Support worker who used 'excessive force' in the clear due to employer's failure
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker who engaged in deliberate misconduct while caring for an autistic The National Disability Insurance Scheme (NDIS) participant.
The employee, who was a disability support worker, was considered "experienced in dealing with underprivileged members of society and situations where the controlled restraint of difficult individuals is required," the Commission noted.
Yet, one unfortunate occasion involving physical and verbal harm led to the worker's dismissal, and the employer contended that it had a sound and well-founded reason to dismiss the worker.
At the time of his employment, the worker provided care for the participant who had been diagnosed with autism spectrum disorder and intellectual disability. "From time to time the participant can become extremely violent," the FWC noted.
The worker and his colleague cared for the participant who lived in a house. The Commission noted that the worker involved in the case had no record of any inappropriate conduct or behavior in relation to the participant he was taking care of.
One time, on 30 October 2022, the worker applauded the participant on getting through the loud music that came from the neighbors. According to the report, loud music was one of the participant's triggers. The participant had also verbally communicated that he did not like the loud music from next door and he felt unsafe.
Thus, when the worker congratulated the participant on surviving last night's noise, the participant changed, his eyes went dark, and he came towards the worker to attack him.
The incident became violent to the point that the worker and his colleague had to physically restrain the participant. On one occasion, the worker used his leg to exert reasonable force on the participant and push him away as the latter would attack him.
However, during such incident, the worker deliberately kneed the participant in the back of his head two or three times and even said, "Stop attacking us, you f******g little cunt” which his colleague saw and heard.
The FWC noted that the employer, consequently, terminated the worker's employment because the worker “a) deliberately kneed a participant in the back of his head on two or three occasions and called him a "little cunt”(b) failed to report the extent of the level of force used in physically restraining the participant and (c) did not inform the participant's mother after the incident of the level of force and the manner in which it was used during the physical restraint.”
After careful examination, the Commission was satisfied that the employer had a valid reason to dismiss the work and afforded the worker procedural fairness before deciding to end his employment.
However, in its decision, the Commission noted that the worker's dismissal was unfair and unreasonable because the employer failed to comply with its appeals process.
The worker, according to the FWC, "was denied the opportunity to participate in an internal appeals process and remain employed (and paid) for a period of about eight weeks."
Hence, the Commission ordered the employer to pay compensation to the worker as the latter suffered a financial loss due to his unfair dismissal.
