TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

Adrian Wayne Venn
(T12600 of 2006)

and

St Ann's Homes Inc.

Industrial dispute - mode, terms and conditions of employment - suspension from duty - absence of procedural fairness - suspension unfair - remedy would be futile - application for compensation declined

REASONS FOR DECISION

[1] On 9 March 2006, Adrian Wayne Venn (the applicant) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with St Ann's Homes Inc. in respect to the mode, terms and conditions of his employment.

[2] Mr Venn commenced employment as an Extended Care Assistant Level 4 on 16 January 2006. He had previously worked in a volunteer capacity for a period of time.

[3] On 8 March 2006 Mr Venn was suspended on full pay. On 9 March he notified the Commission as to the existence of a dispute. This application was the subject of conciliation conferences on 21 March and 11 April. As the matter remained unresolved it was set down for formal hearing on 2 May 2006. Appearances: Mr G Horton appeared for and with the applicant. Mr M Watson, of the Tasmanian Chamber of Commerce and Industry Limited, appeared with Mrs S Parr, for St Ann's Homes Inc.

[4] The parties agreed that the issue to be determined was whether the suspension of Mr Venn was fair or unfair.1 It transpires that Mr Venn's employment contract was terminated subsequent to the second conciliation conference but before the formal hearing. However that aspect is not before the Commission.

[5] The employer relied on the following extract from the staff handbook:

"Sometimes the employee may be suspended on full pay during investigations into allegations or if safety is likely to be compromised by the employee remaining on duty."

[6] The applicant did not contend that the suspension was illegal, but rather, that is was unfair.

Evidence

[7] Sworn evidence was taken from the following witnesses:

Events of 8 March 2006

[8] Mr Venn described the commencement of that day as follows:2

"I went to work as usual, did some paper work. I used to go in a bit earlier to get stuff organised because I am studying as well, then I went down to a resident's room who was a new resident. His name was H. I was asked to do some personal shopping for him the day before and he didn't have his list prepared. I collected the list, came back up into the office and continued to get myself organised for the day. When Donna arrived I said to her that I was going to do his personal shopping for him as I didn't get it done the day before because he didn't have his list ready. She said she would come with me. I said, well, there was no point in both of us going. If she wanted to go she could go and do it and I would stay there and get on with other things that I needed to do. She said that she had had a gutful and that she was coming with me. So then we went - - - 

Just one moment. When she said she had had a gutful, what did you assume by when she said she had had a gutful?---Oh Maria, the situation where we were under-staffed and constantly stuffed around and not organised.

Go on please?---Then we walked up to the shop as we normally did, talked and you know, the usual thing that work colleagues do. I did the personal shopping and we come back and as we got to the front entrance of St Ann's but out on the footpath her DEC phone rang and she answered it and ran inside. She went upstairs towards administration offices and I walked back through the other way round and caught the lift up to my office."

[9] And later:3

"Okay. So you got back into your office and then did you go on and do your work with residents?---No, I got my stuff all ready, as I said before. Maria came in and said that Donna was going to be doing mass which was at Rosary Gardens for some multicultural thing and that she was going to be out for the rest of the day and that basically I'd be left there to do what I had to do myself and I said that that wasn't a problem. Well, when I got my stuff and went downstairs I met Donna and Maria and I said to Donna, "I thought you were doing mass at Rosary Gardens," and she said - and Maria interrupted and said, "No, things have changed. Donna's not well. She's going home," and I said to Donna, "Look after yourself. I will see you tomorrow." "

[10] Mrs Biglands said on her way to work she received an SMS message from Ms Nolan advising that she would not be able to take residents on a programmed outing. Mrs Biglands suggested she remain at home, but Ms Nolan chose to come to work on the understanding that someone else would take the residents on the outing.

[11] Later that morning Mrs Biglands found Ms Nolan in a distressed state. She said:4

"When I caught up with Donna it was blatantly obvious that she was in a distressed situation. She had been tearful, she was shaking and she said she couldn't do it any more, that it had come down to the final straw and that she couldn't work along Adrian any more. I went and saw Debbie Reynolds. I actually found Debbie Reynolds, sorry, before I found Donna. We spoke to Debbie Reynolds and we sat down and counselled Donna and then spoke with Erica Bostock as she wasn't available at first, and I sent Donna home because she wasn't able to work for the rest of the day."

[12] And later:5

"Because when I look at that, looking at it quickly I must say, I can't seen any reference to an incident involving Mr Venn?---No, it was - the situation was more the catalyst, or speaking - on a saying, "The straw that broke the camel's back"."

"What was the straw?---Well, there wasn't any direct issue with Mr Venn on that day, it was just - or in Donna's words to me that day were: "I just walked in the office and saw him and I just couldn't cope any more." "

[13] Ms Reynolds' evidence was:6

"And how would you describe her state at that stage?---She was very shaky. She just - she just didn't want to talk. She was very nervy. I did get her to talk and - Donna is a very strong person but she was in - she was in a bad state and I suggested that we sent her to Employee Assistance.

Do you know why she was in that state?---She told me that she couldn't face Adrian any more."

[14] Ms Nolan said:7

"Now, if I can just take you back to the day of 8 March and that was the day that the applicant here was suspended from duty. Can you just tell us what happened on that particular day please?---Well, I was supposed to go out on a bus trip and I rung my boss and said to her that I couldn't do it and she asked me why and I said, "I just can't go out there," so she said not to worry about it, she would get someone else to do it and when I come to work it was a build-up of things over a period of time and I just cracked on that morning. That was it.

Can you just explain to us what you mean when you say a build-up of things? Can you just explain what that means?---Constant showing Adrian his job, the way Adrian was, the way he was handling his position, the way he was talking about residents, always constantly undermining St Ann's, always constantly undermining my boss and it was just a build-up over a period of time.

So how did that affect you hearing that all the time?---Well, it must have affected me because I have never been stressed out at St Ann's like that before."

[15] Ms Nolan also said that she could no longer work with Mr Venn and feared him physically.

[16] The decision to suspend Mr Venn without loss of pay was made by Mrs Parr. Her evidence was:8

"So can you just tell us what you actually had in front of you on that day that led you to make the decision?---Yes. I guess that I had been aware of Adrian because he had been a star volunteer and we were quite excited about the transition of a volunteer into an employee at St Ann's. We - I was starting to get reports from once his employment began that didn't kind of sit with what I had heard about him as a volunteer. There was a level of frustration being expressed to me about some of his conduct, the difficulties that people - staff were having in getting him to do the things that were required to be done. And I guess I was of the view that, okay, that is fine, he is a new employee, we have a probation period, we have to make sure that we are training him. If you have got concerns I want them fully documented, I want to know what you have done about them, I want to make sure that, you know, every employee is given the best chance to succeed. So yes, I was aware of Adrian in that sense. I guess that may have developed into some level of frustration with my director of care and indeed the supervisor, Maria Biglands. I said to them, "I am happy to look at your concerns, but they have to be properly documented." So they started an issues register which I had seen.

Just if I can interrupt you there, and that is the document that has already been tabled by Mr Horton?---Yes, that's correct, thank you. So I was aware of that. I guess that my concerns were heightened very much on 8 March because I was made aware that - sorry, prior to that, and I am not quite sure of the date, but I could look at it, there was a concern that had been raised about Mr Venn not following clearly documented policy in relation to aromatherapy. And that gave me grave concerns because obviously we need to be very accountable and there are clinical reasons why we must have this and not that. So that started to ring an alarm bell. Then on Wednesday the 8th I was away from St Ann's and I had a phone call indicating that there had been a further breach of policy on that day involving Mr Venn in relation to the purchase of medication for a resident who was a non self-medicating resident. And that also there were a series of phone calls that Donna Nolan had had to be relieved of her duties because she was so distressed, and an emergency appointment made with our employee assistance provider. She was apparently not particularly able to - or coherent in terms of what was going on, but as it was explained to me, she perceived the issue was to do with Adrian Venn. In view of that situation, I thought the safest way, the fairest way, the clearest way and the cleanest way to address the issues to be raised would be since Ms Nolan had left the workplace, would be to suspend Mr Venn on full pay to enable me to, me personally, to investigate the claims and the issues involved."

[17] And later:9

"Okay. You obviously weren't there, but was there any discussion or did you have any understanding that Adrian would be given reasons for the suspension on that date?---That was my direction. I was very clear about what needed to be done. I gave the direction to Debbie Reynolds in Erica Bostock's hearing that Adrian was to be stood down, to have explained to him why he was being stood down and that he would be advised of the investigations as they came to hand.

And was it that paperwork would follow after that?---Yes."

[18] Mr Venn was called to a meeting with Ms Reynolds and the Director of Care, Ms Bostock. Mr Venn described the meeting in the following terms:10

"So we went up to the office and then they said that there had been allegations made against me, or had come to light that were quite serious and I would be stood down from my employment, with pay, pending an investigation and that - they had given me a date and it is on the letter that St Ann's had supplied - I am not sure of what the date was - that I would be given an opportunity to address the issues that they were raising, that they considered to be very serious, and as a result dismissal could be a consequence of that.

Yes?---I questioned what the allegations were and they got quite annoyed that I continually asked what there was because I had no idea as to what had taken place or what the allegations against me were, and Debbie Reynolds in the end said that, "We are gathering our facts. When we have got our facts together we will put them in writing and they will be sent to you," which I thought was totally unprofessional. If she was going to stand me down she should have had her facts together before she did it."

"So during that whole time it was never told to you the exact reasons why you were being stood down?---No, Debbie Reynolds and the Director of Care said that they were gathering their facts and when they had their facts I would be notified and it didn't matter what I asked or how I went around to question it, that was the answer. I was also told that if I tried to make contact with any of St Ann's staff that an AVO would be taken out against me and my response to that was, "Well, fine, you can try it but it wouldn't happen." "

[19] The evidence of Ms Reynolds in relation to this meeting was:11

"Yes, if you need to?---I probably don't need to, but I did say to Adrian that he would be stood down on full pay because we had concerns about his performance during the probation period and also that we had an accident/incident form that was from - oh, I said "an accident/incident form from one of your colleagues" and Adrian said at that stage, "Would that be Donna?" and I said, "Yes, it was." I said to him that we would be forwarding him a letter that evening, or during that day, to invite him to a meeting to discuss the issues and all the documentation that he would require would be in that letter. I must admit I did not go into specifics. I said that it was regarding his performance during the probation period and the accident/incident form that was signed by Donna."

"MR WATSON: Okay. That is - so if we can just return, Debbie, just to recap on the day that Adrian was suspended, so 8 March, are you in any doubt that he was given the reasons for the suspension?---He wasn't given specifics. I didn't want to go into a long dialogue. If he had have asked me questions regarding the performance issue I couldn't have answered those because I didn't write them.

Yes. We can just leave the performance issues aside - - -?---Yes.

- - but it is more the incident reports?---I believe I gave him adequate - yes, I said to him that a colleague of his, he knew who the colleague was, and that person was so upset that we had to take her - we had to take her home."

[20] And later, under cross-examination:12

"MR HORTON: Ms Reynolds, you just stated from the question that Mark Watson just gave you, that you believe Mr Venn was given substantial reasons as to why he was stood down; is that correct?---Yes, I believe so.

So - - -?---He was told that there was an accident/incident form.

Yes, accident/incident report but not the detail of it?---The report, not the details, that it was - that we had to - the report was from, well, as Adrian said, "Was that from Donna?" and I said, "Yes, it was", but, no, I did not go into the details of that report. I said that Donna had to be removed from the premises, or sent home."

"... when he was told it is a work colleague but yet no specifics were actually given to why he was stood down at that time?---I did say to him that all the evidence, all the accident/incident form and the documentation would be forwarded to him that evening.

But wouldn't you think it fair, and procedural fairness for him to be provided with the specific reasons at the time that he was being stood down?---I wasn't prepared to go into details at that stage because Adrian - the conversations that I have had with him in the past, he's very argumentative."

[21] Following the meeting Mr Venn was escorted from the work site.

[22] Later that day correspondence was delivered per courier to Mr Venn's home. The undated letter read:13

"You are requested to attend an interview to discuss your performance during your period of probation and issues arising from your performance which are documented and which give cause for serious concerns.

Copies of the relevant Issue Register and the Performance Review completed by your manager, Maria Biglands are attached.

This matter may result in disciplinary action being taken against you. You are invited to bring a representative of your choice to the meeting.

Meeting time will be 4.00pm Thursday 16^th March, 2006.

Meeting to be held at Davey Street in Susan Parr's office (CEO)

Present at meeting will be Susan Parr - CEO, Erica Bostock - Director of Care and Debbie Reynolds - Director of Human Services."

[23] As indicated in the letter, an Issues Register14 and Preliminary Probation Performance Appraisal were enclosed. Also enclosed, but not referred to in the correspondence, were two further documents.

[24] One document was an incident report15 prepared by Ms Pierce. This related to a conversation with Mr Venn on 6 March, which according to the evidence, Ms Pierce found somewhat confronting and annoying.

[25] The second document was an incident report prepared by Mrs Biglands. The report, in large measure describes the actions taken by management when Ms Nolan was found in a distressed state.

[26] Under the heading Apparent Cause/s of Incident, there was the following notation:

· "Impediment of duties

· Continued inadvertent witness to personal discussions whilst try to perform duties.

· Interruptions during activity/therapy sessions with clients.

· Perceived fear of physical violence."

[27] Mr Venn's name is not mentioned in the report. In response to a question from the Commission, Mrs Biglands said:16

"Right. And if Mr Venn is given this document, how would he know what he has been accused of?---I believe without any supporting document he may be confused."

Subsequent Events

[28] Following an approach from Mr Horton to Mrs Parr, requesting confirmation that Mr Venn had been "stood down", the following letter, dated 10 March 2006, was sent to Mr Venn:17

"Erica Bostock, Director of Care and Debbie Reynolds, Director of Human Resources met with you on Wednesday 8^th March 2006 to advise that you would be stood down with full pay until Thursday 16^th March, 2006 (inclusive).

Adrian, you were also advised that a letter would be forwarded to you requesting your presence at a meeting on the 16^th March, 2006 to discuss your performance during your period of probation."

[29] On 9 March Mr Venn notified the Commission as to the existence of a dispute. He chose not to attend the meeting scheduled for 16 March but apparently put his position in writing.

[30] Shortly after the conciliation conference on 21 March, Mrs Parr interviewed Ms Nolan. This interview gave rise to a specific allegation of a serious nature.18 Mr Venn denied the allegation.

[31] Mr Watson sought to rely on this specific allegation as support for the decision to suspend Mr Venn. In support of this contention, he referred to Lane and Others v Arrowcrest Group Pty Ltd19 in which von Doussa J observed:

"In my opinion it is still open to an employer to justify a dismissal by reference to facts now known to the employer at the time of the dismissal, but discovered subsequently, so long as those facts concern circumstances in existence when the decision was made."

[32] A meeting involving all the relevant parties took place on 23 March. However, nothing from this meeting is relevant to the decision to suspend Mr Venn.

Findings

[33] The question before the Commission is a narrow one. Simply put, was the suspension of Mr Venn on 8 March, fair in all the circumstances? The Commission is not asked to pass judgement on the veracity of any allegations, nor is the matter of the subsequent dismissal before the Commission.

[34] I accept that in certain circumstances suspension with pay is a sensible course to follow. In large measure I agree with the comments of Mrs Parr:20

"I believe where there is a risk to an employee, either the - for want of a better word, the accused or the accuser, where there is a risk to practice, an outcome risk to residents, in those situations what I really want is to blow the whistle and say stop play, we need to investigate this."

[35] I do not accept Mr Venn's contention that all the facts must be in place before a suspension might be considered. A suspension may well be appropriate where allegations have been made but further investigation is required to substantiate or otherwise such allegations. However a suspension would not be appropriate in circumstances whereby the person suspended has no idea as to what the issues are.

[36] In the instant matter Ms Nolan was clearly in a distressed state on the day in question. On the available evidence Mrs Biglands and Ms Reynolds, not unreasonably, reached the conclusion that Mr Venn had some part to play in giving rise to this distressed state. What the specific allegations against Mr Venn were is less clear, as is the extent of any culpability.

[37] Suspension, even when handled with care and sensitivity, is a distressing event for the person who is suspended. When (as happened in this case) the individual is threatened with an AVO and escorted from the premises, the distress is inevitably heightened. Suspension inevitably carries with it the connotation of guilt, and hence it is of the utmost importance that the presumption of innocence is maintained. As Mrs Parr said:21

"Many of the issues that are brought to me, as it would be for any CEO, can often be in the eyes of the beholder, rather than substantiated in fact."

[38] I am satisfied that there may well have been circumstances in existence on 8 March that could have justified the suspension with pay of Mr Venn. Having said this there were aspects of this particular process which give rise to concern. I outline these concerns as follows:

[39] Whilst clearly performance issues were afoot during Mr Venn's period of employment, they should have been addressed through the normal management process of appraisal, review, coaching etc. It is quite inappropriate to suspend an individual to address performance, as distinct from disciplinary, issues.

[40] On the authority of Lane v Arrowcrest, I accept that the later allegation25 would be relevant in any termination considerations. It would also retrospectively bolster the case for suspension, had Mr Venn been previously provided with even a broad outline of the allegations, in clear and unambiguous terms. Regrettably he was not.

[41] I do not accept Mr Watson's contention that the precise allegations would have emerged during the subsequent meeting process, which Mr Venn chose not to participate in. It is not the responsibility of the accused to dig for the allegations.

[42] I have some sympathy for the employer's argument that a number of issues came to a head at the same time and tended to merge together. Such a situation does not however mean that the basic tenets of procedural fairness can be dispensed with.

[43] It seems to me that at the very least Mr Venn should have been asked for his side of the story before the decision to suspend was taken. The apparent inconsistency between Ms Nolan freely choosing, and without necessity, to accompany Mr Venn on a shopping trip, with the evidence that "I just walked into the office and saw him and I just couldn't cope any more", is a case in point.

[44] It is possible, perhaps even likely, that the outcome would have been the same, but at least Mr Venn would have had a better understanding of where he stood.

[45] I find that the manner in which Mr Venn was suspended was unfair.

Remedy

[46] In the ordinary course of events, having found that the suspension was unfair, I would have ordered that the suspension be lifted and Mr Venn returned to work, at least until formal allegations could be identified.

[47] In this case such a remedy would be futile in that it has been overtaken by events.

[48] Mr Venn seeks compensation. The only specific reference to compensation is found in s.31(1B)(b) of the Act, in circumstances whereby it is found that reinstatement or re-employment is impracticable.

[49] It is possible that a power to award compensation in the current circumstances can be found in the broad power of s.31. However in this case Mr Venn was paid for the entirety of the period of suspension. To award compensation would in my view amount to double counting.

[50] For this reason I decline to award compensation.

[51] I so order.

Tim Abey
COMMISSIONER

Appearances:
Mr G Horton for and with Mr A W Venn
Mr M Watson, of the Tasmanian Chamber of Commerce and Industry Limited, with Mrs S Parr, for St Ann's Homes Inc.

Date and Place of Hearing:
2006
March 21
April 11
May 2
Hobart

1 Transcript PN 7, 8
2 Transcript PN 16/18
3 Transcript PN 20
4 Transcript PN 898
5 Transcript PN 1017, 1019
6 Transcript PN 692/3
7 Transcript PN 402/404
8 Transcript PN 243/244
9 Transcript PN 247/8
10 Transcript PN 22, 23, 25
11 Transcript PN 696, 808/810
12 Transcript PN 707/709, 713/714
13 Exhibit A1
14 Exhibit A4
15 Exhibit A2
16 Transcript PN 1021
17 Exhibit A6
18 Exhibit R1
19 [1999] 99 ALR 45
20 Transcript PN 235
21 Transcript PN 234
22 Exhibit A1
23 Exhibit A3
24 Exhibit A6
25 Exhibit R1