When will disability abuse constitute a valid reason for dismissal?

Disability support is a matter of significant public and community interest, with employers operating in a highly regulated, accountable and sensitive environment. The type of care and conduct of employees towards those in their care has come under closer scrutiny in recent years as community expectations have shifted to zero tolerance of any form of abuse perpetrated against supported persons.

Within the backdrop of the Royal Commission into ‘Violence, Abuse, Neglect and Exploitation of People with Disability’ currently underway, we look at some relevant Fair Work Commission (Commission) decisions for guidance for employers, noting the significant role that the Commission has to play in influencing the employment standards for unacceptable workplace conduct.

The Fair Work Act 2009 (Cth) (Act) provides the statutory framework for the majority of employers including in the disability support sector. The Act details the considerations the Commission must factor in determining if an employee’s dismissal from employment is ‘unfair’. The importance of that determination is that an employee may be entitled to a remedy, including reinstatement and/or compensation following dismissal.

An act of misconduct may justify an employee’s dismissal but it can be tricky for disability support employers to navigate where the misconduct presents in the form of neglect or various degrees of aggressive or abusive behaviour. The Act provides that in cases of unsatisfactory performance, an employer is expected to provide warnings prior to dismissal. Misconduct, as distinguished from unsatisfactory performance, must be sufficiently serious to justify dismissal.

What the cases tell us

Disability support organisations may take some comfort in knowing that the Commission is prepared to hold support workers to an uncompromisingly high standard of client care. The case analysis below shows that where an employer can substantiate abuse or neglect towards a supported person, the Commission is willing to denounce such behaviour.

There are a number of factors that may be relevant in a case including the gravity of the conduct, the impact on the person in the employee’s care, the proportionality of dismissal and the employee’s willingness to be forthcoming and honest in any investigation and disciplinary process.

An employee charged with misconduct can find themselves in a difficult position when faced with allegations of neglect or abuse. Their reputation and employment is at stake, and in serious cases, they can face regulatory scrutiny, including placement on the Disability Worker Exclusion List.

During an investigation and/or disciplinary process relating to misconduct, an employee may try to avoid responsibility by either denying the allegations, attempting to discredit the victim (whom in many cases will be a vulnerable supported person), or otherwise downplay the seriousness of the relevant incident/s. A comprehensive investigation process and assessment of the employee’s conduct during that process are therefore critical.

The cases show that the Commission will consider the factual evidence and, in some cases, an employee’s accountability and attitude to the conduct because that can be relevant to an employer’s assessment about the confidence it has (or doesn’t have) in the employee to refrain from that conduct in the future.

The authorities help pave the way for disability support providers to embed zero-tolerance policies into their organisational culture, and insist on strict commitments to equality, inclusion, respect and dignity of those in care. While employers in the sector are not immune to unfair dismissal claims, exposure to significant awards of compensation or reinstatement orders are generally reserved for cases where employers have failed to properly investigate allegations or have relied upon unsubstantiated or false allegations to justify termination of employment (e.g. see Bolden v Lyndoch Living Inc [2014] FWC 8649).

Table of relevant unfair dismissal cases involving disability/elder abuse

CaseSummary of MisconductCommission’s Position in Support of Dismissal
Salvannah Bennie v Sunnyhaven Disability Services Ltd [2021] FWC 1789Disability Support Worker fell asleep during a shift, leaving five disabled and vulnerable clients unattended for a period of 90 minutes.Deputy President Cross determined at paragraph [46]:

The misconduct alleged by the Respondent occurred and involved serious breaches by the Applicant that justified termination. The seriousness of the Applicant’s breaches was compounded by the fact that she failed to take responsibility for her actions, maintaining that sleeping on the job for a significant period of time was not a big issue.
Chadissa Whale v CPL – Choice, Passion, Life [2021] FWC 82A Direct Support Worker was due to complete her shift at 4.00pm. She was advised by a colleague that a client had a shoulder injury. The Direct Support Worker sent an incident report at 4:06pm, left the employer’s premises at 4:15pm, but did not otherwise offer medical treatment to the client or report the incident verbally to an ‘on-call’ service.Deputy President Lake determined at [191]:

It must be reiterated that there was no insinuation that [the employee] caused the injury and this was not the reason for her dismissal. In giving evidence, the applicant seemed invested in the service she provided to patients – she presented honestly and without embellishment. What was apparent is that she did not properly evaluate the scope of her duty of care – this is evidenced by her failure to call on-call, even in a precautionary manner. It is this failing, in an industry with an exceptionally high bar for care, that provides a valid reason for dismissal.’
Mr Michael Girgis v Civic Disability Services Limited [2019] FWC 4573A Support Worker neglected his duties by (among other things):

• setting up a camp bed with a pillow and blanket in the staff room where he was laying down in the dark during a wakeover shift; and

• using a tablet device to watch a movie or television show during his wakeover shift.
Deputy President Bull determined at paragraph [137] and [138]:

The conduct of the applicant in retiring with bedding to the floor of his office with the light off and the door shut in the context of performing a wakeover shift with the care and responsibility of vulnerable clients was incompatible with his obligations as a support worker and destructive of the necessary confidence between the employer and the applicant.
Given also Ms Girgis’s denial of any wrong doing in respect to lying down on the office floor on a wakeover shift, I am satisfied the employer’s trust and confidence in him has justifiably been lost as the respondent could not be confident that he would not act in a similar way by ignoring his responsibilities to highly vulnerable clients.
Lehmann v Mary Mackillop Aged Care SA [2017] FWC 478

Legmann v Mary Mackillip Aged Care SA
[2017] FWCFB 2099
A Patient Care Attendant displayed an open bag of faeces and toilet paper to a supported elderly resident suffering from dementia and incontinence.Commissioner Hampton determined at paragraph [50]:

The actions with respect to the bag of faeces and the associated conduct was a serious breach of the reasonable expectations of a person in Ms Lehmann’s position and was also a significant abuse of the resident’s rights. This was done, not as an act to inform the resident, but undertaken improperly out of frustration and annoyance. The denial of that conduct in the course of the investigation is also relevant in this context.
Dolva v Sylvandale Foundation Limited T/A Sylvandale Foundation [2011] FWA 8340
A Disability Support Worker verbally abused and shouted at a supported person.Commissioner Deegan determined at paragraphs [79] and [80] that:

While termination of employment might in other situations seem a harsh reaction to a staff member raising their voice unnecessarily to a client, given the nature of the employment and the particular vulnerability of the clients of the Respondent in this matter I take the view that the dismissal was the only avenue available to this employer.’

How we can help

Moores can assist employers to review their policies and practices in this area and identify opportunities to further embed standards of workplace conduct. Moores also regularly represents employers in the Fair Work Commission to defend unfair dismissal applications.

Please contact us if you would like further information.