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T8336

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for a hearing in respect of an industrial dispute

Nadina Maree Pycroft
(T8336 of 1999)

and

Queen Victoria Home Inc.

 

DEPUTY PRESIDENT J G KING

Hobart, 3 June, 1999

Industrial dispute - re the termination of her employment - application dismissed - recommendation made.

REASONS FOR DECISION

The background to this matter is that Ms Nadine Maree Pycroft (the Employee) commenced employment with the Queen Victoria Home Inc. on 13 December 1993 at age eighteen years. Prior to that she had been a volunteer worker after having completed periods of work experience during years Grade 10 and Grade 11 at Rosny College. On 10 March 1999 the Employee was dismissed from her employment for misconduct.

The generally agreed circumstances leading up to her dismissal are that on the afternoon of 8 March 1999 the Employee commenced work at 3.00pm and noticed a piece or pieces of carpet that had been removed from one of the residents rooms and left in the "sign on" room. Later that evening the Employee and her brother removed the carpet from the premises and took it home. The next day on being phoned at home by the Director of Nursing the Employee admitted having the carpet and returned it to the home so that it could be re-laid in another room.

The Employee was suspended from duties that day ie 9 March 1999 while the matter was investigated and at a meeting the following morning she was dismissed for misconduct i.e. stealing the carpet or removing it from the employers premises without appropriate approval.

It was claimed by the Employer that the carpet was only twelve (12) months old, of good quality and valued at approximately six hundred dollars ($600.00).

As it is not disputed by the Employee that she took the carpet home this matter hinges on the facts surrounding the taking of the carpet and the intention of the Employee in doing so.

The Employees evidence is that on arriving at work at 3.00pm on 8 March 1999 she noticed the carpet and about half an hour later when Gay Faulkner who is a catering employee but was relieving on domestic duties on that day arrived she asked her about the carpet. Her evidence on this exchange reads;-

    "Ms Pycroft

    ..... I said to her, do you know what's going to happen with the carpet? And she said, Mary's throwing it out, it stinks of urine and it's no good. It's going to the tip. And I said, fine, well I'll take it and she just shrugged her shoulders and left and took the clothes and that was it." 1

Later that evening she rang her brother to see if he wanted the carpet. He did and came to pick it up about 9.00pm. The Employee let him into the building and while they were removing the carpet the sister in charge (Annette Staric) walked up the corridor and she introduced her brother to Ms Staric. She asked Mrs Staric if she could leave the doors on automatic so that they could get the carpet out and she could get back in. Ms Staric said this was OK. She also introduced her brother to another employee while he was there, then he left with the carpet and she resumed her duties. Her evidence was that she then had a conversation with Ms Staric about the carpet and told her that she was going to see the Director of Nursing about it in the morning. The next morning she was very busy and finished showering the last resident she was responsible for about 11.00am and raced around to the Director of Nursing's office to discuss the carpet however, she was not there. She finished her shift at 12 noon and went home. When she arrived home at approximately 12.10pm there was a message for her to ring the Director of Nursing.

The transcript of her evidence going to the ensuring discussion reads:-

    "Ms Pycroft

    Mum asked me to ring Mary (the Director of Nursing) which I did. Mary wasn't very happy with me. She asked me whether I had the carpet and I said, yes. She said, why did you -

    It was still at your house, was it?...Yes.

    Does your brother live there?...Yes - had asked me why I did it and I said to her that Gay Faulkner had told me that it smelt of urine and Mary said it was going to the tip, so I thought I was doing her a favour. And Mary told me then that she had changed her mind and that I had no need to take notice of Gay. And I said, I'm sorry. I'll bring it straight back. And Mary said, I want to - which I did.

    So you got it back by about what time?...A quarter past, twenty past.

    Twelve?...Yes." 2

On arriving at the Home with the carpet the Employee was confronted by Gay Faulkner who was very upset that the Employee had implicated her with the Director of Nursing in the taking of the carpet. Later in the afternoon the Employee returned for the afternoon shift and had commenced work when she was asked by the sister in charge to go and see the Director of Nursing who advised her that she was being suspended.

At about 5.00pm that afternoon the Employee was contacted by telephone and requested to attend a meeting with the Director of Nursing and the Chief Executive Officer (Mr Michael Bratt) the next morning. The Employee was told that the purpose of the meeting was to allow her to explain what had happened in relation to the carpet. She was not advised that she could bring someone with her if she wished.

The Employees critical evidence of what happened at that meeting reads;-

    "Ms Wall xn

    So what happened the next day? We're now on 10 March?...I had a meeting at nine thirty on 10 March for which I arrived there a bit early - as usual. I walked into Mike's office and Mike was on the phone, I sat there for about ten minutes waiting for him to get off the phone. He got off the phone and Mary walked in, shut the door. Mike said, why did you do it. And I said, well I thought I was just doing you a favour, it was going to the tip. And he just said, I'm not interested in anything you've got to say. He didn't want to listen to a thing I said. He didn't write any notes down. He was playing with a piece of paper.

    What were you trying to say?...I was trying to tell him what happened - what Gay had told me what was going on with the carpet.

    And what did you actually manage to communicate at that stage?...All I could say was that I was very sorry. That's the only thing that I could get into him and I tried to tell him a thousand times and he just wouldn't let me get a word in sideways." 3

At the end of the meeting the Employee was given the option of resigning or she would be dismissed. During the next twenty four hours the Employee rang the Director of Nursing and the C.E.O. in an endeavour to get her job back. Her evidence was that again the C.E.O. would not listen to her and that at one stage in the conversation he called her "a stubborn little bitch." 4

In any event nothing changed and the Employee received a separation certificate5 which indicates that the Employee was dismissed for misconduct.

The Employees mother Mrs Julia Pycroft gave evidence going to the phone calls received by the Employee from the Director of Nursing but acknowledged that she did not hear the discussion between the Director of Nursing and the Employee at approximately 5.00pm on 9 March 1999 when the Employee was asked to attend a meeting the next morning. It was during this conversation that the Director of Nursing gave evidence that she advised the Employee she could bring a witness to the meeting on 10 March 1999. I will come back to this issue later.

Mrs Pycroft also gave evidence that the Employee had told her that the carpet "was going to the tip, that it wasn't any good. That the carpet had been replaced." 6

Mr Graham Blanch, the Catering Supervisor gave evidence that he had overheard a conversation in the kitchen where Gay Faulkner was expressing her anger over the fact that Nadina had taken the carpet. Part of that evidence reads:

    "Ms Wall xn

    Are you aware of the circumstances which bring this matter here before the commission today?...Yes, I am.

    How did you become aware of the circumstances?...Initially - I suppose of the full circumstances, not to well after the event, within a few days after, Initially, I became involved when I heard a conversation between Gay and another member of the kitchen staff -

    This is Gay Faulkner?...Gay Faulkner - where there was obviously anger at the time. I was only within four feet of her, where I was checking something in the pantry and I overheard her say that, she was angry at Nadina taking the carpet and that her and Tony had intention of taking the carpet." 7

Mr Blanch was not shaken on this evidence during cross examination however, he was unable to identify who Gay Faulkner was talking to at the time.

He gave evidence that he was so concerned about the conversation he reported it to the Director of Nursing however, this was done at a management meeting a week or so after the events the subject of this decision.

Mr Blanch gave an opinion in relation to the carpet as follows;-

    "Ms Wall xn

    So you didn't actually see the state of the carpet?...No, no. I was aware of the state.

    You were aware of the state, and how would you describe that?...I knew it had been removed. I knew it had been shampooed a number of times. I'd been into the room, so obviously I was aware of the urine problem on the carpet.

    Do you think it would have been a reasonable belief if someone had said, the carpet's going to the tip, in those circumstances?...For sure. I think most people would have thought that it was going to the tip at the time, but I believe it wasn't now." 8

Mr Blanch also offered the opinion that it would not be unreasonable for the Employee to accept at face value a statement from Gay Faulkner (if it was made) that the carpet was going to the tip.

A Ms Julie Balmforth the Care Supervisor was called to give evidence in relation to the time of day when the Employee came to see the Director of Nursing. Her evidence was that it was between 12.30pm to 12.40pm on 9 May 1999 approximately one half an hour after the Employee had finished her morning shift at 12.00 noon. The implications of this evidence are that the Employee did not attend the Director of Nursing's office during the next morning as claimed.

It is not challenged in this matter that the carpet was removed from the Employers premises by the Employee and her brother and that the Employee did not have the approval of a senior person ie the Director of Nursing or the C.E.O. to remove it. The Employers clear position is that the carpet was stolen or at best removed without appropriate authority and therefore the Employee is guilty of serious misconduct. It was the Employers position that such actions cannot be condoned in a work environment where trust is vital to the employment contract.

The first matter that I will address in consideration of the above is the allegation by the Employee that she was not given the opportunity to be represented or accompanied at the meeting of 10 March 1999 and that she was not allowed to present her case at that meeting because of the attitude of the C.E.O.

The evidence of the Director of Nursing on the representation issue is clear, the relevant evidence reads:-

    "Mr Watson xn

    So after that, what was your next contact with Nadina?...I rang her at approximately five o'clock and said would she come in at nine thirty the next morning to speak with Mike and myself and that if she wanted to bring anybody with her she could.

    So are you absolutely clear that you said to her that she could bring someone along with her?...Yes, I'm absolutely clear."9

That evidence was supported by the C.E.O. who also indicated that he had sought advice on the process and was advised "that we needed to give Nadina the opportunity to have a representative with her if she wanted to..." and he went on to state that "Mary made that offer to her on the phone..."10 He also indicated that at the outset of the meeting on 10 March 1999 he had asked Ms Pycroft had she bought somebody with her to represent her.

On the basis of the evidence before me I conclude that the Employee was advised by the Director of Nursing that she could bring somebody or a representative with her if she wanted to. I do however, have some reservation about whether the Employee realised the seriousness of the situation before the meeting and if this had been clearly spelled out to her the night before the meeting she may have chosen to be represented.

The evidence of the tenure of the meeting was again in stark contrast. I have detailed the Employees version earlier however, the Director of Nursing confirmed that the C.E.O. "did most of the talking but he was very gentle and quiet about it."11

Mr Watson then referred the Director of Nursing to a number of statements made by the Employee in her application for hearing and also to a number of statements made by the Employee during her evidence. I do not intend to detail these matters but they are clearly described in pages 51 - 53 of the transcript. However, I believe on the evidence that the events at the meeting on 10 May 1999 were closer to the evidence of the Director of Nursing than that of the Employee. In particular I accept that the Employee was given an appropriate opportunity to state her case and that she was not shouted at or abused by the C.E.O.

There is no doubt the process could have been better and by the C.E.O. insisting the Employee be represented it would have also appeared much fairer. However, on balance I accept the Employer has generally satisfied the requirements of a fair process. I also take into account that the Director of Nursing was well known to the Employee over a long period of time thus reducing any claim that the Employee might have been intimidated.

I can only speculate on the reasons for the Employee making what I believe to be the unsubstantiated claims she has, both in the application and in her evidence going to the meeting and related matters. These erroneous claims impact on the credibility of the Employees evidence going to other important incidents/actions.

In relation to the justification for the Employee taking the carpet she relies almost entirely on her evidence that Gay Faulkner said "its no good its going to the tip"12 Ms Faulkner's evidence going to the alleged statement is:-

    "Mr Watson xn

    A lot of the evidence that's been led today surrounds statements that you, in the view of the people that have given evidence, have made and I want to put those statements to you to get your response to them. First of all, in Nadina's application in relation to this matter, she said, and I quote: Gay said Mary (our boss) said it's no good, it smells, it's going to the tip - and that's obviously referring to the carpet. What's you response to that?...No, I didn't say it.

    You're absolutely certain about that?...I'm absolutely positive I did not."13

There were no witnesses to the alleged exchange between the Employee and Ms Faulkner, however, the evidence of Mr Blanch going to the discussion he overheard (earlier quoted) gives some credence to the Employees evidence. However, again that alleged conversation is denied by Ms Faulkner and unfortunately Mr Blanch cannot recall who Ms Faulkner was speaking to at the time. In these circumstances I am not able to make a clear finding on the evidence about the comments allegedly made by Ms Faulkner. While I did not find Ms Faulkner to be a convincing witness there is no doubt that the Employee lacked credibility on some critical evidence. Even if I accepted the evidence of Mr Blanch on the conversation involving Ms Faulkner in the kitchen (and I have no reason not to other than it was not substantiated) it simply means that not only the Employee but also Ms Faulkner wanted to take the carpet.

In any case I accept the view of the Director of Nursing that if Ms Faulkner had made the alleged statement about the carpet "it made it more understandable why she (the Employee) might have taken it" but "Nadina had taken the carpet without proper authority." 14

In examination of the Director of Nursing and in submissions Ms Wall highlighted that the Employee took the carpet openly, it was alleged she was seen taking it by a number of employees and that she did not deny taking it when contacted by the Director of Nursing. These were not the actions of someone who was stealing from her Employer. However, the evidence that I can accept is that Ms Staric the Nurse in Charge of the shift on 8 March 1999 did see the Employee and her brother taking the carpet. From the evidence she was the only one and she discovered what was happening by chance when she walked into an area where the Employee and her brother were in the process of removing the carpet.

It was Ms Staric who was able to tell the Director of Nursing the next day where the carpet was. In these circumstances it would be useless the Employee denying she had taken the carpet. It also begs the question if Ms Staric had not seen the Employee the night before, would the whereabouts of the carpet ever be known?

Having accepted that the Employee took the carpet without authority it remains for me to decide whether the action of dismissal of the Employee was harsh or unjust in all the circumstances.

Much was put to me during the proceedings by Mr Watson, the Director of Nursing and the C.E.O. about the high element of trust that is required of employees in the working environment of the Nursing Home. It goes without saying that I accept that evidence and the related submissions. I therefore view the taking of any item by an employee that belonged to clients or the Nursing Home to be misconduct and generally serious misconduct. The dismissal of an employee is the ultimate sanction in the Employer/Employee relationship and the doubt in my mind is whether that sanction was harsh in this case.

The factors for the Employee are that she had been employed at the Home in excess of five (5) years this being the only serious incident in that time. That if she genuinely believed that the carpet was to be thrown out, it to some extent mitigates her actions but would not make them acceptable. At worst the Employee is guilty of serious misconduct for stealing at best she on the spur of the moment did a very silly thing that she now very much regrets.

However, having accepted that the Employee is guilty of misconduct it is not for this Commission to now substitute its view on what is appropriate disciplinary action in lieu of the Employer's decision to terminate.

In accordance with section 31(1) of the Act I dismiss the application.

Having regard for a number of factors i.e. the employees length of service, her age and obvious love of the job, her remorse for her mistake and the difficulty she is likely to have in finding another job, I take the unusual action of making a recommendation to the Employer. That recommendation is that the Employee be given another chance and be re-employed at an appropriate time into the future. I note in this respect that the Employer has a pool of relief staff the Employee could be given the opportunity to re prove her worth as an employee as part of that pool.

 

J G King
DEPUTY PRESIDENT

Appearances:
Ms L Wall of Counsel for Ms N Pycroft
Mr M Watson of Tasmanian Camber of Commence and Industry Limited with Mr M Bratt and Ms M Stirling for the Queen Victoria Home Inc.

Date and place of hearing:
1999
April 19
April 29
Hobart

1 transcript page 9
2 transcript page 10
3 transcript page 12
4 transcript pages 13 & 14
5 Ex W.2.
6 transcript page 27
7 transcript pages 29 & 30
8 transcript page 32
9 transcript page 51
10 transcript page 68
11 transcript page 51
12 transcript page 9
13 transcript page 84
14 transcript page 57