A recent Fair Work Commission (Commission) decision provides clear guidance on the importance of workplace policies for aged care providers.1
According to the Commission, policies should clearly set out the limits of interactions that employees may have with clients, and those policies should be clearly communicated to employees. This will allow aged care providers to effectively manage the dismissal of employees whose conduct in relation to clients is contrary to their employer’s policy. It will also help avoid the risk of a former employee commencing proceedings against their employer in the Commission, where there is generally no ability to recover costs of the proceeding from an unsuccessful party.
The employee in Lawrence v Calvary had been employed for 14 years as a Support Worker with Calvary Home Care Services (Calvary). In 2015, she was dismissed by Calvary on the basis of alleged performance and conduct issues.
The employee was dismissed for allegedly failing to report the deteriorating health of a client of Calvary for whom she was responsible. According to Calvary, the employee breached its policies and procedures by accepting work for cash payments in a private arrangement to purchase groceries for the client, and by failing to comply with a number of lawful and reasonable directions to attend the Calvary offices to discuss its concerns in relation to her conduct.
Calvary’s policies and procedures
Calvary had a number of documented policies applying to the role of Support Workers, including a policy and procedures manual. The manual included a clause allowing Calvary to terminate the employment of an employee who accepted private work from Calvary clients. Employees were provided with a copy of the manual, and received regular and on-going training on its contents.
The employee’s most recent employment agreement, signed in 2008, required her to accept that she would abide by the company’s policies and procedures and would not accept work under a private arrangement with any client she met through employment with Calvary.
The employee’s argument
Among other arguments, the employee asserted that Calvary placed too much emphasis upon its policies. The employee had previously requested that Calvary provide grocery services to the client, and therefore claimed that extended services should have been provided to the client in question. (The Commission noted the client had not made such a request of Calvary.)
Calvary’s decision to dismiss the employee was found to be well-reasoned and lawful. The Commission explained that not every breach of a policy will provide a valid reason for termination of employment. However, where a policy is both lawful and reasonable and an employer has stressed the importance of the particular policy to the business and made it clear to employees that any breach is likely to result in termination of employment, an employee who knowingly breaches that policy will have difficulty arguing that there is no valid reason for the termination.
The Commission found that Calvary’s policies were reasonable and explicit and that the employee’s views on the policies did not give her reason to ignore and breach them. In addition, the proper approach to dealing with circumstances if a client made a request for care outside of a care plan was available to Calvary’s employees and was specifically acknowledged by the employee during an annual performance review in 2014.
This case provides insight into some of the procedural hurdles and barriers to the recovery of costs in the Commission, even when a party is successful at law, including:
- Given the various significant factual disputes in the matter, the employee’s application was subject to an extensive hearing. Despite the positive outcome for Calvary, this was not without significant cost, time and absence of personnel from the workplace, inevitably disrupting the business. As a “no costs” jurisdiction, an employer would ordinarily not be entitled to recover any costs from the applicant.
- Parties must seek the Commission’s permission if they wish to be represented by a lawyer, counsel or any other paid agent. In this case, the employee was represented by a friend, who was also a Justice of the Peace. The Commission refused Calvary permission to be represented by its lawyer. As a result, Calvary was represented in the proceeding by the General Manager of Human Resources.
Unfortunately, it is often not until day one of a hearing that the Commission will hear submissions for representation and determine whether permission will be granted or refused. Parties, including an appropriate representative from the employer, should therefore be fully prepared by their lawyer in the event that permission to be represented is refused.