Worker allegedly 'choked' vulnerable client; employer defends termination
The Employment Relations Authority (ERA) recently dealt with a case involving a youth worker who was dismissed from a youth justice residence operated by the Ministry for Children (the Ministry).
The worker claimed that her dismissal was unjustified, while the Ministry argued that the dismissal was justified due to her alleged use of excessive and unnecessary force on a young person under her care.
This case is a prime example of the delicate balance that must be struck between an employer's duty to ensure the safety and well-being of those under their care and an employee's right to fair treatment and due process.
The decision highlights the importance of thorough investigations, clear communication, and consistent application of policies and procedures in disciplinary matters.
Background and context
The worker was employed as a youth worker at a youth justice residence operated by the Ministry. Youth justice facilities care for young people, usually between 14 and 18 years old, who have backgrounds of criminal offending and sometimes addiction, mental health issues, and various forms of trauma. The residences can be challenging environments to work in.
The worker had completed an arts degree in criminology and psychology and had experience as a youth leader at her church and a Pacific leader at a Christian college.
She had been working at the residence since 2017, initially as a casual and then as a permanent youth worker. She had also undertaken additional training in her own time and at her own expense, including courses on suicide prevention and alcohol and drug awareness.
As part of her training with the Ministry, the worker undertook STAR (Safe Tactical Approach and Response) training.
According to records, STAR is a model that provides guidelines for the use of physical force in youth justice residences. Under STAR, any use of physical force must be lawful, proportionate, necessary, and reasonable.
The incident that led to the worker's dismissal occurred on 5 March 2021, when she allegedly used excessive and unnecessary force on a young person at the residence.
The Ministry relied on CCTV footage, incident reports, and verbal accounts from staff members to support their decision to dismiss the worker.
Employer’s decision-making process
The residence manager, who was the decision-maker in the disciplinary process, viewed the CCTV footage shortly after the incident.
He described seeing the worker crossing the room, pushing the young person, and then putting her hand around the neck area in a "back-and-forth strangling/choking motion."
However, during the disciplinary process, the Ministry's HR advisor acknowledged the limitations of the footage, stating, "What is unclear, we can't visually see where the hands were placed because it's blurred."
Despite this, the Ministry decided not to interview other staff members who were present during the incident or the young person involved.
The worker argued that the Ministry's investigation was inadequate and that the decision to dismiss her was based on incomplete information.
She also raised concerns about the decision-maker's previous involvement in a complaint she had made and his alleged inexperience in handling disciplinary matters.
Worker’s arguments
The worker maintained that she had used an approved restraint technique called a "Train stop" and that her actions were proportionate to the threat posed by the young person's aggressive behaviour.
She described the young person's body language, facial expressions, and swearing as leading her to fear for her safety.
"Fearing for her own safety, she used a STAR-approved restraint technique, called a Train stop, with both hands pushing [the young person] away from her. Palms are applied to either side of the (upper) chest below the collarbone to create distance. She saw this as the lowest from of intervention in circumstances where she feared for her safety."
The worker also pointed out that the police had investigated the incident and decided not to take any further action against her. She argued that this should have been given more weight in the Ministry's decision-making process.
ERA’s findings and conclusion
The ERA found that the Ministry did not act as a fair and reasonable employer could have done in dismissing the worker.
The decision-maker acknowledged that the worker's hands were higher than the approved Train stop position but ultimately denied that they were on the young person's neck.
"A push is significantly different from choking or strangling. If the latter was established then dismissal seems inevitable. Rather [the Ministry] seems to have decided to withdraw that element from its allegations without explicitly identifying that was the case or explaining its decision."
The ERA also found that the Ministry failed to adequately explore the worker's claim of self-defence and the potential psychological triggers that may have influenced her reaction to the young person's behaviour.
"Without interviews with other staff and even with [the young person], [the Ministry] was not in an adequate position to decide there was no self-defence element in [the worker's] actions."
"Having discovered from [the worker] that she was triggered by what was said to her, there was a failure to sufficiently explore this with her."
The ERA considered the fact that the worker did not receive regular STAR refresher training as required, noting that this was taken into account by the Ministry in their decision-making process but was not seen as sufficient to excuse the worker's actions.
Consequently, the ERA determined that the worker was unjustifiably dismissed by the Ministry. The decision highlights the importance of conducting thorough investigations, considering all relevant evidence, and ensuring procedural fairness in disciplinary processes.
It also underscores the need for employers to consider the unique challenges and complexities involved in working in highly sensitive settings and to provide adequate training and support for staff in managing difficult situations.
