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The Australian Workers' Union of Employees, Queensland v State of Queensland (Department of Communities, Disability Services and Seniors)
 QIRC 48
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
The Australian Workers' Union of Employees, Queensland v State of Queensland (Department of Communities, Disability Services and Seniors)(Disability Accommodation and Respite and Forensic Disability Service)  QIRC 048
The Australian Workers' Union of Employees, Queensland (on behalf of Alana Hickey)
State of Queensland (Department of Communities, Disability Services and Seniors)(Disability Accommodation and Respite and Forensic Disability Service) (Respondent)
Application for reinstatement
30 March 2020
14 & 15 October 2019
Applicant submissions 21 November 2019
Respondent submissions 23 December 2019
Applicant further submissions 15 January 2020
The application is dismissed
INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - UNFAIR DISMISSAL - Applicant employed as a Residential Care Officer - three allegations of misconduct - investigation and subsequent discipline process - dismissal - whether misconduct allegations proven - whether dismissal harsh, unjust or unreasonable.
Industrial Relations Act 2016 (Qld), s 316, s 317, s 320
Public Service 2008 (Qld), s 187
Adami v Maison de Luxe Ltd (1924) 35 CLR 143
Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410
Gold Coast District Health Service v Walker (2001) 168 QGIG 258
Laegal v Scenic Rim Regional Council  QIRC 136
Selvachandran v Perteron Plastics Pty Ltd (1995) 62 IR 371
Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914
Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter  FWCFB 1949
Mr A Santelises for the Applicant
Ms C Laird for the Respondent
- Ms Hickey is an experienced Residential Care Officer who worked for the Department of Communities, Disability Services and Seniors (Disability Accommodation and Respite and Forensic Disability Service) from 11 July 2002 to 27 August 2018, when her employment was terminated on the basis of a disciplinary finding that she had contravened s 187(1)(a) of the Public Service Act 2008 ("the PS Act") in that she had performed her duties carelessly, incompetently or inefficiently.
- At the time of her dismissal Ms Hickey was responsible for the care of two elderly men ("Mr P and Mr H/Service Users") with significant support needs.
- The allegations against Ms Hickey, which following the show cause process were found to be substantiated are:
Allegation 1 - It is alleged that on 1 April 2017, you failed to provide appropriate supervision and/or support to service users Mr P and Mr H, thereby constituting a breach of your duty of care
Allegation 2 - It is alleged that on 2 April 2017, you failed to provide appropriate supervision and support to service users Mr P and Mr H, thereby constituting a breach of your duty of care; and
Allegation 3 - It is alleged that on 10 April 2017, you failed to provide appropriate support to service user Mr P, resulting in him sustaining serious injuries and/or you failed to appropriately respond to his injuries, thereby constituting a breach of your duty of care.
- The Australian Workers' Union, Union of Employees ("the AWU") lodged an application for reinstatement and/or compensation under s 317 of the Industrial Relations Act 2016 ("the IR Act") challenging the decision to terminate Ms Hickey's employment saying that the termination is unfair, that is it is harsh, unjust or unreasonable.
- The onus is on the Applicant to demonstrate that the termination (for disciplinary reasons) was harsh, unjust or unreasonable.
The legislative scheme
- Section 320 of the IR Act sets out the matters to be considered by the Commission in hearing an application under s 317.
320 Matters to be considered in deciding an application
In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider –
- (a)whether the employee was notified of the reason for dismissal; and
- (b)whether the dismissal related to –
- (i)the operational requirements of the employer's undertaking, establishment or service; or
- (ii)the employee's conduct, capacity or performance; and
- (c)if the dismissal relates to the employee's conduct, capacity or performance –
- (i)whether the employee had been warned about the conduct, capacity or performance; or
- (ii)whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
- (d)any other matters the commission considers relevant.
- The words harsh, unjust or unreasonable are to be given their plain and ordinary meaning.
The Applicant's Case
- The AWU called one witness, Ms Hickey.
- The AWU's case in summary is as follows:
- The evidence provided does not show on the balance of probabilities that Ms Hickey behaved themselves like the conduct alleged;
- The decision to dismiss Ms Hickey is disproportionate to the conduct alleged; and
- When considering the Allegations regarding Ms Hickey, it should have been reviewed by taking into account all elements involved within the events put to Ms Hickey.
The Department's Case
- The Department called four witnesses:
Mr Matthew Lupi
Mr Paul Jones
Mr Gregory Mills
Ms Janet McNamara
- The Department's case in summary is as follows:
- The only reasonable disciplinary action in the circumstances of the conduct across the three events that are subject of the allegations was the termination of Ms Hickey's employment.
- The Department has a responsibility to vulnerable service users and retaining Ms Hickey's employment is inconsistent with that responsibility.
- Ms Hickey was given due process. There was a full investigation into the allegations, Ms Hickey was given the opportunity to challenge the findings in the report. Her response did not provide new information or evidence and the findings in the report were not altered.
- Ms Hickey was given the opportunity to provide a response to the proposed penalty of termination of employment and did so with the assistance of her union, the AWU.
- Mr Lupi, the decision maker, considered all of the information provided in the investigation. He believed there was no viable option other than the termination of employment.
- Ms Hickey's version of events in all three allegations differs from the other witnesses. Her only explanation for this is that they were mistaken.
Reasons for decision
Matters to be considered in deciding an application for reinstatement
Informed of reason for dismissal: Section 320a
- There is no dispute between the parties that Ms Hickey was informed of the reason for her dismissal. I note that the termination letter under the hand of Matthew Lupi, Senior Executive Director dated 27 August 2018 provides the reason for termination. Therefore, s 320(a) of the IR Act has been satisfied.
- The dismissal does not relate to the operational requirements of the employer and therefore s 320(b)(i) is not relevant.
Employee's conduct, capacity and performance
- With regard to s 320(b)(ii) of the IR Act, the termination letter clearly states that the termination relates to the employee's conduct, capacity and performance. The evidence before the Commission demonstrates that following an investigation undertaken by the Department, a Show Cause process was commenced which gave Ms Hickey an opportunity to respond to the claims about her conduct, capacity and performance.
Was the employee warned about the conduct?
- Section 320(c)(i) of the IR Act refers to whether the employee had been warned about the conduct, capacity or performance. Ms Hickey had previously received a reprimand. While the reprimand itself is not in evidence, Ms Hickey's representative discussed it with the decision maker Mr Lupi, under cross-examination. Mr Lupi said that he understood the reprimand was in relation to a similar failure of duty of care, breaches of mealtime procedure that could have resulted in serious harm to a client, and that led the decision-maker at the time to issue a disciplinary penalty.
- Ms Hickey points out that this reprimand was the only warning from the Department for the entire duration of her employment. Further, that warning was not a 'first and final warning'.
- I consider that the reprimand and its close proximity in time to the allegations that led to the dismissal could be considered a warning with regard to Ms Hickey's conduct, capacity and performance.
Was the employee given an opportunity to respond to the claim about the conduct, capacity or performance?
- It is not in dispute that Ms Hickey had the opportunity to respond to the allegations.
Issues to be determined: Other matters to be considered by the Commission
- Section 320(d) of the IR Act refers to any other matters the Commission considers relevant.
- Ms Hickey disputes the disciplinary findings of the Department and says they did not have enough evidence before them on the balance of probabilities to justify the dismissal.
- Beyond stating that there was insufficient evidence to substantiate the allegations on the balance of probabilities, Ms Hickey lists a range of reasons that the decision to terminate her employment was harsh, unjust and unreasonable. Before turning to these, I will first deal with each of the allegations, considering the submissions of the parties and the evidence presented to the Commission.
The Disciplinary Findings
- The investigation report, including 21 attachments consisting of photographs, documents and interview transcripts was tendered by consent and referred to at various times by both the Ms Hickey and the Department.
- With regard to the allegations, there are a lack of witnesses to events as they occurred and so in the case of the investigator and decision maker it was a matter of determining which version of events had more credibility or was more likely to have occurred. In this matter, I have access to the investigation report as tendered and the benefit of witness evidence and its cross-examination. However, I find myself in the same position as the decision maker and investigator. Where there are differing versions of events from the only two people involved in particular events or incidents, I must turn my mind to the credit and consistency of witnesses and the likelihood, on the balance of probabilities, of events occurring as described.
- For the purposes of the trial, the incidents from which the allegations arose were described as:
- Battery event (1 April 2017)
- Driveway event (2 April 2017)
- Fall event (10 April 2017)
- Allegation 1: It is alleged that on 1 April 2017, you failed to provide appropriate supervision and/or support to service users Mr P and Mr H, thereby constituting a breach of your duty of care.
- Ms Hickey says that batteries were required for a remote control so that the television in the house could be operated for the entertainment/educational benefit of the service users.
- Her evidence is that she took both Mr P and Mr H down the driveway of their home at House A in their wheelchairs, secured the wheelchairs in a shaded area to the side of the road while she walked to another house at House C to borrow batteries for the remote control from Mr Greg Mills, another employee of the Respondent.
- Ms Hickey says that at all times, Mr P and Mr H were kept under supervision and were in no danger. She says that she could clearly see both men as she walked to the gate of House C.
- Her evidence is that when she arrived at House C, she rang the doorbell and Mr Mills came out and gave her the battery. She says that after receiving the battery, she immediately turned around and walked back toward the men who were completely visible to her the whole time.
- During cross-examination, Ms Hickey was asked to give specifics about what occurred. She said that both men were in their wheelchairs already and that she moved one of the men to the bottom of the driveway and then went and got the other man and moved him to the bottom of the driveway. She then moved one man up to House B and then the other up to House B.
- Ms Hickey said that although one man was at the bottom of the driveway while she went to get the other man, she had her eyes on him because there are two big windows and she could see out the windows.
- Ms Hickey stated that once she had wheeled the men to House B, she quickly walked across the road, rang the doorbell and Mr Mills came out.
- It was put to Ms Hickey that Mr Mills' evidence is that he was waiting for her outside of the roller door of the house and that Ms McNamara who was also in the house at the time saw Ms Hickey and Mr Mills through the open roller door. She stated that her recollection is that this is not what happened. She maintained that she rang the doorbell.
- With regard to whether Ms Hickey went to the front door and rang the doorbell or Mr Mills was waiting for her at the garage door, the evidence of Mr Mills is that at that time, the gate on the side of the house beside the garage door was not working and that there was bell on the front of the garage door which would have been used by anyone coming to the door.
- Mr Mills and Ms McNamara both state that Mr Mills met Ms Hickey in front of the garage door and that this was the only operable access at the time.
- Under re-examination, Ms Hickey stated that Mr Mills came out onto the driveway to give her the battery.
- The location Mr Mills was standing in at the time is relevant as it goes to his view of House A. I prefer the statements of Mr Mills and Ms McNamara regarding Mr Mills' location during these events, particularly given the specific information provided to the Commission regarding the front gate leading to the door being inoperable at the time. In any case, whether he was waiting for her or not, Ms Hickey says that when she received the battery, Mr Mills was on the driveway.
- Ms Hickey agreed that when she went to get the batteries, the distance between her and the service users was approximately 70 metres. She said that she thinks that distance is reasonable as it is similar to when she takes residents on picnics and that she could see them at all times.
- Ms Hickey further said that it was normal practice to move the service users in this way and that they remained under her supervision.
- When asked why it was that Mr Mills had not seen the men, Ms Hickey said that the way that he was standing meant that he could see her but not them. It was also put to Ms Hickey that Mr Mills had seen her walking up the road without the men and Ms Hickey said that she did not see him in the time she was walking up the road and he was not at the front of the house when she arrived.
- Ms Hickey was asked about whether she made a phone call to Mr Mills later that day. She confirmed that she did and that the reason for the phone call was to repay the money for the battery that was owed. It was put to her that she also asked Mr Mills if he thought she would be in trouble because Ms McNamara had been in the house when she came to get the battery and she asked this question as she knew that it was inappropriate to leave the men at the side of the road. Ms Hickey denied this and said that she asked the question as she had been under scrutiny for months with certain managers.
- There is disagreement around what was spoken about between Ms Hickey and Mr Mills. Ms Hickey says that Mr Mills told her that he had seen her 'looking back' or 'looking back all the time' when coming to pick up the battery. I also note that Ms Hickey says that he later said to her that he thought she had driven the vehicle to the house.
- In his statement Mr Mills says that he saw Ms Hickey walking up the road and that he also saw her at the bottom of the driveway when she was leaving. He clarified under cross-examination that the driveway he was talking about was the driveway as she was leaving after collecting the batteries.
- Under cross-examination, Mr Mills said that when he was with Ms Hickey in front of the garage, she was looking down the street because she didn't have her clients with her.
- At paragraph 10 of his affidavit, Mr Mills says "I do not recall seeing the service users at all. There is an incline that Ms Hickey needed to walk up, I do not recall if she was turning back or looking back at the house as she was walking up".
- Ms Hickey's representative says that Mr Mills' statements regarding Ms Hickey are inconsistent. In my view, both of Mr Mills statements can be believed. I accept that Ms Hickey may have been looking down the street because she didn't have her clients with her and also that Mr Mills could not recall if she was looking back as she was walking up the driveway.
- Under cross-examination, Mr Mills said that he was not concerned for Ms Hickey's clients and that if he was concerned for her clients he would've 'definitely taken action'.
- Ms Hickey submits that there is an ongoing culture or understanding that clients are and can be left on their own without supervision and that it should be recognised on practicality alone that there will be circumstances where the clients are left alone for periods of time.
- The Department submits that even on Ms Hickey's version of events that the service users were left unattended at times, either in the house or on the footpath by the road while she attended to the other service user. It would be impossible for Ms Hickey to have them in her sight, let alone be able to respond to any emerging need for that period of time.
- The Department says that leaving vulnerable service users on the side of the road, could never be considered to be leaving them in a safe place and Ms Hickey had no control over what could occur while they were left.
- Ms Hickey says that this is an extreme submission and that the clients were placed in a secured wheelchair, several metres from the side of a street which is a 'no through road' which would have minimal traffic.
- The Department submits that Ms Hickey's phone call to Mr Mills asking if he thought she would be in trouble supports that Ms Hickey was aware that her conduct with the service users was inappropriate.
- During the hearing, there was some discussion with witnesses about the necessity of the batteries and entertainment being provided in the house. I have formed a view that the crux of the battery event is the level of supervision Ms Hickey provided to the service users when going to collect the battery, not specifically the need for or urgency surrounding the battery. It is not in issue in the evidence that Ms Hickey asked for a battery or whether the battery was provided to her. For that reason, I am focusing on the matter of supervision and the sequence of events surrounding Ms Hickey's journey to and from House A and C.
- There were varying descriptions given of the time it would take to walk between the residences and these descriptions also varied in whether the journey was door to door or driveway to driveaway.
- Ms Hickey's own version of events means that the service users were at various times not in her immediate vicinity and that one man was on the street while one was in the house as she moved them down to the street and back up to the house. She was at times walking with her back to the men.
- Given the descriptions of events provided by the witnesses, I do not accept the Applicant's submission that these statements confirm that Ms Hickey had constant eye contact with the clients or that they could have been 'in her line of vision' at all times.
- I have considered the investigation report which establishes that neither Ms McNamara or Mr Mills saw or heard either of the men during Ms Hickey's visit to the house. The investigation report canvases the possibility that Ms Hickey had left both of the men in their home 'unsupervised and unsupported' rather than moving them to the street as she says she did.
- I note that the Investigation Report on page 16 states that Ms Hickey
is aware that Mr P had and Mr H has Specific Support Needs Profiles which indicate that both gentlemen require full support and no unsupervised time. Ms Hickey is also aware of Trips and Activities Information forms for the service users which reinforce that both men require full support with no unsupervised time allowed. Ms Hickey stated that she is familiar with these documents….
- I have also considered Mr Mills' evidence that he did not think either man was in any danger and Ms Hickey's comments from the investigation report asking "Why are not other people being investigated when they leave clients? Because it happens all the time".
- Ms Hickey submits that the circumstances cannot lead to a decision that on the balance of probabilities that she failed to provide appropriate supervision and/or support to service users Mr P and Mr H, thereby constituting a breach of her duty of care.
- I disagree. It is clear to me on either possible version of events regarding the battery event that it can be substantiated on the balance of probabilities Ms Hickey did not provide the level of support and supervision expected for either man in her care.
- I do not accept that 'an ongoing culture' is an adequate explanation for a situation where two vulnerable service users were left in wheelchairs on the nature strip next to the side of the road or left alone while each was wheeled up and down the driveway to that position.
- Likewise, I do not accept that the specific examples provided by Ms Hickey regarding Mr Mills leaving clients in a car with air-conditioning running in a wheelchair carpark directly in front of a chemist can be compared to the battery event or more generalised examples such stepping just outside the door to get phone reception or smoking in a designated smoking area can be compared to the battery event.
- Allegation 2: It is alleged that on 2 April 2017, you failed to provide appropriate supervision and support to service users Mr Paterson and Mr Hand, thereby constituting a breach of your duty of care.
- On 2 April, Ms McNamara visited House A where Ms Hickey was working. It is not disputed that a conversation happened between the women regarding the events of the previous day (the battery event).
- Ms McNamara's description of the events of that morning in the investigation material are that when she arrived, she heard and then saw Ms Hickey talking on her phone outside the front door of the residence and that she went back inside as Ms McNamara was getting out of her car. She said that she then walked up the driveway and about a minute later had entered the house where Ms Hickey had Mr H in the shower.
- Ms Hickey's evidence is that she was in the bathroom showering Mr H when she noticed Ms McNamara was in the house. She says that she dried Mr H and secured him in the shower chair, over the toilet and then exited the bathroom to approach Ms McNamara.
- Ms Hickey says that she spoke to Ms McNamara in the kitchen/dining area directly in front of the bathroom where she could see Mr H on the toilet and that Ms McNamara began questioning her without warning or a support person present.
- Ms Hickey says that due to persistent questioning from Ms McNamara about where the Service Users were positioned during the battery event, she offered to show her where they were while Mr H and Mr P remained inside the house. She says that Ms McNamara knew both Service Users were in the house and did not object.
- Ms Hickey says that Ms McNamara accompanied her to the footpath adjacent to the driveway of House A and she showed her a shaded area in front of House B. She says that after 5-10 minutes, Ms McNamara left the property and walked to her parked vehicle.
- At this point, Ms Hickey says she walked back into the house where Mr P was at the kitchen table and Mr H was sitting on the shower chair in the bathroom. She says that after she dressed Mr H which took about twenty to thirty minutes, she then moved him to the kitchen table where Mr P had finished eating and drinking. Ms Hickey says that she decided to get her lunch so she could join Mr H at the table.
- Ms McNamara, however, denies that she asked Ms Hickey to show her where the service users had been left the previous day. She says that Ms Hickey was not providing reasonable answers to her questions and determined it was best to leave. It was at this point that Ms Hickey followed her down the driveway of her own accord.
- Ms Hickey says that when she retrieved her lunch from her vehicle, parked on the street directly in front of House A, she noticed Ms McNamara sitting in a parked vehicle.
- Ms Hickey says it is common practice for employees of the Respondent to go to their vehicle or leave the confines of the house for any variety of reasons during their shifts.
- Under cross-examination, it was put to Ms Hickey that she had been expecting Ms McNamara. She was shown a record of that day's activities in the house. Under the heading Appointments/Activities/Visitors there is a note handwritten by Ms Hickey, 'Janet dropping in'.
- I have considered the parties' submissions about this notation in the record of activities at the house. I accept that the notation could have been written in reflection on the day and listed as one of a range of things that occurred, i.e. Janet dropping in. In any case, I don't consider whether Ms Hickey knew Ms McNamara was visiting the house that day to be of particular significance in the context of Ms McNamara's role and the regularity with which supervisors may attend houses.
- During cross-examination, Ms Hickey said that she felt 'compelled' to follow Ms McNamara because she was questioning her as she walked with her.
- Ms Hickey was asked whether at any point Ms McNamara advised her that she needed to go back inside and she said that this had not happened. Ms Hickey said she had no recollection of her saying anything, that she "just kept questioning me about the event the day before".
- Ms McNamara's evidence in the investigation interview was that when it occurred to her that Mr H was still in the shower, she directed Ms Hickey to go back inside.
- It was put to Ms Hickey that Ms McNamara's evidence was that Mr H was in the shower when Ms Hickey stepped out of the bathroom to talk to Ms McNamara and that she did not see Ms Hickey go back to the bathroom at any time while she was in the house to tend to the Service Users. Ms Hickey rejected Ms McNamara's version of events and stated that Mr H was not in the shower but was sitting in the shower chair over the toilet from the time she left the bathroom.
- Under cross-examination Ms McNamara maintained her position that she believed Mr H was in the shower and said she was of this belief because there was steam in the bathroom and the door was open. In any case, Ms McNamara's evidence in the investigation interview was that Mr H was still wet and that there were identified risks with him being left unattended in the bathroom.
- Ms McNamara was asked about the nature of her questioning of Ms Hickey. Ms Hickey's representative suggested that Ms McNamara was critically questioning Ms Hickey and that this should have been done in a formal setting with a support person present and that the formal procedure regarding performance should have been maintained.
[Mr Santelises] I put it to you that those policies should have been followed when you were asking those questions about the events on the 1st April 2017?
[Ms McNamara] Under my heading as a direct service team leader, I'm there to mentor, coach and supervise. I believe I was following practice.
[Mr Santelises]And I put it to you that she should have had a support person present when those questions were being answered?
[Ms McNamara]I don't believe she should have had a support person present, because that's a part of my practice. I go in and out of the environments, as a DSTL, and have conversations with staff without any other staff being present all the time.
[Ms McNamara]I report up to my management, so if I've got concerns with the practice and what I see, I've got to pass it up to management and they make that ruling.
- Ms McNamara also recalled having a conversation with Ms Hickey on 16 January regarding leaving service users alone. Ms McNamara could not recall the detail of the conversation but said it was generally "on how she should have taken action at that time…" Ms McNamara did not know if any further management action was taken in relation to this matter.
- Ms Hickey submits that the Driveway Event allegation should not be considered as substantiated as Ms McNamara cannot provide substantive evidence about the location of the client, and further, that if Ms McNamara did want to question Ms Hickey, alternative measures should have been taken.
- The Department alternatively submits that Ms Hickey's version of events is implausible. If Ms McNamara had wished to continue the discussion they were having, there is no reason she would have walked out of the house, particularly in the context of the visit being to discuss leaving service users unsupervised.
- I've considered Ms McNamara's evidence regarding her understanding of the risks of leaving Mr H unattended in the bathroom and I am unsure why it is that she would not have waited until Ms Hickey had finished showering him and had dressed him before speaking to her about the battery event. There is no evidence that the conversation was urgent. However, I note that the conversation was not long and occurred in the vicinity of the bathroom.
- It was at the conclusion of this conversation that Ms Hickey says she felt compelled to follow Ms McNamara out of the house and onto the driveway. I accept Ms Hickey's evidence that she was concerned to explain her actions of the day before. However, I do not find it reasonable that she made the choice to leave Mr H either in the shower or in his shower chair in the bathroom in order to do this. Ms Hickey's own evidence is that when she returned to the house, she dressed Mr H.
- An RCO with Ms Hickey's experience, even when feeling uncomfortable with the nature of the questioning that had occurred in the house, should have considered her duty of care to Mr H and waited to make arrangements with Ms McNamara to further discuss the matter when it was safe to do so.
- It is unclear at what point Ms McNamara realised that Mr H was still in the shower or the bathroom and directed Ms Hickey to go back inside the house, however, in circumstances where she did not direct Ms Hickey to accompany her outside and did not realise Ms Hickey had followed her until she was walking down the driveway, I do not think Ms Hickey's recollection, if true, that she was not directed to return to the house mitigates her conduct in deciding to leave Mr H unattended in the bathroom.
- In relation to Ms McNamara observing Ms Hickey outside of the house and retrieving her lunch from her car, I have no reason to believe that Ms Hickey was doing anything other than what she says – that is – she was getting her lunch from her car to sit down and eat with one of the men.
- The evidence before the Commission is that it was not uncommon for RCOs to leave service users for short periods of time to get improved mobile phone reception, go to the designated smoking area, go to the toilet and so on. While I do not find that the single event of quickly retrieving lunch from the car is of great cause for concern, I accept that the entire driveway event was considered by the employer in the context of: the events of the previous day and choosing to leave the house to follow Ms McNamara while Mr H was either in the shower or on the shower chair awaiting dressing.
The Fall Event
- Allegation 3: It is alleged that on 10 April 2017, you failed to provide appropriate support to service user Mr P, resulting in him sustaining serious injuries and/or you failed to appropriately respond to his injuries, thereby constituting a breach of your duty of care.
- Only Ms Hickey and Mr Jones provided evidence regarding this event.
- On 10 April 2017 Mr P had a fall and sustained an injury while in Ms Hickey's care. Ms Hickey's affidavit contains her account of the events that took place that morning:
- Between 7.15am and 7.20am as she was assisting Mr P from his shower chair to a dining chair, he suddenly lost balance and fell to the floor.
- She immediately began to render first aid including the application of an ice pack in the form of frozen peas and stopping the bleeding by applying pressure.
- She wiped the blood on the floor with a towel from the linen closet and placed the towel in the washing machine.
- She continued to comfort Mr P until Mr Jones arrived.
- She completed the SURF and later redrafted it following advice from Mr Jones that it required further information.
- I note that the SURF report written by Ms Hickey on the day of the event noted that the fall occurred at 6.30am.
- The Department suggests that if the fall did happen between 7.15am and 7.30am as suggested by Ms Hickey in her evidence as opposed to 6.30am as per the SURF report, it means that she did each of the above things in a period of only 15-30 minutes and that this is implausible.
- Under cross-examination, Ms Hickey said that when Mr Jones arrived at the house at 7.45am, she was in the kitchen with Mr P and that she told Mr Jones straight away that Mr P had had a fall.
- Ms Hickey said that she 'was in terrible shock that morning' and so can't recall a lot of the actual conversations around the injury.
- Ms Hickey clarified that when she said she supported Mr P to move from the shower chair to the dining chair, she actually meant that she stood behind the shower chair and put the breaks on and then let Mr P walk about a metre and a half to the dining chair. She said she was shocked when he fell.
- The SURF report completed by Ms Hickey says "Mr P was in the shower chair and staff positioned shower (sic) directly in front of the breakfast table chair."
- The Department says that Ms Hickey's description is not believable in that she says she was concerned about Mr P's mobility and so moved him to the dining table in his shower chair however she then stood behind the chair and had him move unsupported from the shower chair to the dining chair which was about a metre and a half away.
- It was put to Ms Hickey that her witness statement does not match some of her other descriptions of events. Ms Hickey responded that she was in shock after the event and wasn't quite sure of the actual sequences that happened after the fall.
- Ms Hickey said that she had concerns about Mr P's mobility plan because he was deteriorating. She said that if the Department had wanted RCOs to assist Mr P by helping him out of the chair, the support plan should have said, 'at all times he should be supported'. Ms Hickey also said that Mr P had had falls before and questioned why his plan hadn't been checked and assessed.
- During re-examination, Ms Hickey said that she believed she was being targeted by Ms McNamara. She said she believed this because "I had evidence from about three or four staff members letting me know that there were certain staff members that management was targeting and I was one of them".
- Ms Hickey said that she had been working as a carer for 30 years, 16 with the Department and that she has conducted herself in the same way and has never been warned about the methods she uses before. She said she is not sure why she is being targeted now.
Evidence of Paul Jones
- The only other witness to provide evidence regarding the 'fall event' was Mr Paul Jones.
- Mr Jones says that when he arrived at the house Ms Hickey was sitting at the desk in the 'breezeway' and that she behaved normally displaying what he said was her 'bubbly kind of personality'. He said he had been at the house for 'some time' before Ms Hickey had told him the fall had occurred at about 6.30am. He said that when he went to check on Mr P, "it was obvious to me that the injuries had occurred some time before, there was no fresh blood and his face was swollen and the bruising was showing."
- Further, Mr Jones says that Ms Hickey did not render any first aid to Mr P while he was at the house. He said that there was no evidence of first aid having occurred. He also said that the house has three to four proper ice packs in the freezer and that Mr P "is not a person who would tolerate Alana or anyone else putting a pack of peas on his face."
- Mr Jones says that once he arrived at the house, at no time did Alana provide any support or comfort to Mr P. He said that Ms Hickey was "more worried about herself, as she kept asking me 'do you think I will get sacked?'".
- Mr Jones says that when he asked Ms Hickey what happened, she explained what he called a 'text book' process for transferring a service user to a chair. He said that he didn't want to 'put Alana down' but that at times she didn't follow correct practice and so her explanation of what occurred seemed to him to be 'a little bit too slick'.
- Ms Hickey submits that care plans for clients do not provide a clear or strict guide as to how they assist the clients. Mr Jones agreed with this under cross-examination and stated that there will be grey areas where 'you're going to have to use some common sense'.
- Ms Hickey submits that there were requests to amend the care plan due to changing circumstances. Mr Jones agreed that care plans get changed regularly. Mr Jones also recalled that there had been talk about Mr P's support plan but could not recall the detail of the conversation.
- Regarding support plans for Service Users, Mr Jones said that RCOs have input into and are required to sign off on support plans and that Ms Hickey should have signed off on the support plan for Mr P.
- With regard to the actual fall, Mr Jones said:
I asked Alana however she did not ever tell me exactly what had happened with Mr P. I was concerned about his hand injuries, but Alana did not ever tell me how he had obtained those injuries. She also did not tell me what Mr P had hit to sustain the facial injuries. When I asked her what happened, her only response was to recite to me 'correct practice' for moving a service user from one chair to another, however, she would not tell me what happened to Mr P.
- Under cross-examination regarding whether Ms Hickey had rendered first aid to Mr P, Mr Jones said it was possible anything had happened prior to his arrival but confirmed what he said in his statement, that it did not look to him like there had been any first aid rendered.
- Mr Jones said that Ms Hickey hadn't called the Doctor and when they discussed it, Ms Hickey asked him if he thought the injuries were bad. Mr Jones says that he told her that the injuries were serious and that Mr P needed to see a doctor as soon as possible.
- Mr Jones confirmed that Mr P had had numerous falls since Mr Jones had been working at that house and that his mobility did used to fluctuate.
- The Department says that it is acknowledged that falls may happen, however, there are processes in place to minimise this occurring and these were not followed. Further, once the fall occurred, Ms Hickey did not take appropriate first aid action, or did she call emergency services or even contact his treating practitioner or a member of senior staff to seek assistance or guidance.
- Ms Hickey says Mr Jones could not be a reliable source of evidence as he did not see the events.
- Ms Hickey submits that the Allegation should not have drawn disciplinary action considering Mr Jones' evidence does not provide any clear insight into the fall event, Ms Hickey has provided a clear timeline of events, and Mr P's care plan.
- I did not find Ms Hickey to be a convincing witness in relation to the fall event. I noted inconsistencies between her original statement and her evidence, including the timing of the fall.
- I find it difficult to comprehend why Mr P was not provided with support to walk from the shower chair to the dining chair in circumstances where Ms Hickey was of a mind to wheel him to the dining table in his shower chair because she was concerned about his mobility.
- I accept the Respondent's submissions that it is unlikely that Ms Hickey was able to provide first aid and manage to clean everything up i.e. put towels in the wash, the bandage in the bin and the ice pack back in the freezer in the timeframe she suggests.
- In the circumstances, I consider it more likely than not that in a breach of her duty of care, Ms Hickey did not provide Mr H with adequate support which led to him sustaining a serious injury and that she did not appropriately respond to these injuries.
- None of the evidence presented to me during the hearing has convinced me that the findings of the investigation and the show cause process should be displaced in relation to any of the three allegations.
Was the penalty of termination unfair?
- Having established that on the balance of probabilities, Ms Hickey did not provide adequate supervision to the service users in each of the events, I will consider whether termination of her employment was unfair.
Evidence of the decision maker – Mr Lupi
- At the time of the decision to terminate Ms Hickey, Mr Matthew Lupi was in the role of Senior Executive Director.
- In his statement, Mr Lupi says that while he had no role in the disciplinary process up until the point of determining penalty, he thoroughly read all material available from the disciplinary process. He says he did not rely on briefings or summaries but carefully read each document.
- Mr Lupi says he considered if there were other penalties which could be applied in the circumstances, specifically whether it was possible to move Ms Hickey to a different role in the Department. He says that he did not consider this as an option because:
- Ms Hickey has not acknowledged her conduct was inappropriate and caused actual harm to a vulnerable service user.
- Ms Hickey had previously received a reprimand and despite this, she had not altered her behaviour.
- It is his view that Ms Hickey is an unacceptable risk to vulnerable clients.
- There were no direct service roles into which he could be comfortable Ms Hickey could be transferred.
- He does not believe it would be possible to re-establish a workable employer-employee relationship with Ms Hickey.
- During the process, Ms Hickey sought to minimise and trivialise the incident. She continues to deny any accountability for the injuries and therefore Mr Lupi believes she has not learnt from what has occurred.
- He does not believe that Ms Hickey made a genuine error. Her conduct caused actual harm to a service user.
- It would not be in the public interest or in the interest of the service users for Ms Hickey to return to employment with the Department.
- Ms Hickey's version of events changed over time, was inconsistent with information provided by others and was unconvincing and at times implausible.
- It was put to Mr Lupi under cross-examination that the conduct that was the subject of the disciplinary reprimand Ms Hickey had received previously was completely different to the three events that are the subject of this trial. He disagreed:
I don't concur. I think failing to follow clear plans for vulnerable clients, to ensure their protection, care, and wellbeing, is entirely consistent, whether it's preparing meals for them, leaving them unsupervised, or appropriately transferring them from one service environment to the other.
- It was put to Mr Lupi that if there was an error in Ms Hickey's conduct, that this could have been corrected by proper training, in consideration that she had worked for the Department for 16 years. Mr Lupi replied that he would have expected "that someone who'd been there for 16 years wouldn't need that level of primary and fundamental correction of followed basic procedures".
- Ms Hickey says that the disciplinary action of termination from employment is disproportionate to the conduct alleged.
- Ms Hickey submits that the conduct of the employee must be viewed in the context of the employment relationship as a whole, in particular the nature of employment and the extent, significance and context of the default/misconduct.
- Further, Ms Hickey submits that the gravity of the employee's conduct and the proportionality of the dismissal to that conduct are important matters to be taken into account, and that it is well established that a dismissal may be harsh, unjust or unreasonable, notwithstanding there is a valid reason for the dismissal.
- With regard to the nature of employment, Ms Hickey submits that she has worked for the Respondent for 16 years, had demonstrated ability in her role and had only received one warning during the entire duration of her employment.
- With regard to the extent, significance and context of the default/misconduct, Ms Hickey submits:
- The Respondent should not have substantiated the allegations on the balance of probabilities and considering the conduct of other employees, the dismissal was disproportionate.
- Disciplinary action such as a Performance Improvement Plan should have been taken rather than dismissal.
- The conduct was not characterised as serious misconduct and should not be considered a 'radical breach'.
- Ms Hickey says that she complied with the Respondent's policies and procedures that are relevant to her role. Her 16 years with the Respondent shows her commitment to the Respondent's values and providing adequate care to their clients.
- Ms Hickey submits and relies upon the case of Selvachandran v Perteron Plastics Pty Ltd where it was decided that the dismissal of an employee must be "sound, defensible, or well founded".
- Ms Hickey points to the evidence of Mr Jones and says that the Respondent has created a culture of double standards in the workplace.
- Ms Hickey has a degree in social work and submits that this was not taken into account when considering alternative disciplinary action, such as re-deployment to an alternative position.
- Ms Hickey says the dismissal is harsh, unjust and unreasonable given her social obligations and economic status.
- Ms Hickey says that she is confident she could return to employment with the Respondent and that the relationship is not broken.
- The Department submits that the necessary trust to sustain an employment relationship no longer exists and could not be re-established.
- The Respondent submits that:
Ms Hickey has consistently failed to recognise the seriousness of her action in relation to the service users. Ms Hickey continues to believe that it is appropriate to have left service users unattended by the side of the road so that she could borrow a battery. A battery which was not necessary and which did not in fact fit the remote control (which led to no adverse consequence). Similarly she failed to identify the seriousness of leaving a service user in the shower to follow Ms McNamara down the driveway pleading her case about leaving the service users on the footpath the day prior.
Of most concern is that Ms Hickey has not accepted the seriousness of the incident involving Mr P's fall and the lack of response to the fall.
Ms Hickey was an RCO, this is a role that requires significant trust from the employer to look after vulnerable service users. Ms Hickey breached that trust at least 3 times within a short period of time in the recent investigation and prior to that in relation to the previous disciplinary action.
- The Department submits that contrary to the submission of Ms Hickey, the decision of the employer was based on sound findings, following a comprehensive investigation. The findings set out in the investigation report were reached following a practical and common sense assessment of the evidence before the decision maker. Ms Hickey was unable to convince the decision maker that her conduct was consistent with her obligation to her employer and to vulnerable service users in her care.
- The Department refers to Laegal v Scenic Rim Regional Council  QIRC 136 where O'Connor DP referred to Stark v P&O Resorts (Heron Island):
Where…an application…is advanced on the basis that a dismissal was harsh, unreasonable or unfair, the task for the Commission is to assess where it should intervene to protect the applicant against a decision which is fundamentally one for the employer to make. Ordinarily intervention will be justified only where the employer has abused the right to dismiss. Ordinarily where an employer conducts a full and extensive investigation and gives the employee a reasonable opportunity to respond to allegations being made against him, an honest decision of the employer that misconduct warranting dismissal has occurred will, if formed on reasonable grounds, will be held immune from interference by the Commission.
- In applying that decision to this matter, the Respondent submits that:
this is a case where the Commission ought not interfere with the decision of the employer to terminate the employment of Ms Hickey. The employer conducted a comprehensive investigation through the Ethical Standards Unit, it extended natural justice to Ms Hickey, it followed its obligations under both the Industrial Relations Act 2016 and the Public Service Act 2009. The finding relied upon and the decision to terminate the employment of Ms Hickey were formed on reasonable grounds after comprehensive investigation.
- Ms Hickey was an experienced RCO working in a position of trust and responsibility caring for vulnerable Service Users with significant needs.
- In the circumstances, a breach of duty of care is particularly serious as it has the potential to put people at risk and for avoidable injuries to occur.
- In Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter  FWCFB 1949, the Full Bench considered a number of propositions concerning loss of trust and confidence and reinstatement. Relevant to this matter, at  dot point 3 they said:
An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of the loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
- Ms Hickey submits that her relationship with the Department is not beyond repair and that her conduct was not of a serious nature, whereas Mr Lupi's evidence outlined the reasoning that led to his decision to terminate her employment. On balance, I do not consider it unreasonable for the Department to determine that Ms Hickey could no longer be employed in a position of trust as an RCO providing care for vulnerable people.
- The Respondent conducted a full investigation of the allegations and Ms Hickey had the opportunity to both participate in that investigation and to provide responses throughout the formal show cause process.
- While some reference was made to 'double standards', I was not presented with detailed evidence of other occasions where RCOs have been the subject of investigation or had allegations that they have breached their duty of care substantiated against them. Likewise, I was not presented with any evidence that Ms Hickey was being 'targeted' by management.
- When considering the 'entire factual matrix' surrounding the termination, I find that the decision of the Department was sound, reasonable and defensible.
- I have considered Ms Hickey's submission that the dismissal is harsh, unjust and unreasonable given her social obligations and economic status.
- I do not consider that the impact on Ms Hickey of loss of income outweighs the gravity of her conduct and failure in her duty of care to the intellectually and physically impaired service users in her care.
- In all of the circumstances, I am unwilling to interfere in the decision of the Department to terminate Ms Hickey's employment.
- The application is dismissed.
 Industrial Relations Act 2016 (Qld) s 316.
 Gold Coast District Health Service v Walker (2001) 168 QGIG 258  (Hall P).
 T1-56 ll11-66
 Applicant's Submissions 21 November 2019 paragraph 33(c).
 T1-14 ll9-15.
 T1-11 ll9-14.
 Applicant submissions filed 21 November 2019 .
 Exhibit 1.
 T2-20 ll 35-41.
 T1-28 ll 36-40.
 T2-29 ll 3-6.
 T1-39 ll 22-25.
 Exhibit 4 -.
 Exhibit 4 .
 Exhibit 4 .
 Exhibit 4 .
 T1-56 ll 18-25.
 T1-56 ll 39-43.
 Adami v Maison de Luxe Ltd (1924) 35 CLR 143.
 (1995) 62 IR 371.
 Respondent submissions filed 23 Dec 2019 -.
 Laegal v Scenic Rim Regional Council  QIRC 136 .
 Respondent submissions filed 23 December 2019 .
 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 as cited in Commonwealth of Australia (Australian Taxation Office) v Ron Shamir  FWCFB 4185 .
- Published Case Name:
The Australian Workers' Union of Employees, Queensland v State of Queensland (Department of Communities, Disability Services and Seniors)
- Shortened Case Name:
The Australian Workers' Union of Employees, Queensland v State of Queensland (Department of Communities, Disability Services and Seniors)
 QIRC 48
30 Mar 2020