'It was a momentary lapse, but a grave one,' says Fair Work Commission
The Fair Work Commission (FWC) recently dealt with an employee’s unfair dismissal claim after being fired over a co-worker’s allegations that he “inappropriately touched” a client.
The employee was a disability support worker at a supported independent living home in Buninyong, Victoria, under Melba Support Services Australia Ltd.
Melba summarily dismissed the employee for serious misconduct after an allegation that he “had placed his lips on a client’s stomach while she stood naked after a shower” and “blew a raspberry.”
The employee maintained that he blew “a raspberry on his arm, and not on the client’s stomach” and that he “did so to distract the resident who was banging on the wall.”
The employee said he had been a disability support worker for five years. There were four residents at the house, all of whom had disabilities with high needs and required assistance with showering and going to the toilet.
One of the residents and clients, “M,” is a woman in her late 20s. The employee said M would often seek staff’s attention and bang her fist on the walls.
One day, after dinner, the employee helped M shower. He said that while they were in the bathroom, M hit the wall, and he distracted her by blowing a raspberry on his arm.
The day after the incident, he received a telephone call from the company’s general manager, who told him that there were “concerns” about his conduct and that he was suspended on pay pending an investigation.
The employer then showed him a letter with an attached complaint from his co-worker regarding his conduct with M:
“I knocked on the bathroom door and stated are you guys right in there, to no reply, upon opening the door, I observed the staff member (employee in this case) to be assisting supported person M in dressing after her shower. He was crouched down next to supported person M. I could see via the reflection of the mirror his face pressed against the bare skin of the lower left side of M’s stomach area and in what appeared to be the action of blowing a raspberry,” the complaint said.
“He had not appeared to have seen me open the door. I was in shock of what I had observed and immediately shut the bathroom door. He and supported person M exited the bathroom 2 minutes later,” the co-worker said.
In a meeting to discuss the complaint with the employer, the employee defended himself and said:
“I didn’t do it. I went through the shower process as I usually do, and I dried her. At some point she hit her fist on the bathroom wall.”
“I had used several responses in the past to distract M, such as calling her mother’s name, but this time I decided to blow a raspberry... I had not done this before. It was just reflex action,” he said.
HRD previously reported on the case of a police officer who was removed from service due to sexual harassment allegations amid his defence that he is “socially awkward” and has no other intention but to be “friendly.”
In another story, a worker was fired for making “verbal threats” against a colleague, but the former argued that he didn’t “start the fight.”
The FWC found the co-worker to be a credible witness, saying that it accepted the “account of what she saw when she slid open the bathroom door.”
“Her evidence was clear, detailed, consistent and convincing.”
As for the kind of evidence in labour cases, the FWC explained that the proof it requires is not the same as in criminal allegations:
“Am I certain that he put his mouth on M’s naked stomach? No. But certainty is not required. He is not charged with a criminal offence where the standard of proof is ‘beyond all reasonable doubt.’ The Commission makes factual findings about what occurred on the balance of probabilities,” it explained, adding that what’s relevant is that “a reasonable satisfaction is attained.”
The Commission said that “his conduct violated the dignity of a vulnerable person who was in his care and of Melba.”
“M was standing alone in a private room with her carer, naked after a shower. It was grossly inappropriate for a carer to place his mouth on her body. Although there was no sexual element to his conduct, he still made a very serious error of judgment,” the Commission said.
“It was a momentary lapse, but a grave one,” it said in its decision.
“It constituted breach of the employer’s Code of Conduct, which he was bound to observe under his contract of employment, and which required him to respect the dignity and privacy of his clients.”
“This is serious misconduct because it breached a fundamental requirement of his position.”
“Observing the personal boundaries of residents is an obvious dimension of the respect which must be shown for residents’ dignity. An organisation devoted to the care of persons with disabilities cannot be expected to tolerate a worker placing his mouth on a resident’s bare stomach. The protection of residents is paramount,” it added.
Thus, the Commission ruled that there was no unfair dismissal.
