Sunday 19th November 2006
Spurious accusations of sexual misconduct and a deeply-flawed investigation by their employer led to a horrific ordeal for four AiNs in a Sydney nursing home.
For Jasmin Lata, Millie Rodriguez and Vijay Khan – all migrant and deeply religious women – the last 12 months have been a nightmare.
Their ordeal started with outrageous claims of sexual harassment of a resident made by a fellow worker, who was later thoroughly discredited. It escalated through a bumbling and inept investigation by their employer, Hammond Care, in a classic ‘kangaroo court’ that led to them being summarily dismissed.
Throughout the ordeal, each suffered hurt and embarrassment, as did their family members. Each had difficulty in finding continuing employment in her chosen field because of the nature of the charges against her.
After a year of heartbreak, all this was finally recognised by the Industrial Relations Commission, which awarded them the maximum amount of compensation permissible under the law. The three were represented in the Commission by the NSWNA.
Devastation for their families
Jasmin says the accusations had a devastating impact on her and her family.
‘I was very upset. Last April my father-in-law passed away. In July my mum had a stroke. Then in October I was suspended and I lost my job,’ she said.
‘It was a very stressful time. It affected all my family. I felt so angry. I didn’t even want to go out.’
For Millie and Vijay, the impact was equally traumatic.
‘I was depressed. In our culture to be accused like that, even to talk about it, I felt ashamed,’ Millie said.
‘The allegations were disgusting. I was crying, I couldn’t sleep at night. I couldn’t get over it,’ said Vijay.
Accusations so vague it was unclear what they were answering for
The Commission found that the investigation of the accusations by their employer was not only inadequate but gave undeserved substance to what proved to be outrageous and false claims.
There was also scant regard given to procedural fairness.
At two interviews each with management, the women were never even told of the details of the allegations or the identity of their accusers.
‘They didn’t tell us anything. We asked what had happened so we could defend ourselves. They just said it was sexual harassment. “Why did you do it?” they kept asking,’ said Jasmin.
At the first interview, they were told there was one witness to the alleged abuse. At the second interview they were told there were seven witnesses. The most vocal of these new witnesses was on work experience and had only been working at the facility for four days. Others signed statements they later either wholly or partly recanted. Some later complained of being frightened when they made their statements.
‘Everybody was worried about losing their jobs and they just agreed with what they were told,’ said Jasmin. ‘One girl said she was sorry that she signed the letter without even reading it.’
Vijay Khan strongly protested her innocence to the human resources managers who investigated the claims.
‘I deny it ever happened,’ she told them. ‘I would tell the RN if it did. I have values. This is sick and disgusting. I’ve worked here for seven years without a single complaint. It’s a second home. I want a completeinvestigation to clear my name.’
Unfortunately, that complete investigation never came from the company. It was only when their case came before the IRC that Jasmin, Millie and Vijay discovered the nature of the accusations beyond vague allegations of sexual misconduct.
They had been accused by another AiN of ‘dancing suggestively’ in front of an 81-year-old resident with schizophrenia and dementia and then laughing at him. This behaviour was said by management to be ‘systemic’.
Jasmin Lata says the accusations were vague, ridiculous and far fetched. ‘I’m a shy person. I would never have danced in front of the residents,’ she said. ‘They never gave us any chance to explain ourselves.’
Management’s bumbling investigation
The Commission found that the company’s investigation ‘was coloured by the outrageousness of the claims by the original complainant, much of which was discredited by the end of proceedings, and the employer’s concern to protect its residents at any cost’.
The tone of the management investigation was intimidating.
At one point, the nursing home’s human resources manager told Vijay Khan: ‘Even if you are not involved, there is an allegation against you – and unless you can give us an explanation – I can’t afford to take the risk with residents that you are an abuser.’
This accusing approach was despite the fact that all four AiNs had worked at the nursing home for more than six years with unblemished records with their employer.
The RN responsible for the residents’ care was not even called to give evidence. She later described Millie Rodriguez as ‘liked and respected’. Another RN wrote that she was ‘compassionate’.
‘All the RNs supported us. They knew we didn’t do any of those things,’ said Millie.
The Commission found that Hammond Care’s evidence was riddled with inconsistencies and discrepancies:
Completely exonerated with maximum compensation
In a damning decision, the Commission slammed Hammond Care for the inadequacy of its investigation. It found the evidence of Jasmin, Millie and Vijay to have been proven accurate and the accusations against them to be ‘untrue’ or ‘exaggerated’.
It awarded the maximum compensation possible of up to 26 weeks’ pay.
Millie says she hopes something positive will come out of it for other AiNs working in a similar environment.
‘I was very pleased after all I had been through. Now they will have to think twice and conduct a proper investigation before they sack anybody,’ she said.
Jasmin says she is relieved by the decision but scars still remain from the experience.
‘It wasn’t about the money. It was about clearing our name – that was the main thing,’ she said.
Vijay says there is a lesson for other AiNs.
‘The union was just excellent. I’ve encouraged other AiNs to join the union.’
As The Lamp went to press, Hammond Care was yet to apologise to the women.
The Commission’s judgement can be read online at http://caselaw.lawlink.nsw.gov.au/isysquery/irl62b3/2/doc
We stand up in court for members
NSWNA General Secretary Brett Holmes says no nurse starts out their career planning to appear before a court or tribunal but the reality is that many nurses do.
‘It is a deeply distressing experience and we see it as an important role for the Association to provide comprehensive legal support,’ he said.
The NSWNA employs a number of lawyers, some who are nurses with wide clinical experience.
Last year we supported:
This is on top of the large amount of legal representation for unfair dismissals, underpayment of wages and industrial advice.