By Dr Laura Sowden, Partner, Anna Ly, Associate & Annabel Cheung, Lawyer

On 30 March 2023, Deputy President Hampton ordered that former aged care employee Samantha-Jane Jacobs’ (the employee) application for an unfair dismissal remedy made under s 394 of the Fair Work Act 2009 (the FW Act), be dismissed. The case demonstrates:

• employers can hold firm where there is employee dishonesty;
• witness performance at hearing is key in cases with a factual dispute.

What happened?

On 15 September 2022 the employee made an unfair dismissal application to the Fair Work Commission (FWC), pursuant to s 394 of the FW Act. The employee sought compensation.

The employee alleged she was unfairly dismissed from her employment with Moonta Health Aged Care Services T/A Parkview Aged Care (the employer). The employer is a privately run not for profit charitable facility providing aged care accommodation and respite care in Moonta, South Australia.

The employee was employed as a Personal Care Assistant in January 2021 and remained in the role until 25 August 2022 when she was dismissed from employment.

On 4 August 2023, an elderly resident was found on the floor, cold having fallen out of bed several hours earlier. The employee had completed records saying she had checked the resident each hour during her shift.

On 3 and 4 August 2022 the employer alleged the employee engaged in:

1. Professional misconduct: by documenting safety checks without actually checking on patients;
2. Neglect resulting from failure to provide duty care to residents, of which an elderly resident suffered hypothermia and died from being unmonitored for a prolonged period. Namely pressure care and safety checks; and
3. Breach of infection control. Namely not wearing Personal Protective Equipment (PPE) during a Covid-19 outbreak.

The allegations were put to the employee prior to dismissal and largely admitted by her. In the FWC the employee largely denied the serious and wilful misconduct alleged by the employer.

What did the FWC say about witness evidence

Deputy President Hampton observed the employee,

 “Ms Jacobs was often unable to respond to allegations against her without being offended and tended to be argumentative and defensive. Of more significance, Ms Jacob’s also changed the factual basis of her case at times, particularly in response to allegations and factual propositions put to her on behalf of the Respondent.”[1]

This led Deputy President Hampton to treat the employee’s evidence with caution.

Deputy President Hampton found the evidence of the employer’s witnesses, Ms Clare and Ms Tiver reliable and preferred their evidence over the employee.

What did the FWC say about the alleged conduct

PPE

Deputy President Hampton did accept as a general statement full PPE was to be worn at the time of the incident. However, Deputy President Hampton could not be satisfied there was a deliberate and substantial breach of the PPE requirements by the employee. This was because detailed requirements were not set out in emails.

Safety checks

It was relevant that the employee admitted that she did not enter a resident’s room and see a resident when she performed a safety check, rather she listened at their closed door. The employer denied this was accepted practice and maintained that a physical observation was required.

Deputy President Hampton accepted employees at the employer were required to record the safety checks for their own work reasonably proximate to when they were undertaken. He further noted this record keeping is vitally important for the administration of care to residents, saying

“It is clear to me that Ms Jacobs would need to have been sure that the work had actually been undertaken before recording the resident safety checks”.[2]

It was found the employee did not perform the safety checks as required, and for long periods did not undertake any form of check on most of the residents in her care, despite having recorded these as being performed.

The alleged neglect

Deputy President Hampton found it was not clear the employee was solely responsible for the care of the Resident at the critical times, noting the employee may have been in a different ward when the Resident fell. Deputy President Hampton found this was not an excuse for the misconduct – accepting this conduct may have contributed to serious risk to the health and safety of the residents.

Was the dismissal unfair?

Deputy President Hampton held there was a valid reason for dismissal on the basis:

1. Hourly safety checks were required, and the employee knew of this requirement. The safety check entries made by the employee without her, or probably to her direct knowledge were not performed as required.
2. The employee should have been aware all residents in the high care unit required hourly safety checks. The failure to perform the relevant safety checks constituted misconduct.
3. There was no reliable bases advanced for the employee’s contention the actual reason for dismissal was due to, or influenced by, any discriminatory ground.

Deputy President Hampton held there was procedural fairness because:

1. The employee was notified of the serious misconduct amounting to her dismissal as early as 4 August 2022, again in writing on 16 August 2022 and during a meeting on 25 August 2022.
2. The employee was given an opportunity to respond to the allegations of serious misconduct.
3. The employee was able to bring a support person in a meeting on 25 August 2022 prior to any decision relating to dismissal being made.

Deputy President Hampton considered,

“the fact that the conduct took place in the context of an aged care facility and the associated need for compliance with care requirements and record keeping are factors compounding the seriousness of the conduct in this case.”[3]

What to take away?

The misconduct of the employee was significantly serious and when all the relevant factors were weighed against each other and taken into account, the dismissal was warranted and not harsh, unjust or unreasonable within the meaning of the FW Act. Thus, the employee’s unfair dismissal application was dismissed.

The case demonstrates:

• employers particularly in high-risk settings can hold firm where there is employee dishonesty and important record keeping;
• documentary evidence of policies and procedures being provided to staff and being clear on what is required is vital;
• witness performance at hearing is key in cases with a factual dispute.

[1] [2023] FWC 330 [25].

[2] [2023] FWC 330 [90].

[3] [2023] FWC 330 [145].