Ziedin v Links Youth and Disabilities

Industrial Relations Commission (NSW)|1992-05-28|Before: Hungerford J, Wright P, Walton VP, Fisher P, Cahill VP, Peterson J, Hill Marks JJ, Hill J, Bauer Schmidt JJ, Sheppard J

CITATION: Ziedin v Links Youth and Disabilities [2005] NSWIRComm 1054

APPLICANT Catherine Anne Ziedin PARTIES: RESPONDENT Links Youth and Disabilities

Unfair dismissal - termination of employment - summary dismissal - evidentiary onus to justify summary dismissal - no findings of gross and wilful misconduct -absence of substantive basis - procedural errors - denial of natural justice - dismissal held as harsh, unreasonable and unjust - compensation Ordered CATCHWORDS:

LEGISLATION CITED: Industrial Relations Act 1996

Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3), (1990) Industrial Commission of NSW, Hungerford J, 35IR 70. Antonakopoulos v State Bank of NSW, (1999) Full Commission of Industrial Relations Commission of NSW, [Wright P Walton VP & Redman C], 91IR 385. Electricity Commission of New South Wales trading as Pacific Power v Crump (1993) Full Commission of Industrial Relations Commission of NSW, [Fisher P Hungerford J & Connor CC], 48IR 296. Outboard World Pty Limited v Muir, (1993) Full Commission of Industrial Relations Commission of NSW, [Cahill VP Peterson J & Tabbaa CC], 51IR 167. Mason v Electricity Commission of NSW t/a Pacific Power, (1995) Full Commission of Industrial Relations Commission of NSW, [Hill Marks JJ & McKenna CC], 62IR 436. Macleay Valley Health Service v Jeffree, (1994) Full Commission of Industrial Relations Commission of NSW [Fisher P Hill J & Sheils CC], 58IR 187. Bigg v New South Wales Police Service, Full Commission of Industrial Relations Commission of NSW [Bauer Schmidt JJ & Murphy C], 80IR 434. Hollingsworth v Commissioner of Police (No.2), (1999) Full Commission of Industrial Relations Commission of NSW in Court Session, [Wright P Hungerford J Peterson J (dissenting)], 88IR 282. Spelbert & Gabbett Machinery Pty Limited, Unreported, IRC of NSW, O'Neill C, 790 of 1992, 28 May 1992. CASES CITED: Anthony Maxwell Hallalm & David L. Morris, Unreported, IRC of NSW, O'Neill C, 2375 of 1992, 31 March 1993. Trent James Gordon -v- Geoffrey Warren Dudgeon and Naomi Selina Dudgeon T/as The Golf Port (Unreported, IRC of NSW, Cambridge C, 4207 of 1997, 12 June 1998. Rossana Stanziola-Jones -v- Birkart Globistics Pty Ltd (Unreported, IRC of NSW, Cambridge C, 96 of 2003, 8 October 2003. Jennifer Lorraine Moran -v- Shirley & Paul Murray T/as Digitone Communications (Unreported, IRC of NSW, Cambridge C, 1696 of 1998, 28 April 1999). Lynette Ethel Worrell -v- Permbear Pty Ltd T/as Ribbdisk Supply Line (Unreported, IRC of NSW, Cambridge C, 6161 of 1998, 3 September 1999. Lynette Brada Cecil and Zenoo Pty Ltd (Unreported, IRC of NSW, McKenna C, 1584 of 1993, 27 October 1993). John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (Unreported, IRC of NSW, Sheppard J. 259 of 1972, 14 September 1972) as reported in Youssef and Western Sydney Area Health Service [2002] NSWIRComm 8. CGEA Transport Ltd T/as Southrans -v- Transport Workers Union of Australia [2001] NSWIRComm 287 as reported in Youssef and Western Sydney Area Health Service [2002] NSWIRComm 8.

APPLICANT Mr I Latham, Barrister LEGAL REPRESENTATIVES: RESPONDENT Mr A Katic, Employers First

DECISION: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Catherine Anne Ziedin -v- Links Youth and Disabilities

Application by C Ziedin re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

1 On 18 October 2004, Catherine Anne Ziedin (the applicant), made claim for unfair dismissal. The unfair dismissal claim was made pursuant to section 84 of the Industrial Relations Act 1996 [NSW], (the Act). The application named the respondent employer as Links Youth and Disabilities. That entity has subsequently been more accurately identified as Links Youth and Disabilities Services Pty Ltd (the employer). 2 Following unsuccessful attempts at reaching conciliated settlement of the claim, the matter proceeded to Hearing on 10 March 2005. The Hearing on 10 March completed the evidence and the Parties subsequently filed their respective written submissions. BACKGROUND 3 The applicant is a female who was some forty six years of age at the time of her alleged unfair dismissal on 29 September 2004. The applicant had been employed as a Youth Worker for a period of approximately fifteen months. 4 The employer is a non-government social and community service organisation. The employer provides residential care for children primarily between the ages of eight to eighteen years, who have developed challenging behaviours as a result of neglect or abuse. Additionally the employer provides care for people who have physical and intellectual disabilities which may also manifest in challenging behaviours. 5 The applicant commenced work in June 2003, and the organisation of her work generally involved the direct personal care of a particular client (a child). The care work would ordinarily be assigned to a residential premise or unit and involve a shift of up to twenty four hours which may include a sleep-over of eight hours. 6 The applicant was primarily engaged to work at particular units located in the suburbs of St Marys and St Clair respectively. The various Youth Workers' engagements including the applicant's, would be arranged by way of rosters posted in respect to the particular units. Because of the need to provide ongoing, "twenty-four hour" care to clients, the rostering arrangements would sometimes need to be changed at short notice. In particular changes might often involve the requirement for a Youth Worker to continue working with a client if the relieving Youth Worker had failed to attend for a rostered engagement. 7 The applicant's work history was not without some noted difficulties. The recorded difficulties involved four separate incidents which were ultimately relied upon as providing substantive basis for the applicant's dismissal. Each of the four recorded incidents involved different matters but all were recorded as representing either unsatisfactory work performance or conduct on the part of the applicant. 8 The applicant was advised of her dismissal by way of telephone call at approximately 2.00 pm on 29 September 2004. The applicant was subsequently provided with a letter of dismissal dated 29 September 2004. The letter of dismissal refers to the four separate incidents and in particular, mentions the fourth incident involving allegations that the applicant had permitted unauthorised persons to attend the St Marys unit during the time that she was engaged and working with a client. The letter of dismissal indicated that the combination of the four incidents led the employer to conclude that the applicant had breached her contract of employment by failing to perform to the employer's expectations. The applicant was then summarily dismissed. 9 The applicant has asserted that the dismissal was unfair, and she has sought monetary compensation as remedy for her complaint.

THE EVIDENCE 10 There was a broadly consistent chronology of relevant events established by the evidence in this matter. The four separate incidents that underpinned the dismissal were subject to some contest in respect to particular points of detail. However in all but one particular aspect of the fourth incident, the evidence about the general circumstances of the various incidents was by and large, unchallenged. 11 A matter of most significant contest arose from that element of the fourth incident involving the allegation that the applicant had permitted her partner to attend at the unit whilst she was working and providing care for the client that had been assigned to that unit at that time. The settlement of the contest regarding the attendance by the applicant's partner at the unit as was alleged by the client, and which precipitated the dismissal, was a matter that will be the subject of further, more detailed consideration later in this Decision. 12 The applicant and her partner, Mr Ryan, were the only witnesses called in support of the claim. The applicant and Mr Ryan bluntly rejected the allegation that Mr Ryan attended at the unit as was alleged by the client. 13 There were a total of four witnesses called to provide evidence on behalf of the employer. The substantial evidentiary material for the employer was provided by the Operations Manager, Ms Warren. It appeared that the decision to dismiss the applicant was in large part taken by Ms Warren. Ms Warren provided evidence which established that she accepted the allegations made by the client against the applicant regarding the alleged attendance at the unit by Mr Ryan during September of 2004. The allegations which were ultimately accepted by Ms Warren, were raised by way of letter from another Youth Worker, (Tracey Simpson). Ms Simpson had essentially documented the allegations raised verbally by the client. Neither Tracey Simpson, nor the client were called to provide evidence.

THE CASE FOR THE APPLICANT 14 Mr I Latham, barrister, appeared for the applicant at Hearing. Mr Latham filed written submissions on behalf of the applicant on 22 March 2005. 15 The written submissions filed by Mr Latham urged the Commission to find that the dismissal of the applicant was harsh, unreasonable and unjust. Mr Latham submitted that the dismissal was unfair because of questions of procedure, merit and penalty. 16 In respect to the procedural questions Mr Latham submitted that although this case could not be said to have involved the worst denials of procedural fairness, nevertheless, the denials were still substantial and represented a fatally flawed process. The written submissions filed by Mr Latham then detailed the various aspects of what was asserted to be the procedural errors. 17 Mr Latham submitted that the applicant was never informed of the substance of the allegations made against her. Specifically the applicant was only told that a male person was alleged to have attended the unit, and this lack of precision led to some confusion regarding an incident that the applicant admitted in respect of her neighbour, (a male) attending to the extent of removing an envelope from the letterbox at the unit, as opposed to the allegation that her partner attended the unit including having a meal inside the dwelling. Consequently according to the submissions made by Mr Latham, the vagueness of the allegations represented a important procedural error. 18 Mr Latham made further criticism of the failure of the employer to attempt to inquire of the applicant's partner as to his alleged participation in the incident. Further it was submitted that the applicant was not offered the right to have a support person in attendance during the meeting held on 29 September 2004, at which time the allegations were put to the applicant.

19 Mr Latham also criticised the alleged inadequacy of the investigation process that was adopted by the employer. Mr Latham said that the client, a child, was known to have previously made false allegations and told lies concerning her carers. The credibility of the client as the accuser was never properly considered by the employer according to Mr Latham. Further criticism of the employer's procedure was made in respect to the decision to advise the applicant of her dismissal by telephone. Mr Latham described this aspect of the process as appalling. Mr Latham said that there was no reason for the employer to summarily dismiss the applicant over the telephone. 20 The written submissions made by Mr Latham then examined the four incidents that were relied upon by the employer as the substantive basis for dismissal. In respect of the first incident regarding the applicant working a shift for which she was not rostered, Mr Latham said that the actual performance or conduct complaint made against the applicant was difficult to comprehend. Mr Latham submitted that the ambiguity regarding the shift confusion in September of 2003, which represented the first incident, was an allegation that in no way should be used as justification for the decision to dismiss. 21 The second incident happened on 30 December 2003, and its occurrence was not challenged by the applicant. Mr Latham submitted that the applicant had not denied that she had left the workplace without making comprehensive arrangements for the shift to be covered by another Youth Worker. Mr Latham submitted that the applicant did not deny that her actions in respect of the second incident represented a breach of the employer's policy. However Mr Latham submitted that the applicant had a significant family crisis that she needed to attend to, and that she had contacted another Youth Worker and attempted to have that Youth Worker commence the next shift earlier so as to avoid the prospect that there would not be a Youth Worker at the unit at the relevant time. 22 Mr Latham submitted that the employer had not properly considered the personal circumstances of the applicant at the time of the second incident. Further, Mr Latham submitted that the delay that was involved in the issuing of the warning in May of 2004, for the event that occurred in December of 2003, signified that the employer did not treat this matter as being of any great significance. 23 Mr Latham submitted that the third incident involving the applicant allegedly permitting a client to play with a toy sword, contrary to an established care program for that particular client, was an innocent and inconsequential error of judgement. 24 The fourth incident involved the allegations of the applicant permitting unauthorised persons to attend the unit whilst she was working. This incident actually introduced two separate events which according to Mr Latham, could not be made out. Mr Latham submitted that the aspect of the fourth incident involving the allegation that the applicant had permitted her partner to enter the unit and eat a meal at the premises, could simply not be established. 25 In conclusion Mr Latham submitted that the penalty of summary dismissal was inappropriately harsh given a detailed analysis of the four incidents that were said to provide substantive basis for the dismissal. 26 Mr Latham urged the Commission to find that the applicant had been unfairly dismissed and to Order compensation accordingly.

THE CASE FOR THE EMPLOYER 27 Mr A Katic, from Employers First, represented the employer. Mr Katic filed the employer's written submissions on 18 March 2005. 28 Mr Katic submitted that the applicant's employment was terminated because of the four identified incidents that occurred between 21 September 2003, to 29 September 2004. Mr Katic said that these work incidents comprised significant breaches of the employer's policies and procedures and therefore involved conduct inconsistent with the applicant's obligations under her contract of employment. 29 The submissions made by Mr Katic stressed that the employer relied not on the occurrence of one individual incident, but in respect to the combination of all four events. Mr Katic summarised the four specific events and submitted that when considering the applicant's dismissal in the context of a combination of all four events, it should be found that the applicant had been provided with a "fair go". 30 Mr Katic further submitted that the evidence had shown that the most basic requirements of substantive and procedural fairness had been met when the employer dealt with each of the four incidents that had been identified. In particular Mr Katic stressed that the applicant had been provided with written warnings, and that the applicant had signed acknowledgement of written warnings in respect of incidents numbered two and three. Therefore according to the submissions made by Mr Katic, the Commission should be satisfied that the applicant had been given clear warning about the employer's concerns regarding unsatisfactory work performance and or conduct issues.

31 Mr Katic made further submissions which addressed the issue of the applicant being advised of her dismissal by way of telephone. Mr Katic acknowledged that there had been a number of recent Decisions of the Commission which decided that dismissal by way of telephone would generally amount to conduct by the employer that could be considered to be harsh. However according to the submissions of Mr Katic, the particular circumstances in this case could be distinguished from the factual position in other instances involving advice of dismissal over the telephone. 32 Mr Katic submitted that in this instance the employee had been given an opportunity to respond to the allegations raised against her, and that following that opportunity the employer had subsequently decided that it would implement the dismissal of the applicant. Therefore according to Mr Katic, the decision to advise the applicant of her dismissal over the telephone should be viewed in the light of the entire procedure that the employer had adopted at the time. Mr Katic said that it would be wrong for the Commission to view the telephone advice of dismissal in isolation and without consideration of the events of the entire day including the employer's consideration of the past work performance and conduct issues as represented by the composite picture of the four incidents. 33 Mr Katic made further submissions which relied upon the particular nature of the industry in which the applicant was engaged. In this respect Mr Katic submitted that the standards that might be required of carers for young, vulnerable members of the community had to be very high. The applicant was involved in the care of children often with intellectual, physical or emotional disabilities, and the employer was entitled to require particularly high standards of work performance and conduct. 34 Mr Katic summarised his submissions by stating that the applicant had been provided with sufficient means and opportunity to mount a defence against the allegations concerning the fourth incident and was therefore not denied any procedural fairness. According to Mr Katic, that incident, when combined with the other three work performance and conduct incidents, represented proper, substantive basis for dismissal. 35 Mr Katic made further submissions that involved contemplation of the quantum of any Order for compensation that might be made if the applicant was successful. In this respect Mr Katic noted that the applicant had found alternative employment, albeit at a lower rate of pay, some two months after her dismissal. 36 Finally Mr Katic returned to his primary submissions and urged the Commission to find that the aggregate of all the work incidents represented proper substantive basis for dismissal, and that there was no significant procedural defect evident in the employer's conduct. Therefore according to Mr Katic the dismissal of the applicant was not harsh, unreasonable or unjust and consequently the application should be dismissed.

CONSIDERATION 37 This was a case of summary dismissal arising from a combination of four separate work incidents. Importantly the letter of dismissal advised that the various work incidents constitute "... actions taken [to] have been inconsistent with the company's expectations." Further the employer described the basis for dismissal as involving conduct that "... breached your contract by failing to perform the company's expectation in your job role." 38 Consequently the employer based the applicant's summary dismissal on conduct which it did not find or describe to be gross and wilful misconduct, but rather a failure to perform to the employer's expectations. It is unusual to contemplate summary dismissal in circumstances where the employer has not established, to the requisite standard of proof, gross and wilful misconduct that could properly justify summary dismissal. 39 It would seem that any employer should be very cautious about invoking a summary dismissal as opposed to dismissal with the required notice. In this regard it is relevant to repeat the often quoted extract from the Decision of Mr Justice Hungerford in the case of Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v. Gartrell White (No 3), (Gartrell White): "The right of an employer to summarily dismiss an employee without notice is qualified by the employee inter alia having committed an act of misconduct; thus, to be able to rely upon the right, and to pay the employee up to the time of dismissal only rather than terminate by notice or payment in lieu of notice, the employer must not only allege misconduct but must also prove it." Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) , Industrial Commission of NSW, Hungerford J, 35IR 70 @ 84. 40 The following further extract from the Gartrell White Judgement is also relevant: " Summarising the law, then, as I see it according to the authorities, conduct justifying summary dismissal arises where the employee concerned has wilfully failed to obey the lawful and reasonable orders of the employer in such a way as to amount to an intention by the employee no longer to be bound by an essential condition of the contract of employment; in assessing an employees intent, consideration needs to be given to whether he is acting reasonably, that is, with full knowledge of all the circumstances and in an honest and respectful way." Ibid @ page 78. 41 It would seem therefore that, prima facie, the absence of any findings of misconduct in respect to any of the four identified work incidents or combination of those incidents, would operate so as to deny the employer any legitimate capacity to dismiss the applicant summarily. 42 The prospect existed for a combination of poor work performance and conduct issues as could be broadly reflected in the four incidents identified in this case, to establish justifiable basis for dismissal with notice, but not summary dismissal. The summary dismissal of the applicant was not available without the employer making findings of gross and wilful misconduct. 43 The absence of proper substantive basis to justify summary dismissal was further compounded by the erroneous procedure that the employer adopted, particularly including the inherently undignified communication of the dismissal by way of telephone. The applicant was told of her dismissal by telephone for no other reason than it suited the convenience of the employer. 44 Further, the applicant was ambushed by the allegations concerning the fourth incident when she was summonsed to attend a meeting during which the allegations were put to her for the first time. In addition, the applicant was not provided with an opportunity to have a support person present at the meeting held to consider the serious allegations which would have the likely potential to precipitate dismissal.

45 Consequently, in addition to the absence of any finding of misconduct to justify summary dismissal, the procedure adopted in respect to the applicant's dismissal involved important defects that amounted to a denial of natural justice. 46 Further, when one considers the four work incidents that were relied upon by the employer, these events either individually or collectively could not provide substantive basis for dismissal, even if that be dismissal with notice for unsatisfactory work performance, as opposed to summary dismissal.

47 The first incident involved, at best, some confusion regarding rostering arrangements, such that the applicant attend for work at a time for which she was not rostered. Apparently the applicant insisted upon working and this meant that another Youth Worker was unable to work what may have been a correctly rostered arrangement. 48 This "mix up" in rostering arrangement was described by the employer to have represented the applicant's unauthorised change to the roster arrangement. It is difficult to contemplate how the employer might consider that the applicant was solely responsible for this particular incident, and that such an incident might constitute either poor work performance or misconduct. Therefore the employer was unable to rely upon the first incident as representing conduct or performance that could be introduced one year later as support for dismissal. 49 The second incident occurred on 30 December 2003, and involved clear (and admitted), misconduct on the part of the applicant. On this occasion the applicant was in attendance at a unit whilst the client was elsewhere. The requirement for the applicant to remain at the Unit involved the prospect that the client could return at any time and then the Youth Worker would be required to take over direct care of the client. The applicant absented herself from the unit without properly advising the employer or making arrangements to have another Youth Worker attend at the unit to cover the applicant's absence. 50 The personal crisis that represented the basis for the applicant's absence from the unit on 30 December 2003, provided understandable reason for her desire to leave the premises. However the applicant's attempt to have another Youth Worker commence the subsequent shift earlier so as to cover the applicant's absence, was not an appropriate means to advise the employer of the circumstances that necessitated the applicant's absence. 51 Having regard for the totality of the circumstances faced by the applicant on 30 December 2003, it would seem that to some extent, the applicant may have panicked and failed to properly advise her Team Leader of her legitimate need to leave the workplace early. This was a matter about which the employer could justifiably record some written warning in respect to the failure of the applicant to properly advise the employer of her absence from the workplace. 52 However the seriousness with which the employer treated this particular event was cast into considerable doubt because the broad circumstances of the event were known to the employer on the day, 30 December 2003, and yet the issue was not subject to formal warning until a letter was issued on 24 May 2004. The employer could not provide reasonable explanation for the inordinate delay in dealing with this particular incident which involved clear misconduct of the applicant. It was reasonable for the applicant to have inferred that the seriousness of this particular "crime" was not a matter of high priority for the employer.

53 The second incident therefore represented an issue that could be properly relied upon as a recorded deficiency in the applicant's employment record and as such, it was a matter that could be introduced into the consideration regarding the decision to dismiss. However the extensive delay with dealing with this particular event must operate to reduce the weight that the employer could subsequently attach to the issue in the formulation of the decision to dismiss. 54 The third incident occurred on or about 31 May 2004, and involved the applicant permitting a client (a child), to play with a toy sword in an inappropriate manner. The circumstances surrounding this event were broadly documented by various complaints made by teaching staff at the school that the client attended at the time. The applicant was issued with a written warning regarding her conduct on this occasion. However this particular event represented an issue of professional misjudgement, as opposed to any deliberate misconduct on the part of the applicant. 55 The third incident involving the client playing with the toy sword, was another issue that the employer could legitimately record and register as dissatisfaction with the performance of the applicant. However the issue is one of professional misjudgement, as opposed to misconduct, and although it is a matter that can be properly introduced into the employment record of the applicant when considering dismissal, it should not be translated into a factor upon which any decision to dismiss might rely heavily upon. In many respects this particular event should have been considered as a minor error of judgement and described more as an issue requiring professional development rather than reprimand.

56 The fourth and final incident involved allegations that the applicant had permitted an unauthorised person (or persons), on to the unit premises in about September 2004. These allegations were raised by the client that was residing in the unit at the time. The allegations were raised with another Youth Worker who documented the client's allegations. It was undisputed that if these allegations be proven, the conduct would represent substantial misconduct. It was readily apparent to both the applicant and the employer that for obvious reasons it would be highly inappropriate for a Youth Worker to have someone such as a companion or partner present in the unit and in close contact with the client without first there being formal approval obtained for the presence of such a person.

57 Consequently the nature of the allegations regarding incident number four strongly suggested that if the claims of the client be proven, the direct consequence would be dismissal arising from established gross and wilful misconduct. As mentioned earlier in this Decision, the applicant was summarily dismissed, but the employer did not record any findings of proven misconduct which could justify the summary dismissal. The erroneous procedure that the employer adopted for the investigation of the allegations led it into manifest error regarding an absence of any conclusive findings, one way or the other, about the primary allegations made against the applicant by the client. 58 Instead of properly formalising the complaint and advising the applicant of the matter so that the applicant could properly prepare a reply, the employer called the applicant into a meeting without first advising of the allegations. The employer then simply put the broad propositions to the applicant that involved her having a male person attend the unit.

59 The applicant denied that she had permitted any unauthorised person to enter the unit premises. However in response to the broad accusations that were put to her during the course of the meeting, she did mention that she had made some arrangements for her neighbour to collect an envelope containing money, from the letterbox located at the front gate of the unit premises. The admission by the applicant that the neighbour had attended at the letterbox of the unit then appeared to translate in the employer's mind at least, to conclusions that the allegations of the client were correct. However the employer never committed to writing any conclusion that the allegations of the client had been substantiated to their satisfaction.

60 It appeared that the employer either consciously or unintentionally, decided to avoid any further difficult contemplation and or subsequent investigation of the complaint as made by the client. For example there was no further pursuit of the applicant's partner, nor was there was any endeavour to properly interview the client so as to obtain first hand, face to face, explanation as to the allegations that had been made to another Youth Worker. The employer seemed to be satisfied that the applicant's admission about the neighbour attending to the letterbox represented sufficient basis upon which to proceed to dismiss. 61 The evidence provided by the employer's Operations Manager, Ms Warren, demonstrated that there became a blurring of the allegations made by the client and the admission of the applicant regarding the neighbour attending at the letterbox. An examination of various passages of the evidence provided by Ms Warren, discloses that there were no conclusive findings made in respect of the allegations made against the applicant by the client and instead, some alternative reliance placed upon the admission regarding the neighbour coming to the letterbox. 62 The difficulty of the employer's position in this regard led to the nonsensical suggestion that the unauthorised attendance at the premises involved the conduct of the neighbour collecting an envelope from the letterbox. The following extracts from transcript involving the cross examination of Ms Warren reveal the untenable and unsustainable position of the employer: "Q. Okay. And that was actually part of the allegation that was finally upheld against her, wasn't it, that this other person had actually entered the premises? A. Yes, upon finding out from that meeting information to see what happened on that day, then we found out and Cathy had admitted that an unauthorised person had attended the unit. Q. Yes. But isn't this the case, she never actually said that he had entered the premises at all, had she? A. No, I think she said he placed - he'd come to the gate or something and gotten money out of the letterbox. Q. Well, I think you might have heard that later. A. Yes. Q. Yes. Well, let's just go to that point. You're aware of these premises presumably, are you? A. Yes. Q. Where's the letterbox? A. At the front of the gate. Q. At the front of the gate. So you could in fact put something in the letterbox without ever entering the premises at all, couldn't you? A. Yes, indirectly you can. Q. Well, indirectly or directly? A. Well, if you're going to take something out of the letterbox, you do have to step onto the premises to take it out. Q. Well, aren't they - - A. Unless you lean right over the gate. Q. Unless you lean right over the gate. Did you ever think of asking Ms Ziedin whether this person had actually entered the premises? A. No, I think touching anything on the premises is still part of the premises, isn't it?" Transcript of proceedings , (10/03/05) @ page 55 63 The imprecision with which the employer attempted to deal with the two separate aspects of incident four meant that ultimately no clear conclusions could be drawn. Therefore the employer attempted to rely upon the admission of the applicant regarding the neighbour attending to the letterbox. The action of having the neighbour collect money in an envelope from the letterbox was translated into an admission of having an unauthorised person attend the unit. 64 As was subsequently identified by further cross-examination of Ms Warren, there was no practical difference between having the neighbour attend to collect money from the letterbox and having any person, be it neighbour or someone else, arrive in a car to collect a Youth Worker after the completion of their shift at the unit. It was plainly nonsense to suggest that there could be any correlation between having the neighbour collect something from the letterbox and the allegation of having a male person inside the unit, having an evening meal and presumably in close direct contact with the client. 65 Consequently the employer failed to establish any proper findings regarding the allegations that were made against the applicant and instead translated collection of an envelope from the letterbox as representing unauthorised attendance at the unit. The attendance of the neighbour at the letterbox was erroneously elevated to a concern consistent with the serious allegations made by the client. The employer's equivocation regarding the allegations, and the exaggeration or extrapolation of the applicant's admission was well summarised by the following paragraph contained in the letter of dismissal: "The most recent meeting received of late was in regards to you admitting to having an unauthorised person attend at the St Marys house on 14th September 2004. This was carried out without following the appropriate channels for approval. The company also has further concern of a male attending the same unit for dinner on 19 September 2004." 66 Ultimately, because of the employer's absence of any findings in respect to the serious allegations made by the client, there was no substantive basis upon which the more serious aspect of incident four could represent some component in a justifiable decision to dismiss. In respect to the less serious aspect of incident four involving the applicant's admission that the neighbour collected an envelope from the letterbox, there was no practical difference between that action and the understood arrangements whereby various persons would arrive in the street outside the unit to drop off and collect Youth Workers. Therefore the second less serious component of incident four could not represent misconduct on the part of the applicant and could not properly contribute to a foundation for dismissal. 67 It is appropriate, indeed essential, that there be very high employment standards that apply in an industry involving care of young, vulnerable members of the community. These high standard apply equally to employees and employers. If employment related investigation procedures of employers are significantly flawed so as to deny natural justice, then not only might the innocent be wrongly convicted but, more alarmingly, there is every likelihood that the guilty may go unnoticed.

CONCLUSIONS 68 In this case the applicant was summarily dismissed without any findings of misconduct that could justify such dismissal. The absence of any proper findings of misconduct sufficient to warrant summary dismissal, must render the dismissal to be harsh, unreasonable and unjust. 69 In addition, the procedures that the employer adopted in its investigation of the serious allegations made against the applicant were fundamentally flawed. The prospect that an employee could be summonsed to attend a meeting to discuss serious allegations which might likely lead to dismissal without first being properly advised of the allegations, was nothing more than an ambush. The subsequent advice of dismissal by way of telephone is further reflection of the inadequate application of processes that might provide some suggestion of natural justice and basic human dignity. 70 Further, upon careful analysis of the various incidents which were relied upon to form a "composite" basis for dismissal, these events when properly considered, do not establish a substantive basis to justify dismissal with notice, let alone summary dismissal. 71 Consequently the dismissal of the applicant was harsh, unreasonable and unjust. 72 The applicant has not sought reinstatement or re-employment but instead monetary compensation. The applicant obtained alternative employment approximately two months after dismissal at a significantly reduced rate of remuneration. The Commission forms the view that reinstatement or re-employment of the applicant would be impracticable. 73 The Commission is prepared to provide for monetary compensation as appropriate Relief for the applicant's unfair dismissal. The amount of compensation has been determined having regard for the applicant's attempts to find alternative employment and the remuneration received in alternative employment. The amount of compensation Ordered equates with approximately sixteen weeks of the applicant's pre-dismissal remuneration.

In this matter, for the reasons outlined herein, I have determined that the dismissal of the applicant was harsh, unreasonable and unjust and I hereby make the following Orders:

The Commission Orders that the employer pay to the applicant an amount of compensation of $15,200.00. This amount is a gross figure and appropriate taxation treatment is a matter for the Parties. 2. The amount of compensation specified in Order 1 above is to be paid by the employer to the applicant within twenty eight days from the date of this Decision. oooOOOooo

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

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Before

Catchwords

Source

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Judgment (27 paragraphs)

Parties

Cases Cited (2)