T7378
|
TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Health Services Union of Australia, and The Salvation Army
Industrial dispute - termination of employment - finding that employee was unfairly dismissed - no valid reason - denied procedural fairness - reinstatement impractical - Nicolson v Heaven and Earth Gallery Pty Limited (1994) applied - compensation not based on years of service - order for compensation issued REASONS FOR DECISION This application by the Health Services Union of Australia, Tasmania No. 1 Branch (the HSUA) pursuant to section 29 of the Industrial Relations Act 1984, alleged that a member, Mr Peter Bourke, who had been employed at the Salvation Army Barrington Centre in New Town, had been unfairly and unjustly dismissed from his employment on 27 November 1997. Mr C Brown appeared for the HSUA, and Mr S Gates of the Tasmanian Chamber of Commerce and Industry Limited, with Mr M Haymoles, for the Salvation Army. Mr Bourke had been employed at Barrington Centre as a cook in a part-time capacity since 25 October 1994 and in a full-time capacity since 8 September 1996. Mr Bourke was employed under the terms and conditions of the Disability Service Providers Award. Barrington Centre is a hostel and aged care facility providing accommodation and other support services to aged and homeless men. The following is a summary of the circumstances leading up to Mr Bourke's dismissal, as put by Mr Brown. At lunch time on 24 November 1997 Mr Bourke was under considerable pressure to begin serving the midday meal. As Mr Bourke was hurrying through the dining room, he knocked a resident's chair. The resident appeared to believe that Mr Bourke had deliberately kicked the chair and had abused him for doing so. The resident's attitude to Mr Bourke was such that Mr Bourke became upset and returned to the kitchen to calm down before commencing to serve the meals to residents. On the way back to the kitchen he said to one of the carers employed at the centre, "Did you see that, Lesley's harassing me"? Mr Bourke asked the carer to record the incident in the staff communications book because there had been other incidents with this resident, and one or two others, for some time and Mr Bourke was concerned not to escalate the situation. He then met Mrs Helen Haymoles, the coordinator at Barrington Centre, who asked him why he was upset. He told Mrs Haymoles what happened and made it clear to her that he felt harassed by the resident. On 27 November 1997 Mr Bourke was called to a meeting with the manager of the centre, Mr Malcolm Haymoles. Mr Bourke claimed he was not informed that he was attending a disciplinary meeting of any kind and he was neither advised, nor given the opportunity, to have a representative from the union present at that meeting. The meeting occurred at approximately 12.20 p.m. At the meeting Mr Haymoles began to outline an allegation against Mr Bourke made by the resident concerning the incident on the 24 November. At this point Mr Bourke refused to participate any further in the meeting as he wished to seek union representation, and he left the meeting for the purpose of contacting the union. Mr Haymoles, it is claimed, became agitated that Mr Bourke was taking that course of action and said to him, "Don't walk out of my office", and "You're going to need your union rep", or words to that effect. Mr Bourke left Mr Haymoles' office and rang the union for assistance; the matter was referred to Mr Tim Jacobson, a HSUA industrial officer. After Mr Bourke had explained to Mr Jacobson the events which had taken place, Mr Jacobson contacted the manager, Mr Haymoles, to establish a time for a meeting at which the allegations could be put to Mr Bourke formally and the matter discussed and resolved. During this conversation, it was claimed, the manager indicated that he had already decided to terminate Mr Bourke's employment. A meeting to discuss the matter was organised for 1.15 p.m. that same day. Immediately following the telephone conversation between Mr Jacobson and Mr Haymoles, Mr Bourke was stood down on full pay without explanation. At the meeting convened for 1.15 p.m. no documentation was provided other than a copy of an investigation carried out by Mrs Haymoles. No witness statements were provided and as an initial response, Mr Bourke denied the allegation. The employer then proceeded to dismiss the employee. The employee was provided with a notice of termination, a completed employment separation certificate and a final pay cheque. The HSUA submitted that Mr Bourke was denied procedural fairness in that he was not provided with an explanation as to why he had been dismissed prior to the dismissal taking place, and that he was not provided with an opportunity to examine and respond to the allegations prior to his dismissal. The HSUA also submitted that the reasons contained in the letter of dismissal do not constitute grounds for dismissal. The HSUA sought the reinstatement of Mr Bourke to his former position without loss. Subsequently the HSUA submitted that a reasonable employee/employer relationship was unlikely to be re-established and in lieu of reinstatement sought compensation of $2957.40, based on 2 weeks' pay for every year or part thereof of service calculated at the Level 4 rate of a Disability Service Worker. In his evidence Mr Jacobson confirmed that when he spoke to Mr Haymoles about the allegation made against Mr Bourke and set up the meeting for 1.15 p.m. Mr Haymoles told him that Mr Bourke's employment was "under serious review by the Salvation Army", and that they "intended to dismiss him". At the meeting Mr Jacobson was given a document1 detailing the investigation of the incident by the coordinator. He asked for "a copy of the complaint or any witness statements", and was told they would be provided later. He asked for an adjournment of the meeting to discuss the issues raised with Mr Bourke. When the meeting reconvened Mr Bourke denied the accusations against him and cited his own version of the incident. As to the stand down, Mr Jacobson was told that it had nothing to do with the allegations. Mr Jacobson then asked "where do we go from here?" and he said the manager handed Mr Bourke an envelope which contained the letter of dismissal, a wages cheque and a separation certificate. In cross examination Mr Jacobson denied that statements from three witnesses to the incident had been read to him and to Mr Bourke at the meeting but agreed that the record made by the coordinator covered the issues discussed at the meeting. Mr Jacobson could not recall Mr Haymoles leaving the meeting room and returning some minutes later to hand the envelope to Mr Bourke. Mr Jacobson was later re-sworn as a witness to give evidence in respect of Exhibit G.15, which had been tendered after he had concluded his evidence, and which purported to be the minutes of a second meeting on 27 November at 2.25 p.m. at which Mr Bourke was handed his letter of termination. Mr Jacobson said that only one meeting took place and there was one adjournment which was to examine the report of the incident of 24 November. Mr Jacobson said that the note that "if a positive result had come of today's discussion the letter of termination may not have been presented" was "interesting" because Mr Bourke was given no explanation as to why he was being dismissed and he was given no opportunity to respond. In his evidence Mr Bourke said he was called in to Mr Haymoles' office for a discussion. He was not told the purpose of the discussion. When Mr Haymoles started to refer to the incident of 24 November, Mr Bourke said he told Mr Haymoles that he wanted to "contact the union for representation", but he remained until Mr Haymoles finished reading the complaint. As he walked out of the office Mr Haymoles said "You'd better get the union because you'll need it".2 After he rang the union Mr Haymoles told him that he was being stood down with pay so that he could "have a cuppa and have a talk with the union guy ... before the meeting".3 He assumed he would go back to his normal duties after the meeting was finished. At the meeting at 1.15 p.m. the incident report prepared by Mrs Haymoles was read out; no other "paperwork" was produced. There was a brief adjournment to allow him and Mr Jacobson to discuss the document and the allegations. When they returned Mr Bourke claimed the report was "not true"4 and he then related his version of the events. He could not remember any other allegations being raised. He said that towards the end of the meeting Mr Haymoles handed him an envelope which had in it a letter of termination of employment, a separation form and a cheque. Mr Bourke claimed that Mr Haymoles did not want to discuss the termination letter and said the incident of 24 November and the termination were different matters.5 The termination letter reads as follows:
Mr Bourke claimed he had received no information as to the goals and objectives of the centre as referred to in point 13. He regarded point 14 as requiring him as a cook to serve meals to the residents which met their dietary needs and likes and dislikes. He said "a couple" of the residents at times were difficult and he "copped verbal abuse" when he did not do things "straight away". Mr Bourke said he had had a heated conversation with Mrs Haymoles on 20 October 1997 over the late payment of his wages and subsequently apologised to her after Mr Haymoles had told him he "didn't like what was done". He claimed he did not speak to Mrs Haymoles in a "rude and threatening manner"; he said he "might have been distraught". Mr Bourke said he received a formal warning on 20 November 1997 in relation to complaints from staff and residents regarding his "attitude and verbal abuse". When Mr Haymoles suggested Mr Bourke should seek the help of his psychiatrist to deal with his attitude to the residents, Mr Bourke asked if the Salvation Army could provide someone. Mr Bourke said "nothing eventuated" and he was given no training or guidance to improve his interpersonal skills. Although part of Mr Bourke's job description required him to work as a "team member seeking to provide awareness of the needs of residents in assisting their ongoing self esteem and self management", he said he had been given no training or assistance in those areas. He had written to Mr Haymoles on 21 November requesting assistance regarding the comments by other staff in respect of the meals he cooked and had been told by letter of 26 November 1997 that he had had "good opportunity" to resolve the situation because of the "easy access to management and the invitation at staff meetings to voice (his) concerns".6 Mr Bourke agreed he had easy access to management to raise work issues but said nothing was done about the matters he raised; and he did not think it was appropriate to raise such matters at staff meetings. Mr Bourke had made a workers' compensation claim in respect of an injury in November 1996. The claim was in respect of work-related depression and stress. Due to the closure of two Salvation Army sections (Tower Road and Ashfield) his workload was reduced. No other adjustments were made by management in respect of the "issue of interpersonal relationship difficulties". In cross examination Mr Bourke said he tried, to the best of his ability, to treat the residents with understanding and compassion and he could not recall telling Mr Haymoles that he did not like working with the residents. In May he had asked Mr Haymoles for a reference in case he (Mr Haymoles) were to leave unexpectedly. Mr Bourke did not accept that an interview7 with a relief manager, Mr Davis, in November 1996 about an incident involving a resident, had been anything other than a conversation. He agreed with the employer's view as set out in the file note of 7 November 1996, that his "manners were rough and abrasive when dealing with clients and other staff", but he considered they were little incidents and he was "all right ... the way (he) was".8 He did not accept that he had received a copy of a report of an incident with a resident in which he had walked out of the kitchen on 23 January 19979. He denied that he "stormed out", "slamming doors" when commencing to serve meals on 23 January 1997. He said he had not disputed in writing the report of another incident with the same resident which was dated 10 February 1997.10 He could not remember an incident on 27 February 1997 involving a "verbal exchange" with a resident. He had not disputed and he could not recall the incident on 17 March 1997 when he was alleged to have told a visitor that he had no time to show the visitor where the manager's office was. Nor had he disputed the report of another incident on that day involving an altercation with a resident.11 He could not remember sighting another report, dated 20 October 1997 which resulted from an approach to Mr Haymoles by Mr Bourke about a new time for the preparation of morning tea which had been set while he was on leave, and the alleged existence of a petition seeking his dismissal and the appointment of another cook.12 Mr Bourke acknowledged that he had had discussions with Mr Haymoles about attending a psychiatrist, but he could not remember receiving a letter from Mr Haymoles dated 22 October 1997 which directed him to do so.13 He could not remember being told that his attitude was not acceptable and would not be tolerated in the future. Mr Bourke said he understood that following the letter of 20 November 1997 any further problems related to his conduct with residents could lead to his dismissal. The following exchange took place between Mr Gates and Mr Bourke:
Mr Bourke said he could not "remember much" about an incident with a member of staff when a volunteer expected that a picnic basket would be ready; all he could recall was that it was "short notice". Nor could he remember being angry or abusive towards the same volunteer on another occasion. Mr Bourke could not remember an incident on 30 October 1997 when he was alleged to be aggressive towards a resident. He said he could not recall ever threatening residents.15 In respect of the incident of 24 November 1997, Mr Bourke could not remember all the details, but he denied that he had knocked the resident's chair more than once and that he had refused to serve meals. He said there had been an adjournment of the meeting on 27 November for 5 or 10 minutes. He could not remember whether, just prior to receiving his termination letter, Mr Haymoles had left the room. In his evidence Mr Haymoles, the manager of the Barrington Centre since January 1997, when asked why he had terminated Mr Bourke's employment said;
Mr Haymoles said he was not aware of the incident leading to Mr Bourke's workers' compensation claim, but the report of Mr Davis who was the manager at the time (the file note of 6 November 1996) seemed to contain "a fairly accurate description" of Mr Bourke's "work performance and manner in which he deals with the resident group".17 When Mr Bourke walked out of the kitchen as a result of the incident on 27 January 1997, Mr Haymoles suggested to Mr Bourke that if such an incident occurred again he should avoid an altercation with a resident and come to see him "straight away". He said he decided to give Mr Bourke "a go" and put in place strategies to overcome some of the difficulties he had been experiencing. Mr Haymoles said that Mr Bourke tended to provoke residents and he had told Mr Bourke that his behaviour was inappropriate. On another occasion Mr Haymoles said he had told Mr Bourke that his attitude was unacceptable. He said Mr Bourke told him he had problems dealing with people and he would "probably perform better in a place where he just worked in a kitchen on his own".18 A diary entry made by Mr Haymoles dated 9 February 1997 (Exhibit G6) related to an argument between Mr Bourke and the previous manager, Mr Davis. Mr Haymoles said he suggested as a result that Mr Bourke should "continue" his "professional relationship" with his psychiatrist. In relation to the diary entry dated 17 June 1997 (Exhibit G7) concerning Mr Bourke's behaviour towards a visitor to the centre, Mr Haymoles said Mr Bourke said he was "flat out and didn't have time to show people around the place".19 Mr Haymoles said that although Mr Bourke had just returned from leave, he had no need to involve the residents in the dispute on 19 October 1997 about whether or not morning tea should have been changed from 10.00 a.m. to 9.30 a.m. He admitted that he had not told Mr Bourke about the change. In relation to an incident involving the preparation of picnic baskets for volunteers on 19 October 1997, Mr Haymoles recorded in his diary on 23 October 1997 (Exhibit G9) that he spoke to Mr Bourke about the matter and "directed" him to obtain "some professional assistance for his communication and personality problems". A similar incident occurred on 6 November 1997 (Exhibit G10), and when spoken to Mr Bourke said he was justified in his actions and that the fault "lay with management for not communicating the arrangements for that day". On 22 October 1997 Mr Haymoles recorded in his diary that he had given Mr Bourke a letter (Exhibit G2) which referred to the ongoing difficulties Mr Bourke was experiencing in his relationship with residents and staff and directed him to renew contact with the medical practitioners he had been dealing with in the previous year to resolve his stress problems. On 30 October 1997 Mr Haymoles said Mr Bourke had "rushed in a physical and aggressive manner" at a resident, who had gone into the kitchen to fill a jug of milk.20 His diary entry (Exhibit G11) notes that Mr Bourke was "being verbally aggressive". He had told Mr Bourke that his conduct was "inappropriate". In relation to the letter to Mr Bourke dated 20 November 1997 (Exhibit B1, p.16), Mr Haymoles said he noted in the letter that any further occurrences of the reported conduct might lead to his dismissal because he had been trying to get Mr Bourke to work as a team member and to change his attitude and behaviour to residents. Mr Haymoles said Mr Bourke had been counselled and advised to return to his medical practitioner for help but he had taken no action so Mr Haymoles thought he should put his concerns in writing. At the first meeting with Mr Bourke on 27 November, Mr Bourke refused to discuss the incidents on 24 November and Mr Haymoles suggested if he wanted representation he should get it immediately as his position in the workplace was in jeopardy. When Mr Jacobson telephoned he was told that the matter needed to be resolved promptly. He told Mr Jacobson that Mr Bourke's employment was "under serious review". Mr Haymoles said he had not made a decision to terminate the services of Mr Bourke prior to the meeting. After they had discussed the incident of 24 November, Mr Jacobson said "Where do we go from here?" and Mr Haymoles said he concluded the meeting, left the room and went to his office a few paces away, signed the cheque, picked up the documentation, returned and handed it to Mr Bourke and told him it was his letter of termination.21 Mr Jacobson asked for time to read the letter with Mr Bourke and the meeting was "adjourned". These events were recorded, although not in the same sequence, in the minutes of the second meeting22 which, Mr Haymoles said, were drafted by him from notes taken by Mrs Haymoles. Mr Haymoles said he thought Mr Bourke had not met his obligations set out in his job description and the incident of 24 November was part of the "decision-making process" in relation to his termination. In cross-examination Mr Haymoles said he had stood Mr Bourke down because on enquiring why none of the staff had eaten their lunch that day he was told that Mr Bourke had "intimated that he was going to contaminate the food", so he asked Mr Bourke to stop work. He did not tell Mr Bourke why he was being stood down and he considered it a separate matter from the matters relating to the termination which were discussed with Mr Bourke and Mr Jacobson. He said he handed Mr Bourke the termination notice at what he considered to be the second meeting and that the termination took place before he explained the reasons for his dismissal. He thought that Mr Bourke would have known it was a fair possibility that he was to be dismissed as he was aware "that he was under serious review".23 Mr Haymoles thought the requirements of Mr Bourke's job description which were set out in the termination letter were clear and known to Mr Bourke. When asked whether it was reasonable, only seven days after the first formal warning on 20 November 1997, that a person could rectify the "sorts of issues" outlined in the letter, Mr Haymoles replied that Mr Bourke had been aware of the problems for a number of months and he had taken no action.24 In respect of the counselling he gave to Mr Bourke, Mr Haymoles said:
Mr Haymoles thought Mr Bourke's problems were beyond rectification by way of training in interpersonal skills and that he needed to go back to the "psychiatrist or psychologist" to whom he was referred by the Workers' Compensation and Rehabilitation Tribunal. The incident of 23 January 1997 referred to at page 19 of Exhibit B1, when Mr Bourke walked out of the kitchen, was acknowledged to have occurred as explained by Mr Bourke and that the resident concerned was a "difficult character to deal with". Mr Haymoles said he objected to the way Mr Bourke got involved in the "verbal altercation" with the resident which exacerbated the situation. In respect of the incident in which a cork lid had been thrown at Mr Bourke by one of the residents, Mr Haymoles said he was concerned at the way Mr Bourke responded. Mr Haymoles said he expected Mr Bourke to be courteous to visitors when they sought directions but, in the circumstances outlined at page 20 of Exhibit B1, it was reasonable not to go off with a visitor looking for a resident. Mr Haymoles thought it was reasonable to expect that Mr Bourke, a cook, should have knowledge about how to assist people with their "self-esteem and self-management". He elaborated by suggesting that Mr Bourke should demonstrate "a caring nature towards residents and not provoke them and agitate them".26 Mr Haymoles admitted that Mr Bourke's letter of dismissal made no reference to the requirement to assist residents with their self esteem and self management. Whilst he understood why Mr Bourke was unhappy with the idiosyncrasies of some of the residents, he said it was not realistic to expect all the residents to follow directions. He disagreed with the assertion that Mr Bourke had a "fairly hefty workload". After the workers' compensation hearing, Mr Haymoles said he restructured the staff and Mr Bourke's hours were changed and the number of meals he had to serve each day were reduced by 20; another person prepared the vegetables for the next day and he stopped working as an overnight supervisor. Mr Haymoles said it was expected that staff should accept "just about any sort of behaviour" from the residents as part of the job. Mrs Haymoles testified that she had drafted the minutes of the second meeting of 27 November and that the document was to the best of her knowledge, true and correct. In cross-examination Mrs Haymoles said there was not a very long interval between meetings. After the discussion on the incident of 24 November finished, Mr Haymoles "moved over and picked up some paperwork off his desk and (came) back into the little area where they were and handed (Mr Bourke) ... the letter of termination".27 She said Mr Bourke and Mr Jacobson then went to the recreation room. She could not remember whether Mr Bourke had been told why he was being dismissed. Mr Brown submitted that Mr Bourke was not provided with a reason as to why he was to be dismissed and Mr Bourke had no chance to examine or respond to the allegations against him or the reasons for his dismissal. He submitted that the employer had engaged in "a fishing expedition for anything he could drag up which might suggest that there (had) been ongoing problems with Mr Bourke's work performance".28 He said that many of the "so called meetings" referred to were nothing more than conversations in passing and recorded as diary notes without any details. Additionally, he said, some of the meetings which were written up as file notes were "simply discussions" which take place between an employer and an employee in the normal course of employment. Some of the conversations which took place at the initiative of Mr Bourke appeared to have been converted, in the file notes, to imply they were matters of concern raised by the employer, he said. Mr Bourke denied some features of the incidents which were accepted by Mr Haymoles, Mr Brown said. As to the only indication of any formal disciplinary process, the letter of 20 November 1997, Mr Brown submitted that Mr Bourke was unaware that the meeting on that day was a disciplinary meeting and he denied the complaint "had any substance". Mr Brown submitted the only matter discussed on that day was the complaint from one of the residents that he had to leave the premises to eat because he felt intimidated by Mr Bourke's attitude and verbal abuse. Mr Haymoles rejected Mr Bourke's denial and accepted the complaint of the resident. Mr Brown submitted the warning letter did not detail what Mr Bourke should do to address the employer's concern and no assistance was given to correct the perceived problems with Mr Bourke's conduct. As the warning letter stated that any further occurrences of the reported conduct might lead to Mr Bourke's dismissal, Mr Brown argued that the incident on 24 November 1997 must have been the incident which justified the dismissal. But, he said, the employer had stated that the incident on 24 November 1997 had nothing to do with the dismissal. That was confirmed in the notes taken by Mrs Haymoles of an alleged second meeting on 27 November 1997 which recorded:
Mr Brown argued that if the dismissal had been related to the incident of 24 November, that was not sufficiently proven to justify dismissal. Mr Brown said:
Mr Brown submitted therefore that the employer had failed to fulfil its obligation under Article 7 of the ILO Convention.31 Further he submitted it was unreasonable to expect an employee with no training to have responsibility to assist residents with their ongoing self esteem and self management as set out in Mr Bourke's job description. He suspected that what was intended was that, as a cook, Mr Bourke should complement the "broad care role activities" of the other staff.32 As to point 13 in the letter of dismissal, Mr Brown submitted that the employer had an obligation to ensure that staff were fully aware of the "goals and objectives of Barrington Centre", and that in Mr Bourke's case this had not been done. Point 14 required Mr Bourke to serve meals exhibiting at all times an understanding of the special needs of the residents, and Mr Brown submitted that requirement dealt solely with Mr Bourke's duties as a cook and no concerns about Mr Bourke's ability to undertake his duties as a cook had been raised in the hearing. In the circumstances, Mr Brown submitted, the employer's claim that Mr Bourke had failed to meet the requirements of his position description could not be substantiated. Mr Brown submitted that although Mr Bourke desperately needed a job and he would prefer reinstatement, he had come to the conclusion that he would be unable to return to "a harmonious working relationship" with his former employer. If the Commission found in favour of the applicant but considered that reinstatement was not practical, Mr Brown submitted that a compensation payment of $2957.40 should be ordered. That amount was the equivalent of two weeks' pay for each year of Mr Bourke's service or part thereof. Mr Bourke was paid at the rate of $10.62 per hour which Mr Brown submitted bore no relationship to any pay scale in the Disability Service Providers Award. The figure claimed was based on the Level 4 classification in the award which provided for an hourly rate of $12.97. Mr Gates argued that the employer had clearly and consistently stated to Mr Bourke that his manner and conduct were not acceptable and that Mr Bourke had been put on notice to that effect. He said Mr Bourke had been given the opportunity to respond. It was submitted that Mr Bourke's employment was terminated for no other reason than his conduct towards residents and staff which, Mr Gates said, since late 1996 had been "to make residents unhappy, to intimidate them, to force visitors and volunteers away from the centre and to subject (the residents) to verbal abuse."33 Mr Gates recited the list of diary entries and file notes already described to substantiate the claim that Mr Bourke's work history had generated employer dissatisfaction. He submitted that there was no contradictory evidence from Mr Bourke in relation to those incidents. Mr Gates said that in dismissing Mr Bourke the employer was upholding the "social expectations of how our old, our disabled and less privileged persons ought to be treated."34 Mr Gates submitted it was prudent and correct that the employer should consider the "history of the employee" in assessing his honest belief that the incidents had occurred. He said it was clear that termination was an option and the employee knew that was the case; the union also knew it was the case, he said. In respect of the incidents of 24 November, he said the employer held "an honest and reasonable belief" that the incidents occurred as put by the residents. Mr Gates referred to three cases in the Industrial Relations Court of Australia,35 one of which, he said, dealt with the employer's "duty of care", the others which supported his contention that if the employer possessed a reasonable and honest belief that incidents of misconduct had occurred the employer had a valid reason to dismiss the employee. It was submitted also that the employer believed the employee had "transgressed the specific provisions" of his position description. It was claimed that Mr Bourke and Mr Jacobson were given time to read and question the termination document but did not do so. He claimed that "everyone knew" the termination related to the incident of 24 November. In the circumstances, Mr Gates claimed that as there was a reason and as Mr Bourke was given the opportunity to respond, the ILO Convention was satisfied. Mr Gates submitted that reinstatement would not be practical because another person had been appointed to the position and had a "good rapport with residents". There had been a fundamental loss of trust and confidence between the employer and the employee, he said, and some of the residents did not "like Mr Bourke". He added that the reinstatement of Mr Bourke would have a deleterious effect on the employer's activities. Mr Gates said that given Mr Bourke's consistent pattern of behaviour, compensation "ought not be awarded under any circumstances" because to do so would be to reward the employee for that behaviour and punish the employer for some "insignificant shortfalling" in the manner in which it terminated Mr Bourke's employment. If compensation was awarded, Mr Gates submitted that Social Security payments should be deducted therefrom. On that point Mr Brown reminded the Commission that the Commonwealth Department of Social Security would take into consideration any monies paid to Mr Bourke in respect of his loss of employment. The rate of pay for an employee classified as Level 3 in accordance with the Disability Service Providers Award was at the relevant time $11.66. By correspondence of 2 April 1998 Mr Gates informed the Commission, amongst other things, that Mr Bourke should have been paid as a Level 2 employee at the rate of $10.49. In this context he referred to Exhibit G3 being a copy of the employment details of Mr Bourke, read and acknowledged by Mr Bourke on 17 February 1997, which specifies his classification as Level 2, Year 2. Mr Brown was provided with a copy of that correspondence and given the opportunity to respond to the Commission in writing if he so wished. No written response was forthcoming. Mr Brown also tendered a statement (Exhibit B4) said to record the income received by Mr Bourke from fruit picking during the month of January 1998. That statement was accepted by Mr Gates. Findings Section 31(1A) of the Act requires the Commission, before deciding whether or not to make an order in respect of an industrial dispute to "take into account the standards of general application contained in Part II of the International Labour Organisation's Convention concerning the Termination of Employment at the Initiative of the Employer". Article 4 of the Convention reads:
Was there a valid reason for Mr Bourke's employment to be terminated? It is not disputed that Mr Bourke had difficulty in relating well with certain residents at the centre. The names of four of the residents were mentioned in the proceedings, some more than once. No other residents' names are mentioned. It is not disputed that Mr Bourke was spoken to by the manager, Mr Haymoles, about his capacity to relate well to the residents and was offered some advice as to ways and means of dealing with difficult residents. Mr Bourke acknowledges that he was spoken to by Mr Haymoles about his problems but he thought these discussions were of the sort that ordinarily took place between employers and employees in the normal course of employment. I accept that is what he believed. Mr Bourke was given no firm direction as to how he should handle difficult residents other than the suggestion by Mr Haymoles that he should "step back" from aggressive residents and report to the manager, which he did on at least one occasion. File notes of some of the discussions were made, and Mr Bourke acknowledged that he did not dispute, in writing, any of the notes although it is clear that he disputed some of the "facts" relied on by management during the discussions on all the incidents. Although Mr Gates sought to introduce a number of other alleged incidents involving Mr Bourke, to bolster the case for Mr Bourke's dismissal, I intend to deal only with those referred to in the warning letter of 20 November 1997 and the incident of 24 November 1997. Up until the warning letter it seems Mr Bourke had no idea that the way in which he reacted with residents was likely to result in his dismissal, although he knew that, at times, his conduct with some residents "left a bit to be desired". By themselves the incidents referred to do not, in my opinion, constitute valid reasons for dismissal. The first incident recorded in the warning letter when Mr Bourke "walked out of the kitchen", resulted in the suggestion by Mr Haymoles that Mr Bourke should "step back from aggressive residents". Mr Bourke acknowledged the discussion that had occurred in relation to that incident and that he should not have left his job. There was no evidence that he had received or sighted the file note, but it is likely that he did. The second file note resulted from an altercation with one of the residents who did not like the meal he was being served and who became "quite rude", according to Mr Haymoles, when Mr Bourke told him he would have to wait ten minutes for something else to eat. Again Mr Bourke acknowledged an incident took place, but disagreed with Mr Haymoles' version of events. It is not clear when Mr Bourke saw the file note but he made notes on it "a long time before" his dismissal. Mr Bourke was told the incidents "had to stop", but it seems no other action was taken to prevent similar events occurring in future. The third incident, involving a visitor to the centre and an altercation with a resident, resulted in Mr Bourke being told that he was a "competent cook", that there was concern about his "responses" to certain residents, and it was suggested to him that if he was unhappy working in his current area he should seek employment in an environment more suitable to his temperament. Mr Bourke at that stage tendered his resignation but later withdrew it, he said, on the suggestion of one of his colleagues. The next day Mr Bourke asked for and received a reference. Although Mr Bourke did not put it in so many words, I think he felt he should not have to tolerate the attitude of some of the residents, but that most were not a problem. Mr Bourke would not agree with Mr Gates under cross examination that he was "unhappy" in his work and I consider, on balance, that generally he was not unhappy in his work. In the file note on these "incidents" it was suggested that management was to investigate providing "professional debriefing" for the staff. Mr Haymoles, however, considered that as a trained counsellor he was capable of fulfilling that role. It is clear that no external professional debriefing was provided by the centre and, whilst I do not find that it should have been provided, I consider it should not have been suggested if there was no serious intention to provide such a service. Mr Bourke at a later stage asked whether the centre could provide some professional assistance, but none was forthcoming. On a related point, I do not consider it appropriate that the employer should have directed Mr Bourke, as was done by letter on 22 October 1997, to seek the assistance of a psychiatrist or other medical professional to help him perform his duties to the satisfaction of the employer. The employer's responsibility was to put in place work practices which would meet the centre's objectives, and if it was considered that Mr Bourke needed further help to meet those expectations, the employer should have made the necessary arrangements for that help to be given to Mr Bourke. Although the file note of the third incident refers to previous incidents on 7 November 1996 and 10 February 1997, no mention was made of the first "incident" which occurred on 23 January 1997. In relation to the third incident, no positive action was taken by management and the decisions were left to Mr Bourke. The warning letter reminded Mr Bourke of a "letter", allegedly given to him on 20 October, which I call the fourth incident, which drew his attention to a requirement in his job description "to work as a team member seeking to provide awareness of the needs of residents in assisting their ongoing self esteem and self management". It arose following an approach from Mr Bourke about the morning tea issue and rumours of a petition calling for his dismissal. The letter referred to, however, is a file note, tendered as page 23 of Exhibit B1, signed by Mr Haymoles on 22 October 1997, and there is no evidence that Mr Bourke ever received it or saw it. The fifth incident of 21 October appears to relate to Mr Bourke's telephone manner when talking with Mrs Haymoles about the fact his pay was not in the bank, and he was told that his language was not acceptable. This was the date of a report from Mrs Haymoles to Mr Haymoles. Whether or not that is the incident of 21 October referred to in the warning letter is unclear, as around that time it seems a report was made about Mr Bourke having upset a volunteer to the centre. In any event, it is not clear from the warning letter what incidents management was warning him about in respect of 21 October, other than the general assertion that he was failing in his duty to assist residents with their "ongoing self esteem and self management". On the latter point I accept, as put by Mr Brown, that Mr Bourke's capacity to carry out such duties was extremely limited, given that his primary task was that of cook for the establishment and that he had received no training in the area of providing awareness of the needs of residents in assisting their ongoing self esteem and self management. In respect of the lack of training, the employer, in my opinion, failed to meet its obligation to the employee. I have considered the confusion over whether or not the employer had taken into consideration the incident on 24 November when deciding to terminate Mr Bourke's employment. Given (a) the tenor of minutes of the meeting at approximately 1.20 p.m. on 27 November, which suggest that Mr Bourke was not dismissed because of that incident, and (b) the minutes of the alleged "second" meeting at 2.25 p.m., confirmed by the evidence of Mrs Haymoles, Mr Jacobson and Mr Bourke, that the dismissal was not based on that day's earlier discussion, but on the reasons in the termination letter, I conclude that the incidents of 24 November were not considered to be reasons for Mr Bourke's dismissal. That being so, I conclude the employer was acting solely on the termination letter of 27 November to justify Mr Bourke's dismissal. In the letter of termination the Manager of the centre declared that Mr Bourke had demonstrated an inability to fulfil his "obligations", specifically in relation to the two points contained in his job description. I have no doubt that if it could have been shown that Mr Bourke had failed to meet reasonable expectations of the employer in respect of those matters, after having been told clearly what was expected of him and after a reasonable period of time had elapsed to enable him to come up to the standard expected, a valid reason would have existed to justify Mr Bourke's dismissal. However, I accept Mr Bourke's evidence that these requirements or expectations were not clearly explained to him, and, as submitted by Mr Brown, I agree they were capable of a different interpretation to that which was put on them by the employer. I have considered the submissions of Mr Gates in respect of the "duty of care", but I am of the opinion that, in this particular case, the employer took appropriate action with Mr Bourke in respect of the one incident which might have led to some concern about the safety of a resident. It was following that occasion the employer issued the notice of warning on 20 November and it may well have been that this incident was the catalyst for that notice. I am not satisfied that the employer's "honestly held belief" that a valid reason existed for dismissal, as put by Mr Gates, is sufficient to overcome any substantial flaws in the termination process. Taking all the circumstances into consideration I am not persuaded that a valid reason existed at 27 November to justify Mr Bourke's dismissal. Was Mr Bourke provided with procedural fairness at the time of his dismissal? Article 7 of the Convention provides:
The employer's demands were not raised with Mr Bourke at his interview on 27 November. Mr Bourke was simply told, at the first meeting on that day that his position with the Salvation Army was under "serious review". No specific deficiencies were put to him. The discussion concentrated on the incident of 24 November. Mr Gates submitted that everyone knew that the incident of 24 November was one of the reasons for Mr Bourke's dismissal, but that is not supported by the documentation or the evidence. Specifically at the "second" meeting when the termination material was handed to Mr Bourke, both Mr Bourke and Mr Jacobson claim that Mr Bourke was not told why he was being dismissed. Mrs Haymoles could not remember if Mr Bourke was told or not. Mr Haymoles' evidence on this point is significant. He said:
Therefore on the material before me I am satisfied that Mr Bourke was denied procedural fairness by the employer in that he was given no opportunity to defend himself against allegations claimed to justify his dismissal for the simple reason that they were not put to him prior to the termination. Accordingly I find that the employer unfairly dismissed Mr Bourke on 27 November 1997. Remedy Section 31(1B) of the Act provides that if the Commission considers that an employee has been unfairly dismissed "but reinstatement to the employee's or former employee's previous position is impractical" the Commission may make an order requiring the employer to pay "compensation of any amount the Commissioner determines appropriate" to the former employee. Article 10 of the Convention, which reads
mirrors, in some respects Section 31(1B). I have considered the submissions of the parties on the matter of reinstatement and I agree with them that there would be little chance that a worthwhile employee/employer relationship would be re-established if Mr Bourke were to be returned to his old position. In the circumstances I have formed a view that the reinstatement of Mr Bourke to his previous position is impractical. Having concluded that Mr Bourke was unfairly dismissed and that reinstatement is impractical, the question of appropriate compensation falls for consideration. Although I have determined that a valid reason did not exist at 27 November to terminate Mr Bourke's employment, I am satisfied that his inability to deal with some of the residents at the centre in a manner preferred by Mr Haymoles would have led within a relatively short period of time to a properly managed dismissal. It is my view that Mr Bourke's natural responses to those residents with whom he had some difficulty would have re-occurred within a fairly short period. I consider it unlikely in the circumstances that he would have remained in employment at the centre beyond 31 December 1997. I have reached that conclusion having considered all the evidence and observed Mr Bourke's behaviour and mannerisms whilst he gave evidence. In assessing the time that Mr Bourke might have remained at the centre I have relied on the precedent established in Nicolson v Heaven and Earth Gallery Pty Limited (1994) 1 IRCA 1994. It follows that I must reject Mr Brown's claim that Mr Bourke should be entitled to two weeks' pay for each year of service. Mr Brown also claimed that Mr Bourke should be entitled to compensation based on the rate of pay for a level 4 employee under the Disability Service Providers Award, but I am not satisfied that Mr Bourke could be found to have occupied the level 4 classification. However I am satisfied, having considered his letter of appointment, that he was engaged as a level 2 employee. In the circumstances I consider that compensation for Mr Bourke's unfair dismissal should be calculated on the rate of pay provided in the Disability Service Providers Award at the relevant time for a level 2 employee. That rate at November 1997 was $398.60 for a 38-hour week. In respect of Mr Gates' submission regarding the need to offset social security payments, I consider that is a matter that rests with the applicant and the agency which provides such payments. In the circumstances I consider it appropriate that Mr Bourke should be paid as compensation for his unfair dismissal an amount of $1,993.00, being five times his weekly rate of $398.60. I consider that the earnings of Mr Bourke, derived from fruit picking which occurred during the month of January 1998, should not be deducted from the compensation awarded the nominal period for which does not extend beyond 31 December 1997. Accordingly, pursuant to section 31(1) of the Industrial Relations 1984, I hereby order that the Salvation Army pay to Mr Peter Bourke an amount of $1,993.00, as compensation in full settlement of this industrial dispute. Such payment to be effected by 24 November 1998.
F D Westwood Appearances: Date and place of hearing: 1 Exhibit B1, p.29 |