Dicker v Bowen Old People’s Homes Society [2002] QIRC 95 (2002) 170 QGIG 311

5 July, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 311 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Kenneth Howard Dicker AND Bowen Old People’s Homes Society (No. B1419 of 2001) COMMISSIONER EDWARDS 20 June 2002 Application for Reinstatement – Termination – Dismissal – Contract of Employment – Three Years – Probationary Period – Performance Reviews Not Undertaken – Evidence – Accreditation – Restructure – Complaints – Level of Communication – Dismissal Harsh, Unjust and Unreasonable – Compensation Awarded. DECISION By the application filed on 13 August 2001 the applicant sought relief under the provisions of the Industrial Relations Act 1999 (the Act). On 17 August 2001 the Deputy Industrial Registrar wrote to the applicant to advise that in accordance with s. 72(1) of the Act the application had been rejected. On 20 August 2001 the applicant advised the Registrar in terms of s. 74(6) of the Act that he wished to proceed with his application. The applicant was employed from 12 July 1999 until his dismissal on 30 July 2001. The conditions of his employment were governed by the Contract of Employment (Exhibit 5) and the Act. Prior to the parties signing the Contract a number of discussions took place and correspondence exchanged (Exhibits 1-4). The maximum term of the engagement under the Contract was three years. The applicant was terminated some 12 months prior to the termination date of July 2002. Clause 15 (Review of Performance) of the Contract stated: “15. 1. A review of the Employee’s performance will be carried out by the Chairman or person nominated by him after the following periods: (a) 3 months after the commencement date -- 1 of 3 -- 312 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 July, 2002 (b) At the end of the probation period (c) 12 months after the commencement date (d) yearly thereafter. 2. The results of those reviews will be advised to the Employee.”. Except for a probationary review undertaken by the Chairman of the Bowen Old People’s Homes Society Board (the Board) in the presence of the Director of Nursing, reviews were not undertaken in accordance with clause 15. During the year 2000 the Australian Government required aged care facilities to meet certain standards to achieve accreditation. In October 2000 accreditation was granted for a period of three years. The Board acknowledged that the accreditation was due largely to the efforts of the applicant and Ms N.A. Fellows, Director of Nursing. Even though at the time of accreditation there is no record of any concerns, it was the evidence of Mr R.T. Sanderson, Chairman of the Board that the Board had concerns about the applicant’s interpersonal skills. These concerns were raised at a special meeting of the Board held on Monday 29 January 2001. No minutes of the meeting were available to the Commission. The letter written to the applicant (Exhibit 10 RTS-4) does not reflect concern about interpersonal skills but rather a concern that the Board was: “. . . aware that the steering of the implementation of continuous improvement has caused friction within the ranks, and we confirm our support for you in the delivery of these changes. The Board believes that a professional development course is one way which may assist you to facilitate the delivery of the change, management courses on negotiation and people skills are recommended. . . . We believe that such courses will be beneficial to you from a professional perspective, and may provide you with additional skills to assist and encourage staff to accept change.”. Furthermore, the special meeting decided to restructure the line of control and supervision so that the Director of Nursing would be responsible for the nursing staff and not the Manager. At a Board meeting held on 16 May 2001 at which the applicant and the Director of Nursing were present a flow chart was tendered. The Board’s concern about the interpersonal skills of the applicant appear to originate from a concern including the complaint of 26.06.01 lodged by Ms E. J. Lowis, Assistant Nurse at the Murroona Gardens. In response to questioning from the Commission, Ms Lowis advised that after the incident with the applicant on 21.06.01 she complained to the Director of Nursing. In evidence, Ms Lowis advised the response of the Director of Nursing was: “Yes, but – I appreciate – but – but in accordance with the policy, what was her response in addressing the issues of harassment? How did she respond to those? She told me to contact my union. So why – is that – then because of the actions of her response that’s when you went to the board then? Yes. Thank you. She didn’t – she did not tell me to go to the board. No. I appreciate that. No. . . .”. The subjects that resulted in the complaints are outlined in the Affidavit of Ms Lowis wherein she states: “(e) Ken was upset with me for leaving work and asked if I had rang him to ask for his permission. I told him I had spoken to the Registered Nurse on duty. (f) I received two (2) letters from Ken with reference of time off and Doctor’s Certificates. I went to Neva’s office to speak with her. Neva was working through this with me and with her help and support things were going well. (g) One (1) evening while I was working Ken came to the Nursing Home with a letter and handed the Registered Nurse a letter stating that he could not find me. This is not true, as I had seen Ken walk in. (h) I went to Neva's office with the letter and she was not aware of the letter. 5. As a result of Mr. Dicker’s actions I saw Doctors at the Queens Beach Medical Center to obtain medication to help me cope with the stress this had caused.”. As a result of the letter from Ms Lowis the applicant was invited to respond to the allegations made. The Chairman of the Board received responses dated 19 and 20 July 2001. The evidence of the Director of Nursing confirms that she was concerned about a number of incidents involving the applicant and she had kept records and diary notes. In regard to the complaints of Ms Lowis she confirms that she had received the initial complaint but that Ms Lowis wrote direct to the Board rather than to the Director of Nursing. The Commission accepts that the level of communication between the applicant and the Director of Nursing was not to a level expected in such an organisation. The Director of Nursing had not adequately communicated to the applicant that she was counselling Ms Lowis and as a result she decided that it was not necessary for the relevant leave of absence forms to be submitted. So be it, the manner in which the applicant spoke to Ms Lowis was not a manner, which is in accordance with contemporary industrial relations. The Director of Nursing and the applicant should have acted with maturity to ensure that their communication styles were appropriate. As a result the applicant was attempting to obtain leave of absence forms from Ms Lowis at the same time as the Director of Nursing was counselling Ms Lowis on private matters unrelated to her employment. The Commission also accepts that the applicant did not communicate to the staff in an appropriate manner. On receipt of the complaint the Board placed considerable reliance on the Contract of Employment without adequate consideration of other industrial instruments. A special meeting of the Board was held on 20 July 2001 at which the Board unanimously agreed that the applicant’s actions were inappropriate for a person in the position of Manager and that his interpersonal skills were not in keeping with the standards, which the Board required. -- 2 of 3 -- 5 July, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 313 Subsequently in company with Mr Ross Newell, a Board Member, the Chairman met with the applicant and advised him of the Board’s unanimous decision. The Contract cannot be considered in isolation from other instruments, which exist to monitor employer/employee relations. The letter of termination dated 30.07.01 (Exhibit 8) states: “The Board has resolved to terminate your employment with the Society as provided in Clause 14b of the Contract dated 5 th July, 1999. Your termination of employment is effective immediately. You will be paid one month’s pay in lieu of notice as provided in the Contract. The Board acknowledges your contribution, particularly with respect to accreditation, and thanks you for your efforts over the last 2 years.”. At the time of achieving accreditation the Board acknowledged that difficulties would be experienced in achieving change. As a result the applicant enrolled at the local TAFE in a Diploma of Frontline Management and was successfully assessed on seven of the eleven modules to qualify for the Diploma. The applicant was addressing the interpersonal issues raised by the Board. Unfortunately, at the time of the dismissal the Board appeared to have changed their views from the difficulties that managerial staff would experience in implementing change as a result of accreditation to the inability and lack of personal skills of a particular person, namely the Manager. At no time did the Board’s letter (Exhibit 10) suggest that the applicant lacked skills, but they were providing training that would give him additional skills to assist and encourage change. In regard to interpersonal skills the Commission notes with concern the manner in which the Director of Nursing did not initiate any investigation or action on receipt of the complaint but suggested that Ms Lowis contact her Union. The Board meeting held on 20 July 2001 was convened to address the applicant’s responses to the complaints of Ms Lowis. Without giving the applicant the opportunity to express views on the employer/employee relationship, the Board decided unanimously that he was not the appropriate person to lead the staff forward from this point in time. It appears that the manner by which the Board addressed the complaint was to dismiss the applicant rather than address the issue of failure to submit forms and the intercommunication styles of the Director of Nursing and the applicant. On consideration of all the evidence, the dismissal was harsh, unjust and unreasonable. At the time of his dismissal the Contract was not due to expire for another 12 months. Section 79 of the Industrial Relations Act 1999 states: “79 Remedies – compensation (1) If, and only if, the commission considers reinstatement or re–employment would be impracticable, the commission may order the employer to pay the employee an amount of compensation decided by the commission. (2) The commission must not award an amount of compensation that is more than – (a) if the employee was employed under an industrial instrument – the wages the employer would have been liable to pay the employee for the 6 months immediately after the dismissal, paid at the rate the employee received immediately before the dismissal; or . . . (3) The commission must take into account any amount paid to the employee by the employer on the dismissal. . . .”. The Commission considers that the employer/employee relationship has broken down to such an extent that it cannot be restored. The Board had not carried out the review in accordance with clause 15 but was supporting the Manager in the difficult role of implementing change by arranging training in interpersonal skills for the purpose of providing him with additional skills to assist in encouraging staff to accept change. There was no indication that his Contract was under threat. At the same time the Commission acknowledges that the way he spoke to Ms Lowis lacked maturity. The respondent has already paid one month’s pay in lieu of notice. On consideration of all the factors and the circumstances prevailing at the time of the dismissal the Commission orders that Bowen Old People’s Homes Society pay compensation equivalent to three months’ salary to Kenneth Howard Dicker within 21 days hereof. The Commission orders accordingly. K.L. EDWARDS, Commissioner. Released: 20 June 2002 Appearances: Mr K.H. Dicker on his own behalf. Mr P.T. Norman of Groves and Clark and with him Mr R.T. Sanderson on behalf of the respondent. -- 3 of 3 --