: section 392(2)(e)

[129] Ms Okoye received no pay in lieu of notice.

[130] The alternate work she secured was for fewer hours per week (12 – 16 hours) and at a lesser rate of pay (about $27 per hour compared to $34.50 per hour).

[131] However, as the period for which I will order compensation does not extend to the period from mid November 2019 when this alternate work was secured, I will make no deduction on this account.

Income likely to be earned: section 392(2)(f)

[132] Ms Okoye’s agency work is casual and has no ongoing certainty attached to it. She has, nonetheless, been continuing to work in this manner, despite the lack of security.

[133] However, as the period for which I will order compensation does not extend to a period of projected future work, I will make no deduction on this account.

Other matters: section 392(2)(g)

[134] There are no other matters or contingencies that need to be provided for.

Misconduct: section 392(3)

[135] I have found that Ms Okoye contributed in part to her circumstance by mistakenly making assumptions about her authority to administer gastronomy care. This was conduct that objectively provided a basis for the employer to lose confidence in her.

[136] I will provide a 25% (1 week) discount to the compensation order on this account.

Shock, Distress: section 392(4)

[137] Ms Okoye was understandably shocked by her dismissal and is concerned at the suggestion that her conduct could have led to the death or serious injury of a client. I have found that SA CARE failed to substantiate this assertion in proceedings before me. Nonetheless, the amount of compensation allowable by the FW Act does not include a component for shock, humiliation or distress, or other analogous hurt. Reputational damage is an analogous hurt which cannot be compensated in this jurisdiction. 28

[138] My compensation order will make no provision for such alleged losses.

[139] Nor does the Commission have jurisdiction to compel the issuing of an apology by an employer, as sought by Ms Okoye.

Compensation cap: section 392(5)

[140] The amount of compensation I will order does not exceed the six-month compensation cap.

Conclusion on compensation

[141] The compensation order I will make will be four weeks’ pay less the one week on account of Ms Okoye’s contribution to the decision to dismiss.

[142] This quantum will be calculated on the average weekly pay received by Ms Okoye for the period since 1 July 2019 until her dismissal. That average was $1,943.58 gross per week. 29

[143] The compensation order will be three weeks at this sum being $5,830.74 plus superannuation as required by law (9.5%).

[144] I will order that this be paid within 14 days (by close of business 26 February 2020).

Conclusion

[145] I find that Ms Chioma Okoye, a person protected from unfair dismissal, was dismissed by SA CARE on 13 September 2019 and that her dismissal was harsh. It was based on an allegation of wrongdoing that failed to take into account significant mitigating circumstances (including material contribution by the employer) and a decision-making process that lacked procedural fairness.

[146] I consider that a remedy of reinstatement is inappropriate.

[147] I consider that a remedy of compensation is appropriate. In conjunction with the publication of this decision I issue an order granting Ms Okoye’s application and ordering that by 11.59pm on 26 February 2020 SA CARE ABN 94 504 257 933:

1. pay Chioma Okoye the sum of $5,830.74 gross to be taxed according to law; and

2. pay the amount of $553.92 into the superannuation fund (HESTA) in respect of which SA CARE was making contributions on behalf of Chioma Okoye whilst she was in their employ.

DEPUTY PRESIDENT

Appearances:

C. Okoye, on her own behalf

M. Leniger, for the Respondent

Hearing details:

2020.

Adelaide.

5 February 2020.

Printed by authority of the Commonwealth Government Printer

<PR 716574>

 1   Ms Okoye gave her primary evidence and was then recalled after the Commission granted leave during the hearing for SA CARE to admit into evidence three documents not previously produced

 2   A11

 3   A14

 4   A11

 5   A10

 6   A5

 7   A4

8 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]

 9   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373

 10   King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 [24]

 11   Edwards v Guidice (1999) 94 FCR 561 [6]-[7]

 12   A20

 13   A18, A19, R6 and R7

 14   There is no public interest in this decision disclosing the identities of clients. I have abbreviated the names for the purpose of anonymisation. The evidence referred to these clients by name and their identity is known to the parties

 15   Audio transcript 5 February 2020 15:16

 16   A11

 17   R4

 18   Audio transcript 5 February 2020 15:01 and 15:18

 19   R2 page 3

 20   Audio transcript 5 February 2020 15:02

 21   RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75]

 22   A9 SA CARE Staff Code of Conduct clause 1.13.2

 23   See Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Villani v Holcim (Australia) Pty Ltd [2011] FCAFC 155 as examples

 24   A9 SA CARE Staff Code of Conduct clause 1.13.1

 25   [2015] FWCFB 873

 26   Print R0235, (1998) 88 IR 21, since updated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages [2013] FWCFB 431; 229 IR 6

 27   McCulloch v Calvary Health Care Adelaide [2015] FWCFB 873

 28   Guorgi v Transdev Queensland Pty Ltd [2019] FWCFB 898 at [46]

 29   A3. Payslip of 11/09/2019 records Ms Okoye’s gross earnings in the financial year from 1 July 2019 to have been $19,435.81 in that ten week period, being an average of $1,943.58 per week