| Summary |
UNJUSTIFIED DISMISSAL – Applicant claimed predetermined summary dismissal following flawed and unfair investigation into performance – Also claimed unlawful suspension, harassment and breaches of good faith – Respondent provided residential care support services for people with intellectual difficulties – Applicant employed as main caregiver for four residents – Employment problems arose from applicants care of two residents (“J” and “S”) – Respondent received complaint from parents of J – Applicant called into meeting with respondent without being shown letter of complaint – Letter stated J’s parents believed applicant responsible for negative change in J’s behaviour – Intervention following complaint not disciplinary in nature – Further meeting, followed by letter that J’s family believed applicant catalyst for J breakdown – Letter accepted applicant had not acted with malicious intent and reiterated respondent’s belief that applicant’s inexperience reason for behaviour – Second complaint received by respondent from parents of S – Complaint noted disturbing changes in S’s behaviour in 12 months since applicant caregiver of S – S’s parents believed detrimental for S to maintain contact with applicant – Following receipt of letter respondent requested urgent meeting with applicant to discuss “matters of concern” – Applicant not advised what meeting would be about or shown letter of complaint – Applicant told at meeting “matters of concern” were complaints from families of J and S – Applicant told there would be an investigation and would be suspended on full pay – No input sought from applicant regarding views on suspension as required by clause in employment agreement (“EA”) – Respondent confirmed suspension and advised applicant that had no other option but to suspend as families requested applicant avoid contact with J and S – Subsequently, applicant told employment in jeopardy and asked to attend another meeting – Applicant presented with statement advising that respondent had lost trust and confidence in applicant’s ability to carry out responsibilities – Further meeting held where applicant’s advocate proposed ways to address parent’s concerns, suggesting no misconduct but rather performance issues – Authority satisfied respondent undertook to consider proposals made – Amended statement of problem alleged that during telephone conversation with advocate informed decision to dismiss already made – Respondent denied predetermined dismissal prior to outcome of investigation meeting – Authority satisfied applicant’s advocate told decision to dismiss made – Respondent began disciplinary meeting as if no decision had been made to dismiss – Applicant told respondent that attended on understanding would be dismissed – Meeting adjourned after which applicant summarily dismissed – Following dismissal respondent threatened trespass order would be sought if contact made with residents – Authority found no justification for decision that applicant posed threat or nuisance that required control by trespass order – Strong feature of case that management made decisions to give effect to wishes of parents without sufficient regard to obligations owed as employer – No excuse for breaching contract to say parties (S,J and parents) with whom respondent had separate relationship deserved to be treated as having greater or better rights – Authority concluded from evidence that respondent abdicated responsibilities as employer in favour of parents, allowing them in effect to become the “experts” as to the handling of the employment relationship – Nothing in EA made applicants position directly accountable to the parents – Authority did not accept that close interaction between applicant and residents must have been wrong or bad to have caused deterioration in J’s behaviour – Respondent not able to escape employer obligations by effectively passing decision making about employment matters over to parents – Respondent’s responsibilities to employee meant that on occasions had to stand up for rights of employee against wishes of parents in relation to performance of EA – Disturbing feature of case that in most respects J,S and applicant only witnesses of care complained about – Respondent never sought approval of parents to interview J and S – Investigation incomplete at time respondent decided to dismiss – Authority found respondent approached investigation with closed mind as sole objective was appeasement of parents – Summary dismissal an unreasonable action out of proportion to complaint – BREACH OF CONTRACT – Respondent’s actions unlawful by not seeking input from applicant prior to suspension and therefore failed to comply with EA – GOOD FAITH – Unilateral withdrawal from arranged mediation breach of good faith – Also breach by pretending decision had not been made to dismiss applicant – Breaches flowed from respondent closing mind to question whether dismissal or other disciplinary action justified, therefore, breaches to be taken into account in assessing remedies – Remedies – No contributory conduct – Applicant entitled to compensation for harassment caused by threats of legal action post dismissal – Applicant suffered serious humiliation, hurt feelings, distress and anguish – Compensation $16,000 – Reimbursement of lost wages $9,037 – Penalty awarded of $3,500 for breach of EA – Community Support Worker (Team leader) |