Byrnes v Jakona Pty Ltd

APPLICANT Mr M Wilson, Solicitor Alfred J Morgan & Son Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr S Borrow, Solicitor Leana Street Consulting Pty Ltd

JUDGMENT: - 8 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP

Application by Emma Tawase Laing re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 Originally, this application, pursuant to s84 of the Industrial Relations Act, 1996 ("the Act") was filed by the Health and Research Employees' Association of New South Wales ("the Association") on behalf of it's member, Ms Emma Tawase Laing ("the applicant"). The application sought to have Ms Laing reinstated to her position as a residential support worker employed by the Northcott Society at its Beverly Park residential care facility for disabled persons.

2 The applicant had been dismissed on 3 September 2001 following an investigation into an incident on 11 August 2001. Her dismissal was also based on a history of alleged poor work performance. The applicant was employed by the respondent as a casual residential care worker for seven years prior to being made permanent four years ago.

3 At conciliation proceedings on 15 February 2002, the Association (Ms Pendlbury) said that it no longer represented the applicant and it wished to discontinue the proceedings. Mr A Walton, an agent now representing the applicant, argued that as Ms Laing was now the applicant it was a simple procedure to amend the application to record the Association as having ceased to act on her behalf.

4 Mr S Borrow, for the respondent, submitted that if the Association discontinued the proceedings, it would have the effect of concluding the matter. In those circumstances, the applicant would have no alternative but to lodge a fresh application, thereby risking consideration of the twenty-one day time limit for filing an unfair dismissal claim (s85(3)).

5 In deciding this procedural issue, the Commission relied on r 88 of the Industrial Relations Commission's Rules to waive such procedural requirements as to accept the Association's notice of ceasing to act and to amend the application to disclose the applicant as Ms Emma Laing. The matter then proceeded to conciliation conferences chaired by the Commission on 7 and 18 March 2002. At the conclusion of the second conference and with no settlement possible, the Commission made a finding of unsuccessful conciliation, pursuant to s87 of the Act, and set the matter for hearing. Directions were issued for the filing and service of affidavit evidence. The parties agreed that the Commission would be assisted by an inspection of the respondent's residential facility at Beverly Park (hereinafter referred to as "the Centre").

6 However, the matter was re-listed on 10 May after Mr Walton filed a notice of ceasing to act and the applicant was found to be in default of the Commission's directions of 18 March.

7 On that occasion, the applicant appeared unrepresented. She advised that she had sought alternative legal representation and wished her case to be heard. The matter was listed for further directions on 29 May to allow the applicant time to take further advice. The scheduled hearing dates were vacated.

8 On the next occasion, Mr M Wilson, solicitor, appeared for the applicant. Fresh directions were issued and the hearing dates and inspection of the Centre were rescheduled.

9 The applicant was dismissed following the investigation into an incident on 11 August 2001. Her letter of dismissal expressed the incident as follows: On Saturday 11th August 2001, while staff member, Ms Jenny Sims, had other duties off-site, you were given the responsibility of providing care as required for residents of Unit 4. However you failed to respond to a resident's call light for a period of one hour and nineteen minutes. In fact the resident was finally attended to by the staff member returning to the unit, who at that time was unaware of how long the resident had been left without assistance.

10 In order for the Commission to familiarise itself with the call light equipment and procedures at the Centre, an inspection of the Beverly Park facility was held on 29 August 2002.

11 The Commission viewed each of the resident's units and common areas, the call light operation and the computer facility. The Commission was greatly assisted in understanding the issues in this case by this inspection. I am able to make the following observations about the call light operation and what occurred on 11 August 2001. Consideration of the competing evidence from the witnesses will be discussed later.

12 Each of the units houses up to four disabled residents. They have separate rooms, a common lounge area and kitchen. While it was usual for one employee to be responsible for each unit during the day, two employees must be on duty at all times for occupational health and safety reasons.

13 All of the residents have two buzzers close to their beds; one for general assistance and the other for emergencies. The general buzzer is the one most frequently used to call for assistance from staff.

14 All of the units have a light display panel prominently located in the common area. When a call is activated by a resident in one unit, the light comes on in all units indicating from which unit the call has been made. Once activated, no other resident in the same unit can activate the light.

15 The purpose of the light being activated in all units is obvious. If the unit is unattended for whatever reason, it is expected that staff in the other units would know that assistance is being called for. Clearly, there is no way of knowing the degree of urgency required by a resident once the light is activated. An employee would only know what was being sought by physically attending to the resident's room. However, it is reasonable to assume that all staff are aware of the importance of responding quickly to the call.

16 The emergency call system is separate and is used primarily by the staff in emergency or urgent situations. Not all of the residents are able to activate the emergency call system. The entire system is linked to a computer which records the time, duration and location of any calls made by residents.

17 From these records (Ex"4"), it was established that on 11 August 2001 Mr David Addison's call light from Unit 4 was activated at 11.23 am and turned off at 12.42 pm. The call light from Unit 3 had been turned off at 11.53 am.

18 The applicant gave evidence on her own behalf and called evidence from two other persons employed by the respondent, Mr John Wilson and Mrs Robyn Olding.

19 The applicant said that shortly after lodging a workers' compensation claim in September 1999, the first complaint was made about her work performance. In cross examination however, the applicant agreed the workers' compensation claim related to an injury in May 2000. She acknowledged that there were complaints made prior to this time (the first incident). The applicant acknowledged that at no time had she invoked the respondent's grievance procedure about her suspicions of a link between the complaints against her and her workers' compensation claim.

20 The second incident in November 1999 concerned a disabled resident, Mr David Chaffey, who had complained that the applicant was abrupt and rough when carrying out his care and she sometimes ignored his calls for assistance.

21 The applicant had been working night shift at the time with one other employee. She said it sometimes got very busy attending to the residents' needs and that it was common for one or two residents to be waiting for assistance.

22 The applicant said that the complaint had been conveyed to the Centre Manager, Mr Alex Baturynsky, by a supervisor, Ms Helen Fathers. The applicant alleged Ms Fathers was unfavourable to her. The applicant told Ms Fathers that she did not believe she was rough or abrupt with Mr Chaffey. However, she undertook to avoid such complaints in the future. In cross examination, the applicant agreed that in the discussion with Ms Fathers, she referred to Mr Chaffey as "a little prick". She claimed it was said just in conversation. In any event, it wasn't said directly to him. The applicant agreed she probably used strong language from time to time. She said Mr Chaffey once apologised for swearing at her after an incident in which he had said "you don't fucking understand how I feel".

23 Mr Baturynsky arranged to meet the applicant on night shift to discuss this incident. The applicant agreed she was one hour and forty-five minutes late for the meeting. In re examination, the applicant said there were only two other occasions she had been late in eleven years.

24 Mr Chaffey made further complaints about the applicant in February, June (fourth incident) and October 2000 (fifth incident) saying that she was rude, aggressive and unhelpful. The applicant denied saying to Mr Chaffey "you smell". She agreed he might find a reference to him not smelling good as offensive.

25 On 30 January 2000, it was alleged that the applicant "threw" a commode chair into a wall with Mr Chaffey in it. She denied this and said the chair did hit the wall, but it was an accident and not a deliberate act. In cross examination, the applicant rejected a claim that it would take considerable force to push the heavy commode chair into a wall. She said she gave it a gentle push and it swerved and hit the wall.

26 Another employee, Alison Langford, and a resident, Jenny Graham, witnessed this incident. The applicant did not accept their statements and believed Ms Graham was in bed at the time and would not have seen or heard anything.

27 On 8 October 2000, Mr Chaffey complained that he had been left unattended in his bed which was soiled by urine. The applicant had not assisted him. The applicant claimed she checked his bed four times and it wasn't soiled. The applicant deposed that Mr Chaffey would often sleep all night without buzzing or wanting to be turned.

28 She said Mr Chaffey had a choice that night. In any event, she did check up on him. The applicant could not understand why Mr Chaffey would be fearful of her.

29 In cross examination, the applicant said she had not stopped talking to Mr Chaffey after this incident and was never rude to him. She agreed she had said to him "David, get your facts right because my job is on the line".

30 The applicant thought Ms Fathers had an adverse view of her because it was only Mr Chaffey who made complaints and Ms Fathers who followed them up.

31 The final incident (seventh incident) occurred on Saturday, 11 August 2001. Two of the staff, Jenny Sims and Renee McIntosh, left the applicant and Mrs Olding at the Centre while they went to pick up two residents from Campbelltown at about 11.20 am.

32 Four of the five units were occupied at the time; each with four residents in their own bedrooms. Temporary employees had been on in the early, busy part of the morning and had left by 10.30am. The four units were then looked after by Mrs Olding (1), Renee McIntosh (2), the applicant (3) and Jenny Sims (4).

33 The applicant agreed that when one or more staff leave the Centre on work related business the other staff cover for them. The applicant acknowledged Ms Sims gave her the mobile phone and keys to Unit 4 and made clear to the applicant that she was responsible. Unit 4 was fully occupied at the time. Before leaving, Ms McIntosh had told the applicant that they would be back in thirty to forty minutes.

34 Each of the units has a light signal board. If one resident activates the buzzer, the light from that unit registers in all the others. However, no one else in that unit can activate the light if it is already on.

35 The applicant and Mrs Olding assisted in toileting a resident, Mary Thornton in Unit 1, at about 11.30 am. They completed this task at the latest by 11.55 am. The applicant said she thought Ms Sims and Ms McIntosh would have been back by then.

36 After attending to Ms Thornton, another resident, Ana Voulgaris in Unit 1, had soiled her bed and both the applicant and Mrs Olding cleaned her up, applied her cream, dressed her, gave Ms Voulgaris her medication, rinsed the soiled linen and put it in the washing machine. The applicant said this task was done between 12.00 noon and 1.00 pm.

37 Just after 1.00 pm, Jenny Sims rang and said that David Addison in Unit 4 had been buzzing for some time asking for assistance. The applicant believed that Ms Sims was with him after she returned from picking up the other residents. The applicant said Ms Sims then assisted Mr Addison. The applicant claimed that Mr Addison made no complaint at the time. She said that two or three times a week was usual for him to sleep in.

38 The applicant acknowledged that when Ms Sims discovered Mr Addison had not been attended to, two other residents in Unit 4 were also in need. The applicant said she would have checked the lights, if she had been free to do so. She did not intentionally ignore the lights. In cross examination, the applicant agreed that to get Ms Voulgaris' medication she would have had to walk past the lights. She did not see the lights when she did so. The evidence was the light in Unit 3 was turned off during this time, but not the light to Unit 4. The applicant claimed any of the residents could have done so.

39 In re examination, the applicant claimed that any of the other three residents in Unit 4 could have come to get her, as they were all up and sitting in their chairs.

40 About ten to twelve days later the applicant was called to Mr Baturynsky's office and asked to explain what happened on Saturday, 11 August. Mr Baturynsky spoke to her again a few days later. Mr Baturynsky again inquired as to what had happened. The applicant said that she had not left Unit 1 until her work was finished. There was discussion about employees carrying beepers.

41 On 3 September, Mr Baturynsky rang the applicant and told her to come to his office. She did so at about 1.30 pm. Julia Hackett, the Manager, Community Support Service, was there. The applicant sensed something was wrong and asked for a witness. She went outside and got another employee, Sandra Hefferan, to come back with her. Ms Hackett handed her a letter of dismissal and said it was because of her negligence in not answering a resident's buzzer for an hour and twenty minutes.

42 The applicant said she was surprised and shocked by her dismissal and had difficulty responding. Ms Hefferan however, said she had never found the applicant to be abusive or cruel to residents. Ms Hefferan asked "where were the other staff members?"

43 In other evidence, the applicant claimed to be unaware of complaints made against her in June 2001 from the residents in Unit 4. She agreed however, that she had responded to Mr Baturynsky and Ms Susan Petherick (Human Resource Manager) about these matters. She added that she was not afforded an opportunity to meet with the residents to talk about the problems.

44 Mr Wilson has worked for the respondent since 1986 and had been the applicant's supervisor. He said he had many opportunities to observe her work, demeanour and attitude to residents at the Centre. He had found her a willing employee who was attentive to the needs of the residents.

45 Mr Wilson gave evidence that he did not hear anything adverse about the applicant until about November 2000 when rumours started circulating in the workplace. Mr Baturynsky had asked him about the applicant's work performance. He told Mr Baturynsky that he found nothing worthy of criticism or remedial action. Mr Wilson said he had several meetings with Mr Baturynsky about the applicant's conduct. Specifically, Mr Wilson said he couldn't say if the incident in October 2000 had occurred as he wasn't there.

46 Mr Wilson was not aware of, or present at any of the incidents involving Mr Chaffey. Nevertheless, Mr Wilson believed that Mr Chaffey did not hold grudges. However, he said Mr Chaffey could be somewhat abrasive and rude in his manner and the applicant may have responded to him.

47 Mr Wilson believed the applicant and Mr Chaffey had a personality clash and it was the responsibility of both of them to address it. He was also surprised at the duration of the problem between the applicant and Mr Chaffey. Mr Wilson agreed that no employee should resort to insulting or offensive behaviour in the workplace. Mr Wilson did not consider it appropriate for an employee to refer to a resident as a "little prick" or leave a resident in a urine soaked bed or hurl a commode chair. He qualified these answers by saying that firstly, swearing was common in the workplace; secondly, it would be "rather strange" if a resident didn't call for assistance if he was in a urine soaked bed and thirdly, it was sometimes necessary to push a commode chair quite hard to move it.

48 While Mr Wilson considered it unlikely that the applicant was physically abusive to Mr Chaffey or any other resident, he acknowledged that he had no direct knowledge of the incidents which had been the subject of complaint.

49 Mrs Olding is a permanent part time residential care worker employed by the respondent. She has worked at the Beverly Park facility since 1992/93.

50 Mrs Olding described the shift arrangements at the facility and said on 11 August 2001 she was the co-ordinator for Unit 1.

51 Around morning tea time, Mrs Olding had suggested to Jenny Sims that she should go with Renee McIntosh to pick up a resident at Macarthur Square and drive back with her. The pick up and return would normally take thirty minutes. Mrs Olding agreed that while the two employees were away she and the applicant had a duty of care until they were relieved by the employees upon their return.

52 Mrs Olding said that about 11.45 am (there is a dispute as to this time), she phoned Ms McIntosh in Unit 2 and asked for assistance with Mary Thornton. Ms McIntosh had said "We have not left yet, we are just leaving". Mrs Olding then rang the applicant. Mrs Olding agreed that when she called the applicant for help, Mr Addison's light would have been on (it was activated at 11.23 am) and the applicant would have walked right past it. Mrs Olding agreed the light would have been very clear.

53 Toileting Ms Thornton took fifteen to twenty minutes. After this the applicant went to see another resident, Anna Voulgaris. Ms Voulgaris had soiled her bed. Both the applicant and Mrs Olding cleaned her up, applied her creams and changed her clothes and bed linen. Around 1.00 pm the applicant assisted Mrs Olding with Ms Voulgaris' medication.

54 Mrs Olding said that at no time between 11.45 am and 1.00 pm did she or the applicant leave Unit 1. When Mrs Olding got to lunch at 1.45 pm Ms Sims told her that David Addison wanted to get out of bed and had been buzzing for a while and was in pain.

55 About a week later, Mrs Olding was called up to see Mr Baturynsky. Mrs Olding described this as a very brief meeting, five to ten minutes. She told him that she and the applicant had been attending to personal care in Unit 1 from 11.45 am to 1.00 pm. Mrs Olding had asked about the whereabouts of the other staff as they had been expected back in thirty minutes. Mrs Olding said she twice asked Mr Baturynsky where the other staff were and got no answer. Mrs Olding gave evidence that she had not been asked to give a detailed account of what had happened.

56 Mrs Olding advised that Ms McIntosh told her she had been held up and was away for thirty to forty-five minutes. Mrs Olding said this time changed later, to one hour and forty-five minutes. The transport book at the Centre did not support the times claimed by some of the staff.

57 On 14 January 2002 Mrs Olding was asked to see Mr Baturynsky again and he gave her a low profile verbal warning. This was because of her eight year unblemished employment record.

58 Mrs Olding expressed surprise because she was able to account for her and the applicant's whereabouts and neither of them had seen the Unit 4 light. She agreed she had not checked the lights. She said it was also her understanding that the other two staff members would have been back within this time. She had asked Mr Baturynsky again about the other staff and he had replied "I don't know, I haven't asked and it's of no consequence". Mrs Olding said that if there had been a real emergency one of the other residents could have come down and alerted her or the applicant.

59 Mrs Olding claimed Mr Baturynsky then got out a note pad and asked her to repeat her account of the incident. Mrs Olding found this request disconcerting as she had already been given a warning and the applicant had been dismissed. She believed that the applicant had been unfairly treated, particularly as the exact details were sought by Mr Baturynsky after the applicant had been dismissed.

60 Mrs Olding gave evidence that on or about 17 September 2001, Ms McIntosh told her that she was on site when the light was said to have been on. She had not noticed the light and had not been blamed in any way.

61 Mrs Olding conceded in cross examination that she had failed in her duty of care and had paid a penalty for doing so. She agreed that, in retrospect, she would have approached the matter differently.

62 Mrs Olding deposed that the applicant was a good partner who took her share of the workload and was always willing to assist. She claimed the applicant was courteous and jovial with the residents. However, Mrs Olding said the work can be very taxing and the residents can be demanding. This can be stressful. She had known the applicant to feel frustration in certain situations.

63 Mr Baturynsky has had twenty years' experience in the field of social work. He has been the Centre's manager since April 1994. Mr Baturynsky agreed that he had not performed direct care work for people with disabilities.

64 Attached to Mr Baturynsky's affidavit were the respondent's business records of incidents/complaints against the applicant. Also tendered in the proceedings were the respondent's policies on: Code of Conduct and Ethics Discipline and Dismissal Anti Harassment and Good Working Relationships Grievance Procedures

65 I shall refer to each of the incidents in chronological order and the evidence given by the applicant in her reply affidavit or oral evidence.

66 David Chaffey lodged a complaint with the then Assistant Manager, Grace Stevenson. He alleged that he had been left unattended in a urine soaked bed and was intimidated by the applicant when he complained. Mr Chaffey did not press his complaint. However, Ms Stevenson made an unsigned file note of the incident.

67 In her reply affidavit, the applicant deposed that she didn't know anything about this matter. However, in cross examination the applicant agreed she wrote a letter about the matter after being shown annexure A to Mr Baturynsky's affidavit.

68 Mr Chaffey had complained to staff that the applicant was abrupt and rough with him and ignored him, or was slow, to respond to his requests for assistance.

69 Mr Baturynsky asked Ms Helen Fathers, the Acting Supervisor, to interview the applicant. Ms Fathers reported back that when she did so the applicant was aggressive and unco-operative and repeatedly referred to Mr Chaffey as "a little prick". The applicant had agreed that she used these words and in oral evidence said she would use other words such as "bugger", "bloody" and "shit".

70 On hearing this report, Mr Baturynsky elected to speak with the applicant directly. He arranged to meet her on night shift. The applicant arrived one hour and forty-five minutes late. When she arrived Mr Baturynsky reminded her of two other recent late arrivals and issued her an informal warning for lateness..

71 He then discussed Mr Chaffey's complaint. The applicant denied being abrupt and rough with Mr Chaffey. The applicant told him she had made the remark "little prick" to Ms Fathers, not directly to Mr Chaffey. Mr Baturynsky told her that irrespective of what context, the remark was unacceptable, disrespectful and unprofessional.

72 In light of her denials, Mr Baturynsky interviewed John Wilson who was with the applicant when she was interviewed by Ms Fathers. Mr Wilson had confirmed that the applicant was aggressive and agitated.

73 Mr Baturynsky was satisfied Mr Chaffey's complaint was well founded and he issued the applicant with a verbal warning on 26 November 1999.

74 Mr Baturynsky was later informed by Mr Chaffey and Ms Fathers that the applicant had given them the "cold shoulder". Mr Baturynsky arranged a follow up meeting. He said the meeting went well and the relationship between the applicant, Mr Chaffey and Ms Fathers improved.

75 Mr Chaffey again complained that the applicant had handled him roughly, used inappropriate language and displayed a poor attitude to him (the commode incident).

76 Ms Langford, a casual employee, corroborated this complaint. She deposed that the applicant's aggression disturbed her greatly. She described the force with which the commode chair was pushed aside and said the applicant told Mr Chaffey he was "pathetic". The applicant's explanation was that she said "oh David you're pathetic, why don't you go and see the doctor?"

77 A resident, Jenny Graham, corroborated some of Ms Langford's account of the incident. She provided a statement which described the commode chair hitting the wall.

78 Mr Baturynsky invited the applicant to comment. She denied any wrongdoing (see paras 25 and 26). However, Mr Baturynsky formed the view that Mr Chaffey's complaint was substantiated. He issued the applicant with a first written warning in accordance with the respondent's discipline policy.

79 Mr Chaffey lodged a further complaint about the applicant's poor attitude towards him. Mr Baturynsky asked another employee Elaine Norris to advise the applicant of the complaint and inform her not to approach Mr Chaffey while the matter was being investigated. However, the applicant approached Mr Chaffey and told him "get your facts straight". For disobeying this instruction, a verbal warning was issued.

80 Mr Baturynsky conducted an investigation. He consulted other staff who generally supported the applicant. However, as the evidence of other residents was inconclusive, no further action was taken.

81 On the morning of 8 October 2000 Ms Fathers reported that she had found Mr Chaffey in a highly distressed state. He was crying and had a rash and pressure marks on his body consistent with having not been turned for some time. The applicant had been responsible for his care.

82 Mr Chaffey made a complaint. Mr Baturynsky decided to interview three other employees Ms Cheryl Hill, Ms Alison Langford and Mr John Wilson.

83 Mr Baturynsky decided to convene a formal disciplinary meeting in accordance with the respondent's policy. The applicant attended with her Union organiser. After the meeting Mr Baturynsky concluded that the complaint was substantiated and issued the applicant with a final written warning. The applicant was also transferred from night to afternoon shift so that she could be more closely supervised.

84 Mr Baturynsky sent a copy of the minutes of the meeting to the Union. The applicant responded to the warning in writing and sought to have it removed. Mr Baturynsky refused to do so.

85 After the residents of Unit 4 - David Addison, Helen Morton, Debbye Adams and Michael Van der Velden - had complained about the applicant to their Co-ordinator, Mr Baturynsky arranged a meeting with them. He identified their complaints in his affidavit as: a) Competent when she wants to be but extremely hard to get her to work (David Addison);

c) If requested to do something, she sighs with exasperation;

f) Often takes an hour for lunch instead of the agreed half an hour;

g) Very aggressive towards Mick over a hot drink incident - raised voice, inappropriate comments; and

h) Threatened to leave Helen unattended in the shower.

86 Mr Baturynsky agreed he hadn't identified which resident made which complaint. No file note was made of the discussion. In re examination, Mr Baturynsky said these complaints did not result in any disciplinary action which is why no notes were kept.

87 However, Mr Baturynsky and the newly appointed Human Resources Manager, Susi Petherick, met the applicant on 26 June to discuss these complaints. The applicant had expressed surprise by the complaints. However, she agreed to monitor her moods and consider this information as feedback. No further action was taken by management.

88 A staff appraisal of the applicant was conducted on or about 30 July 2001.

89 Mr Baturynsky was informed that Mr Addison's buzzer had not been attended to for a considerable period - one hour and nineteen minutes. Ms Stemwell, the Acting Co-ordinator, had spoken to Mr Addison who was upset at being left so long whilst Ms Sims was away on a bus outing.

90 Mr Baturynsky said it was a well known requirement that when staff left the Centre whilst on duty, the remaining staff were obligated to meet the care needs of all the remaining residents.

91 Mr Baturynsky's initial reaction to the complaint was to suspect a malfunction with the lights. However, this was found not to be the case. Mr Baturynsky then instituted an investigation. He spoke firstly to Ms Sims. Ms Sims provided a written statement and informed him that she had: a) left the keys to Unit 4 with the applicant before she left and told her she was leaving with Renee McIntosh to pick up the residents;

b) made other staff aware that David Addison was still in bed;

c) returned at 12.30 pm and went to Unit 3 to retrieve the Unit 4 bag and keys. She did not see the applicant and went to Unit 4;

d) been approached by resident Helen Morton on her return from the shops. Helen told her that David Addison's light had been on for a while;

e) went to David Addison's unit and spoke with him.

92 Mr Baturynsky checked the vehicle log book which disclosed that Ms Sims and Ms McIntosh left for Macarther Shopping Centre at 11.55 am and returned at 12.45 pm. However, in Ms Sims' statement she said she gave the keys and the mobile phone to the applicant at 11.15 am - a difference of forty minutes. The applicant believed the log book entries were wrong. The applicant claimed it was close to 12.00 when Ms Sims left. In oral evidence, Mr Baturynsky conceded that it had been very difficult to establish exact times. Mr Baturynsky had carefully considered this discrepancy and thought it was unlikely that it was as late as 12.00 pm. Mr Baturynsky agreed he had three or four different versions of times involved with the incident.

93 Mr Baturynsky interviewed Mr Addison who told him that he had a poor response from staff on that day.

94 Mr Baturynsky briefly interviewed Mrs Olding a week later on 17 August. She had no recollection of the events and appeared surprised that the light had gone unattended for so long. Mrs Olding explained that she had been carrying out personal care around 11.30 am with the applicant. In oral evidence, Mr Baturynsky said he found this interview very difficult and unhelpful; Mrs Olding had no recollection of events and appeared totally confused and vague.

95 After several attempts to meet the applicant, Mr Baturynsky finally did so on 22 August. The applicant claimed that, while she was aware Ms Sims and Ms McIntosh had left the Centre, she had not seen the light on in Unit 4. She was attending to other residents' care with Mrs Olding from 11.30 to 12.30. Mr Baturynsky asked her if there were any crises or emergencies which might account for her not seeing the light. She had replied "no, not really, nothing happened". It was established that the applicant had turned the light off for Unit 3 at 11.53 am. However, she claimed to have not noticed the light for Unit 4 because she didn't think Ms Sims and Ms McIntosh had been away for so long.

96 Mr Baturynsky's evidence was that while the weekend shifts tend to be quieter than those during the week; if there had been any concern at short staffing, Ms McIntosh could have stayed behind or he could have been contacted. He claimed there had been no objection to the staffing levels raised by the Union.

97 Mr Baturynsky had surveyed the computer printouts. He found that the majority of response times were no more than five minutes. Some delays of twenty minutes might occur - for example, when showering a resident took longer than usual. However, the records showed that no call was ever longer than an hour.

98 Mr Baturynsky had also asked two other co-ordinators for their views of the incident - Ms Shemwell and Ms Norris. Both believed that the explanations of the applicant and Mrs Olding did not appear sufficient to account for their failure to respond to the call light. They also did not accept it would have taken the entire time to toilet two residents as claimed.

99 Mr Baturynsky and Ms Petherick discussed the matter and concluded as follows: a) Sims and McIntosh had left the Units at no earlier than 11.20 am, leaving Olding and the applicant on duty until they returned approximately 1 hour and 20 minutes later;

b) Olding and the Applicant were both very experienced Residential Care Workers, who understood, or should have understood, the practice of covering for other staff temporarily absent from site;

c) the applicant was handed the keys to Unit 4 by Jenny Sims and was made aware that she and Rene McIntosh were about to leave the site;

d) the applicant and Olding were both aware that a resident (David Addison) was still in bed and unattended by staff;

e) both workers were negligent at checking the call signals for a minimum period of 1 hour 19 minutes irrespective of their location on the complex.

100 After further discussion with Head Office, it was concluded that both the applicant and Mrs Olding had neglected Mr Addison and failed to discharge their duty of care. Management believed it was highly implausible that the employees were unaware of the light in Unit 4 and had, either deliberately ignored it, or were negligent. One of them must have disengaged Unit 3's light at 11.53 am.

101 It was resolved to issue Mrs Olding with an informal warning due to her previously unblemished record. No disciplinary action had been taken against Ms Sims or Ms McIntosh. However, in view of the seriousness of the matter and the pattern of her past behaviour and warnings, the applicant was dismissed with four weeks' notice. A meeting was held on 3 September to inform her of the decision.

102 In cross examination, Mr Baturynsky accepted that not all the persons named in his affidavit were asked to make sworn statements. He said the respondent had made a deliberate decision not to do so, and to rely on the business records of the respondent which included memos, notes and statements. He agreed he had no direct knowledge of the incidents and relied on reports from residents and other employees.

103 Mr Baturynsky was asked if he was looking for a pretext to dismiss the applicant. He replied "far from it". He was simply looking for her to modify her behaviour. Complaints about her went back to 1998. He had arranged meetings with her and sent her letters. He was supportive of her further training.

104 Mr Baturynsky denied that there was any link between the disciplinary process and the applicant's workers' compensation claim. Mr Baturynsky said that the respondent had absolutely no control over the workers' compensation process.

105 Mr Wilson referred Mr Baturynsky to the different versions of the times Ms Sims was said to have left the Centre. Mr Baturynsky said the issue was that Mr Addison was left unattended for one hour and twenty minutes.

106 Mr Baturynsky was asked about the propriety of him witnessing the respondent's affidavits as a Justice of the Peace.

107 Ms Sims has been employed by the respondent as a residential support worker on a casual basis since April 2001. She gave evidence of the incident of 11 August 2001.

108 Ms Sims deposed that, during morning tea with the applicant and Mrs Olding it was decided that Renee McIntosh would take her for driver training. It seemed a good time to do so as it was a quiet morning. Ms Sims said no one expressed any concern at being short staffed. During the discussion, Ms Sims claimed she made staff aware that Mr Addison was still in bed and may require assistance in the immediate future.

109 Ms Sims left the lunch room and informed the residents in Unit 4 she would be leaving and to "buzz" the applicant in Unit 3 if necessary. Ms Sims handed her unit bag to the applicant in Unit 3 and told her she was leaving the site but expected to be back before lunch. However, it was the applicant's evidence that it was Ms McIntosh who told her where they were going and that they would be back in thirty to forty minutes.

110 Before leaving the Centre, Ms McIntosh explained the procedures for strapping the resident "Jamie" in the bus. They then drove to Macarthur Square and picked up "Jamie" and then to Campbelltown Mall to pick up "Ben". Ms Sims' evidence was that they returned at about 12.30 pm. She unstrapped both the residents and assisted them to their units while Ms McIntosh said she would fill out the vehicle log book.

111 Soon after, Ms Fathers informed Ms Sims that David Addison's buzzer had been unattended for some time. Two other residents Michael and Debbye were also anxious to be toileted.

112 Ms Sims responded to Mr Addison's buzzer in his room and he asked to get out of bed. She had asked him to wait a little longer while she toileted Debbye and Michael. She said Mr Addison appeared a bit agitated. Ms Sims prepared lunch for the other three residents and Mr Addison buzzed again requesting assistance. At about 1.40 pm, when all the staff were at lunch, Ms Sims asked for help with Mr Addison. The applicant offered to do so.

113 Ms Sims returned to Unit 4 to assist the applicant with Mr Addison. Mr Addison complained that his back was sore and he was thirsty and hungry. She believed he had not received any care all morning. Ms Sims claimed that she checked the computer print out and told the other staff she was concerned about Mr Addison being left for so long.

114 In cross examination Ms Sims gave the following evidence: i) Mr Baturynsky had asked her to make a statement. However, she had prepared it without consulting him. Ms Sims disagreed with the proposition that she had " tidied up " her version of events in consultation with other people.

ii) Ms Sims said the date on her first statement was an accidental mistake. No one had suggested she fudge the dates. Ms Sims accepted she gave two or three different versions of the event. She had made a mistake over one of the times which is why she prepared a second statement. Ms Sims said the statements differed because she made brief points and then expanded on them. However, the sequence of events did not change.

iii) To the best of her recollection she had not discussed the incident with Ms McIntosh.

iv) When she picked up Jamie she went into the bowling alley and waited a while then brought him back and strapped him in and then drove to Campbelltown Mall to pick up another resident. She vigorously denied buying lunch or doing any private business.

v) Ms Sims was questioned about a word crossed out ("drop") in her first statement. She said it was a grammatical error. It was not that she dropped her lunch off in the lunch room. vi) Ms Sims agreed that she didn't work very often with the applicant. However, when she did assist " her work was appropriate" .

115 Ms Fathers has worked at the Centre for fourteen years. In the ten years she worked with the applicant Ms Fathers said she encountered no major problems with the applicant.

116 Ms Fathers gave evidence of the November 1999 incident in which Mr Chaffey had complained about the applicant. Ms Fathers had observed that the applicant would occasionally be abrupt with Mr Chaffey. Ms Fathers met with the applicant in the presence of Mr Wilson. She claimed the applicant referred to Mr Chaffey as "a little prick" and said she was no longer going to care for him. Ms Fathers said "okay I'll get John Wilson to do the care". Ms Fathers agreed that this arrangement was what Mr Chaffey wanted as well. Ms Fathers agreed that sometimes staff members swore or expressed words in frustration.

117 The applicant had asked Ms Fathers why Mr Baturynsky had not personally spoken to her about the matter. Ms Fathers agreed to speak to him. She told Mr Baturynsky the applicant was rude to her.

118 Ms Fathers attended to Mr Chaffey on Sunday morning, 8 October 2000. He was upset and started to cry and had said "Emma is cranky with me" and he didn't want to stay at the Centre any longer. Ms Fathers got him up and dressed him. She noticed a rash on his body and his right arm was wrinkled.

119 Ms Fathers asked him why he didn't buzz to get turned over. He said he had buzzed a couple of times. However, he was afraid to buzz because the applicant was upset with him. Ms Fathers calmed him down and she asked what he would like her to do. He asked her to go with him to see Mr Baturynsky.

120 It was the applicant's evidence that she noticed rashes and wrinkling on Mr Chaffey on many occasions when he slept through the night. He would request that he not be woken unless he specifically asked and would be annoyed when he was woken.

121 In cross examination Ms Fathers: i) rejected the suggestion that her actions were motivated by negative feelings for the applicant. She believed she was only doing her job.

ii) was asked why she referred to the applicant as "the respondent" and not by her name in her affidavit. While claiming these were her words, she understood the applicant was Emma Laing and the respondent was the Northcott Society.

iii) said she had not discussed the contents of her affidavit with Mr Baturynsky. However, he had witnessed it as a JP.

iv) said she was on holidays on 11 August 2001, and had not known why the applicant was dismissed. v) agreed that there may have been other staff who were worse performers than the applicant. Finally, Ms Fathers agreed that the relationship between carer and resident was close. Sometimes personal relationships develop. This would mean someone might be friendlier to one resident over others. She believed this was a natural and normal result of the working relationship.

122 Mr Chaffey has been a resident at the Centre for twenty-three years. He has a degenerative muscle disease but no intellectual impairment. Mr Baturynsky described him as bright and articulate. Mr Chaffey has extremely limited physical mobility and relies on staff for all his daily requirements.

123 Mr Chaffey prepared a statement with the assistance of Denise Briggs. He had not discussed it with Ms Briggs or anyone else at the Centre. Mr Chaffey gave evidence that he could not remember times or dates.

124 Mr Chaffey deposed that when he first met the applicant they had got on well. They would have coffee together and talked about personal things. However, when she went on night shift, Mr Chaffey claimed her manner got worse and her attitude towards him changed.

125 Mr Chaffey said his first problem was when he was left in a urine soaked bed after buzzing for what seemed like twenty minutes. In oral evidence, Mr Chaffey said he asked the applicant if his bed was wet. She had replied that it wasn't. She had put a couple of towels on the area to make him feel more comfortable. Mr Chaffey agreed that he used a urine bottle that night and it might have spilt. Mr Chaffey raised the matter the next morning with Ms Fathers or Ms Hefferan. He couldn't be sure who.

126 Mr Chaffey believed that the applicant didn't seem to care when he complained. She handled him roughly - pulling and shoving him. He didn't make official complaints because he feared repercussions. Mr Chaffey said on one occasion the applicant grabbed his right arm so hard it felt as though she was pulling it out of the socket. He claimed it took a few days to stop being sore. He complained about this to other staff and Mr Baturynsky.

127 After this complaint, Mr Chaffey said the applicant was more brazen with him. She appeared as though she wanted nothing to do with him. In oral evidence, he described their relationship as "less caring and it felt like she was bringing personal problems to work". Mr Chaffey said they had argued and he was a little frightened of her. He felt singled out and didn't like her attitude or abuse.

128 Mr Chaffey gave evidence of the commode incident. He claimed the applicant pushed the chair so hard he felt he was going to fall off it when it hit the wall. This made him feel scared and angry. As this was the third time he'd been to the toilet, the applicant wasn't pleased to take him. She rolled her eyes and sighed.

129 Mr Chaffey deposed that the applicant approached him and blamed him for things that were happening. She told him to "get your facts right", the applicant further stated "my job is on the line here".

130 One night after an argument with the applicant, Mr Chaffey said he laid in pain, rather than buzz for assistance. He felt very distressed in that the applicant wouldn't speak to him and she was very rough in handling him. Mr Chaffey complained to Ms Fathers and Mr Baturynsky. After this incident, an arrangement was made that the applicant would not come into Mr Chaffey's room.

131 Mr Addison has been a resident of the Centre for ten years. The applicant described him as intelligent and strong minded. Mr Addison is thirty years of age and suffers from a genetic condition known as Werning Hoffman's Spinal Muscular Atrophy. His physical disabilities are severe and he cannot perform daily tasks without the help of a carer. When lying in bed he cannot move from the position he is in.

132 Mr Addison made a statement about the 11 August incident with the assistance of Alison Shemwell. In cross examination, Mr Addison said he was asked to put as much detail in his statement as he could remember. It was not discussed with any other person.

133 Mr Addison deposed that he sometimes liked to sleep in past 9.00 am. He did so on 11 August. He had asked not to be disturbed until he pressed the call button, however Mr Addison could not recall the actual time that he pressed the call button. He believed it was late morning, as he couldn't see the light from where he was laying. He claimed to have pressed the button several times.

134 Mr Addison gave evidence that he called out several times, out of a sense of frustration and mild panic. He described it as a rising feeling of panic due to the sense of being trapped. He said he was in pain from lying in the one position for so long and was overheating due to the heavy bedclothes on him.

135 Mr Addison didn't know how long he waited until Ms Sims answered the call. He did not ask her for anything specific - he just wanted to get up. He could not recall if he had asked Ms Sims to remove the bedclothes and move him.

136 Mr Addison could not recall the meeting of Unit 4 residents in June 2001 referred to in Mr Baturynsky's evidence. Mr Addison remembered saying that the applicant was lazy, however he had not made a formal complaint. Mr Addison conceded that he found it difficult to make adverse comments about anyone. Mr Addison said he found the applicant to be quite variable at times. He didn't consider her one of the best workers, but he said she wasn't the worst either.

137 Mr Wilson submitted that, while the applicant was dismissed with notice, her termination of employment was, in effect, a dismissal for misconduct. In such circumstances, the onus is on the respondent to make out the allegation of misconduct after a thorough and proper investigation.

138 Mr Wilson submitted that, while the respondent followed its own procedures, unfairness arose by the weakness of the material relied upon. The grounds for dismissal became more questionable the closer one came to the actual source of the complaints against the applicant. He said the two residents who gave evidence did not appear to make strong complaints about the applicant with anything like the tone and terms as contained in the written material.

139 Mr Wilson contended that the greater degree of hearsay in the documentary material, particularly in Mr Baturynsky's affidavit, the stronger the allegations against the applicant. Those involved in the more serious allegations, such as the commode chair incident, did not give evidence. For Mr Baturynsky to put that he thought it was uneconomical to have too many witnesses is unacceptable.

140 Mr Wilson said that the evidence about the use of swear words and the term "he's a little prick" were trivial matters hardly warranting dismissal. He put that the close relationship between worker and resident would naturally result in potential for friendships or friction. The employer had a duty to supervise,train, educate and motivate the employees, having regard for the difficult work environment.

141 Mr Wilson reviewed the applicant's evidence and submitted that she had sufficiently explained her conduct. As to the 11 August 2001 incident, her evidence was that she did not ignore Mr Addison's call light and believed other employees were there to attend to his needs. Other residents could have called if there was a real emergency.

142 Mr Wilson put that the applicant agreed she was less conversational with Mr Chaffey after 1998 - but she was not abusive. She agreed she had said "you are pathetic" but it was in the context of urging him to see a doctor. As to the commode chair incident, Mr Chaffey's only memory of the incident was bumping the doorway almost causing him to fall out. Mr Chaffey had not responded to suggestions that the chair was "thrown" or violently thrown into the wall.

143 As to Mr Chaffey giving evidence of his arm being pulled so hard by the applicant that it was sore for a few days, Mr Wilson said there was no evidence of Mr Chaffey requiring any medical treatment. Small accidents could be expected to occur over years of daily personal care.

144 Mr Wilson said there was some suggestion in the respondent's material that the applicant was lazy and incompetent. However, Mr Addison had said there were some workers who were better and some who were worse than the applicant. Mr Wilson said that Mr John Wilson, who worked with the applicant on night shift, gave evidence that he had not witnessed any unsatisfactory conduct by the applicant.

145 Mr Wilson referred to Mrs Olding's evidence which was that she was twice interviewed by Mr Baturynsky about the 11 August incident and Mr Baturynsky only took notes after the applicant's dismissal. Mrs Olding had suggested that Ms McIntosh and Ms Sims were still on site for 20 to 25 minutes after Mr Addison's light was activated. She was also surprised by the time it took for them to go to Macarthur Square and back.

146 Mr Wilson submitted that of all the respondent's witnesses, Ms Fathers was the least impressive. He put that her affidavit was clearly not her own words and should be afforded little weight. See Byrnes v Jakona Pty Ltd [2002] FCA 41.

147 Ms Sims was a more assertive witness, but her various accounts of events were inconsistent. Mr Wilson submitted her evidence was not reliable. She had a motive to deflect blame away from herself. It was difficult to accept that Ms Sims had never discussed the 11 August incident with any other staff members. Mr Baturynsky had not taken account of Ms Sims' contradictory account of the incident and failed to investigate these inconsistencies. Mr Baturynsky was remote from the workplace and relied on others for reports on performance and conduct issues. As the reports were second or third hand, Mr Wilson said they could not be reliable.

148 Mr Wilson traced the history of complaints against the applicant. Firstly, he contended that the evidence concerning the February 1998 incident, involving Mr Chaffey's urine soaked bed, was very weak. There was no evidence to establish a deliberate unresponsiveness by the applicant. Secondly, the complaint concerning rough handling of Mr Chaffey is clouded in Mr Chaffey's perception that the applicant displayed a " lack of warmth" towards him. It was a simple matter of a breakdown in their personal relationship. Thirdly, the complaint about inappropriate language was trivial. Fourthly, the incident involving Mr Chaffey not calling for assistance was explained by his personal relationship with the applicant. Fifthly, Mr Wilson said the last incident was dressed up as an emergency when it looked more like a pretext for the applicant's dismissal.

149 Mr Wilson submitted that on the balance of probabilities, it would be open for the Commission to find that the complaints against the applicant were not properly investigated or analysed and had no basis in fact (s88(b)). Regard should be had for the applicant's length of service.

150 Finally, Mr Wilson foreshadowed an application for costs by putting that the respondent unreasonably failed to settle the matter.

151 Mr Borrow described the applicant's employment history over an eleven year period. He submitted that almost from the beginning of her permanent employment (three years eleven months prior to dismissal) the applicant had displayed a persistent pattern of poor work performance.

152 Mr Borrow observed that the applicant was dismissed with notice on 3 September 2001 and provided reasons for her dismissal. These included the incident on 11 August and other matters relating to a formal warning on 18 November 1999, a written warning on 9 February 2000, a complaint on 19 June 2000 and a "final warning" on 7 November 2000. The applicant was not summarily dismissed and the onus rests with her to demonstrate her dismissal was "harsh, unreasonable or unjust".

153 Mr Borrow put that the applicant refused to acknowledge any problem with her performance in the face of overwhelming evidence to the contrary. He traced the history of the disciplinary matters with particular reference to her dealings with one resident, David Chaffey.

154 Mr Borrow noted that Mr Chaffey has extremely limited mobility and is utterly dependent on the staff for all his daily needs. He is bright and articulate and was not a complaining resident. He did not hold grudges.

155 Mr Chaffey's evidence was that he felt intimidated by the applicant and that his quality of care deteriorated over time from his first complaint, in February 1998, where he was left in a urine soaked bed. He had buzzed for attention; but was not attended to for about twenty minutes. He reported the incident to Ms Fathers (it was in fact Ms Grace Stevenson). The applicant denied any knowledge of this complaint until she was shown documentation about it. Mr Borrow said that her denials exposed a real lack of honesty and detracted from her credit.

156 The next complaint was when Mr Chaffey said his arm was pulled by the applicant and it was sore for a few days. Mr Chaffey's complaint at the time was that the applicant was abrupt and rough with him when turning him over in bed. Ms Fathers interviewed the applicant and reported to Mr Baturynsky that she was agitated and aggressive. The applicant referred to Mr Chaffey as "a little prick". Mr Wilson corroborated this conversation and the applicant's demeanour. The applicant acknowledged she used this remark. Mr Borrow emphasised that this was not a friendly chit chat, but a discussion of the applicant's performance.

157 Mr Borrow said that when Mr Baturynsky arranged to meet the applicant she was an hour and forty-five minutes late and admitted being late on two other occasions. She was given an informal warning about her lateness. The applicant denied Mr Chaffey's complaint of rough handling. Mr Baturynsky stressed that her comment about Mr Chaffey was unacceptable in any circumstance. The applicant received a verbal warning for inappropriate language.

158 Mr Borrow put that, while the use of inappropriate language was not the central aspect of the respondent's case, it revealed a great deal about the applicant's lack of professionalism and sensitivity to the needs of the residents. She admitted she had used expressions such as "you are pathetic", "you smell", "he can pan himself" and "they can friggin' wait".

159 Mr Borrow put that the applicant then gave Mr Chaffey the "cold shoulder" for complaining about her. Mr Chaffey said she was "more rude, ignoring me and not answering me when I spoke to her". Mr Baturynsky initiated a follow up meeting with the applicant and Mr Chaffey, after which things seemed to improve.

160 Mr Borrow argued that Mr Wilson downplayed the importance of employees maintaining a certain level of propriety in dealing with people who were utterly dependent on them. Maintaining a duty of care is a very important aspect of their work. Breaches of the duty of care can be grounds for dismissal.

161 Mr Borrow claimed the applicant's conduct was in breach of the respondent's Code of Conduct and Ethics, further stating that the applicant was aware of the Code and understood her responsibilities.

162 Mr Borrow referred to the "commode" incident on 30 January 2000. Mr Chaffey had felt scared and angry after his commode chair hit the side of the door. Mr Baturynsky had eyewitness accounts of the incidents corroborating Mr Chaffey's version of events. Mr Borrow said the applicant admitted pushing the chair and that it hit the wall. It would have required considerable force to do so, not a gentle push. This was reckless conduct and an act of gross irresponsibility. It was also a breach of the Code of Conduct.

163 Mr Borrow said a further complaint on 19 June 2000 resulted in the applicant approaching Mr Chaffey in breach of a direction not to do so, and telling him "get your facts straight". This complaint was not proceeded with.

164 A final warning was given to the applicant on 9 October 2000 after Mr Chaffey had complained to Ms Fathers and Mr Baturynsky that the applicant left him unattended when he needed turning in bed. He was very distressed. The applicant denied this incident, but another employee, Cheryl Hill, corroborated the main aspects of Mr Chaffey's complaint. A disciplinary meeting involving the Union was conducted and a final warning issued. The applicant was transferred from night to afternoon shift so that she could be more closely supervised.

165 Mr Borrow said the complaints from a meeting of Unit 4 residents on 7 June 2001 were not acted upon and are not relied upon to support any subsequent disciplinary action.

166 Mr Borrow detailed the final incident on 11 August 2001. He said the applicant shifted her responsibility to the other residents when she said they could have come to the door and told her Mr Addison needed attention. The applicant had never checked whether the call light was on; even walking past it in a period of one hour and nineteen minutes. She had no way of knowing whether the other employees had returned to the Centre or what Mr Addison's needs were.

167 Mr Baturynsky conducted a thorough investigation; he interviewed Mr Addison and Mrs Olding. Mrs Olding had no recollection of the incident. She could not recall her movements that day, or account for her failure to respond to the call light. Mrs Olding was disciplined as a result.

168 Mr Baturynsky said that Ms Sims and Ms McIntosh left the units no earlier than 11.20 am, leaving the applicant and Mrs Olding on duty. They were both experienced care workers who understood they were required to cover for other staff temporarily absent. The applicant was given the keys to Unit 4 and knew that Mr Addison was still in bed and unattended. The applicant and Mrs Olding neglected to check the call light and had many opportunities to do so.

169 Mr Borrow concluded by submitting that vulnerable people should expect to live in an environment free of harassment, violence and fear. They have a right to dignity and quiet enjoyment in the units which are their homes.

170 Mr Borrow foreshadowed an application for costs.

171 In reply, Mr Wilson said that Mr Baturynsky's check of the vehicle log for 11 August 2001 disclosed a forty minute difference in Ms Sims' evidence of when she left. He added that the call system light did not operate in the ideal way presented by the respondent.

172 Deciding this case has not been without some difficulty. For example, the Commission unreservedly accepts that the work of looking after the basic human needs of physically handicapped persons is both demanding and stressful. It requires a person with special attributes. Like all of us, any employee can from time to time, be short or dismissive, particularly in stressful situations.

173 However, the duty of care to persons who are totally dependent on the care of others is a fundamental and absolute requirement. It does not attach to it any room for compromise or equivocation.

174 Equally, I accept without question, that relationships between the carer and the cared are bound to develop. Like all personal relationships, they will experience their ups and downs and stresses from time to time. This must be particularly so where the relationship is born from the absolute dependence of one person upon another.

175 I am certain all persons involved in this sensitive and difficult environment will experience impatience, grumpiness and frustration from time to time. Notwithstanding these natural frailties, the fundamental duty of care remains paramount. Patterns of behaviour which question an employee's commitment to that duty must be viewed with much seriousness.

176 I refer to some of the particular issues I have grappled with in this case.

177 Firstly, the evidence of the incident on 11 August 2001 would suggest that during the hour and nineteen minutes during which Mr Addison's light was not attended to, the applicant was not goofing off or malingering. I accept that she and Mrs Olding were preoccupied with attending to the needs of Ms Thornton and Ms Voulgaris.

178 On the other hand, that cannot discount their obligations and duty of care to the other residents at the time.

179 The toileting of Mary Thornton, on Mrs Olding's evidence, took about fifteen to twenty minutes. No one checked the lights in between this time and the time it took to attend to Anna Voulgaris who had soiled herself in bed. Beds were being changed, both the applicant and Mrs Olding were walking around the unit.

180 The applicant must have walked past the light when she was asked to attend Unit 1 at around 11.45 am. The call light had been activated at 11.23 am. Indeed, the applicant had deactivated the call light for Unit 3 at 11.53 am.

181 Secondly, I accept the applicant's and Mrs Olding's evidence that they had expected Ms Sims and Ms McIntosh to have returned to the Centre after thirty or forty minutes. This does not answer the question, however, why the applicant or Mrs Olding did not query why Ms Sims or Ms McIntosh did not come back to get the keys and the mobile phone for Unit 4.

182 Thirdly, I am troubled by the state of the evidence as to what the other employees were doing when the round trip to Macarthur Square was said to be thirty to forty minutes. Mrs Olding said she asked for an explanation twice and didn't get one. Mr Baturynsky said it was very difficult to establish precise times. Ms Sims said she gave the applicant the keys at around 11.15 to 11.20 am. However, the vehicle log shows her leaving at 11.55 am. It is not at all clear what the employees were doing until 11.55 am. Nor is it apparent as to why not one of the four employees, all of whom were seemingly on site at 12.30, did not attend to Mr Addison.

183 On the state of the evidence before me, I cannot be satisfied that the time discrepancy issue was properly addressed or explained.

184 On one view, however, the issue is not really whether there was a discrepancy in the times Ms Sims and Ms McIntosh were off site. Mr Wilson pressed the unreliability of the evidence of Ms Sims in this regard. He speculated that she may be covering up for something. However, this is not the issue either.

185 The issue is rather that, whatever the applicant and Mrs Olding were doing, they retained a duty of care from the time the keys were handed over to them until the other employees reported back.

186 It is also relevant, I think, that there was no rebuttal of Ms Sims' evidence that before leaving the Centre she had made the staff aware that Mr Addison was still in bed and that he may require assistance in the immediate future.

187 In my opinion, the single incident involving the applicant not responding to the buzzer on 11 August would not, in isolation, warrant dismissal. Indeed, the other employee on duty at the time, Mrs Olding, who had an otherwise unblemished ten year record of employment, received only a verbal warning.

188 However, this incident must be viewed in the context of the applicant being on a final warning after a series of performance related issues dating back to 1998. I shall return to this record of performance shortly.

189 Given this context, I accept that the applicant was not summarily dismissed for misconduct. Rather the incident of 11 August was the last and final issue which resulted in her dismissal on notice for poor performance.

190 It follows then that the usual onus for the applicant to satisfy the Commission that her dismissal was "harsh, unreasonable or unjust" applies in this case. See Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273.

191 It is useful at this juncture to refer to the authorities which give warrant for the principle that an employer is entitled to have regard for an employee's past performance in deciding whether dismissal is justified.

192 In Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 Watson J said at 233: I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal . The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. (Our italics)

193 In John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia (New South Wales Division) & Ors (unreported, Matter 259 of 1972, 14 September 1972) Sheppard J said: The union's argument in relation to this matter is not easy to understand. It suggests that although the record is not a satisfactory one, it should be overlooked because the company, except for a warning and a suspension here or there, allowed it to run on and in effect condoned or waived it. It further says that the record has to be looked at in the light of the fact that there is admittedly a good deal of absenteeism generally in the plant. If one were to take this argument to its full extent, it would involve the union in saying that Mr York should have been dismissed long ago. It is no doubt possible for the company to waive particular acts of misconduct that would otherwise justify dismissal without notice. These particular acts could not subsequently be used for this purpose once a decision was made not to rely on them. The act of misconduct however does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about dismissal. This will be all the more so where, as here, the dismissal is upon notice. In Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16, Cook J said at p27: … In my view, when an employer is considering whether or not he will exercise his undoubted rights in relation to the selection and retention of employees, subject to the observance of any award requirements, he is entitled to have regard to the previous conduct of an employee. For example, an employee might be late for duty on one occasion and his employer may overlook this. The employee may, likewise, be late on a number of subsequent occasions and the employer may decide not to take any action. If, however, the employee's punctuality does not improve, I would think it clear that an employer would be entitled on the latest instance of unpunctuality to review the record of that employee and if he decided that his record was unsatisfactory and that he no longer wished to retain him in his employment he would have a right to dismiss him by giving the requisite notice of dismissal. In such a case, I think that the employer's action could not ordinarily be said to be such a harsh and unjust exercise of his legal right as to justify an order of reinstatement …

194 In Youssef and Western Sydney Area Health Service [2002] NSWIRComm 8, after citing the above passages, I said at p37: In other words, when dismissing an employee, an employer is entitled to have regard to the employee's past performance and other factors, even if such matters did not warrant formal warnings at the time they occurred. Put another way, the particular incidence of misconduct cannot be viewed in isolation from the employee's overall performance. Indeed, the actual misconduct might have as its genesis, a series of incidents, or a change in attitude of the employee over a period of time. So much so is evident in this case.

195 In this case, it cannot be reasonably doubted, even from the applicant's own evidence, that she had a long history of performance related issues. Some did not warrant formal warnings. Equally, there is no doubt that the applicant was on a second final formal warning. She could not have been under any misapprehension that any further incident of poor performance might well result in her dismissal.

196 The respondent's procedures for dealing with poor performance and disciplinary matters was, to my mind, well detailed and exhaustive. The applicant was familiar with the processes. Indeed, her union was involved in most of the earlier matters. The respondent's paper trail was carefully and properly conducted.

197 Accordingly, I can find no basis for any criticism of the respondent's processes or the manner in which they were applied to the applicant at all relevant times. There can be no claim of procedural unfairness.

198 Mr Wilson criticised the respondent's case primarily on the grounds that Mr Baturynsky had relied on hearsay - second and third hand accounts of incidents involving complaints against the applicant. He went further to submit that the respondent's evidence was unreliable in that the persons involved in the more serious allegations against the applicant were not called to give evidence.

199 With respect, this criticism might have more substance if Mr Baturynsky's evidence was entirely based on what he was told by other persons. However, the evidence is to the contrary. There is a plethora of notes, memos, minutes and documents comprising the business records of the respondent, some of which are the applicant's own responses to the complaints.

200 Accepting Mr Wilson's argument would mean rejecting this documentation as being of no help in determining this matter. I do not propose to do so. As the Full Bench said in CGEA Transport Ltd t/as Southtrans v Transport Workers Union of Australia [2001] NSWIRComm 287: … When considering an application under s84 of the Act, the Commission is entitled, and indeed required, to determine whether the dismissal of an applicant was harsh, unreasonable or unjust in light of all the circumstances of the case. Although the determination to be made must be whether the dismissal was objectively harsh, unreasonable or unjust, background events may be relevant to the extent to which they cast light on the actions of all persons involved: see, for example, the approach adopted in Burge v NSW BHP Steel Pty Ltd (at 342-343). …

201 I propose to have regard to such relevant background events to determine this matter.

202 In any event, the Commission is not bound by the rules of evidence (s163(c)). I am required to determine this matter having regard for all the relevant circumstances and decide questions of fact on the balance of probabilities.

203 That being so, one must, I think, view each incident within a matrix of overall performance. Each incident, on its own, might appear to be insignificant but collectively they amount to a record of performance which does not augur well for the applicant's case.

204 As there was some evidentiary conflict relating to each of the alleged incidents, and as the parties approached the case by providing evidence and putting submissions on each one, I propose to make specific findings as to the earlier incidents. This approach is consistent with that adopted by Grayson DP in Hunt v Hornsby Shire Council [2001] NSWIRComm 242 and subsequently expressly approved of in an appeal from his Honour's decision. See Hornsby Shire Council v Hunt [2002] NSWIRComm 158 at para 41.

205 There were six incidents reported before the 11 August 2001 incident recorded in Mr Baturynsky's affidavit.

206 I am satisfied that an incident occurred on 19 February 1998 in which Mr Chaffey complained of being left in a urine soaked bed. At first, the applicant had no recollection of this incident. But when shown her own letter acknowledging it, she agreed Mr Chaffey had complained. However, she denied the allegation and said he could have buzzed for attention but didn't do so.

207 The applicant's own words were she should have "gone along with my common sense and changed him". From this admission, I am satisfied that Mr Chaffey was not appropriately cared for on this occasion when the applicant's own common sense, and presumably her training and experience, should have told her to change the bed.

208 Mr Chaffey had complained that the applicant was abrupt and rough with him; pulling his arm such as to cause pain for a few days. Later, the applicant described him to Ms Fathers in the presence of Mr Wilson as "a little prick". The applicant admitted to using this expression.

209 In view of this admission, which was corroborated by Mr Wilson, I am satisfied that the applicant was agitated and aggressive when confronted with the allegation. Her response was unprofessional and unacceptable. A verbal warning was well justified.

210 Even on the applicant's own version of this incident she had pushed the commode chair in such a way as it hit the wall. In other words, she had not exercised due care in the performance of her regular duties, such as to cause distress and fright to Mr Chaffey. Two persons provided contemporaneous records of the incident. The applicant agreed she may have described Mr Chaffey as "pathetic". I am satisfied, at the very least, that the applicant's conduct was in breach of her duty of care and warranted a formal written warning.

211 Mr Chaffey lodged a fourth complaint about the applicant's attitude. The applicant approached Mr Chaffey after she was expressly told not to do so. As the respondent did not take this matter further, I do not make any findings on the incident.

212 The applicant denied not properly caring for Mr Chaffey after he was found by Ms Fathers in a highly distressed state. In my view, even if Mr Chaffey had not called for assistance because he feared the applicant might attend him, it was her responsibility to periodically check on him and turn him during the night or have someone else do so. She failed to do so. I am satisfied that the issuance of a written final warning was justified.

213 The residents of Unit 4 complained collectively about the applicant. No disciplinary action was taken. Accordingly, I make no findings on this matter.

214 From the foregoing consideration and findings made, the Commission is satisfied that the applicant has not discharged the onus of establishing that her dismissal was "harsh, unreasonable or unjust" within the meaning of Pt 6 ch 2 of the Act.

215 Accordingly, I would decline to intervene in the respondent's decision to terminate the applicant's employment on 3 September 2001.

217 Any application for costs, pursuant to s181(2)(c) of the Act, must be made by notice of motion within twenty-one (21) days of today. Save for any costs application, these proceedings are hereby concluded.

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