APPEAL AGAINST THE DECISION MADE ON 12 OCTOBER 2010 OF THE EMPLOYER TO TERMINATE EMPLOYMENT CONTRACT

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2011 WAIRC 00888

DELIVERED : 15 SEPTEMBER 2011

FILE NO. : PSAB 23 OF 2010

Appellant

AND

Director General, Disability Services Commission

Respondent

CatchWords : Public Service Appeal Board – termination of employment – substandard performance – breaches of discipline – Code of Conduct – Previous misconduct not condoned and can be relied on as reason for dismissal

Result : Appeal dismissed

Representation:

Appellant : In person

Respondent : Mr J Misso of counsel and with him Ms C Jackson and Mr V Ritorto

Reasons for Decision

1         These are the unanimous reasons for the Public Service Appeal Board (the Board).

2         The appellant, Ruben Sanzana, appeals against the respondent’s decision to terminate his employment made on 12 October 2010.  He says that the respondent’s decision to dismiss him is wrong and unfair and based on allegations which are false and fabricated.  He says that his supervisors and other employees have contrived to make his performance appear to be substandard and that they have lied and deliberately created false reports against him.  He says that his Local Area Supervisor (LAS), Lorraine Rowland, in particular, solicited complaints against him.  He says that complaints were raised as a consequence of his raising complaints and grievances against other employees and his supervisors.

3         The Board heard evidence from Mr Sanzana; Robert Adam Neuzerling, who undertook an investigation into allegations that Mr Sanzana’s performance was substandard; Lorraine Rowland; Stephen Brett Langridge, who relieved Ms Rowland as LAS when she was on leave; Wendy Patricia Cox, the respondent’s Executive Director; Robert John Westenhaver, Senior Systems Administrator, who gave evidence of the results of an assessment of Mr Sanzana’s internet usage; Ron Dobrich, a Local Area Manager (LAM); and Social Trainers Debra Joy Cummings, Lesley Godwin Grove, Kenneth Terry Mans, Christopher Gordon Holmes, Michael Robert Mincham, Sonny Than and Tara Jones.  A statement made by Social Trainer Kylie Christie to an investigator on 27 February 2010 was received into evidence by consent (Exhibit B), and is to be given appropriate weight given that Ms Christie was not available to be cross-examined.

Background

4         Mr Sanzana was employed by the respondent as a Social Trainer for approximately seven years. He worked in a number of the respondent’s facilities caring for residents, and at the time of the termination of his employment he was working at the Lombardy Crescent Group Home (Lombardy).

5         Lombardy is the home of five male residents who have a range of disabilities.  They are aged between mid-forties and mid-seventies.  They are not able to care for themselves and require constant supervision and care.  The social trainers are responsible for ensuring that every aspect of daily life is managed, including organising leisure and developmental activities, arranging and attending medical and other appointments, managing residents’ clothing, supervising showering and other hygiene needs, and preparing and supervising meals.  For example, one resident, Christopher, requires a minced-moist diet as specified by the speech pathologist.  Another resident, Phillip, is an insulin dependent diabetic with dietary requirements appropriate to his condition.  Staff moving to a different home require induction into the particular requirements of that home’s residents. 

6         There is a communications or report book for staff to record issues and requests and for supervisors to provide direction and, where necessary, reminders.  Staff members coming on duty read this record to bring themselves up-to-date.  It was noted a number of times in the evidence that it is not a complaints book. 

7         Each resident’s particular needs and plans are set out in a number of types of records and planning documents, including the annual Lifestyle Plan and Review (LPR), bi-monthly reports and meal time management plans. 

8         While each social trainer on duty is responsible for all residents, each social trainer has primary responsibility for one resident, to manage that resident’s clothing and personal items, deal with the resident’s family, prepare, update and review that resident’s LPR and bi-monthly reports, and deal with their resident’s allocated money.  This is the key worker role, and Mr Sanzana was the key worker for resident Des.

9         The social trainers and their LAS had meetings to discuss various issues and the minutes of these meetings were circulated, acting as a reminder of issues to be addressed. 

10      The social trainers are rostered over 24 hours seven days per week, mostly working alone except for a handover period, and on some weekdays two social trainers are rostered together which allows one social trainer to take residents to appointments and outings, or to attend training, and for other purposes.  The LAS and the LAM also attend the home at various times for meetings and to undertake their own responsibilities. 

Mr Sanzana Moves to Lombardy

11      According to Ms Rowland, when it was first known to a number of members of staff at Lombardy that Mr Sanzana would be transferring there from another facility in January 2009, staff members who had worked with him previously discussed him in negative terms.  Ms Rowland says she did not know him prior to his transfer there, she took no notice of what was said and was prepared to take him as she found him.

12      Ms Cummings first met Mr Sanzana at Lombardy and initially they became friends.  However, that relationship soured after he made personal comments which offended her and she says she observed his lack of proper attention to the residents.

13      After the first few months, there were issues arising and complaints being made about Mr Sanzana and Ms Rowland experienced difficulties in dealing with him. 

14      By July 2009, Ms Rowland had received a number of complaints that Mr Sanzana was spending a lot of time on the computer accessing dating sites and this was investigated.  His internet use was found to be excessive and he was counselled.

15      There were complaints about Mr Sanzana’s attitude and lack of attention to issues such as meal time supervision, attending to tasks such as record keeping and report writing, sorting and culling of clothes and purchasing new clothes and a razor.

16      By letter dated 13 November 2009, Ms Carol Cranwell, LAM for Area 4, advised Mr Sanzana that he was required to attend a meeting on 25 November 2009 at 1.30pm with Mr Jeff Clapton, Manager Accommodation Services (East) and herself to discuss a number of performance issues.  Mr Sanzana was advised that he was welcome to bring a support person if he wished. 

17      The issues to be addressed at that meeting were to include:

• Completion of work related tasks;
• Resident health and hygiene care;
• Mealtime management of residents;
• Accessing non work related websites in accordance with the Information Management, Technology and Telecommunications Policy;
• Maintaining high standards of personal behaviour and professional integrity in accordance with the Commission’s Code of Personal Conduct:
• Ensuring communication, relationships, attitude and conduct are positive, appropriate and professional in accordance with the Commission’s Code of Personal Conduct.

(Exhibit A, page 24)

18      These issues were to be dealt with by a Performance Improvement Plan (PIP).

19      However, before this meeting took place, on 18 November 2009, Mr Sanzana was directed to remain away from work while the respondent investigated ten allegations of breaches of discipline in the period 15 May 2009 and November 2009.  Ms Cranwell cancelled the meeting scheduled for 25 November 2009 and advised that the meeting would be rescheduled once the separate suspected breach of discipline process had been finalised. 

20      In a letter dated 25 November 2009 the respondent advised Mr Sanzana of the allegations of breach of discipline (Exhibit A, page 27).  The alleged breaches of discipline against Mr Sanzana related to two particular issues.  Firstly, it was said that he had admitted to kissing and cuddling a resident at the hostel he had previously worked in and persistently challenged Mr Langridge when advised that this conduct was inappropriate; had told Ms Rowland the same thing and that he had recently kissed a resident at Lombardy.  Secondly, there were a number of alleged incidents of inappropriate behaviour and comments of a sexual nature directed towards staff. 

21      On 18 March 2010 an independent investigator provided a report to the respondent of his investigation into the suspected breaches of discipline.  He recommended that Dr Chalmers, the Director General, find that, with the exception of two allegations, the allegations against Mr Sanzana were substantiated. 

22      By letter dated 31 March 2010 (Exhibit A, page 41) Mr Sanzana was advised by Dr Chalmers that he found that Mr Sanzana had breached discipline in respect of each of the substantiated allegations, that collectively they constituted a serious breach of discipline, and he proposed to issue Mr Sanzana with formal reprimands.  He went on to note that prior to the stand down from the workplace Mr Sanzana had been scheduled to participate in a PIP.  He said:

I have requested that as a result of this investigation and the serious nature of the breach that your Local Area Supervisor continues with the implementation of the PIP.  In addition to the other performance issues that have already been identified, it is recommended that there is a specific focus on the importance of behaving in a positive, respectful manner, consistent with standards and values of the Disability Services Commission and adhering to the Public Sector Code of Ethics and the Commission’s Code of Personal Conduct. 

23      Prior to implementing any action, Dr Chalmers provided Mr Sanzana with an opportunity to provide any reasons why formal reprimands should not be issued.  Mr Sanzana responded that the Director General had ‘failed to acknowledge the fact that I had grievances lodged against the persons who fabricated allegations against me, well before they suspended me’ (Exhibit A, page 43).  He responded to the findings of the investigation and said that the requirement for him to meet with his supervisor, Ms Rowland, in respect of the PIP was unjust and further victimisation against him given that she was the person against whom he had previously made serious allegations. 

24      Dr Chalmers wrote to him again on 27 April 2010 (Exhibit A, page 45), advising him that he was to be deployed to another work location and to contact the relevant LAM regarding his return to work arrangements.  Mr Sanzana met with his new LAM, Ms Maxine Martin, on 6 May 2010.  At this meeting Mr Sanzana refused to sign the PIP on the basis that he denied many of the performance deficiencies identified in the PIP and advised that he wished to lodge a formal dispute under clause 49 of the Social Trainers General Agreement 2008.

25      By letter dated 19 May 2010 (Exhibit A, page 89), Dr Chalmers advised Mr Sanzana that as he had declined to address his substandard performance issues by participating in the PIP, an investigation would be conducted in order to determine whether his performance was substandard.  He was informed that there was a range of actions available to Dr Chalmers should it be found that Mr Sanzana’s performance was substandard and they included transfer, reprimand or dismissal. 

26      Mr Neuzerling was appointed and investigated the following alleged issues of substandard performance:

1. Mr Sanzana had failed to complete reports such as the bi-monthly report and the LPR for the resident Des for whom he was the key worker, on time.

2. He failed to cull clothing and purchase replacement clothing and an electric shaver for Des in a timely manner.

3. He failed to complete regular health and hygiene routines as required, including not completing the bowel movement chart, not adhering to bedwetting procedures and inadequate dressing of residents.

4. He failed to observe mealtime management routines in that he placed sugar in the tea and served normal ice cream for a resident who was a Type 1 diabetic, failed to provide thickening fluid in drink for a resident as required, and provided food which was unchopped for a resident who was on a minced-moist diet.

5. During 2009 he had excessively and inappropriately used the computer facilities at Lombardy.

6. He used inappropriate behaviour or conduct towards residents in that it was alleged that he had advised both Ms Rowland and Mr Langridge that he had kissed and cuddled a resident at Lombardy, and that he had done so previously at other workplaces and could see nothing wrong with the practice.

7. He failed to address other staff members in accordance with the DSC Code of Conduct in particular that he repeatedly shouted at his peers and refused to listen to their point of view.

27      On 25 July 2010, Mr Neuzerling provided to the respondent a 57-page report in which he examined the allegations and found that on the balance of probabilities, Mr Sanzana had failed to complete the required work, had not performed it as directed or instructed, had not completed it to the necessary standard and in the case of appropriate computer use, he had breached discipline displaying substandard performance and his behaviour towards others was not appropriate (Exhibit 1, page 3).  He found on the balance of probabilities that Mr Sanzana’s work performance was substandard and he recommended that Mr Sanzana be dismissed.

28      Mr Sanzana’s employment was terminated on the grounds of substandard performance.

29      Whilst it might be said that there were two separate investigations and two separate sets of allegations, one relating to breaches of discipline and one relating to substandard performance, the way in which the matters progressed, they became intertwined.  Ultimately though, the reasons for dismissal relate to the allegations of substandard performance contained within the PIP which Mr Sanzana refused to accept.  As he refused to sign the PIP the respondent decided to formally allege substandard performance with the possibility of termination of employment as a consequence.

Consideration

30      There are a number of issues to be considered, firstly, whether the allegations of substandard performance were substantiated.  This includes whether the allegations were false and fabricated.  The second issue is whether Ms Rowland solicited complaints from staff against Mr Sanzana.  Thirdly, were the complaints and allegations against Mr Sanzana raised as a consequence of his raising complaints and grievances against others, particularly supervisors and managers?

31      Mr Sanzana also complains that his allegations and grievances were not acted on yet complaints against him were. 

32      We note that the allegations of substandard performance set out in Mr Neuzerling’s report are slightly differently expressed from the issues set out in the PIP.  Further, evidence has been adduced of issues which fall under the general headings of identified substandard performance, but the examples in the evidence go beyond those dealt with by Mr Neuzerling.  We will endeavour to deal with what appear to be the major allegations.

Substandard Performance Issues

33      To determine whether performance is substandard it is necessary to compare the actual performance with the standard to be achieved.  That standard can be gathered from evidence of standard practice, from documents such as job description forms, procedures and policies.  It can also be determined by reference to training and directions given to staff, and, of course, to common sense.

34      If the performance meets the required standard, then dismissal based on alleged substandard performance would not be sustainable.  If the performance is substandard, it does not automatically follow that dismissal is appropriate or fair.  However, in the case of an employee whose performance is substandard in significant matters or to a significant degree and the employee refuses to accept that this is so, the prospects of improvement to the required standard are reduced.  Accordingly dismissal may not be unfair in those circumstances.  It would depend on a number of factors including the nature and degree of the performance deficiency, the prospects for the performance being raised to the required standard and the practicability of and opportunities for training and correction.  Some factors in considering those matters may be; what remedial efforts have been made, the employee’s acceptance of the performance being substandard and the desire and intention to improve.  Other considerations might include consideration of the employee’s length of service and seniority. 

Allegation 1: Mr Sanzana had failed to complete reports such as the Bi-Monthly report and the LPR on time. 

35      Mr Sanzana was allocated the role of Des’s key worker.  The role of key worker includes that ‘[t]he key worker is the person designated to have a primary staff role for an individual client’ (Exhibit 5).  The tasks of key worker include:

1. Ensuring clients have appropriate clothing and footwear for all their activities including work, home and recreation.  This includes attending to the maintenance and cleanliness of the clothes.

2. Arranging, or supporting the client to arrange, celebrations such as birthdays.

3. Maintaining all files for their client, ensuring they are current and accurate.  Each of these files is checked at the bi-monthly review.

4. The key worker will prepare annual review documents and attend the annual review. 

The LPR

36      There are instructions for the preparation of the LPR (Exhibit 14).  These include that the LPR is to be completed one week before the actual review date and presented to the Senior Social Trainer; in this case we think this means the LAS.  Each resident’s LPR may have a different due date.  The LPR has three components; the first being completed by the key worker and the second being an annual medical review by the resident’s doctor.  Once the LPR is complete, there is a meeting with the resident’s stakeholders including family. 

37      As Des’s key worker, Mr Sanzana was to complete the LPR one year from when the previous LPR had been completed in July 2008, by mid-July 2009.

38      On 29 April 2009, in anticipation of those LPRs which were coming due, Ms Rowland requested that the four forms which are components of the LPR be completed online.  It is necessary for them to be completed online so that they form part of the records of the residents which can be accessed by others away from the home, including speech pathologists and dietitians.  A copy is also kept in the resident’s files at the house.  Ms Rowland noted in the minutes of the meeting of 29 April 2009 that she would start making the annual medical appointments for the residents in preparation for their LPRs (Exhibit 1, page 75).

39      At the end of June 2009, Ms Rowland printed off the whole package of relevant forms and told Mr Sanzana that the review was due in July (ts 70).  Ms Rowland says that if all paperwork including the bi-monthly reports is kept up-to-date, then completion of the LPR forms should take about an hour and a half, if done on night shift.

40      Ms Rowland telephoned Mr Sanzana one morning and asked him to book all five residents’ medical appointments.  The appointments ought to have been made at times which allowed the appropriate key worker to attend the appointment with his or her relevant resident.  Mr Sanzana apparently booked Des’s appointment when he, Mr Sanzana, was not on duty, and this caused another social trainer to be upset.

41      Mr Langridge put a reminder in the report book on 1 August 2009 that the annual reviews for three residents including Des were overdue (ts 303).

42      Mr Sanzana sent Ms Rowland the LPR for Des by email on 29 August 2009, by which time it was approximately six weeks late (Exhibit 12, Respondent’s Volume 2, page 123).  Ms Rowland says that the document she received was not adequate and she met with Mr Sanzana, went through it and she added a number of health outcomes to be pursued.  The final version (Exhibit 13, Respondent’s Volume 2, page 95) was then to be discussed with the family.  Mr Sanzana was to have made an appointment for a meeting with Des’s sister.  When he had not been able to set up a meeting, Ms Rowland contacted Des’s sister and arranged a meeting.  However, this meeting did not eventuate through no fault of Mr Sanzana and Ms Rowland discussed the LPR with Des’s sister over the telephone.

43      It is clear that Mr Sanzana made the doctors’ appointments as requested by Ms Rowland.  However, that does not contradict the other evidence that Mr Sanzana did not complete Des’s LPR on time.  On the contrary, the earliest he provided an albeit unsatisfactory LPR to Ms Rowland was the end of August 2009, and it required further work. 

44      We also note that Mr Sanzana submitted a LPR for Des for assessment as part of Mr Sanzana’s studies for his Certificate IV (Exhibit A, pages 179, 205 and 207).  However, this was not a complete document and was inadequate.  Most significantly, it was not the document submitted within reasonable time as part of the actual performance of his work.  It was for his study purposes.

45      We find that the LPR due in mid-July 2009 was not submitted until 29 August 2009.  The lateness of the submission of a completed LPR affected the prospects for successfully arranging a meeting with Des’s family.

46      Mr Sanzana was not the only key worker to be late in submitting his LPR.  However, he was subject to a range of other performance issues.

Bi-Monthly Reports

47      The Bi-Monthly Report is a report prepared by the key workers in respect of their particular residents.  Mr Sanzana’s first report in respect of the resident Des was due in March 2009.  However, his first report was presented on 9 April 2009 (Exhibit A, page 218).  The minutes of the meeting of 1 June 2009 contained a reminder that the bi-monthly reports were now due for all residents and if they had not been done the key workers were to let Ms Rowland know. 

48      The minutes of the meeting of 30 July 2009 note that the bi-monthly reports were up-to-date in respect of all the residents except Keith, whose last report was done on 12 May 2009 and Des, whose report was done on 9 April 2009.  The key workers were to action this by 7 August 2009 (Exhibit 1, page 81).  This demonstrates that as at 30 July 2009, no report had been done in respect of Des since 9 April 2009 and was nearly two months overdue. 

49      Mr Sanzana noted in the Report Book on 3 August 2009 that Des’s bi-monthly report had been done but he ‘couldn’t send it through internal email or save it, but copy is in the SST file’ (Exhibit A, page 393). 

50      On 21 August 2009 Mr Sanzana provided a report and sent an email to Ms Rowland to the effect that he had done it (Exhibit 18).

51      Mr Sanzana agrees that he was a bit late in completing the bi-monthly report due in early June and that he had done no other bi-monthly report until he produced the one on 3 August (ts 307). 

Other Key Worker Issues

52      It is also alleged that Mr Sanzana failed to make a request for funds to the LAS to enable him to purchase a birthday present for Des.  This is one of the key worker’s responsibilities.  In fact, Debra Cummings noted that no gift had been purchased, and she did it herself.  Although this did not form part of the formal allegations against Mr Sanzana, the fact of it being raised demonstrates the breadth of frustration at Mr Sanzana’s performance.

Recoups

53      There was also an allegation that Mr Sanzana did not properly perform the task of completing recoups.  Ms Rowland says that Mr Sanzana failed to properly save on the computer and print off copies of the weekly recoups for expenditure for residents and did them long-hand.  She says there were frequent errors in his work and that she had to make corrections and do the computer entries even though she had trained Mr Sanzana on how to do it.  Mr Langridge says Mr Sanzana completed the recoups by hand and he, Mr Langridge, had to make corrections before entering them on the computer himself.  When Mr Sanzana said he could not access the appropriate computer sites, Mr Langridge created shortcuts for him.  He started to train Mr Sanzana in a refresher course but Mr Sanzana became agitated and went off to prepare lunches.

54      Mr Sanzana denies making these mistakes and says that there were problems accessing the computer sites.  Ms Cummings confirms that there were difficulties accessing the sites but the documents could be saved in another way then transferred to the site. 

Conclusions Regarding Allegation 1

55      We find that there were difficulties in staff entering the necessary information and saving it to the appropriate site.  However, we accept Ms Rowland’s and Mr Langridge’s evidence that they each had to correct mistakes in Mr Sanzana’s recoups and assisted him with training to access the appropriate site. 

56      We find that the allegation that Mr Sanzana’s performance was substandard in respect of completing at all or completing in a timely manner the records and reports required of a key worker, in particular the LPR, the bi-monthly reports and recoups is made out.

Allegation 2: Mr Sanzana failed in his responsibility to cull Des’s clothing, to purchase replacement clothing and to purchase an electric shaver, in a timely manner.

57      Minutes of the meeting of 29 June 2009 record that all key workers were asked to advise Ms Rowland by 7 July via email that all the residents’ clothing had been sorted out and new clothes purchases if required.  It also noted ‘[p]lease look under beds for clothes that are still unpacked (sic).  If the residents require new clothes please let me know and I will withdraw money’ (Exhibit 10, Respondent’s Volume 2, page 71).

58      Ms Rowland says that she had asked staff to purchase at least ‘two really good sets of clothing’ for their particular residents (ts 80).  Mr Langridge reminded Mr Sanzana verbally in the staff meeting of 30 July 2009 to purchase new clothes, and it was recorded in the minutes as a general reminder (Exhibit 24, Respondent’s Volume 2, page 156).

59      On 15 September 2009 Mr Sanzana advised Ms Rowland by email that he had purchased a shirt, tie, pants and shoes for Des (Exhibit 19).  On 16 September there was an exchange of emails between Ms Rowland and Mr Sanzana.  Ms Rowland referred to the minutes of the meeting of 29 June 2009 and enclosed an extract from the minutes referred to above.  She noted that Des’s clothes had not been sorted out and said:

I also spoke to you last week in regards to purchasing new clothes and you assured me that Des didn’t require any clothes and that what was in his cupboard were in good condition.  Kylie Christie has been through Des’s wardrobe and drawers and discovered clothes that were too small for him, frayed, stained, damaged, no elastic, holes and old.  These have been recorded on his personal clothing inventory – approximately 50 items needed to be disposed off (sic).  He also requires new pyjamas.  Thankyou for purchasing a new pair of pants, shirt, tie and shoes with the balance of the $200.  I would like you to purchase another set of clothes for special occasions.  Please let me know when you need me to draw the money out. 

60      Mr Sanzana replied to the effect that he had only spoken once to Ms Rowland regarding Des’s clothes.  He maintained that Des did not need more clothes except for an extra formal set, which he said he had just purchased for him.  He said he never mentioned Des did not have clothes that should be disposed of, rather he said that all five residents have plenty of clothes to be disposed of and he asked if a similar email had already been sent to other key workers.  He said he disposed of some items of other residents after he mentioned it to Ms Rowland and she instructed him to put them in a bag with the name of the client and leave it in the office for her to witness its disposal.  He said that she verbally instructed them not to make any special request for purchase of clothes before the end of the financial year and to wait for instructions in regard to that matter.  He said that her information was therefore contradictory and he also challenged that he had only been in the house for less than eight months and not for 10 months.  He said if she wanted him to buy Des another set of formal clothes for special occasions then he would do so.

61      Ms Rowland replied to his email that she had spoken to Mr Sanzana verbally and in a meeting about sorting out the clothes that were under Des’s bed.  She noted that Kylie had actually done the job for him and washed everything out that was under the bed.  She said that she had only asked staff to put off making requests for money until the end of the financial year which was 30 June and they were now in September.  Ms Rowland said that her reference to 10 months was that Des’s clothes were in ‘drawers under his bed for the last 10 months’ – she was not suggesting that he had been responsible for the clothes for 10 months but rather that they had been in the drawers for 10 months.  In any event Mr Sanzana had been Des’s key worker for a considerable period of time and by September, a period of two and a half months had passed since the original request for the clothes to be sorted and culled. 

62      Ms Rowland says that she had withdrawn the money for the second set of clothes and directed him to purchase them before he went on leave, but he did not do so. 

63      Mr Sanzana’s explanation is firstly, that Ms Rowland’s direction was to wait until the new financial year and she would then give the direction to purchase the clothes.  Then she went on leave.  In respect of the second set of clothes, Mr Sanzana says he could not purchase them between 2 October 2009 when the money was available, and 3 October 2009 when he was on shift with a relief staff member and believed it was irresponsible to leave that staff member on her own with all the residents.  In any event, Mr Sanzana says it was not an urgent matter (ts 313).

64      Mr Sanzana did not purchase the second set of clothes.  Mr Sanzana was to go on leave in early October 2009 and he left the purchase of the second set of clothes to Mr Les Grove in his note of 30 September 2009 (Respondent’s Volume 2, page 200). 

65      The culling of Des’s clothing was done by Kylie Christie in September 2009.

66      In respect of the purchase of the shaver for Des, the minutes of the staff meeting of 29 June 2009 record that ‘a good electric razor’ was to be purchased for Des (Exhibit 10, Respondent’s Volume 2, page 75).  Such a purchase is the responsibility of his key worker, Mr Sanzana.

67      Minutes of the meeting of Lombardy staff of 30 July 2009 (Exhibit 24, Respondent’s Volume 2, page 156) record that ‘Des requires an electric shaver as per previous meeting minutes can key worker please action asap’. 

68      On 4 September 2009 Mr Sanzana advised Ms Rowland by email that he had purchased the shaver that day (Exhibit 20, Respondent’s Volume 2, page 158). 

Conclusions Regarding Allegation 2

69       The evidence demonstrates that on 1 June 2009, Mr Sanzana and others were first asked to sort and dispose of residents’ old clothing.  They were to ‘purchase new clothing if required in the new financial year’ (Exhibit 9, Respondent’s Volume 2, page 67).  In the meeting of 29 June 2009 they were asked to let Ms Rowland know by 7 July 2009, that the residents’ clothes had been sorted out, and particularly to look under the beds for clothes still not unpacked and to let her know and she would withdraw money for the purchase of new clothes.

70       Mr Sanzana did not check the existing clothes at all, nor did he advise of what clothes were needed until after he was prompted again.  He purchased one set of clothes in September 2009.  His explanation for not purchasing the second set on 3 October 2011 is not credible, particularly in light of Ms Jones’s evidence that of the one and half to two hours they worked together that day, he spent most of it in the office on the computer (ts 387).  Further, he had already left a request for Mr Grove to do it in his note of 30 September 2009.  We conclude that in fact Mr Sanzana had no intention of purchasing the clothes that shift.

71       It took Mr Sanzana two months to purchase the shaver and he had to be reminded to do that.

72       Allegation 2 is made out.

Allegation 3: Mr Sanzana failed to complete regular health and hygiene routines as required, including not completing the bowel movement chart, not adhering to bedwetting procedures and inadequate dressing of residents.

Showering

73      The overwhelming evidence is that residents at Lombardy are not capable of showering themselves without supervision including verbal and physical prompts and assistance.  The evidence of Mr Grove and Ms Jones is that Mr Sanzana did not assist them with showering and shaving as was expected.  Ms Cummings gave evidence that Mr Sanzana left a client in the shower without supervising him washing himself.  He returned and removed the resident from the shower without him having been washed (ts 245). 

74      We are satisfied that Mr Sanzana was not attentive to showering residents properly as he was required to be. 

Bowel Movement Record

75      The most significant issue regarding resident hygiene related to the resident Christopher who had chronic bowel problems.  The staff were directed that when he returned home each day from his placement he was to be toileted, showered and changed as a priority.  Further, to enable his condition to be properly analysed and treated, staff were required to record his bowel movements in a chart. 

76      Mr Sanzana says he would not know if Christopher was using the toilet until it was too late, however other evidence makes it clear that he could not have avoided being aware of it.  He acknowledged that there were some occasions when he may have been too busy making afternoon tea for the residents to be able to attend to Christopher (ts 322).

77      The evidence indicates quite clearly that Mr Sanzana did not treat Christopher’s home time routine as a priority, as he was directed, nor did he make proper recordings.

Bedwetting Procedures

78      The evidence is that residents were supposed to be toileted at particular times in the evening before going to bed, and again early in the morning so as to avoid them bedwetting.  The evidence is somewhat equivocal as to whether Mr Sanzana was solely responsible for this not being followed.  Ms Rowland commented that she had received complaints about residents not being properly dressed, however the evidence as to who was responsible for this is unclear.

Conclusion Regarding Allegation 3

79      We find that Mr Sanzana failed to properly supervise resident’s showers, failed to complete the bowel movement chart and to complete Christopher’s home time routine.

Allegation 4: Mr Sanzana failed to observe mealtime management routines in that he placed sugar in the tea and served normal ice cream for a resident who was a Type 1 diabetic, failed to provide thickening fluid in drink for a resident as required, and provided food which was unchopped for a resident who was on a minced-moist diet.

80      The resident, Christopher’s meal time management recommendations issued by a speech pathologist set out a number of factors to be dealt with including his diet.  These are:

DIET

• Minced and moist diet.  All foods must be soft, well cooked and fork mashed into pieces no larger than 0.5cm.  See diagram.
• Sauce and gravy should be added to make the food easier to swallow.  These must be the same thickness as the level 150 thickened fluids.
• No ice cream or jelly as these melt.
• Level 150 (mildly thick) thickened fluids. ¼ metric tsp Guarcol per 200mls.  Mix the drinks with a stab blender and ensure you allow at least 15mn to thicken to correct consistency.

EATING

 …

• Make sure Christopher eats slowly and that each mouthful is swallowed before taking another mouthful.  Not doing so, will place Christopher at risk of chocking (sic).
• Christopher pockets food on his right side.  If oral residue is noted, please prompt Christopher to “swallow again” or give him a sip of drink.

DRINKING

 …

• Encourage him to take small sips at a time.

(Exhibit 1, Respondent’s Volume 1, page 106).

81      In her evidence Ms Rowland described how on Sunday 6 September 2009 she went to Lombardy and observed that Mr Sanzana had given resident, Christopher, toast with its crusts not cut off.  She spoke to Mr Sanzana about the need for a minced-moist diet requiring the food to be cut up and have something to moisten it.  She also put a detailed note in the report book reminding staff generally about the requirements for Chris’s minced-moist diet and what that meant (ts 89; Exhibit 8, Volume 3, page 239). 

82      On another occasion Ms Rowland spoke to Mr Sanzana when she observed that he had given Christopher pizza, pointing out to him that it was not suitable as it was.  As a consequence, Mr Sanzana cut up the pizza and put a lot of tomato sauce onto it (ts 90). 

83      Mr Langridge gave evidence that he observed Mr Sanzana serve to the residents a slice each of lasagna which had not been cut up.  Christopher simply put his fork in, tore off a chunk and put the lot in his mouth and started chewing.  He started coughing and spluttering.  When Mr Langridge drew this to Mr Sanzana’s attention, he says Mr Sanzana did not do anything but continued preparing his meal in the kitchen.  Mr Langridge cut up the remainder of Christopher’s meal for him.  Christopher was also required to have thickened drinks, however, Mr Sanzana had simply served each of the residents with a mug of cordial or water and Christopher had grabbed the drink which only added to his coughing. 

84      Mr Langridge says he was surprised at Mr Sanzana’s failure to observe the requirements for the minced-moist diet and as he had formerly been at another facility where there were particular dietary requirements about which he would have been trained.

85      In respect of the incident with the lasagna, in addition to the circumstances he observed with Christopher, Mr Langridge observed that another resident was:

just sitting there, staring at us and stabbing his meal with the knife or the fork.  He didn’t know how to cut up the meal properly, so … we’ve got another resident, an elderly gentleman in his seventies, who has no teeth, so he needs his meals cut up.  We have another resident who will stuff food and is at risk of choking (ts 190). 

86      Mr Langridge’s concern was not that lasagna was an unsuitable meal but that it needed to be properly chopped up into bite-size pieces and possibly served with a side dish of vegetables or salad.  Mr Langridge said that he cut up the meal for Christopher and stayed around long enough to make sure that he was eating the meal without any further issues and went back to the office to complete his work.

87      Mr Langridge also noted that the social trainer is expected to sit with the residents while they have their meal to model proper meal time behaviour and to prompt and assist residents with any difficulties.  Mr Sanzana did not do this on the occasion he observed, rather ‘[i]t was elbows up, head down, he just ate his meal’ (ts 191). 

88      Both Ms Rowland and Mr Langridge described the potentially dangerous consequences of meal times not being managed appropriately, including residents choking, asphyxiating or aspirating food particles, which may lead to lung infections and possibly death. 

89      Ms Cummings gave evidence that on one occasion she came on shift and Mr Sanzana had given all of the clients ice cream including Phillip who was diabetic.  Mr Sanzana’s response to her query was that a little bit would not hurt him.  He says that he had asked the Silver Chain nurse if it was okay to give ice cream and she had said yes, but only a small portion, and that is what he did (ts 326). 

90      Ms Cummings described an occasion when Mr Sanzana prepared Christopher’s lunch.  She said Christopher could have a sandwich with the crusts cut off or possibly chopped egg but that Mr Sanzana provided a normal lunch with biscuits and a sandwich, and things that he should not have including, she believes, an apple.  She mentioned to him that it was inappropriate. 

91      Mr Grove gave evidence that on around 16 - 17 June 2009, he and Mr Sanzana were working together and it was decided that they would have a barbecue style meal.  Mr Sanzana prepared a salad which included julienned carrots which was inappropriate for two of the residents, particularly for Christopher who has a minced-moist diet.  He pointed this out to Mr Sanzana and ultimately Mr Grove cut up the food so that the residents could eat it.  He also noted that the resident, Phillip, was sitting next to Mr Sanzana.  He can use a knife and fork but had picked up the steak whole and was chewing it.  Mr Grove thought that Phillip was at risk of choking because he gulps his food.  When he spoke to Mr Sanzana about this, Mr Sanzana said he would be all right and Mr Grove responded that he would not, he cut up the food into bite sized pieces in front of Mr Sanzana (ts 262). 

92      Mr Grove also observed on one occasion that Mr Sanzana put sugar into Phillip’s tea (ts 262).  Phillip is the diabetic resident and should not have sugar with his tea. 

93      Mr Sanzana says he is unable to recall the incident in respect of the barbecue and he denies that he did not sit with residents and cut their meals up appropriately. 

Conclusion Regarding Allegation 4

94      In the face of evidence of Ms Rowland, Mr Langridge, Ms Cummings and Mr Grove, all of which was credible evidence, we find that this allegation is made out, that Mr Sanzana did not observe proper meal time management requirements.  We find that in respect of the complaint that he gave ice cream to Phillip, that he did so after asking advice from the Silver Chain nurse.  However, if the standard instruction was that this should not occur, then he ought not to have done so.  As was pointed out, if each staff member deviated from the appropriate diet because a little would do no harm, then harm may have been done.

Allegation 5:   Excessive and inappropriate use of computer facilities.

95      The results of the investigation into Mr Sanzana’s internet usage (Exhibit 29) demonstrate that in February 2009 Mr Sanzana was browsing on the internet for more than 31 hours, in March 2009 for more than 66 hours and similar significant amounts for following months.  Mr Dobrich and Mr Langridge met with Mr Sanzana on 24 July 2009 to discuss the issue with him.  Mr Sanzana acknowledged that his internet usage may have been excessive and he gave an explanation of remaining logged on but going away from the computer, carrying out tasks in the home and then returning to the computer for a short period, then returning to the task and so on.

96      Mr Westenhaver’s explanation of the program used to analyse Mr Sanzana’s internet usage allowed for short breaks away from the computer but found very significant continuous periods on the computer.  This, along with the evidence of other witnesses who observed him spending considerable periods on the computer, contradicts Mr Sanzana’s evidence.

97      In any event Mr Sanzana was advised in the meeting on 24 July 2009 that this excessive time on the internet was preventing him from providing proper service to the residents, to which he agreed.  He was informed that it was a serious breach of discipline and that it would be noted on his staff file and his internet usage would be randomly monitored.  He stated that his excessive internet usage would not occur again and Exhibit 29 demonstrates that from that point his internet usage was ‘almost nothing’ in the words of Mr Westenhaver (ts 290). 

98      We note that Mr Neuzerling, who later investigated Mr Sanzana’s performance, commented that an audit of Mr Sanzana’s internet usage subsequent to the meeting on 24 July 2009, in particular for the period 5 September to 3 October 2009, disclosed that Mr Sanzana had ‘accessed the computer for non-work related sites over a four week period … on numerous occasions and on 10 different dates for a cumulative period of almost 8 hours.  Respondent (Mr Sanzana) was on shift when 104 site-names were accessed’ (Exhibit 1, page 48).

99      We also note that Mr Sanzana’s conduct in this regard occurred after he had already had the policy drawn to his attention.  Minutes of the meeting of 29 June 2009 (Exhibit 10, Respondent’s Volume 2, page 71) record that staff were reminded to re-acquaint themselves with the Commission’s policy of internet usage and the policy was set out in the minutes.  That policy noted that access to the internet was provided for staff to undertake research to assist in their work but that the Commission would tolerate occasional personal use of the internet provided that it did not adversely affect business uses and productivity and referred to other limitations. 

100   The assessment of Mr Sanzana’s computer usage shows that on 30 June 2009, the day after that meeting, Mr Sanzana’s internet usage is recorded as being one hour, 52 minutes and four seconds.  The records show Mr Sanzana’s usage from 1 July 2009 to 21 July 2009 was 21 hours and 41 minutes (Exhibit 29, Respondent’s Volume 2, pages 376-7).  Therefore, it cannot be said that Mr Sanzana immediately responded to the first reminder about proper computer usage. 

101   There is no dispute that from the time he commenced at Lombardy until his meeting with Mr Dobrich and Mr Langridge on 24 July 2009, Mr Sanzana’s internet access for personal purposes was excessive. 

102   However, Mr Sanzana’s complaint is that as he was counselled about this and he corrected his conduct, it is not appropriate for the respondent to rely on it as part of the reason for dismissal.  An employer is entitled to take into consideration matters of performance and misconduct which have previously been dealt with but form part of the employee’s record (see John Lysaght (Aust) Ltd v FIA; Re York (1972) AILR 517 per Sheppard J).

103   This allegation is made out and the respondent is entitled to rely on it. 

Allegation 6:   Mr Sanzana used inappropriate behaviour towards residents in that it was alleged that he had advised both Ms Rowland and Mr Langridge that he had kissed/cuddled a resident at the Lombardy Group Home and that he had done so previously at other workplaces and could see nothing wrong with the practice.

104   The evidence demonstrates that Mr Sanzana expressed the view to Ms Rowland and Mr Langridge that it was appropriate to hug residents.  He indicated that he had done it previously when a resident was upset and it had acted to calm the resident.  He also said that he had given Des a hug on his birthday, and that it was appropriate to display affection towards the residents in those circumstances.

105   Mr Sanzana denies saying that he kissed residents, even though other evidence is that he did say that he had done so.  It is not suggested in this allegation that anyone has actually witnessed him kissing or cuddling residents.

106   It is unacceptable according to the respondent’s policy, and for good reasons, for social trainers to engage in conduct which might involve unnecessarily touching clients.  Mr Sanzana maintained that he had hugged residents and he does not appear to resile from this.

Conclusion Regarding Allegation 6

107   We conclude that it was not merely the issue of the unnecessary touching which caused concern to Mr Langridge and Ms Rowland although it did so, but that Mr Sanzana was so insistent on his view being correct, and attempting on a number of occasions to argue his point, that he was rejecting the respondent’s policy and their direction and making a nuisance of himself.  This was not a trifling nuisance but was insistent and challenging.  It resulted in conflict with Mr Langridge because Mr Sanzana would not leave the point alone.

108   We find that not only is this allegation sustained in respect of the issue of cuddling residents, but it demonstrates the difficulties supervisors had in managing Mr Sanzana, a matter dealt with in the next allegation.  Where the allegation is of kissing residents, there is no evidence to sustain the allegation.

Allegation 7: Mr Sanzana failed to address other staff members in accordance with the DSC Code of Conduct in particular that he repeatedly shouted at his peers and refused to listen to their point of view.

109   The respondent’s Code of Personal Conduct (Exhibit 1, page 230) sets out that all employees are bound by the Code.  This requires each employee to contribute to the Commission’s core corporate values by, amongst other things:

‘• being honest and fair in my dealings with others;

• working collaboratively and engendering trustworthy relationships with others;

• behaving in a positive, respectful manner, consistent with standards and values of the Disability Services Commission; and

• taking responsibility for my skills, knowledge, behaviour and personal development.’

110   The Personal Code of Conduct requires the employee to commit to, amongst other things:

1. ‘ensuring my communication and relationships are positive and appropriate,’ and

2. striving to:

‘• receive and handle complaints and grievances positively, fairly and consistently;

…

• ensure that my personal presentation, attitude and conduct is positive, appropriate and professional;

• maintain high standards of personal behaviour and professional integrity’.

111   There is a considerable amount of evidence regarding Mr Sanzana’s behaviour and its effect on those he worked with.  On 27 July 2009, Mr Langridge as Acting LAS, was at Lombardy and Mr Sanzana was on duty.  They had a discussion about banking procedures.  According to Mr Sanzana, Mr Langridge expressed surprise when Mr Sanzana said he had never done the work online before.  Mr Sanzana described Mr Langridge’s tone as aggressive.  Mr Sanzana said Ms Rowland had never told him it had to be done online.  The discussion then reverted to that which Mr Langridge and Mr Sanzana had had previously about the policy of not touching clients.  Mr Langridge indicated that this was not acceptable and explained the DSC policy.  Mr Sanzana continued to debate the merits of his view and to challenge the logic of the policy.  He says he wanted to clarify the situation and be provided with the correct information, and apparently asked to see the policy.  Mr Langridge saw Mr Sanzana’s approach as being demanding or challenging and unnecessarily persistent. 

112   According to Mr Sanzana’s email of complaint against Mr Langridge (Exhibit A, page 14), Mr Langridge said ‘in an aggressive and rude manner’:

‘now go and supervise your residents.  you (sic) are pissing (sic) off with your questions’.  I said to him, he had no right to talk to me like that, and I just wanted to get the right information and it was his duty to provide me with the train (sic) and proper information.  He again told me ‘you are pissing me off and go and mind your clients’ ‘you can complain if you want’. 

113   Mr Langridge says Mr Sanzana kept badgering him and he said to Mr Sanzana ‘“Mate, your silly questions are really starting to pee me off,” and I used the swear word P”’ (ts 193).  Mr Sanzana made a formal complaint.

114   On 3 August 2009 Mr Dobrich, the LAM, went to Lombardy and met with Mr Sanzana to discuss Mr Sanzana’s complaint about Mr Langridge.  Mr Dobrich said he had met with Mr Langridge to discuss Mr Sanzana’s complaint and said that Mr Langridge told him that he had become frustrated in his discussions with Mr Sanzana, but he acknowledged that he did raise his voice in an agitated tone.  Mr Dobrich advised Mr Sanzana that Mr Langridge would catch up with him to apologise.

115   Mr Dobrich pointed out to Mr Sanzana that it was inappropriate for him to direct his complaint against Mr Langridge to Wendy Cox saying that it was appropriate that he, Mr Dobrich, deal with the matter.  Mr Dobrich says that he asked Mr Sanzana to follow the appropriate protocol and forward concerns directly to him rather than to the Director.

116   Mr Dobrich then took the opportunity of this meeting to deal with a number of concerns which had come to his attention since an investigation into Mr Sanzana’s excessive internet usage.  Those concerns included non-completion of documentation such as LPR and bi-monthly reports.  He asked Mr Sanzana to clarify what documentation was in the house and Mr Sanzana was able to show him a partially completed LPR for Des, but was unable to show him any completed bi-monthly reports though he did state that he had given the previous bi-monthly report to Ms Rowland.  Mr Dobrich said that he would follow this up with Ms Rowland.

117   During this discussion Mr Dobrich also noted that it had come to his attention that Mr Sanzana had shown to a number of female colleagues a newspaper which he had folded in such a way as to make a headline offensive.  He said to Mr Sanzana that the staff concerned had been embarrassed by his actions.  Mr Sanzana said that he had not shown it to anybody but Ms Rowland.  Mr Dobrich explained the importance of Mr Sanzana complying with appropriate conduct in the workplace and reminded him that the Code of Conduct had been discussed on a number of occasions at house meetings.

118   Mr Dobrich says that about this time Mr Sanzana became very angry, saying that Mr Dobrich had no right to be asking him these questions.  Mr Dobrich said that he was also feeling tense and asked that they both calm down.  Mr Sanzana again asked why he was asking these questions and Mr Dobrich says that he explained that there were concerns being brought to his attention by a number of Mr Sanzana’s colleagues, and he needed to give Mr Sanzana an opportunity to respond and determine whether or not there was any validity in them.  He raised with Mr Sanzana a complaint which had been brought to his attention by a staff member that he had touched her back in a way that had made her feel extremely uncomfortable.  Mr Sanzana stated that he had simply placed his hand on the staff member’s arm. 

119   Mr Dobrich then discussed with Mr Sanzana the issue of touching residents and Mr Sanzana stated that staff had to touch residents when washing them or assisting them.  Mr Dobrich says he acknowledged this but explained that closer contact such as kissing and cuddling was not acceptable and that Ms Rowland had discussed this topic with him and Mr Sanzana stated that he no longer did this. 

120   Mr Dobrich then noted that around this point Mr Sanzana said that he felt that Mr Dobrich was harassing him and Mr Sanzana chose to leave the office.  He acknowledged that tension had again increased and that continuing the discussion was unproductive.  In a memorandum to Mr Sanzana dated 3 August 2009 Mr Dobrich included the following comment:

Rubin (sic) I acknowledge that the nature of the concerns which have been raised can be stressful for all parties involved.  I apologise if the questions caused you distress as that was not my intention.  I would like to remind you that as an employee of DSC you have free access to the Employee Assistance Program and these services can be called at any time on the following numbers.

(Exhibit A, page 15)

121   On 4 August 2009 Mr Sanzana lodged a complaint against Mr Dobrich. 

122   Mr Sanzana says that the discussion had become quite tense, that complaints were being raised with him, that it was not right or fair on him, that he was being victimised and harassed and was about to lose his temper.  He says he finally walked out of the room and told Mr Dobrich that he was not going to meet with him again without the presence of a third person who he could trust. 

123   It is noted that on Tuesday 4 August 2009, Mr Langridge came to Lombardy and apologised to Mr Sanzana.  Mr Sanzana says that the apology was in the terms of:

I apology (sic) as directed.  Is (sic) up to you if you accept my apologies but the investigation is still on. 

(Exhibit A page 17)

124   Mr Langridge says that Mr Dobrich asked if he would apologise or suggested that he apologise to Mr Sanzana.  Mr Langridge said that he would.  Mr Langridge says he had asked another staff member who was on duty that morning if he would act as a witness for him because he was ‘deeply concerned that if I didn’t have a witness with me, that Ruben would make another allegation of some sort’.  The staff member initially agreed to act as a witness, however, later this person was quite distressed and upset and said he did not want to be a witness ‘[b]ecause Ruben’s dangerous … and I’ve got to work with this man’ (ts 194).

125   Ms Cummings gave evidence of an incident in which she says Mr Sanzana ‘got quite aggressive’ when she was speaking to him about performing the daily routines (ts 246).  She spoke to Ms Rowland about it ‘because it was a bit confronting’.  She says ‘[h]e sort of was shouting at me while we were talking, more … like, I think he was frustrated that I wouldn’t take that and put it over that side and he was raising his voice’ (ts 246).

126   During the course of cross-examining Ms Cummings, Mr Sanzana raised his voice at her and was directed to mind his tone (ts 256).

127   Mr Mans worked with Mr Sanzana at Boulton Street for two to three years and was impressed by Mr Sanzana’s work ethic, he was motivated and took his residents for long walks.  He does not recall Mr Sanzana not doing his work duties.  He described Mr Sanzana as intense, having a strong sense of justice, being keen and motivated.  While he was not abrupt, because English is Mr Sanzana’s second language, this may have been a barrier to resolving issues or his meaning may have been misconstrued.  He said there were some lazy, unmotivated staff but Mr Sanzana did a reasonably good job.  He said that in respect of Mr Sanzana’s relationship with his superiors and managers, he always wanted to get to the bottom of the issues, he asked questions and was a forthright person who would not back down.  He thought he was not well regarded because of this. 

128   Mr Holmes gave evidence of not having had an issue with Mr Sanzana’s work performance.  He never saw him being rude, swearing or harassing other staff, and he never experienced him leaving work undone.  He does not recall saying prior to Mr Sanzana’s arrival that they should not trust him.

129   Mr Mincham gave evidence that he and Mr Sanzana had worked together at the respondent’s Boulton Street home.  Their working relationship was difficult and tense.  He described an incident which had occurred at Boulton Street where Mr Sanzana raised his voice at him.  He was not pleased when Mr Sanzana moved to Lombardy, and there were similar behavioural and personality issues there (ts 367-8).

130   He described Mr Sanzana’s relationship with his managers and supervisors as not very good; he thinks that was due to a lack of interpersonal skills.  This made things difficult with other members of staff.  Mr Sanzana’s work ethic or performance also had a negative impact on the team at Lombardy.  His lack of attention to detail put additional pressures on him, Mr Mincham, and it was not a very pleasant environment to work in.

131   As Mr Langridge started to raise issues when Mr Sanzana was not completing his work, the relationship became tense and Mr Sanzana ‘started firing off complaints’ (ts 194).  He described Mr Sanzana as very verbally aggressive towards another employee, Ms Anna Alvez. 

132   Mr Sonny Than gave evidence that he and Mr Sanzana worked quite normally together and sorted out any problems.  He did not note that Mr Sanzana left work for those on the next shift to do.  He did not find him to be rude or aggressive and never saw him being rude to anyone else. 

133   Ms Tara Jones gave evidence that when she arrived on shift one morning in October 2009 Mr Sanzana was bad-mouthing the other staff.  She was quite shocked at hearing this and approached Ms Rowland to make a complaint.  While being examined by Mr Sanzana about what he has said to her on that shift Ms Jones said:

I know that you were accusing Steve Langridge of lying regarding some allegations against you and things like that, and you were saying that he was up Lorraine’s arse, and things like that (ts 389).

Conclusions Regarding Allegation 7

134   The evidence demonstrates that Mr Sanzana could be difficult to work with, he could be unpleasant and appear to be angry.  Some people have attributed this to a lack of interpersonal skills.  There is evidence that he shouted, but most significantly the evidence is of an attitude of challenging and difficult behaviour which created an unpleasant atmosphere and made it very difficult to manage him, and to work with him, when he disagreed with his supervisors and colleagues.  His conduct towards Ms Cummings during her cross-examination demonstrated a bullying attitude to a witness when she was not answering his questions in the way he wanted them answered and confirms the behaviour he demonstrated in the workplace.  In this context, while we find that the allegation that he repeatedly shouted at his peers may be somewhat overstated, Mr Sanzana’s conduct did not meet the requirements of the respondent’s Personal Code of Conduct in that his communications, behaviour and conduct were not positive, respectful or appropriate.  He did not work collaboratively or engender trustworthy relationships with others.  Therefore this allegation is made out.

135   In all of these circumstances, we find that the allegations against Mr Sanzana are overwhelmingly substantiated.

Did Ms Rowland Solicit Complaints Against Mr Sanzana?

136   Ms Rowland says that when staff complained to her about Mr Sanzana she would ask them to put their complaints in writing, as opposed to her encouraging or soliciting complaints. 

137   Ms Cummings’s evidence makes clear that she initiated complaints verbally to Ms Rowland, and did not need to be encouraged to do so.

138   Mr Grove gave evidence of raising an issue with Ms Rowland in June or July 2009 (ts 261).  In a document dated 16 September 2009 (Exhibit 1, page 237), Mr Grove commenced by saying ‘Hi Lorraine; the following outline regarding the events is the best I can recollect’.  The inference Mr Sanzana urges is that Ms Rowland had asked Mr Grove to prepare the report.  Ms Rowland said ‘[b]oth of us were present that day when we were speaking to you.  I wrote my report independent of Les and I said to Les, “Could you please write your report on what you recollect”’ (ts 110).  There is no evidence that Ms Rowland encouraged Mr Grove to make a complaint he would not otherwise have made.

139   Mr Holmes says that Ms Rowland asked him if he was uncomfortable working with Mr Sanzana and would he like to make a statement along these lines.  He responded that he was not uncomfortable with Mr Sanzana (ts 358).  Ms Rowland does not recall that happening (ts 110). 

140   Mr Mincham said that he had not been approached by Ms Rowland to make complaints against Mr Sanzana but he noted that there was administrative and paper work which Mr Sanzana had left undone. 

141   Kylie Christie’s statement contains the following:

11. When Ms Rowland spoke to her about Mr Sanzana she informed Ms Rowland that she did not want to discuss matters relating to Mr Sanzana. 

12. She was approached by Ms Rowland and was asked if she had any grievances against Mr Sanzana or if he had done anything wrong which she considered reporting.

13. She informed Ms Rowland that she did not wish to lodge a grievance.

Ms Rowland says Ms Christie was lying in that regard (ts 110).

142   Ms Jones gave evidence that after she complained to Ms Rowland about Mr Sanzana, Ms Rowland asked her to write a report about it, that ‘it needed to be in writing’ (ts 387).

Conclusions Regarding Ms Rowland Soliciting Complaints

143   The evidence demonstrates that a number of members of staff raised concerns with Ms Rowland about a number of issues relating to Mr Sanzana’s work performance and conduct.  She asked them to put those concerns in writing.  There is nothing untoward in this.  Given the number and scope of complaints, and that social trainers spent considerable amounts of time working alone or with only one other person, their supervisor might enquire if they are having any problems with the staff members others are complaining about.  We find nothing inappropriate about Ms Rowland making such enquiries of her staff. 

144   Rather than looking to create problems for Mr Sanzana, Ms Rowland took time to assist and train Mr Sanzana.  He subsequently denied her having done so, and she got to the point of not wanting to deal with him without a witness present.  Mr Langridge was placed in a similar position by Mr Sanzana.

Were Complaints and Allegations Raised Against Mr Sanzana as a Consequence of His Complaints?

145   Ms Rowland began receiving complaints from other staff within a short time of Mr Sanzana commencing at Lombardy.  She referred Mr Sanzana’s computer use for investigation in June-July 2009.  She referred a number of issues to Mr Langridge to follow-up in her absence in August 2009.  It was not until 3 September 2009 that Mr Sanzana made his complaint about Ms Rowland to Ms Cox.  There is no evidence to substantiate an allegation that Ms Rowland’s complaints about Mr Sanzana were in retaliation for his complaint about her.  Rather, the opposite appears to be the case.

146   Mr Sanzana complained to Mr Dobrich (and copied Ms Cox) about Mr Langridge’s conduct towards him on 27 July 2009.  We conclude that Mr Langridge’s apology to Mr Sanzana was less than gracious.  We find that Mr Langridge found dealing with Mr Sanzana frustrating and he did not handle the situation as well as he might.  However, there is no evidence that his attitude towards Mr Sanzana led to him harassing or victimising Mr Sanzana.  His complaints about Mr Sanzana were valid.  Likewise Mr Sanzana’s complaint about Mr Langridge’s language was valid, and it was dealt with in a timely manner.

147   Mr Dobrich was also the subject of a complaint from Mr Sanzana to Ms Cox.  Mr Sanzana complained following Mr Dobrich’s meeting with Mr Sanzana on 3 August 2009.  At that meeting, Mr Dobrich advised Mr Sanzana that he could expect an apology from Mr Langridge.  He took the opportunity of being at Lombardy and meeting Mr Sanzana to make enquiries about whether Mr Sanzana’s reports were up-to-date.  Mr Sanzana seems to think this was unfair and perhaps some form of retribution.  However, we conclude that Mr Sanzana was also upset by being put on the spot about whether his work was up-to-date, and about his own performance being questioned.  We see nothing improper in Mr Dobrich using the occasion of this meeting to enquire of Mr Sanzana about his own performance.

148   We conclude that Mr Sanzana’s complaints about Ms Rowland and Mr Dobrich were aimed at undermining their complaints about him, the latter complaints being legitimate and his own complaints not being so.

Fabricated Documents

149   Mr Sanzana alleges that a number of documents in this case have been fabricated.  Having considered all of the evidence and taken account of the inconsistences in the dates of some documents, for example the document headed ‘Report on Ruben Sanzana – Date: 13th September 2009 – LAS CONCERNS (Exhibit 1, page 210) and the Performance Development Summary (Exhibit A, page 266), we find that there are reasonable explanations which do not rely on the documents being fabricated.  Further, there is sufficient other evidence to enable conclusions to be reached about the issues to which they relate.

Mr Sanzana’s Grievances Not Investigated

150   Mr Sanzana complains that his grievances were not acted on yet complaints about him were.

151   Mr Sanzana’s complaint about Mr Langridge was dealt with promptly.  He received an apology as a consequence, albeit not a very gracious one.

152   Ms Cox acknowledged that she received a copy of Mr Sanzana’s grievance dated 4 August 2009 to the effect that Mr Langridge had victimised and harassed him (Exhibit A, page 19). 

153   On 3 September 2009 Ms Cox met with Mr Sanzana to discuss his grievance against Mr Langridge and Mr Dobrich.  She also received a letter from Mr Sanzana dated 23 September 2009 in which he complained of harassment and victimisation by Ms Rowland which he said was a consequence of his ‘grievance against Management’ (Exhibit A, page 20). 

154   On 25 September 2009 Ms Cox sent Mr Sanzana an email in which she advised him that she wanted to let him know that she had not progressed anything since they had met and was about to go on leave.  She said ‘[h]owever, I will certainly make this a high priority when I return in two weeks’ (Exhibit A, page 22).

155   Mr Sanzana then went on leave himself.  On 18 November 2009 he wrote to Ms Cox to advise that he had returned from holidays and was ready to meet her in regard to his grievance.  He also provided additional information and expressed a concern that he had met with Ms Cranwell, his new Area Manager and the Manager Accommodation Services (East) regarding his performance issues. 

156   Ms Cox says that there were two separate processes of investigation of complaints.  She was dealing with his grievances, and work performance issues were being managed by his LAS and LAM.  At this point Mr Sanzana had been suspended from duty while these allegations of substandard performance were investigated. 

157   Ms Cox answered the question why Mr Sanzana’s grievances were not investigated whilst the allegations that his work performance were investigated, notwithstanding that the former arose first.  She said:

The formal grievance … our Commission’s policy and procedures is that people need to be actively engaged.  So when you’re away from the workplace we put things on hold at a point in time, waiting for the person to get back to be actively engaged in that process.  The workplace matters, as with the performance, must be addressed as soon as possible that they are raised.  They are raised, so they are put to the person and then asked for a response, and then we go … from that response we move to the next phase.  That’s part of managing suspected breach of discipline process (ts 228).

158   She noted that serious grievances should be addressed as soon as possible.

159   It appears that there was no investigation of Mr Sanzana’s grievances against Mr Dobrich or Ms Rowland for a very significant period of time.  Mr Sanzana says it was over a year.  Further, Ms Cox indicated Mr Sanzana had taken a complaint to the Equal Opportunity Commission and in her assessment none of his grievances were substantiated.  What she said was:

That the matters that had been raised were a direct result of being concerned about a staff member’s performance and needed to be addressed as per any line manager would be expected to ensure the quality of services to people with a disability being supported (ts 240). 

160   She agreed with the suggestion by Mr Misso that ‘the actions of the staff members against which Mr Sanzana complained were all connected with the management of the performance issues of Mr Sanzana’. 

161   Notwithstanding Ms Cox’s view that Mr Sanzana’s grievances could not be investigated while he was away from the workplace, the respondent was able to investigate complaints about him during this time.  This does not appear to be fair and equitable treatment. However, ultimately it does not affect the outcome of this matter, particularly as the allegations of substandard performance against Mr Sanzana are substantiated and we have found that his complaints against both Mr Dobrich and Ms Rowland were not.

Conclusions

Was the Dismissal Unfair?

162   By letter dated 8 October 2010, Mr Sanzana responded to the Director General’s letter providing him with an opportunity to provide reasons why his employment should not be terminated (Exhibit A, page 168).  Firstly, he claimed that his performance was excellent.  Secondly, he stated that he believed that he had ‘successfully completed work within the required timeframe’.  Thirdly, he said that if the respondent required it, he was willing to undertake training ‘to better my skills for a better time management’.  However, he asserted that he had provided evidence that he was ‘capable of meeting deadlines as well as performing requisite tasks’.  He asserted that his LPR had been prepared on time but he understood DSC preferred to receive it electronically and he was prepared to attend ‘refresher training … in order to meet the required standard’. 

163   Mr Sanzana asserted that he had ‘always maintained the highest level of care for the clients’.

164   In respect of the issue of providing ice cream to a diabetic resident, he said he had checked with the nurse who said a small amount would not pose any health risk, and he had not done it since.  He said ‘[i]n my 7 years as a Social Trainer I have never disregarded a client’s mealtime management plan’. 

165   As to the computer usage, he acknowledged the issue and noted that he had not abused the privilege after meeting Mr Dobrich in July 2009.

166   As to the issue of hugging, while he acknowledged hugging Desmond on his birthday, he expressed concern that the allegation of kissing and cuddling residents had a sexual connotation which he rejected.  We are unsure if Mr Sanzana maintains that hugging is acceptable because he said ‘[i]t is obvious that I have a different first language and to believe that I meant anything except hugging is unacceptable’.

167   He did not indicate an intention to not hug residents in the future.

168   In conclusion, Mr Sanzana said that termination of his employment was too harsh a penalty in the circumstances.  He was willing to finalise the PIP, explaining that initially he was not given adequate time to consult his representative.

169   We find that Mr Sanzana’s performance and attitude were substandard and his letter of 8 October 2010 and his approach to his appeal do not demonstrate that he accepts that this is so.  He continues to reject the allegations even though he asserts a willingness to be trained to meet the required standard. 

170   Given Mr Sanzana’s refusal or failure to accept that his performance was substandard, to maintain that it was excellent, that he had met the required timeframes and had never disregarded a mealtime management plan amongst other things, in the face of overwhelming evidence to the contrary, and given his behaviour towards others, retraining would not resolve the issues.  Rather the problems would continue.

171   In those circumstances we conclude that the decision to terminate Mr Sanzana’s employment was not unfair.

172   The appeal will be dismissed.