Colesnic v Director-General, Department of Family Services and Aboriginal and Islander Affairs [1991] QIRC 96 (1991) 138 QGIG 537

[537] The Queensland Government Industrial GazettePUBLISHED BY AUTHORITY Annual Subscription $260 ISSN 0i55-9362 ,,. Vol. 136] SATURDAY, 6 APRIL, 1991 [No. 18 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1990 s. 11 11 - application for reinstatement Mrs Cheryl Ann Colesnic and Director-General, Department of Family Services and Aboriginal and Islander Affairs (So. B46 of 1991) AWARD FOR EMPLOYEES IN THE INTELLECTUAL HANDICAP SERVICE - DEPARTMENT OF HEALTH COMMISSIONER EDWARDS 22 March 1991 Termination of Employment - Dismissal - Reinstatement - Remuneration - Agreed Statement of Facts - Evidence - Employee Performance - Arbitrated Matter - Insufficient detail provided by Applicant - Dismissal Not Harsh, Unjust or Unrea- sonable - Application for Reinstatement Refused. DECISION By application filed on 11 February 1991 Mrs Cheryl Ann Colesnic applied for reinstatement to her former position of Residential Care OfficeL Department of Family Services and Aboriginal and Islander Affairs at Basil Stafford Centre, Waco!. Schedule 1 of the application provided:- "(a) That the applicant be reinstated in her former position without prejudice to the applicant's former conditions of employment. (b) That the respondent pay remuneration for lost wages between the date of termination (29 January 1991) and the date of reinstatement. (c) Further and/or in the alternative, that the respondent pay the applicant such amount of compensation which the Commission considers appropriate. (d) Such further or other order as the Commission considers appropriate.". 110482-46 At the preliminary hearing on 15 February 1991 the parties agreed that the submissions and evidence should commence on 27 Feb- ruary 1991. At the hearing on 27 February 1991 by Exhibit 1 (as amended) the Commission was provided with an agreed Statement of Facts. Mr D. Jeffery of The Hospital Employees' Union of Queensland. Union of Employees (HEU) for the Applicant advised that he would not be calling any witnesses. The Crown submitted that in view of the fact no evidence was to be called by the Applicant it had no case to answer and should not be required to proceed. In giving its decision the Commission indicated that the Crown proceed with its witnesses. In indicating as such the Commission was cognisant of Exhibit I which provided the agreed information on which submissions and evidence would proceed. On 29 January 199 I Mrs Cheryl Ann Colesnic was dismissed as an officer of the public service by the Director-General, Department of Family Services and Aboriginal and Islander Affairs. Except for record of service sheet (Exhibit 18) no evidence was provided to the Commission which confirmed the position which Mrs. Colesnic held at the Basil Stafford Centre at the time of her dismissal. Exhibit 18 suggests Mrs Colesnic commenced duty as a Residential Care Worker (Training), Basil Stafford Training Centre on 20 February 1978. By Exhibits 6, 6A and 6B the Commission was provided with certain employment history of Mrs Colesnic. As such it was submitted that the Commission should take such information into account for the purpose of this application. A detailed examination of the Exhibits reveals that Mrs Colesnic was interviewed on a number of occasions about absences from duty. The information examined by the Commission reveals that at an interview on 25 Februarv 1982 the recommendation of the Senior Officer was that "No Further Action to be taken". The details of Exhibits 6, 6A and 6B appear to be incomplete but the material does reveal that medical evidence was provided by Mrs Colesnic. On review, the Exhibits do not display any material which would suggest that the Department was so concerned about her that arrangements should be made for professional counselling of Mrs Colesnic or to implement any other programme which may have assisted Mrs Colesnic to improve her attendance record. -- 1 of 2 -- 538 QU EE NSLAND GOVERNMENT IND USTRIAL GAZETTE [6 April, 1991 In view of the nature of the submissions, the lack of details provided to substantiate the claim combined with other factors such as the various types ofleave approved during the periods, the Commission rejects the submission by the Crown that the employment history of Mrs Cotesnic should be considered. The Crown called four witnesses:- Mr G.A. Ross, Re~onal Manager for the Brisbane South Area of the Division of Intellectual Disability Services, Department of Family Services and Aboriginal and Islander Affairs: Mrs M.A . Smith, Principal Residential Officer, Basil Stafford Centre; Miss J. O'Leary. Senior Residential Officer, Basil Stafford Centre; Dr A. Reid, Medical Officer, Basil Stafford Centre. Mr G.A. Ross. Regional Manage r for the Brisbane South Area of th e Division of In tellectual Disability Services, Depanment of Family Services and Aboriginal and Islander Affairs holds a Bach- elor Degree in Social Work, a Postgraduate Degree of Social Work and a Masters Degree in Social Work. In addition to holding o ther positions wi th in the Depanment. he was in !984 appointed Super- intendent, Basil Stafford Training Ce nt re and Brisbane South Regiona l Resource Service. Mr Ross advised that since I 988 all prospective employees have been subject to a police check in relation to criminal convictions or anything else which would impact upon a person's employment. Furthermore. he outlined th e procedures which are followed in rela tion to orientation programmes for newly appointed Residential Care Officers. During cross -e xamination Mr Ross accepted that whilst he is no t Mrs Colesnic's immediate supervisor, he had no reason to believe that she has not carried out her duties with competency. In response to questions from the Commission, Mr Ross outlined that the Basil Stafford Centre is a residential care centre for approximately 125 persons who have severe intellectual disabilities. In response to further questioni ng regarding responsibility and vulnerability, Mr Ross indicated:- "People with severe intellectual disability usually can't com- municate in a verbal manner. They are usually physically impair ed in terms of co-ordination, so in terms of bei ng able to take responsibility for themselves, they can't , that is why we have the rostered staff to help. They cenain ly can learn things li ke dressi ng and feeding themselves and do ing things like that, but in terms of decision-making processes, they certain ly can't make major conceptual decisions. They are a very vulnerable group because of that. They certainly can learn the difference between right and wrong, there is no difficulty with tha t, but thev are vulnerable to people who take an interest in them, form a relationship with them and whom they trust and that is particularly resi?e.~t ia l care staff who are with them on a day-to-day basis.. During re-examination Mr Ross stressed that from an administra• tive point of view trnst was a key issue, wit h the imponance being the trust that the cl ient has for the care giv er combined with the trust situation in which the care giver is placed. Mrs M.A. Smith. Principal Residential Officer, Basil Stalford Train• ing Centre, Wa co! advised the Commission that her qualifications are: - Registered Psychiatric Nurse in Queensland and New South Wales; Registered Mental Re tardation Nurse in New South Wales: Bachelor of Ans Degree from the Universi ty of Newcastle, New South Wales majoring in Psychology and Education. In out lini ng thr responsibil ity of the Residential Care Officer, Mrs Smith informed the Commission that her contact with Mrs Colesnic has been minimal and has occurred d uring visits to residential areas in which she was working. She said that Mrs Colesnic did not repon any criminal charge or conviction that had been imposed during I989 nor at any time since that date. Furthermore, exam- ination of her file confirms that she has not reponed such incident to any supervising officer. In relation to vulnerability she expressed the view that such varies from client to client but the majority of clients wou ld depend on the Residential Care Officers for their health and well being, including meals, bathing and prescribed medications. Accordingly, with such low support capabilities, Residential Care Officers are involved in the supply of clients. basic needs. Th is results in the imponant element of trust and fnendsh1p relauonshtp devetoprng between the client and the Residential Care Office!'. Jn relation to prescribed medication Mrs Smith advised that indi- vidual clients at the Centre have their own prescribed drugs. Accordingly, the key to the drug cupboard would be t he respon- sibility of th e Residential Care Officer and anybody who wanted to obtain medicines from t he drug cupboard would need to obtain the key from a Residential Care Offi ce r. In cross-examination Mrs Smith stated that she was not aware of any problems in re la ti on to any deficiencies of prescribed medications. Mrs J. O'Leary, Senior Residential Office r, Basil Stafford Centre, Waco! has been employed since April 1984 and is the holder of an Associate Dip loma in Residential Care. She is Mrs Colesnic's immediate supervisor. Mrs 0'Learv confirmed that at no time had Mrs Cotesnic men- tioned that she had been convicted of an y criminal offence. Mrs O' Leary outlined that the relationsh ip between the Residential Care Officer and the client is one of surpon, friendship, advocacy and facilitation. All such things combine with trust to create a very important element as clients can be very vulnerab le . Dr A. Reid, Medical Officer, Challi nor Centre and Basil Stafford Centre outlined that in relation to the accessibi li ty of drugs, in a general hospital situauon trained nursing sisters are responsible for medication. When the new caring profession was introduced in 1977 the peop le looking after the residents became responsible for the administrat ion of the medication along the same lines as a pare nt would be in the home situation if they had a chi ld who was ill. Accordingly, the Residential Care Officer administers pre- scription drugs. Dr Reid outlined that it is a possibility a person wi th a drng probiem cou ld manipulate the use of prescription drugs so that such drugs would be an attraction for users of illicit drugs. During cross-examin at ion D r Re id ad vised that there is no evide nce of the misuse of drugs at the Basil Stafford Cen tre. In considering this application the Commission notes it is accepted that Mrs Col.esnic has performed her duties in a responsible manner. Clearlv the dismissal resul ted from the advice to t he Director- General of the conviction and the fact that Mrs Colesnic had not informed the Director-General as prescribed by the legislation. The Commission has reviewed the evidence and information and notes that expert witnesses have confirmed that Mrs Co le snic was working in an area which emailed the care of people of a vulnerable nature. The Commission is of the opinion that vulnerability is a most important aspect of this application for even though the Employer has a more considerate and humane approach than previously. it is very clear that persons employed in the position such as Residential Care Officer should have impeccable records. The Employer's policy as such states inter alia:- ''(a) the employee 1s not required, in the norma l course of d ut y, to have contact wit h members of ·vu lnerable' groups, such as children. intellectually disabled persons, persons wi1hin a co rrectional institution, clients with drug depend- ency probiems and drug offences; and (b) the employee is not employed in an environment where drugs may be read ily available and accessible; and (c) the. employee has demonstrated no deterioration in work performance related to the offence.". On a review of each of the above the Comm ission has formed the opinion that based on the ev idence available the groups are vul- nerable and Mrs Colesnic as a Residential Care Officer must be in a position to guide and assist pat ie nts on a very personal level. The evidence revea ls that Mrs Colesnic has carried om her duties in a manner beyond reproach and there was no suggestion that her private behaviour was in any wav an infringement on tile responsibility as a Residenti al Care Officer. In consideri ng the application the Com mission has given cognis- ance to s. 11. l l of the lndu szrial Relations Act 1990, the evidence, submi ss.ions presented, the role of the Department of Family 6 April, 199 l] QUEENSLAND GOVERNMENT INDUSTRJAL GAZETTE Services and Aboriginal and Islander Affairs. the policv of the Employer, rehabilitation programmes and the Department's com- passion for emp loyees. The Commission did raise with the applicant the types of relief available under s. 11. l I of the Industrial Relations Act 1990. In response Mr Jeffery requested the Commission to give the matter full consideration within the provisions of that section. So be it, the Commission cannot isnore the nature of the offence when compared with her responsibilities as o utlined by expert witnesses and the known policy of her Employer to which reference has previously been made. The Commission is of the opinion that had Mrs Colesnic been employed in a position that did not include responsibility for persons of such vulnerability then the question of dismissal would not have arisen. Accordingly. the Commission is responding to the application made and submissions received. Had any indication been made by Mr Jeffery that there was a need for compassion or of_ th_e availability of a rehabilitation programme then the Com- m1ss1on would have been placed in a more conciliation mode. Th is is especially so after reading the revised employer policy statement for such offences. Cognisance has been gi_ven to the fact _that the submissions by Mr Jeffery related pnmanly to the desire of Mrs Colesnic to be reinstated to her fonner position of Residential Care O fficer. As men tioned, the Commission referred to relief available under s. 11 .1 1. However, in view of the lack of submissions by Mr Jeffery the Commission has formed the view that Mrs Colesnic's primary desire was reinstatement and not to recognise the nature of the offence and to seek to be emp loyed in an area not associated with people of such vu lnerability. Such application may have been available under s. 11.11 (2) of the Act. Furthermore, Mr Gibson did not indicate any desire by the Director-General to attempt to rehabilitate or retrain Mrs Colesnic in a position the type of which I have made reference. In view of the evidence and submissions the Commission deter- mines that the dismissal was not harsh, unjust or unreasonable. The application for reinstattmen t is therefore refused. l order accordingly. K.L. EDWARDS, Commissioner. Appearances:- Mr D. Jeffery for The Hospital Employees' Union of Queensland. Union of Employees. Messrs A. Gibson and G. Herbert for the Director-General, Depan- ment of Family Services and Aboriginal and Islander Affairs. Operative Date: N/ A Decision - Re instatement of Mrs C.A. Colesnic 539 -- 2 of 2 --