Employer argues actions amounted to 'serious misconduct'
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a disability support worker and a large disability services organisation. The case centred around allegations of misconduct towards clients with disabilities.
The worker had been employed as a disability development and support officer since January 2021, having transferred from the Department of Health and Human Services. She worked in a disability accommodation house, supporting four clients with disabilities.
In November 2023, the employer began investigating two separate allegations that the worker had physically and emotionally abused two clients.
This investigation substantiated the allegations, leading to a show-cause process and, ultimately, the termination of the worker's employment in January 2024.
The worker then filed an unfair dismissal application with the Fair Work Commission, challenging the grounds for her dismissal.
Details of the allegation
The first incident allegedly occurred on 10 July 2023. The worker was accused of entering a client's bedroom and shouting at them to leave their bed and move to the living room to watch television.
This client had diagnoses including intellectual disability, vision impairment, epilepsy, and psychotic disorder. Two colleagues, a disability support worker and a house supervisor, claimed to have witnessed this incident.
The second incident took place on 5 September 2023. A house supervisor alleged that upon arriving at work, he heard screaming from the kitchen area.
He claimed to have witnessed the worker attempting to force-feed a client, slapping the client across the back of the head, and then pushing the client outside and locking the door. This client had diagnoses including epilepsy, asthma, intellectual disability, and autism spectrum disorder.
The worker admitted to some aspects of the second incident but disputed others and provided mitigating circumstances during the investigation.
The employer’s investigation and decision
The employer conducted an internal investigation into both allegations. The investigation report concluded that the worker's actions constituted reportable incidents under National Disability Insurance Scheme Commission (NDISC) guidelines and amounted to serious misconduct as defined in Fair Work regulations.
Based on these findings, the employer issued a show-cause letter to the worker in early January 2024. After considering the worker's written response, the employer proceeded with termination on 12 January 2024.
The termination letter stated:
"We have determined that your conduct constitutes serious misconduct and has breached the following: NDIS Reportable Incident: The allegations were determined to be a National Disability Insurance Scheme Commission (NDISC) Reportable Incident and were assessed as such as part of this investigation."
The worker's arguments
In her response to the employer’s letter and unfair dismissal application, the worker disputed several aspects of the employer's process and findings:
For the first incident, she argued that the four-month delay in notifying her undermined the validity of any disciplinary action. She admitted to getting the client out of bed but denied using force or acting inappropriately.
Regarding the second incident, the worker expressed disappointment that mitigating circumstances she had raised were not adequately considered. She also questioned the procedural fairness of an internal investigation and raised concerns about inconsistent management approaches.
The worker contended that her actions did not merit termination, stating:
"In respect of the NDIS and [employer] codes of conduct, [I] had acted with respect; that support was provided in a safe and competent manner and that there was 'no violence, exploitation, neglect or abuse'."
The FWC’s considerations
In evaluating whether the dismissal was harsh, unjust or unreasonable, the FWC considered several factors as outlined in section 387 of the Fair Work Act. These included whether there was a valid reason for dismissal, if the worker was notified of the reason, and if she had an opportunity to respond.
The Commission emphasised that in misconduct cases, it must determine whether the alleged conduct actually occurred and what it involved. As stated in the decision:
"The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination."
The FWC also noted that while serious misconduct can constitute a valid reason for dismissal, it is not necessary to prove serious misconduct to establish a valid reason. The key consideration is whether the conduct was sufficiently grave to justify dismissal as a reasonable response.
After weighing all the evidence and arguments, the Fair Work Commission ultimately found that the worker was not unfairly dismissed. The Commission concluded that the employer had a valid reason for the dismissal related to the worker's conduct, which had been properly investigated and substantiated.
This case underscores the importance of proper investigation procedures and clear communication in misconduct cases, especially in sensitive care environments. It also highlights how the FWC balances employee rights with employer obligations to maintain safe workplaces for vulnerable clients.
