Employer argues misconduct, but worker says allegations 'exaggerated'
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a disability support worker and his employer, a provider of services to people with disabilities on the mid-north coast of New South Wales.
The worker argued that his dismissal was unjust, claiming he had acted in the best interests of his client and that many of the allegations against him were unfounded or exaggerated.
He said that his actions were often necessitated by the complex needs of his client and the challenges of coordinating care in a 24-hour support environment.
Unclear job description
The worker had been employed as a support worker for a client with an acquired brain injury since July 2018. His role involved providing 24-hour in-home support to help the client live independently. The worker was designated as the "Key Support Worker" for the client, although the exact responsibilities of this role were not clearly defined.
The client required assistance with most aspects of day-to-day life, including toileting, showering, dressing, medication, health management, mobility, and transfers from wheelchair to bed and car. The client also needed help with communication.
In July 2023, another support worker submitted two reports about incidents regarding the client's care under the worker's supervision. One incident involved the client having a medical episode and being taken to hospital in an ambulance. The worker had advised that a puffer found in the client's home did not belong to the client, but later claimed to know about it.
These reports led the employer to start an internal investigation, followed by an independent fact-finding investigation in September 2023.
Job description and allegations
The investigation resulted in ten allegations against the worker. These included:
- Making negative comments about colleagues to the client's power of attorney
- Failing to ensure the employer had visibility of the client's mental health plan
- Not following recommendations for using a standing hoist to transfer the client
- Failing to adhere to the employer's accounting policies when authorizing expenditure under the client's NDIS funding plan
- Making inappropriate comments in a communication diary kept in the client's home
The worker denied most of the allegations and provided explanations for his actions. For instance, regarding the mental health plan, he said:
"I acted on the plan by trying to make an appointment with a new provider, Dokotela, but had difficulty doing so as we kept missing each other's calls."
The worker also explained that he had written in the communication book about the need to administer a bowel screening test, but the client did not want to take the test.
Regarding the standing hoist, the worker argued that it was uncomfortable for the client and that a physiotherapist had trained staff in manual transfers without the aid. He stated:
"It was important that [the client] could still use his muscles and stay independent and that the standing aid was an added bonus for [the client's] quality of care and available for staff who did not feel comfortable performing manual transfers."
Worker’s alleged misconduct
The Commission found that the employer had not been able to establish that misconduct occurred with respect to the majority of the allegations. This was partly due to the employer's decision not to provide all the material considered in the investigation to the Commission.
However, the Commission did accept that the worker should have brought the client's Mental Health Plan and Bowel Screening Kits to the employer's attention. It also found that some of the worker's conduct towards colleagues was unprofessional.
The Commission said:
"These matters may have warranted some form of disciplinary action, but in my view they are not sufficiently serious to justify dismissal, particularly in light of [the manager's] evidence that a lot of [the worker's] behaviour had not been properly addressed due to changes in management."
Despite finding no valid reason for dismissal, the Commission ultimately decided that the dismissal was not unfair. This outcome was due to the worker's failure to provide adequate evidence to support his case.
The Commission explained:
"Although [the employer] bears the onus of establishing whether there is a valid reason for the termination, it is [the worker] as the applicant in this matter who must satisfy the Commission that his dismissal was unfair in circumstances where this is disputed by [the employer]."
The Commission further noted:
"As [the worker] did not provide any evidence in relation to any of the matters I am required to consider (apart from the transcript of interview with [the investigator], which is an incomplete record of his responses to the allegations), my finding that [the employer] could not establish that misconduct occurred in relation to most of the allegations is not a sufficient basis to conclude that the dismissal was harsh, unjust or unreasonable."
This case highlights the importance of clear job descriptions and role boundaries, especially in roles where personal relationships can develop; and in this case, the responsibilities of the "Key Support Worker" role were not clearly defined, leading to confusion about the worker's duties. Additionally, thorough documentation and investigation of misconduct allegations are essential before proceeding with termination.
