WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2015 WAIRC 00491

DELIVERED : Monday, 6 July 2015

FILE NO. : U 184 OF 2014

Applicant

AND

Kimberley Individual and Family Support Association Incorporated

Respondent

Catchwords : Industrial law (WA) – Termination of employment – Harsh, oppressive and unfair dismissal – Alleged breach of a policy – Duty to obey lawful and reasonable directions – Principles applied – Employee’s deliberate attempts to avoid a meeting to discuss work related matters – Failure and refusal to comply with lawful and reasonable requests to attend a meeting – Application dismissed – Order made

Legislation : Industrial Relations Act 1979 (WA) s 29(1)(b)(i)

Result : Application dismissed

Representation:

Counsel:

Applicant : Mr S Fombason as agent

Respondent : Mr B Jackson of counsel

Case(s) referred to in reasons:

In re Loty v Holloway v Australian Workers’ Union (1971) 71 AR 95

The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Reasons for Decision

1         The applicant, Ms Fombason, was employed as a Disability Support Worker for the respondent, Kimberley Individual and Family Support Association Incorporated, from September 2011 to July 2014. Ms Fombason’s employment came to an end on 29 July 2014 in circumstances which are controversial. As a Disability Support Worker Ms Fombason was responsible for providing home and out of home support for people with a disability. Ms Fombason’s position as a Disability Support Worker involved her providing those services to a client of KIFSA, resident in Broome. She seeks reinstatement without loss.

Factual background

2         Ms Fombason’s work for the client started in about October 2011.  She provided those services on, she says, a part time basis working at his home on a “live-in” basis from 3.00 pm Fridays to 3.00 pm Sundays each week.  Work performed by Ms Fombason for the client included various domestic duties such as cooking and cleaning, providing personal care; taking the client on outings and assisting him with general daily life. The client requires continuous care, 24 hours per day seven days per week. Whilst Ms Fombason was at the client’s home, she was able to be assisted by her husband, Mr Fombason.

3         Initially, Ms Fombason was paid $600 per week for the work she performed, based on a written agreement entered into between her and KIFSA in August 2012.  This provided for Ms Fombason to be engaged as a “casual” and paid in two blocks of 24 hours each, at $300 per block.  Sometime later, it seems that Ms Fombason entered into a further agreement on 9 August 2013, which provided for a higher rate of pay of $1059.98 gross per week.

4         As a result of Ms Fombason obtaining work during the week on a Monday to Friday basis, in about March 2013, she contended that KIFSA agreed to her starting later on Friday afternoons at 4.30 pm.  In the time from 3.00 to 4.30 pm, it was agreed that the client would be cared for either by the client’s mother or by Ms Fombason’s husband.

5         In July 2014, some issues were raised by KIFSA with Ms Fombason. These matters related to allegations by KIFSA that Ms Fombason was engaging in conduct in breach of her contract of employment.  Specifically, it was alleged that contrary to her obligations under her contract, Ms Fombason was providing care to two foster children, one of whom has a disability. According to KIFSA, this was a fundamental breach of Ms Fombason’s contract as Disability Support Workers in the Kimberley are forbidden to provide disability support services on other than a one-on-one basis.

6         Evidence of these matters was given by Ms Fombason and Ms Fombason’s husband.  In summary, the evidence was as follows.  Mr Fombason testified that he assisted his wife with the client after she took up her full time work Monday to Friday with Centrelink.  He would look after the client until his wife arrived at about 4.30 pm on Friday afternoon.  Mr Fombason testified that this arrangement was agreed with the former Chief Financial Officer of KIFSA.

7         Mr Fombason testified that a new CEO, Mr Grail, took over at KIFSA.  In about early July 2014, Ms Fombason had a meeting with Mr Grail. Mr Fombason said that Mr Grail had a “tally sheet” in front of him and started talking to Ms Fombason about her working hours. Mr Fombason said that his wife felt bullied by this.  Mr Fombason said that he went to a second meeting between his wife and Mr Grail on about 8 July 2014. At the second meeting, Mr Fombason said Mr Grail alleged that Ms Fombason had begun looking after two foster children, in addition to the client, which was contrary to the policies of KIFSA.  Mr Fombason said that this breach of policy was denied and mentioned that the former CEO of KIFSA was told of the foster children some time ago. Furthermore, Ms Fombason strongly denied that she had taken the foster children and the client on an outing together, as alleged by KIFSA. However, in the course of cross-examination, Mr Fombason conceded that at no time did his wife inform Mr Grail specifically about the foster children in their care.

8         In relation to the allegation by KIFSA that Ms Fombason was seen by a KIFSA employee with both the client and the two foster children together at the town shopping centre, Mr Fombason confirmed that when this was raised, Ms Fombason said to Mr Grail words to the effect “please speak to my husband”. She then left the meeting.

9         In relation to the two foster children, Ms Fombason testified that when she and her husband were first approached by the Department of Child Protection and Family Support, she told them that she worked for KIFSA.  Ms Fombason also said that she informed the then KIFSA senior officers of this. Ms Fombason denied she had ever left the client because of the need to look after the foster children.  She also denied she ever went out with both the foster children and the client together, as alleged by KIFSA.

10      As to whether KIFSA was informed of the two foster children, Mr Fombason tendered an email, as exhibit A1, from Ms Cole-Manolis from the Department of Child Protection, dated 26 May 2015.  Ms Cole-Manolis was not called to give evidence. The email referred to a meeting between Ms Cole-Manolis and KIFSA representatives, where both Ms Caterina Ponzio and another employee, “Josh” were present.  It was said in the email that Ms Cole-Manolis told Ms Ponzio and Josh that the Department had approached the Fombasons to care for the two foster children. The Department was aware that Ms Fombason was employed by KIFSA.

11      Ms Ponzio was later called by KIFSA.  She testified that the meeting referred to by Ms Cole-Manolis was about other matters. It was only at the end of the meeting that mention was made of the approach by the Department to the Fombasons, regarding the care of two boys.  Ms Ponzio’s recollection was that the Department was waiting for a response from the Fombasons and this was as far as the matter was mentioned. Ms Ponzio testified that at no time later did Ms Fombason go to the KIFSA office to inform her that the two boys had gone into the care of her and her husband.

12      While Ms Fombason agreed that the two foster children and the client knew each other, and had been to each other’s homes, Ms Fombason implied there was nothing improper about this. She said the Fombasons live close by to the client in Broome and she said that they would stop by each other’s houses.

13      As to the meetings on 4 July and 8 July, Ms Fombason testified that she met Mr Grail for the first time on 4 July.  At that time, he asked her about her time sheets and how she had recorded her time when at the client’s house whilst the client was spending time with his family. When the issue of the foster children was raised by Ms Ponzio, Ms Fombason confirmed that she said words to the effect “why ask me about this”. Just before Ms Fombason left the meeting she said her husband would come and discuss the matter.  Ms Fombason took the view that as the two foster children were formally in the care of her husband for the Department of Child Protection’s purposes, then this was not a matter of concern for KIFSA, as her employer.

14      At the second meeting on 8 July, between herself, Mr Grail, Ms Ponzio and her husband, Ms Fombason denied that Mr Grail raised with her the fact that she was then working full time during the week for Centrelink as well as caring for the client over the weekend, and also looking after two foster children.  Ms Fombason denied telling Mr Grail that the foster children were none of his business but did agree that again, she told him that he would have to speak to her husband about that matter, and then left the meeting.

15      From KIFSA’s perspective, Mr Grail, who took over as the CEO in May 2014, testified that as an organisation providing support to people with disabilities, it has a duty of care to the client. Mr Grail said he was briefed on some staffing issues that were ongoing at that time. These included proper time recording of hours on time sheets by Disability Support Workers and also that Ms Fombason had taken on full time work Monday to Friday, in addition to her caring responsibilities to the client each weekend. Mr Grail testified that he was concerned about the amount of time Ms Fombason was spending working, as it was over the full seven days of each week. This amount of work may have been a conflict of interest in accordance with KIFSA’s policies. Mr Grail said he was also aware, that one of the foster children had very high needs.

16      Mr Grail said that he tried to raise these matters with Ms Fombason on 4 July in the presence of Ms Ponzio. In relation to the time sheet issue, Mr Grail described Ms Fombason’s response as “resistant”. When Ms Ponzio tried to raise the foster children issue, Mr Grail testified that Ms Fombason became very agitated and aggressive.  She told him that these were personal matters and not for KIFSA.

17      Over the following weekend, Mr Grail testified that it was reported to him by another KIFSA staff member, that Ms Fombason had been seen in the town shopping centre, with both the client and the two foster children together.  Mr Grail said that this is not allowed as many clients’ families are very sensitive about a client being in the company of other disabled people in public.  Mr Grail said that when the client’s mother became aware of this allegation, she was horrified and expressed her discontent.  Mr Grail then arranged to meet with Ms Fombason on 8 July to discuss this matter.

18      Mr Grail testified that he raised the issue of Ms Fombason’s long working hours and also that she had been seen with the two foster children and the client together at the shopping centre. Mr Grail said that he told Ms Fombason that this was not permitted and he had concerns about KIFSA’s duty of care. According to Mr Grail, Ms Fombason said that her husband would respond and she went to leave the meeting.  Mr Grail testified that he told Ms Fombason that he was not prepared to discuss matters with her husband as she was an employee of KIFSA, not her husband.

19      Subsequently, between about 11 and 15 July, Mr Grail sent several emails to Ms Fombason attempting to arrange a further discussion about these matters. He made it clear to Ms Fombason that KIFSA was only prepared to discuss work related matters with her, as KIFSA’s employee, and not her husband.  On each occasion Mr Grail attempted to arrange a meeting, Mr Grail said that Ms Fombason variously said she was too busy to meet; her husband would be authorised to communicate; the issues should be raised in writing (which they subsequently were); and that time outside of her work for KIFSA was “private and personal”. The written request from Mr Grail to Ms Fombason on 14 July 2014 raised three issues they being the need for Ms Fombason to take unpaid meal breaks; a request for Ms Fombason to clarify her weekly hours of work with Centrelink because of KIFSA’s duty of care to ensure staff do not work excessive hours of work; and clarification of Ms Fombason’s work responsibilities when the client was not physically present at his home.

20      It was Mr Grail’s evidence that by this time, it had become very clear to him that Ms Fombason was attempting to evade discussions with him on these issues.  This led to Mr Grail writing a letter to Ms Fombason on 20 July 2014, referring to previous requests that Ms Fombason meet with Mr Grail to discuss work related matters.  Mr Grail pointed out in the letter that as an employee of KIFSA, Ms Fombason was required to comply with instructions from the CEO. The letter concluded by directing Ms Fombason to attend the KIFSA office on 21 July or 22 July to meet.  Ms Fombason was told she could have someone attend with her for support, but the person could not otherwise participate in the meeting. Two different meeting times were proposed on each of the two days.

21      Ms Fombason sent an email to Mr Grail on 21 July saying that she was not comfortable with a “face to face meeting” and requested that Mr Grail explain “what you require and explain why”. Ms Fombason also proposed as an alternative a meeting at the client’s home in accordance with the terms and conditions of her appointment. I pause to observe that the evident purpose of such meetings is to review operational matters in connection with a client’s care and not to discuss the sort of matters that Mr Grail wished to discuss with Ms Fombason.

22      As a consequence of Ms Fombason’s failure and refusal to attend a meeting with Mr Grail, on 21 July 2014 Mr Grail again wrote to Ms Fombason. Formal parts omitted, the letter was in the following terms:

In response to your email which I received on Monday 21 July, I wish to advise the following:

a. Despite my repeated lawful directives for you to attend a meeting at the KIFSA offices with your Support Person, you have instead repeatedly advised that you are unavailable to do so and now appear to be dictating to me the circumstances where you will attend - I note that you are referring to a clause in your Contract which is totally unrelated to the requirement for the meeting which I have requested and you have failed to provide any valid reason for non attendance - particularly as independent parties will be present.

b. On multiple prior occasions, I have asked you to disclose the details of other paid work you undertake and which may form the basis of a direct conflict of interest with your KIFSA employment and negatively impact on your support of KIFSA service users, you have failed to respond to all such reasonable requests. As explained to you in person during the last two face to face meetings with you, KIFSA has a duty of care to its employees and its clients to never roster staff on when they have just completed a shift with a different employer.

c. KIFSA is contracted to provide one-on-one support to the client (Peter Moore), however it is alleged that you have been observed by independent witnesses caring for up to three people simultaneously whilst rostered on to work with Peter - if so this would represent a breach of your contract.

d. It is further alleged that you made an inappropriate approach to a client's mother on the weekend of 12/13 July where you aired your grievance with KIFSA directly with Margaret Moore - this action represents both a breach of faith with KIFSA and a breach of your contract.

As at the date of this letter you are hereby formally advised that you are being placed upon immediate suspension - you will be paid as per your normal shift allocations during this period. You have until close of business (ie 5pm) Thursday the 24th of July to respond to the above matters in writing to me and show 'just cause' as to why you should not be terminated for breach of contract relating to the matters referred to in items b, c and d above.

Alternatively you may choose to attend a meeting here at the KIFSA Offices with myself and Shelley Baker present at 4:30pm on Wednesday 23 July and to which you may bring a 'support Person'. You are reminded that a support person is not an advocate and may not speak on your behalf. If you choose to attend this meeting then you are required to inform me no later than 1pm on Wednesday 23 July.

I would draw your attention that any failure to respond to this directive within the timeframe specified without valid excuse will result in the termination of your employment.

23      Ms Fombason retained a solicitor and correspondence passed between Mr Grail and her solicitor on 23, 24 and 25 July 2014. KIFSA contended that despite repeated requests, Ms Fombason failed to respond to its legitimate concerns.  As a result, on 28 July 2014, Ms Fombason’s employment was terminated by KIFSA. KIFSA also contended that contrary to its policies, Ms Fombason engaged directly with the client’s mother, about her concerns regarding her alleged treatment by KIFSA generally, and Mr Grail in particular.

Consideration

24      That is a sufficient summary of the issues and evidence led in this case.  Before turning to my findings and conclusions, I will briefly consider the relevant legal and industrial principles to apply in matters such as these. Whether a dismissal is harsh, oppressive or unfair involves an objective assessment by the Commission as to whether an employer has abused its lawful right to terminate a contract of employment. The employee is entitled to “a fair go all round”: The Undercliffe Nursing Home v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385; In re Loty v Holloway v Australian Workers’ Union (1971) 71 AR 95.  It is also not for the Commission to sit in the managerial chair and to decide for itself if a decision should have been taken. Rather, the Commission’s role is to objectively consider the employer’s actions, and whether the employer’s actions in dismissing the employee, were unfair. In the context of these considerations, I consider the following conclusions are open on the evidence.

25      As an employee of KIFSA, Ms Fombason was responsible for the care of the client.  Also, as an employee, Ms Fombason had other duties. One such duty, and an important one in the context of the type of services provided by KIFSA, was to ensure that the policies of the organisation were complied with. A key policy of KIFSA is the policy to not cause a conflict of interest between any activities engaged in by an employee and KIFSA’s obligations to its clients. Concerns about a conflict of interest plainly may involve matters such as the performance of excessive hours of work in other occupations or activities that may impact on the provision of care to clients.

26      Additionally, as an employee of KIFSA, at common law, Ms Fombason was at all times, required to comply with the lawful and reasonable directions of Mr Grail, as the CEO of her employer: Sappideen C, O’Grady P, Riley J and Warburton G, Macken’s Law of Employment (7th ed, 2011) at par 5.790. In this case, Ms Fombason was clearly in breach of her duty in this respect. On the evidence, Ms Fombason failed to respond to the several lawful and reasonable requests by Mr Grail, on behalf of KIFSA, her employer, to meet and to discuss the various matters raised by him in his correspondence. On the evidence, Mr Grail had raised a number of legitimate issues, that as Ms Fombason’s employer, he was entitled to raise with her. Given the policies of KIFSA, Mr Grail was obliged to clarify and resolve these issues. It was simply not for Ms Fombason to dictate to KIFSA where and how these matters were to be progressed. Similarly, it was not for Ms Fombason to appoint her husband as her spokesperson. Mr Fombason was not an employee of KIFSA.  He had nothing to do with the employment contract between Ms Fombason and KIFSA.

27      Given that I accept that Mr Grail was not made directly aware of Ms Fombason’s specific working arrangements during the week, Monday to Friday, nor the specific arrangements for the care of the two foster children, these matters were very properly able to be raised by him. In my view, there was nothing at all unreasonable about KIFSA, as Ms Fombason’s employer, wishing to discuss these matters properly with her. Mr Grail also wished to discuss the allegation that Ms Fombason took both the client and the two foster boys on an outing together, contrary to KIFSA’s usual practices.  Mr Grail also wanted, in my view again quite properly, to discuss with Ms Fombason the allegation that she had inappropriately raised with the client’s mother, Mrs Moore, her employment issues involving both Mr Grail and KIFSA.

28      I do not accept the assertion of Ms Fombason that she was bullied and intimidated by Mr Grail. There was no cogent evidence before me to support such an allegation. Moreover, on one occasion that Ms Fombason and Mr Grail met prior to the termination of her employment, Mr Fombason was also present.  A person was also invited to be present at the meetings requested by Mr Grail in July 2014. On all of the evidence I consider that Mr Grail’s impression that he had formed by at least 21 July, that Ms Fombason was deliberately attempting to avoid any meeting with him, to be quite correct.

29      I am well satisfied on the evidence that Ms Fombason failed to comply with several lawful and reasonable requests to meet with Mr Grail, as she was required to do so under her contract of employment. To the extent that it is necessary for me to do so, I am also satisfied on the evidence that Ms Fombason did engage with the client’s mother Mrs Moore, about her employment matters with KIFSA.  This was not appropriate. It was not however, of itself, a matter that would warrant termination of employment. 

30      However, ultimately, it is the complete failure and refusal by Ms Fombason, as an employee of KIFSA, to properly engage with her employer on important matters in connection with her employment, that was a proper ground for the termination of her employment.

31      Ms Fombason’s unreasonable refusal to comply with KIFSA’s requests left KIFSA with little option.  I do not in this respect consider Ms Fombason’s further requests through her solicitors, of more time to respond, as being reasonable.  Ms Fombason had ample time to consider the matters raised by Mr Grail, which were well known to her.  In my opinion, it is open to conclude, and I do conclude, that such a request was a further attempt to delay and frustrate KIFSA’s legitimate request to meet with its employee to discuss some important work related matters. As I have earlier mentioned, the suggestion of a meeting at the client’s home, was plainly not appropriate. The matters that Mr Grail wanted to discuss with Ms Fombason, did not relate in any way to the provision of support for her in her role as a carer for the client. They were matters relating to potentially serious breaches of KIFSA’s policies. Mr Grail was only attempting to investigate them as he should have done.

32      Whilst the Commission raised with KIFSA whether any significance was to be attached to the alleged casual status of Ms Fombason’s employment, this was not a matter taken up by KIFSA and therefore it is not necessary for me to consider it further.

33      For the foregoing reasons, I am not persuaded that the dismissal of Ms Fombason was harsh, oppressive or unfair.  Accordingly, the application is dismissed.