Employer's reliance on 'common sense' backfires in dramatic resident emergency case
The Employment Relations Authority (ERA) recently dealt with a case involving a residential support worker who was summarily dismissed after an incident with a resident.
The worker argued that while she should have called an ambulance in hindsight, she did the best she could with the information she had at the time and took reasonable steps to seek medical advice.
The worker also maintained that her employer treated her unfairly compared to her colleague who received only a final written warning for his involvement in the same incident. With nearly 21 years of unblemished service, she contended that summary dismissal was an excessive response to what occurred.
The dispute raised questions about whether the worker's failure to recognise the seriousness of a situation constituted serious misconduct warranting immediate termination, or whether her actions represented a reasonable response based on what she knew at the time.
The organisation involved provides residential care for individuals with intellectual disabilities, contracting its services to the Ministry of Health and Accident Compensation Corporation. It operates six homes in Ōtautahi/Christchurch and takes its obligations to keep residents safe seriously.
The residential support worker had been employed for three weeks short of 21 years, working almost the entire time at the residence where the incident occurred. She helped residents who required support to live independently, some with complex needs and challenging behaviours. Prior to her dismissal, she had no disciplinary record with the organisation.
The incident occurred on 27 April 2023. The support worker had performed a sleepover the night before, and a colleague arrived in the morning for a couple of hours crossover shift. They worked together to get residents ready for their day. One resident had a known disability that gave him a strong drive to eat and required watching when eating as part of a choking risk management plan.
While the support worker was in the kitchen, her colleague was watching the resident eating breakfast. She said the first thing that alerted her to an incident was when she saw her colleague moving quickly.
When she went to see what happened, she observed her colleague helping the resident back onto his chair. Her colleague told her that the resident had lain "sort of rigid" on the floor, but she was unsure what had caused what appeared to be a fall.
After the incident, both staff members noticed the resident seemed alert and appeared normal. The resident was motivated to finish his breakfast. They performed checks such as squeezing fingers and checking his pupils and pulse.
When the support worker asked if the resident should go to work at a marae (Māori meeting grounds), her colleague asked the resident what he wanted to do, and he said he wanted to go to work. The support worker said she went along with that choice as she couldn't think of a reason why he shouldn't go.
Because of the incident, the support worker called a doctor to make an appointment for that day. Her colleague was to inform their manager about what happened and hand over information to staff at the marae.
At 8:51 am, the colleague messaged their manager stating that the resident "collapsed off his chair this morn during breakfast was rigid and unconscious for around ten seconds when he came around looked confused .but recovered ok and back to breakfast and looks OK now .thought I better let u know."
The manager did not immediately see this message. Later at the marae, the resident had two fainting episodes and vomited. An ambulance was called, and he was hospitalised. It was discovered he had an underlying heart condition and required a pacemaker. The resident's family later withdrew him from the organisation's care because of the incident.
Several days after the incident, the support worker was suspended on pay pending a formal disciplinary investigation. The employer alleged in its suspension letter that there was a basis for serious misconduct allegations including: failure to observe the resident's choking risk care plan, failure to assess the potential seriousness of the situation, failure to call an ambulance, failure to fill out an incident report, failure to contact a manager, exposing a resident to unnecessary health risks, and concerns from the resident's family resulting in his withdrawal from care.
On 12 May 2023, the employer sent a letter to the support worker notifying her of a disciplinary meeting and outlining specific allegations of serious misconduct. The letter stated: "It is alleged that you acted on 27 April 2023 in your support and care of the resident with a gross dereliction of duty by failing to ensure that [the resident] was supervised while eating his breakfast and by allowing [the resident] to finish his breakfast and go to work at the Marae instead of intervening and calling an ambulance for [the resident], as well as by failing to contact [the manager] as your manager as a matter of urgency and completing an incident report as soon as possible."
During the disciplinary meeting on 19 May 2023, the support worker explained her version of events in detail. She emphasised that her colleague was watching the resident eating his breakfast at the time of the incident, consistent with the choking risk management plan.
The support worker said she did not see what happened with the resident and relied on what her colleague told her, which included that the resident had missed his chair, lain "sort of rigid" and looked confused. She stated that her colleague did not tell her the resident was unconscious—an important factor in her decision not to call an ambulance.
She described how the resident was smiling, alert, communicating, and engaged with his breakfast when she saw him. She and her colleague checked his pulse and pupils, both of which were inconclusive.
Her colleague asked the resident if he wanted to stay home or go to work, and the resident wanted to go to work. The support worker said this occurred before she and her colleague had a chance to discuss it, and she went along with her colleague's judgment.
The support worker acknowledged she did not write an incident report within 24 hours as required by policy. During the meeting, she explained that a prior manager had a practice of co-signing reports and that she had anticipated co-signing her colleague's report because he had seen what happened. She apologised and referred to the incident as being "… the worst thing that's ever happened in my working life."
At the meeting, when asked what she would do now with the benefit of hindsight, the support worker said: "Absolutely ring the ambulance at any point. Ring [the manager] straight away. I would have had [the manager] in before I said to [my colleague] should we keep him at home."
On 26 May 2023, the employer sent a provisional outcome letter finding the support worker guilty of serious misconduct and proposing summary dismissal. The employer concluded she had failed to assess the potential seriousness of the situation, failed to call an ambulance, failed to complete an incident report promptly, failed to contact her manager, and exposed the resident to unnecessary health risks.
The support worker requested an extension of four days to respond to this outcome, but was only granted a 24-hour extension. Through her union representative, she submitted a response expressing that she accepted culpability for her inaction and deeply regretted not calling an ambulance. Despite this response, the employer dismissed her on 1 June 2023.
In the dismissal letter dated 1 June 2023, the employer rejected the support worker's explanation, stating: "Unfortunately, I cannot accept the assertion that you did not attempt to shift responsibility to [your colleague] in your explanation."
The employer, through its director who was the decision-maker in this case, also claimed the support worker was "well aware" that the resident fell unconscious during the incident, considering this an "aggravating feature" in the case.
The employer offered the support worker the opportunity to retrospectively resign, writing in the dismissal letter: "I regret being in a position to have to make this decision after your 21 years of service and positive work history. In recognition of those matters I am prepared to give you the opportunity to tender your resignation effective as at 5:00 pm 31 May 2023." The support worker did not take up this offer.
Notably, the employer had issued only a final written warning to the support worker's colleague who was present during the same incident. In email correspondence, the employer's legal representative explained the different treatment: "[The colleague's] outcome was different to that proposed for [the worker] because [the colleague's] acceptance of responsibility allowed my client to consider that the relationship could be repaired."
A significant finding by the ERA was that the employer did not have a written policy guiding staff on when to call an ambulance. Instead, the director of the organisation acknowledged that training on when to call an ambulance was informal. Staff were told never to be afraid to call an ambulance and not to hesitate to seek medical advice.
The director stated there needed to be "an element of common sense applied by staff about when to call an ambulance." She believed that with or without losing consciousness, the situation clearly required calling an ambulance. However, the Authority found that relying on this informal approach was problematic when used as grounds for dismissal.
"Relying on an informal policy and common sense was problematic, particularly when [the employer] relied on a failure to follow that approach in dismissing [the worker]," the Authority noted. "The policy and procedures were not as clear as [the employer] says."
The Authority found that the employer's focus on the consequences rather than the support worker's conduct led to an unfair assessment. The director, who made the decision to dismiss the worker, admitted in her evidence that what caused her to consider the matter to be serious misconduct was that the resident nearly died, in addition to being taken away from the organisation and potential harm to its reputation.
In the Authority's determination, the Authority member stated: "I find this approach prevented [the director] from genuinely considering the explanations provided by [the worker] about what had happened and what she knew (or did not know) at the time." The Authority member further noted that "This disproportionately affected how [the employer] framed the allegations and reached its decision that serious misconduct had occurred."
The ERA determined that the employer's dismissal of the support worker was unjustified. A key point in this decision was the employer's conclusion that the worker knew the resident was unconscious, despite her consistent denial of this knowledge.
In its determination, the Authority stated: "I do not consider a reasonable employer could conclude [the worker] knew [the resident] was unconscious at the time of the incident."
The Authority explained that the records the employer relied on were all made after the incident and after the decision to send the resident to the marae had already been made. They did not record what the colleague told the support worker about the incident.
The Authority also found the employer had not properly investigated the matter, noting in its determination: "Failing to further investigate, or failing to provide relevant information about what [the colleague] said he had told [the worker], were procedural flaws that were more than minor and impacted materially and unfairly on the conclusion [the worker] knew [the resident] was unconscious and ultimately the decision to dismiss."
Regarding the employer's characterisation of the support worker's actions as a "gross dereliction of duty," the Authority stated in its determination: "It is difficult to see how a fair and reasonable employer could view what happened as a 'gross dereliction of duty' which implies a deliberate action or inaction on [the worker's] part in the knowledge that what she did was wrong. I do not accept she did."
The Authority emphasised the importance of evaluating decisions based on what was known at the time rather than subsequent outcomes, stating in its determination: "To assess [the worker's] actions at the time of the incident, with hindsight, was not fair."
As a result of finding the dismissal was unjustified, the ERA ordered the employer to pay the support worker $25,000 in compensation under section 123(1)(c)(i) of the Employment Relations Act 2000 for humiliation, loss of dignity, and injury to feelings.
