'Slap' accused keeps the cash: appeal quashed

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'Slap' accused keeps the cash: appeal quashed

An employer has failed to quash a $16,000 payment to an aged care worker who was sacked for allegedly slapping an elderly patient.

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An employer has failed to quash a payout to an aged care worker who was sacked for allegedly slapping an elderly patient.

A Fair Work Commission full bench denied Anglican Community Services permission to appeal a $16,000 compensation order.

Carer ‘DS’ was dismissed from ACS’ aged care facility with five weeks’ pay in lieu of notice for gross misconduct after she was accused of slapping a resident across the face.

The alleged attack was reported to management by “MJ”, another worker at the facility. 

The resident, LF, was unable to provide any evidence due to his dementia. LF did not have any marks on his face. However, the alleged attack was reported to management some hours after so any temporary marks such as handprints or redness would have faded. 

As the company had a “zero tolerance” policy, it opted to dismiss DS. 

At the original decision before the Fair Work Commission, there were no issues of improper procedure.

The case turned on whether the reason for the dismissal was valid. And that, in turn, depended, on whether or not the commission would rule DS had slapped the resident. 

Deputy president Booth noted there was no physical evidence (e.g. no marks on the resident’s face) and no corroborative evidence (e.g. witness statements or contemporaneous notes).

DP Booth also noted there was no evidence of DS showing a tendency to be violent, abusive or prone to losing her temper. 

There was one incident when it was alleged DS had “forcibly administered medication to a resident” for which she received a disciplinary warning. 

It was also taken into account that DS could not adequately speak English and may not have truly understood the nature of the management investigation into the incident.

DP Booth much preferred DS’ oral testimony over written statements as she was incapable of preparing them herself. Indeed, her testimony indicated that she did not fully comprehend what was being asked of her.

In any event, DP Booth stated that in the absence of evidence she was unable to say that DS had slapped the resident.  Without a finding of misconduct the dismissal was automatically for an invalid reason and therefore it was unfair. 

Seeking permission to appeal


ACS sought permission to appeal under s604 of the Fair Work Act. This allows a person to appeal a decision of the single-judge version of Fair Work Commission if the commission is satisfied it is in the public interest to do so and if there is a significant factual error.

ACS argued that DP Booth had made an appealable error by not finding as a fact that DS struck the resident, that there was no contemporaneous note; giving too much weight to the lack of marks on the resident’s face; taking into account that the resident could not give evidence owing to his dementia; and attaching weight to DS as a witness when her accounts were contradictory. 

The company also argued that an appeal would be in the public interest.

It said: “The appeal raised an issue of importance and general application concerning the correct approach for considering conduct relating to the physical assault of elderly individuals in aged care facilities, namely that the decision will have substantial cumulative effects upon the aged care and health industries, and potentially puts the health and wellbeing of other residents in danger if employers are reluctant to take disciplinary action for physical assault in order that they may avoid a finding of unfair dismissal and/or employees are reluctant to advocate for residents' rights for fear of not being believed.”

Appeal panel’s view


The three-judge appeal panel, which reviews applications for an appeal for the purposes of granting or denying permission, dismissed most of the employer's arguments.

It ruled either that the company was simply complaining that DP Booth made a ruling it did not like; that there was no identifiable error; that it was up to DP Booth and the exercise of her judgment to decide a particular point as she did; that DP Booth was correct in deciding what she decided; or that the company’s interpretation of what happened was simply wrong when measured against the evidence.

The panel concluded there had not been any actual error by DP Booth, therefore the argument that an appeal would be in the public interest could not arise. 

Permission to appeal was denied. 

What this means for employers


How could an employer prevent a court case in similar circumstances? 

Firstly, review training practices and policies. Consider whether your staff are physically interacting with patients in the optimal way. If not, implement training. And, even if you have optimal practice, consider refresher courses if training was some time ago.

Another important point is to train staff to report to a manager immediately – irrespective of workload – if they witness any violence or assault as a contemporaneous note needs to be taken.

Also consider whether to install a surveillance system as this may well provide corroborative evidence. Surveillance brings a host of benefits and problems including issues of privacy, staff-resentment of being surveilled, data-gathering and other ethical issues.

But it’s cheaper and more practical than a rule requiring multiple workers present whenever a worker is in the presence of a patient/resident. It's also a lot cheaper than having to defend against a lawsuit (see Resources below).

Pay careful note if any of the key parties – staff, witnesses, alleged perpetrators or victims – do not have fluent command of the English language. It may be worthwhile to provide free English language training to all staff who do not have fluent levels of English. If, in the event of an incident, a person does not have good English language then consider hiring a translator for that person. 

If a decision is made to dismiss, consider asking the employee to sign a Deed of Release. Such a document would be in full and final settlement of all claims against the company in return for money.

Various industrial tribunals, including the Fair Work Commission, have determined that an applicant who knowingly and properly executes a deed of settlement that embodies a comprehensive release against all further actions against the employer can have no reasonable prospects of success (see AZ v Australian Taxation Office [2006] AIRCFB 45).

But, where an employee is pressured to sign a deed of release, for example the employee had to sign the deed of release to obtain lawful entitlements on termination, this may render the deed of release invalid. So that means employees must freely enter into the arrangement. Employees must have the time and opportunity to seek legal advice. Employees also cannot sign away any rights to workers compensation or superannuation. 

Consult your lawyer if you are thinking of offering a deed of release and before you offer such an arrangement to any employee.

Anglican Community Services v DS (C2016/5596) FBFWC

Resources

WorkplaceInfo.com.au material on the legal and HR implications of workplace surveillance.

Office of the Australian Information Commissioner – on privacy issues

Deed of Release
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