[7] The applicant is a woman of some 61 years of age and she had worked for the employer for about 5 years and seven months. The applicant initially worked as a casual Kitchen Hand, and she was subsequently engaged as a Maintenance/Gardening Officer on a part-time basis. The applicant performed a wide range of general maintenance, gardening, cleaning and associated duties. At different times during the period of her employment, the applicant worked at each of two sites operated by the employer and which are located in the New South Wales regional town of Tenterfield.
[8] The employer is a not-for-profit aged care service provider. The employer provides aged care services at two separate sites that are located approximately 700 metres apart, the Haddington Nursing Home (Haddington) and the Millrace Hostel (Millrace). The employer has more than 100 employees.
[9] In about September 2015, the applicant worked at both Haddington and Millrace, and she was engaged to work 75 hours per fortnight across both sites. From about August 2016, the applicant worked only at Millrace, and she continued to be engaged for 75 hours per fortnight working at the one site.
[10] In March 2014, the applicant was issued with a formal written warning for using offensive language towards another employee whom she had called "a bitch". The written warning was issued to the applicant by the employer's then Director of Care at Millrace, Dianne Johnston. In April 2015, Ms Johnston made a file note entitled "Staff Discussion" which was signed by the applicant and which recorded a discussion regarding the removal of leftover food scraps from the kitchen.
[11] In early 2016, the employer restructured aspects of its operations across its two sites such that Ms Johnston's position of Director of Care at Millrace was made redundant, and Ms Julianne Ellis became the Director of Nursing and Facility Manager for both Haddington and Millrace. Later in 2016, an incident occurred whereby the applicant was planting roses at Haddington when Ms Ellis instructed her to remove the roses and return them to Millrace because there was a termite infestation at Haddington. The applicant challenged the instruction to remove the roses, and there was something of an unpleasant interchange between the two women about the matter of the removal of the roses.
[12] On Saturday, 19 August 2017, Ms Ellis received an email communication from a staff member at Millrace which advised that two other staff members had reported seeing the applicant; "putting a chainsaw and edge trimmer from Millrace's shed into the back of her ute. She then pulled the tarp over the top to cover and drove away." The applicant was not rostered to work on Saturday, 19 August 2017, and therefore her attendance at the premises was understood not to be for work purposes. Ms Ellis commenced an investigation into what appeared to be the applicant's unauthorised use and removal of the employer's property, and she obtained written reports from the two staff members who had witnessed the applicant's activities on 19 August.
[13] Ms Ellis commenced to prepare a letter setting out an allegation against the applicant regarding the apparent unauthorised use and removal of the employer's property, namely a chainsaw and hedge trimmer, as witnessed by two staff members on 19 August 2017. Ms Ellis took advice from her HR advisors, Aged and Community Services Australia (ACSA), and she had drafted but not finalised, a letter of allegation when, on the night of 31 August 2017, a Critical Incident occurred at Millrace.
[14] The Critical Incident involved an elderly and frail resident who went missing when, at approximately 8:30 pm on 31 August, the resident was not located when staff went to his room to prepare him for bed and administer medication. Following an unsuccessful search of the buildings and the exterior of the premises, the police were called and an extensive search of the premises was conducted. At about 10:10 pm the missing resident was found lying in an exterior area near the front of the hostel and he had been obscured from view as he was partially buried under a pile of leaves and garden debris.
[15] Once discovered, the resident stated that he was under the leaves to keep warm. He also stated that he had been chased and he was getting away. The resident had packed a bag with toiletries and a jumper. The resident appeared to have fallen, he complained of a sore shoulder, and he had dried blood on his right ear where his hearing-aid had been shattered. An ambulance was called, and the resident was transported to hospital for overnight assessment.
[16] On the morning following the Critical Incident, (Friday, 1 September 2017), the applicant commenced work at her usual starting time of 8 am. A short time after she had commenced work the applicant was informed of the Critical Incident of the previous night by another staff member who was a Registered Nurse (RN Overell). RN Overell had been involved in the search for the missing resident, and she explained to the applicant that the missing resident had been obscured under the leaf debris and that it was necessary to clean up all of the leaves and other debris from the area. At about 9:30 am, after the applicant had completed some other tasks, she went to the maintenance shed where she made a note on a whiteboard about the need to clean the leaf debris from the area where the missing resident had been found.
[17] After making a note on the whiteboard about cleaning up the leaf debris, the applicant collected a rake and wheelbarrow and went to the rose garden and performed gardening work in the rose garden area. While the applicant was performing this work, at about 10:15 am, she was approached by Ms Ellis who told the applicant that she wanted the area where the missing resident had been found to be cleaned up. Ms Ellis told the applicant that she wanted the area cleaned up by lunchtime, and that she would be back at lunchtime to check that it had been completed. The applicant acknowledged this instruction although according to Ms Ellis, she did so in a sarcastic manner.
[18] The applicant finished her work in the rose garden, and she then returned the equipment that she had been using to the maintenance shed. At this time it was approaching 10:30 am which was the time of the allocated tea break, so the applicant proceeded to the staffroom to take a tea break.
[19] On the way to the staffroom the applicant was approached again by Ms Ellis. Ms Ellis asked the applicant if the clean-up of the leaf debris had been done, and the applicant sarcastically replied with words to the effect of "Yeah right, it only takes five minutes." The applicant said that she was going to have her coffee break, to which Ms Ellis replied with words to the effect of; "No Maddie you need to do it now. Then you can have your coffee break." The applicant then responded to Ms Ellis with words to the effect of; "Get real wake up to yourself."
[20] The applicant then proceeded on her tea break, after which, at about 10:50 am, she returned to the maintenance shed and gathered the relevant equipment needed to clean up the leaves and debris from the area where the missing resident had been found. The applicant cleaned up the leaves and debris, and she finished this task at around 1pm. Ms Ellis and RN Overell inspected the site and they confirmed with the applicant that the job had been satisfactorily completed.
[21] The applicant continued to work for the remainder of the afternoon, and at about 4:10 pm Ms Ellis approached the applicant and handed her a letter without further discussion or explanation. The applicant opened the letter which advised that the applicant was to attend a meeting at Haddington on Monday, 4 September 2017 at 9:30 am for the purposes of responding to allegations. The allegations related to the applicant's conduct on Saturday, 19 August 2017, when she was observed to remove the chainsaw and hedge trimmer, and also her conduct of earlier that day, 1 September, which was said to involve a response "with inappropriate verbal comments namely, "what do you think I am, get real"". The letter further stated that the applicant's alleged behaviour constituted unauthorised use of equipment and improper conduct.
[22] On Sunday, 3 September 2017, the applicant sent an email to the employer requesting that the meeting scheduled for the following day be rescheduled so as to provide the applicant with an opportunity to arrange for assistance from a support person. This request was granted by Ms Ellis and the applicant attended for work on Monday, 4 September as usual.
[23] At about 2:30 pm on Monday, 4 September, Ms Ellis handed the applicant another letter without further explanation or discussion. The applicant opened this second letter which was headed "RE: SUSPENSION FROM DUTIES". The second letter advised, inter alia, that the applicant was stood down from her duties as the matters under consideration by the employer involved serious allegations. Further, the second letter advised that the meeting to deal with the allegations would now be held on Wednesday, 6 September 2017.
[24] The meeting to provide the applicant with an opportunity to respond to the allegations proceeded as planned on 6 September. The applicant had the assistance of a support person who was present in the meeting, and a Union official also participated via telephone. Ms Ellis and the employer's General Manager, Ms Fiona Murphy attended the meeting together with another employee who acted as a note taker.
[25] At the meeting held on 6 September 2017, the applicant provided the employer with a document dated 3 September 2017, which set out her responses to the allegations about; 1. Her conduct on 19 August whereby she admitted that she borrowed the chainsaw and hedge trimmer being the property of the employer for her personal use, and; 2. Her conduct on 1 September involving, in particular, her verbal exchange with Ms Ellis regarding the directive to immediately commence the clean-up of the leaf debris.
[26] In broad terms, the applicant confirmed her admission regarding the conduct as alleged in respect to the first allegation. The applicant asserted that she had previously obtained verbal approval for using the employer's equipment for personal use, and that the approval had been provided by her previous manager, Ms Johnston. Further, in respect to the second allegation, the applicant broadly admitted the words that were attributed to her during the verbal exchange with Ms Ellis. However, the applicant rejected that she had been given any directive to undertake the clean-up of the leaf debris as a matter of urgency.
[27] The meeting concluded with the applicant being advised that she would remain on paid suspension from duties and that following a period of pre-approved annual leave from 13 to 22 September 2017, the applicant would be provided with further advice regarding the allegations under consideration by the employer.
[28] On 22 September 2017 and 3 October 2017, the applicant was sent email communications from the employer which required the applicant to attend a further meeting on 5 October 2017. The applicant remained on paid suspension from duties up to 5 October when she attended the meeting with the employer as directed.
[29] At the meeting held on 5 October, Ms Ellis advised the applicant that the employer had made a decision to terminate her employment. The applicant was provided with a letter dated 4 October 2017, which confirmed that the applicant had been dismissed on the basis that; 1. her unauthorised removal and use of the employer's property constituted serious misconduct, and 2. that the applicant had refused to follow a lawful and reasonable request in a timely manner, and her insubordinate behaviour constituted further serious misconduct. The letter of dismissal also referred to s. 12 of the Act, and Regulation 1.07, specifically highlighting that the meaning of serious misconduct involved an employee, in the course of the employee's employment, engaging in theft.
[30] The letter of dismissal provided to the applicant indicated that the termination of employment took immediate effect. However, the applicant was paid an amount equivalent to 5 weeks remuneration in lieu of notice, together with her outstanding leave entitlements.