T9670
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Shellee Louise Ellis and Eliza Purton Home for the Aged Inc
Industrial dispute - Nursing Homes Award - alleged unfair termination of employment - extended care assistant - alleged assault - delay in reporting incident - no incident report - application dismissed REASONS FOR DECISION [1] This was an application for the hearing of an industrial dispute made under Section 29(1A) of the Industrial Relations Act 1984 (the Act) by Mrs Shellee Louise Ellis of Ulverstone (the employee). [2] The employee was in dispute with the Eliza Purton Home for the Aged Inc of Ulverstone (the employer) over the alleged unfair termination of her employment: she sought reinstatement. [3] At the hearing Mr Rodney Glover, a legal practitioner, sought and was granted leave to appear for the employee. Mr Andrew Flood of the Tasmanian Chamber of Commerce and Industry Limited (the Chamber) appeared for the employer. [4] At the time of the alleged incident which eventually precipitated the employment termination, the employee had been employed at the employer's nursing home in Ulverstone for 18½ years. She was employed as a Level 3 extended care assistant (ECA) and had worked in the unit where the alleged incident occurred (Waratah Lodge) for about seven years. [5] It was alleged that on 1 June 2001, in the dining room at Waratah Lodge, in the nursing home, the employee, in the course of her duties, whilst leaning over to remove dishes on the right side of a resident, Mrs H, who was seated at a table, was struck on the arm by the resident. The resident, who had a history of such aggressive attacks, hit the employee four times on the arm. It was alleged that each time the resident hit the employee on the arm a return blow was struck on the resident by the employee. It was claimed that, on a scale of one to ten, the force of the blows by the employee would have been between four and five. [6] The occurrence of the alleged incident was not reported to the employer's management staff until about 18 days later. The delay came about because the two witnesses to the alleged incident initially refrained from reporting it. Following a number of meetings the employment of the employee was terminated on 27 June 2001. [7] The employee gave sworn evidence and called two witnesses, Dianne Margaret McFarlane, clerical employee and union delegate at the nursing home, and Jan Maree Woodberry, a registered nurse who, whilst no longer employed by the employer, was acting director of nursing at the nursing home at the time of the alleged incident and had been employed there for an undisclosed number of years. [8] The witnesses for the employer were Wendy Anne Shearer, the director of nursing at the nursing home who returned from annual leave in time to receive the delayed report of the alleged incident by Tammy Lee Bromfield, an enrolled nurse, and Anita Lee Sutton, an ECA, the two witnesses to the alleged incident. [9] In evidence the employee denied she hit the resident as alleged and said that each time Mrs H had struck her she had merely pushed the striking arm aside and endeavoured to continue her work. She said Mrs H was a dementia sufferer who was at times aggressive towards the staff by hitting, spitting, kicking and pinching. [10] The employee said she was notified on 19 June 20011 of the allegations against her by the director of nursing, Wendy Shearer, who also indicated there had been two witnesses to the alleged incident. The employee was stood down with pay whilst investigations took place. The evidence of the two witnesses was given to the employer on 19 June 2001, in the form of a statement written and signed by Mrs Bromfield and counter-signed by Mrs Sutton. On 19 June 2001 the two witnesses were interviewed separately concerning their allegations by Wendy Shearer, director of nursing, and Sharon Brain, clinical nurse consultant. [11] On 25 June 2001, the employee was required to attend a meeting with management representatives to answer the allegations. She had been notified previously of the purpose of the meeting. At that meeting management was represented by the director of nursing, Wendy Shearer, and three others and the employee was represented by four others. [12] The employer terminated the employee's employment on 27 June 2001. [13] Mrs Dianne Margaret McFarlane, a union delegate at the nursing home, said in evidence there was no reference to the alleged incident in the nursing notes for the day and no incident report on the matter had been submitted. Mrs McFarlane also said that at the meeting of 25 June 2001 held between management, the employee and her representatives, only one question about the alleged incident had been directed to the employee who, through her representative, had denied the allegation. [14] Mrs McFarlane also said that a later accusation that the employee had verbally abused another resident soon after the alleged incident was not raised at the 25 June meeting. [15] Mrs Jan Maree Woodberry, a registered nurse who had been acting director of nursing at the time of the incident, but, was not in that position when the report of the alleged incident eventually emerged, gave evidence. She said that the meeting on 25 June 2001 would have been quite intimidating to the employee due to the numbers present. [16] Mrs Wendy Anne Shearer, the director of nursing at the nursing home, gave evidence and described the procedure followed after she had received a copy of Mrs Bromfield's statement concerning the alleged incident. Mrs Shearer outlined the training the employee had received over the long period of her employment, in particular the enjoinder "to walk away" when residents became agitated and liable to act aggressively. [17] Mrs Shearer advised that, even though a number of management staff had been involved in the meetings and investigations over the allegations against the employee, by Board of Management decision the ultimate responsibility for the termination of the employee's employment rested with her. [18] Mrs Anita Lee Sutton, an ECA, who had been employed at the nursing home for about ten years, gave evidence that she had been in the dining room at Waratah Lodge in the nursing home at the time of the alleged incident and she said she saw the employee hit the resident, Mrs H, as alleged. Mrs Sutton saw the alleged incident from behind Mrs H and the employee. She said the employee hit Mrs H four times with a force of about four out of ten, with the back of her hand or arm across the top of Mrs H's torso. She said she was shocked at what she had seen. [19] Mrs Sutton said she did not report the alleged incident immediately because she was afraid it could jeopardise her friendship with the employee. She said that on 19 June 2001, when she had been called to see the director of nursing about the alleged incident she told the truth and signed the written statement of the other witness, Tammy Bromfield, to indicate her agreement to its contents. [20] Mrs Tammy Lee Bromfield, an enrolled nurse who had been employed at the nursing home for six to seven years and had been nursing for a total of 20 years, gave evidence much the same as that given by Mrs Sutton, except that Mrs Bromfield had seen the alleged incident in front of her, across a trolley and the table at which Mrs H was seated. Mrs Bromfield said the employee hit Mrs H four times "across the top of the arm and the top of the chest with a closed fist."2 She said she was directly facing Mrs H and the employee when the alleged incident occurred. [21] Mrs Bromfield said that, except for the first blow, which was a little less forceful, the force of the employee's blows were about five on a scale of one to ten. She said Mrs H had protested. [22] It was submitted, on behalf of the employee, that the evidence did not support the complaint in that only one report was made and the corroborative evidence of Mrs Sutton was insufficient to substantiate Mrs Bromfield's statement. [23] It was also submitted that the employer had failed procedurally in that the incident had not been fully reported, and even then not until about 18 days after the event. The employer was said to have failed also in not requiring a written statement from the employee and, during the meeting with her on 15 June 2001, only one question about the alleged incident had been put to her. [24] The employee's long service to the employer without complaint, except one which was dismissed in any case, was put forward as a factor to be considered by the Commission. [25] The Chamber, on behalf of the employer, dismissed the delay in reporting the incident as irrelevant to the procedural argument in that the employer acted on the allegations immediately they became known and it did not lessen the effect of the employee's conduct in the alleged incident. [26] The Chamber submitted there was sufficient evidence in this matter to substantiate termination of employment, particularly the witness evidence given by Mesdames Sutton and Bromfield. Also, the Chamber said, there was nothing untoward in the two witnesses signing the one document which was not unusual. The Chamber submitted the employee's alleged actions were a valid reason for employment termination. [27] The Chamber said that the employer had investigated the matter as soon as reasonably possible and had given the employee sufficient forewarnings and opportunity for representation. [28] The Chamber pointed out that an allegation of assault in a nursing home was a very serious matter indeed and, in this context, the employer had relied upon the evidence of the two other employees and, on the balance of probabilities, had preferred that evidence. On this basis, the Chamber submitted, termination of employment was valid. Findings [29] It seems to the Commission, in this matter, that two things need to be decided: one is whether or not the employee did hit Mrs H as alleged and, if it is found that she did, was the resultant termination of employment unfair in all the circumstances? [30] On the evidence I am satisfied that the employee did hit Mrs H as alleged and, in view of the employee's long service and experience, including her training history, that such action did constitute serious misconduct. I consider on the evidence that the force of the blows was such that they could not be construed as light or inconsequential. On the balance of probabilities, I accept the evidence of Mesdames Bromfield and Sutton as opposed to that of the employee. [31] It remains for the Commission to decide whether or not the employer's actions in terminating the employee's employment were unfair. I am satisfied that the employer did not act unfairly or harshly. In so deciding I am mindful of the decision of Commissioner Watling (as he then was) in the matter The AWU-FIME Amalgamated Union, Tasmania Branch and Tasmanian Electro Metallurgical Co Pty Ltd (BHP) 3, and I adopt his words therein:
[32] It was submitted on behalf of the employee that there may have been a vendetta or ill feeling against her which motivated the allegations against her. There was no evidence to support such a submission. [33] I accept that the delay in the reporting of the alleged incident and the consequent delay in investigating the matter was not the fault of the employer who acted as soon as possible. I also consider that the delay did not thwart the justification for the end result. I also consider that Mrs Sutton's signature on Mrs Bromfield's statement was sufficient in the first place and, in any case, her oral evidence was a key factor. [34] The absence of an incident report and nursing notes and the punishment of the two witnesses in that regard are of no direct significance in this application. [35] In light of the decision I have made, it is unnecessary for me to delve into the verbal abuse allegations against the employee. [36] In coming to this decision I have been aware of the requirements of Section 30 of the Act and I am satisfied that, in this case, where relevant, they have been complied with. [37] The application is dismissed and I so order.
P A Imlach Appearances: Date and place of hearing: 1 Transcript, p15, 23/10/01 |