Sacked: victim recorded carer's abuse and rudeness

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Sacked: victim recorded carer's abuse and rudeness

A mobile phone recording of a carer's rude and abusive behaviour was "clear evidence" of misconduct, the Fair Work Commission has ruled.

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A carer who was rude and abusive towards a resident at an aged care facility was fairly dismissed, the Fair Work Commission has ruled.

The resident had recorded the incident on his mobile phone, which was "clear evidence" the carer had behaved in an unprofessional manner.

Background


Mrs M was employed as a personal carer with TriCare from 2007 to 2016.

In September 2016 the woman entered a room occupied by two residents. It was alleged that during a conversation with resident A, the carer was argumentative, rude, aggressive and at times raised her voice.

It was alleged her comments included: "Don't be a smart-arse"; "Put a sock in it"; "Hey, when we attend to (resident B) I don't have to tell you a damn thing"; and "If you don't like it tough titties".

Unbeknown to Mrs M, the resident recorded the conversation on his mobile phone which he then took to a facility manager.

Mrs M was stood down on full pay pending an investigation.

Carer rejected allegations


Mrs M was provided with a letter detailing 19 specific statements she was alleged to have made to resident A. For the most part, she rejected the proposition she had spoken in a raised voice, been aggressive or had not been courteous.

After considering her responses, TriCare terminated her employment for serious breaches of the company's code of conduct and the Charter of Rights and Responsiblities of Care.
 
Tricare stated in the termination letter that: "in light of the evidence and Mrs M's complete denial of the allegations, there has been a complete breakdown of trust and confidence in Mrs M as an employee".

Findings


During the hearing, Mrs M told the commission she had felt intimidated and flustered during an initial meeting as she was unable to attend with a support person.

However, Commissioner Simpson found there was no evidence to support her claim.

The woman also claimed that as she was not given the audio recording she was denied procedural fairness. TriCare said it was withheld out of a fear of retribution on the part of the resident.

However, Commissioner Simpson was satisfied she was given a reasonable opportunity to understand the allegations and had provided a written response addressing each and every one of the alleged 19 statements.

He found her verbal communication with the resident "was not subdued and at times her voice was raised, her language included uncouth and vulgar language and her words and tone of voice were not courteous, were not dignified and were not respectful".

He said Mrs M had not provided any reasonable explanation for her behaviour, other than that she was "on edge" due to her allegation she had been the subject of abuse from resident A.

Commissioner Simpson ruled the dismissal was not harsh, unjust or unreasonable. The application was dismissed. 

CM v TriCare Limited T/A TriCare (U2016/13012) [2017] FWC 20


 
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