Davies v State of Victoria
[2012] VSC 343
•15 August 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 7068 of 2010
| ALAN DAVIES | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 7, 8 and 12 June 2012 | |
DATE OF JUDGMENT: | 15 August 2012 | |
CASE MAY BE CITED AS: | Davies v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 343 | Amended 14 November 2012 |
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EMPLOYMENT – Action for wrongful dismissal – Termination of employment as disability development and support officer – Disabled resident of Community Residential Unit dragged across hallway– Whether ‘serious misconduct’ justifying dismissal under s 33(1)(d) Public Administration Act2004.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Bromley | Clemens Haskin |
| For the Defendant | Mr A Clements | Minter Ellison |
HER HONOUR:
For almost 15 years, the plaintiff, Mr Davies, was employed by the Department of Human Services (‘the Department’) as a Disability Development and Support Officer or in a similar role. On 24 September 2009, the Department terminated his employment, on the ground of ‘serious misconduct’. This happened after a Departmental investigation in relation into an incident on 2 May 2009 involving ‘CJ’, a disabled person in his care (‘the incident’).
The parties agree that it was a term of Mr Davies’ employment contract that it could only be terminated in accordance with ss 20 and 33 of the Public Administration Act 2004 (‘the Act’). Section 33(1)(d) permitted the Department to terminate his employment ‘on the ground of serious misconduct’.
Mr Davies alleges that his dismissal was wrongful and in breach of his employment contract. He claims damages from the State for resulting loss and damage.
The issue
The issue is as to whether the State has established that Mr Davies’ behaviour during the incident amounted to ‘serious misconduct’ within the meaning of s 33(1)(d) of the Act and justified his dismissal.
‘Serious misconduct’
It is common ground that, under applicable common law principles, the State has the onus of proving that Mr Davies engaged in such serious misconduct.[1] It is also agreed that the standard of proof should be that described by Dixon J in Briginshaw v Briginshaw[2] and that the Court should not lightly make a finding of serious misconduct against him.
[1]Rankin v Marine Power International Pty Ltd (2001) 107 IR 117, [241] (Gillard J).
[2](1938) 60 CLR 336, 361-2.
There is no definition of ‘serious misconduct’ in the Act. ‘Misconduct’ is, however, defined in s 4 as follows:
misconduct includes—
(a) a contravention of a provision of this Act, the regulations or a binding code of conduct;
A ‘code of conduct’ under s 4 is a code of conduct issued under s 63 of the Act. Mr Davies acknowledges that, as a public sector employee, under s 63(3) of the Act, he was bound by the Code of Conduct For Victorian Public Sector Employees (No 1) 2007 (‘the code of conduct’). Section 63(5) effectively confirms that a contravention of a binding code of conduct may constitute ‘misconduct’ under the Act.
The code of conduct commenced on 1 July 2007. It included paragraphs 6 and 8 which were in these terms:
6. demonstrating respect
Respect - public officials should demonstrate respect for colleagues, other public officials and members of the Victorian community by:
(i) treating them fairly and objectively; and
(ii) ensuring freedom from discrimination, harassment and bullying; and
(iii) using their views to improve outcomes on an ongoing basis.
8. demonstrating commitment to human rights
Human rights- public officials should respect and promote the human rights set out in the Charter of Human Rights and Responsibilities by:
(i)making decisions and providing advice consistent with human rights; and
(ii) actively implementing, promoting and supporting human rights.
Section 10(b) of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’) provides that a person must not be treated or punished in a cruel, inhuman or degrading way.
The Department regards itself as being required by the Public Administration Act 2004 to promote a standard set of Victorian Public Sector values and to ensure that they are reflected in its own values.[3] To this end, the values underpinning the code of conduct are stated in a 2007 booklet entitled ‘Our Values Department of Human Services client focus responsibility collaborative relationships professional integrity and respect quality’ (‘the statement of values’).
[3]See Public Administration Act 2004 ss 7 and 3.
The statement of values lists acceptable and unacceptable behaviours with reference to Departmental values, including the following:
Value: client focus
Acceptable behaviours include:
·empathising with clients …
·making every effort to maximise positive client outcomes.
Value: professional integrity and respect
Acceptable behaviours include:
·acting in accordance with clients’ interests within departmental guidelines…
·using sound professional practices …
·Treating others with respect …
Unacceptable behaviours include:
·displaying disrespectful behaviour such as … being rude or abusive towards … clients
Value : responsibility
Acceptable behaviours include:
·taking responsibility for providing services to clients in a timely and effective way …
·taking all appropriate actions to maintain the safety and wellbeing of clients and colleagues …
·accepting responsibility for and ownership of, decisions and actions …
There is no fixed rule at common law as to the degree of misconduct which will justify dismissal of an employee.[4]
[4]Clouston & Co Limited v Corry [1906] AC 122, 129 (Lord James of Hereford).
In Rankin v Marine Power International Pty Ltd, Gillard J considered the authorities relating to the grounds justifying summary dismissal for misconduct. His Honour stated:
The authorities do establish that the employee’s breach of contract of employment must be of a serious nature, involving a repudiation of the essential obligations under the contract or actual conduct which is repugnant to the relationship of employer/employee, before an employer may terminate the contract summarily. Isolated conduct usually would not suffice. Each case must be considered in the light of its particular circumstances, but nevertheless, the seriousness of the act of termination and the effect of summary dismissal are factors which place a heavy burden on the employer to justify dismissal without notice. The circumstances do not have to be exceptional but nevertheless must establish that the breach was of a serious nature. [5]
[5](2001) 107 IR 117, [250].
In Sent v Primelife Corporation Ltd, Mandie J described the requisite misconduct when he said:
Serious misconduct in this context has been held to include conduct, in relation to important matters, that constitutes a repudiation of or is incompatible with or repugnant to the essential obligations of an employee or is destructive of the relationship of good faith and confidence between employer and employee.[6]
[6][2006] VSC 445, [17].
In determining whether serious misconduct has occurred, the nature of the employment must be taken into account. In Sangwin v Imogen Pty Ltd,[7] Van Doussa J highlighted the significance of serious physical abuse in the area of health care work when he said:
An employer of a health care worker or child care provider against whom an allegation of serious physical abuse that threatened the health and safety of those in that person’s care would be duty bound to act to protect those under care. If, after sufficient inquiry, the employer honestly believed on reasonable grounds that the allegation was correct the employer would be in dereliction of duty to those in care if the employee were allowed to return.[8]
[7][1996] IRCA 100.
[8]Ibid.
The facts
I am satisfied of the following facts.
The incident occurred at about 7.30am on 2 May 2009 at a Community Residential Unit (‘CRU’) in Inkerman Street, St Kilda East. CRUs are residences provided by the Department for people who require assistance in their day-to-day lives, for reasons which include their intellectual disability.
Mr Davies had been working for the Department in CRUs from about 1995, when he was 45 or 46 years old. His earlier career had included navy service, both in England and in Australia, from the age of 16. He had worked as a service station manager, in a tyre manufacturing plant, as a scaffold rigger and as a manufacturer, wholesaler and retailer of women’s clothing. Apart from one six month period of leave of absence, he had been continuously employed by the Department at CRUs at places including Dandenong, Mentone, Cheltenham and Moorabbin. His duties had been essentially the same throughout. At the time of the incident, he was studying for an Advanced Diploma of Disability Work which involved him in three hours of class per week and the completion of five to six thousand word assignments.
Mr Davies spent the last five years of his employment with the Department at the Inkerman Street house where the incident occurred. He was employed there as a Disability Development Services Officer, Level 1 Qualified. Throughout that period, the Inkerman Street house was home to the same five men, aged between 30 and 55. Mr Davies described them as:
· ‘MB’, who has Smith-Magenis Syndrome and a mild intellectual disability, and is ‘classified as a paedophile’;
· ‘GD’, who is severely autistic and has impaired hearing and speech;
· ‘RB1’, who has a mild intellectual disability;
· ‘RB2’, an ‘extreme sociopath’ with paedophilic tendencies and a mild intellectual disability; and
· CJ, who suffers from a mild intellectual disability, schizophrenia, epilepsy and who experiences frequent psychotic episodes.
The staff at the Inkerman Street house included a house supervisor, three staff members at the same level as Mr Davies and two at the lower level of Disability Development Services Officer. Additional casual staff were also available, if and when needed. Staffing levels varied with the residents’ routines. Each weekday, all five residents would leave the house at around 9.00am, to undertake constructive and recreational activities at ‘day placements’. They returned at about 3.00pm. On weekdays, there were two staff members working through to the evening. One was present overnight between around 9.30pm and 7.00am on the following day. At weekends, the residents stayed at the house. Up to three staff would be present during the day and there was a longer overnight shift on Friday and Saturday nights. It started at 9.30pm and finished at about 8.00am on the following day.
Staff were required to keep a number of records. Day-to-day events and occurrences were recorded in ‘day books’ with further elaboration in ‘continuation notes’. If a resident was unwell or had suffered an injury, an entry was required in their ‘health summary notes’.
Mr Davies agreed under cross-examination that in his role as a Disability Development Services Officer, his fundamental task was to provide support and assistance to the residents with disabilities. It was important to treat residents with respect and not in a way which would infringe their dignity. He agreed that, in accordance with the principle stated in sub-s 5(2)(a) of the Disability Act 2006, people with disabilities should not, insofar as it was possible, be treated any differently from those who were not disabled.
CJ
CJ is 55 years old. He suffers from schizophrenia. He has delusions, such as that he is being detained at the Inkerman Street house. He occasionally displays psychotic behaviour. He needs assistance even to cross a road. He is physically and verbally abusive on occasions and sometimes needs a calming sedative injection. When he refuses to obey a direction, he can often be persuaded to act by offers of enticements like a cup of herbal tea or the prospect of a telephone call to his mother.
CJ lacks physical equilibrium and can collide with walls and doors. Although he falls over frequently, it would be unusual for him to fall whilst being guided along by Mr Davies.
It is common ground that CJ was incapable of giving evidence in this proceeding.
The incident
Mr Davies had slept at the Inkerman Street house during the overnight shift from Friday 1 May 2009 to the morning of Saturday 2 May. Although the Friday night shift ended at 8.00am, it was not unusual for the staff member rostered on at that time to arrive at 8.30am on Saturday morning.
Mr Davies described the facts leading up to and constituting the incident in a written statement dated 24 June 2009, made for the purposes of a Departmental review of the incident. He said:
I was rostered on the sleepover shift on Friday 1 May 2009. I commenced work on Saturday 2 May 2009 at 7:00am. The clients at Inkerman St generally get up early and do not lie in. [CJ] is noted for not getting up early except when he is experiencing psychotic episodes. He frequently urinates on himself in his bed or on the floor at some period of time during the night.
My habit with [CJ] in the morning to get him up is to wake him by a shake on his shoulder and bidding him good morning. I talk to him for 3-5 minutes while he is waking up and then I ask him to get up and go to the bathroom. [CJ] invariably ignores these requests and just lies in bed. I usually then put my left arm under his knees and swing him over to the side of the bed so that his feet are on the floor, then I hold him by the shoulders and lift him into a sitting position.
I then give [CJ] another 3-4 minutes to orientate himself and to ensure that he does not lie back down again. I wait in the room with him. I then assist [CJ] to get up by telling [CJ] that we are ‘ready to go’. I hold onto his arms and say, ‘one, two three’ then he stands up. He is quite a heavy man.
On the morning of 2 May 2009 [CJ] did not have any pyjamas on and his bed was saturated with urine. He had taken his pyjamas off during the night. Once he was standing, I assisted [CJ] towards the bathroom by standing behind him and placing on [sic] of my hands on his shoulder to guide him. [CJ] is quite unstable on his feet. Halfway across the corridor he fell down to the ground in front of me. Initially I thought he was about to have an epileptic seizure. I assessed and checked him and found that this was not the case. I asked [CJ] if he could stand up. [CJ] due to his disability, finds it very difficult to stand up without the use of an aid to support himself, such as a chair or a cupboard, or 2 staff members. He has a lot of difficulty with his balance and equilibrium.
[CJ] was unable to stand up. I was on my own. A staff member was rostered to start at 8:00am. I found it impossible even using safe practices to lift [CJ] up. I felt he could not stay on the floor as he was naked and covered in urine and other clients were walking around the house. I got behind [CJ] and place [sic] my hands under his armpits and I pulled him towards the bathroom, a distance of approximately 1.5 metres at the most.
[CJ] was fine. He did not struggle or object. Once in the bathroom I assisted him to the cupboards where he was able to pull himself up to a standing position with my assistance. I directed him to have a shower which he proceeded to do.
At no time did I notice an abrasion to [CJ’s] left buttock. If I had, I would have treated it and mentioned it to my house supervisor, who was rostered on duty at 8:00am.
I did not think it warranted an Incident Report or was worth mentioning to my House Supervisor.
…
I pulled CJ into the bathroom because he was naked and had urine on him. I could not pick him up and I could not leave him there. I was on my own and could not ask the other clients to help me as they would have been unable to do so.
I perhaps could have got a chair from the dining room so that [CJ] could have helped himself up, but at the time I did not consider this option.
In his oral evidence to the Court, Mr Davies substantially repeated the facts stated in his written account. He added that, on reflection, he thought that the lightweight chairs in the house would not have been appropriate aids to help CJ stand up. I accept that he holds that opinion. I also accept his additional evidence that he tried to put a dressing gown on CJ, who threw it off twice. On the second occasion, it landed in a pool of urine on the floor in which his pyjamas were lying.
I am not, however, persuaded by some other additional evidence from Mr Davies. He told the Court that CJ was ‘quite coherent and aware’ of his situation and that he offered him ‘incentives like a cup of tea or some of the other things that he likes’, but received no response. Mr Davies did not refer to any such offer in his 24 June 2009 written statement and, indeed, the Departmental investigator mentioned his failure to offer an enticement to motivate CJ to move, in his 27 August 2009 report. I was not persuaded by Mr Davies’ assertion that his statement did refer to the offer of an enticement - when it recorded that he had ‘assessed’ CJ.
Mr Davies also sought to explain his actions on the basis of his concerns for other unsupervised residents in the kitchen and for CJ’s own physical wellbeing. He said that, from his position in the hallway where CJ had collapsed, he could see three impatient residents milling around in the kitchen. He acted as he did because he was concerned about the danger to those residents posed by the toaster he had brought into the kitchen and had switched on. This explanation is not persuasive in light of his evidence that, instead of going to the kitchen after moving CJ, he stayed to help him shower, fetched his clothes from the bedroom, helped him dress, as he sat in the bathroom, and assisted him to comb his hair. In any event, he could have quickly gone to the kitchen and removed the toaster before moving CJ.
Nor do I accept Mr Davies’ account that he acted because he feared that CJ would contract a cold or a virus or suffer ‘constriction of his bloodstream’ or would lose his dignity, if left where he had fallen. He acknowledged, under cross-examination, that there was a linen cupboard very close to the place where the incident occurred in the hallway outside CJ’s bedroom. Had he had those concerns, he could have dried CJ, covered him with towels and blankets and positioned him comfortably and safely to await assistance in getting him up. CJ would not have been naked and his dignity could also have been preserved in this way.
It is significant that Mr Davies could have referred to these explanations for his behaviour in the course of the investigations of the incident. He made his 24 June 2009 written statement much closer to the time of the incident, when matters must have been fresher in his mind.
Reporting of the incident and treatment of the injury
Mr Davies did not mention the incident to Mr Stephen Gooding, the house supervisor, who arrived at 8.30am on that Saturday morning. Nor did he record it in any of the various logs or notes. He says that he did not see any injury on CJ’s left buttock until he next worked in the house, three or four days later, on 5 and 6 May 2009. I accept this unchallenged evidence.
In the days following the incident, other staff made entries in the day book relating to CJ’s injury. Mr Darryl Rabel noted a ‘cricket ball sized’ bruise on CJ’s left buttock on 3 May. On the following day, Ms Alexis Newman noted that she had noticed a weeping graze on the left buttock which she had treated with Savlon and a gauze pad to keep it clean. On the same day, Ms Maria del Pilar Piñas Salgado noted that the graze on CJ’s buttock appeared to be healing normally and did not seem to be causing pain or discomfort; she made an entry in CJ’s health summary notes to the same effect. On 6 May, Mr Davies himself noted that he had applied Savlon to CJ’s buttock.
On 8 May 2009, when Mr Davies and Ms Newman were both working at the Inkerman Street house, Ms Newman mentioned in CJ’s presence that he had told her that Mr Davies had dragged him across the floor. She asked Mr Davies whether that was true. Mr Davies responded, ‘Yes, you know … what he’s bloody like and he was going to piss everywhere.’ He went on to say, ‘Gee, doesn’t [CJ] have sensitive skin?’.
Ms Newman reported the matter to Mr Gooding, when he returned from leave, on 11 May 2009. Mr Gooding asked for a written account of her conversation with Mr Davies. On the same day, he took a number of photographs of CJ’s injury. On 12 May 2009, Mr Gooding lodged with his own supervisor a ‘Category 1 Incident Report’. (Category 1 was the most serious category of incident on a three point scale of seriousness.)
On 12 May 2009, the general practitioner, Dr Anthony Schneeweiss found an area of 4 x 5 centimetres of scabbed healing skin on CJ’s left buttock. He thought it consistent with it being caused by either an abrasion or a burn, although he could not be certain about the exact causation. The 12 May 2009 health notes record the examination, noting that the ‘burn’ on CJ’s left buttock was healing well and did not need treatment.
Mr Davies worked four or five more shifts after 2 May 2009, before being stood down on full pay whilst the Department investigated the allegations of assault relating to the incident. The Department informed him of the allegations and gave particulars in a letter dated 21 May 2009:
(a)On 2 May 2009, sometime between 7.00am and 9.30am while on duty at [the Inkerman Street house] you dragged resident [CJ] across the floor into the bathroom with sufficient force that caused an abrasion to his left buttock.
(b)On 2 May 2009, while on duty at [the Inkerman Street house] you failed to treat the injury caused to [CJ’s] left buttock.
(c)On 2 May 2009, while on duty at [the Inkerman Street house] you failed to report the injury sustained by [CJ] in an incident report form.
The Department commissioned a review by JBSA, a human resources firm. Mr Davies provided his 24 June 2009 written account of the incident for the purposes of that review. The reviewers interviewed witnesses, examined relevant documents and recommended that the Department determine whether the allegations were substantiated and what further action should be taken.
The Department then appointed Mr Pier de Carlo, Director of Mental Health and Drugs, to decide whether Mr Davies was guilty of ‘serious misconduct’ under the Act.
Mr de Carlo conducted a hearing on 17 August 2009 at which Mr Davies, Mr Gooding and Ms Newman gave evidence. He found that all three of the allegations were substantiated and that Mr Davies’ conduct amounted to ‘serious misconduct’. The misconduct was wilful and deliberate, it caused injury to the vulnerable resident, CJ, it breached ss 6 and 8 of the code of conduct, it had posed a risk to CJ’s health and safety, and it amounted to a ‘fundamental breach of the trust placed in Mr Davies as an employee and [went] to the heart of the employment relationship’.
Mr de Carlo concluded that the substantiated allegations did amount to serious misconduct on the following grounds:
31.1The proven allegations are of a serious nature in that Mr Davies had a duty of care to the client not to treat him in a manner that would result in injury or harm. Mr Davies had alternative options available to him which included using a chair to assist raising the client and or using motivational encouragement. Mr Davies chose to use neither and said that he did not consider using a chair and made no reference in his statement or in the hearing to the motivational encouragement strategy. This amounts to a wilful or deliberate disregard for strategies that would have avoided an injury to the client;
31.2 Mr Davies did breach the Department’s values by:
·not demonstrating empathy for the client or make [sic] every effort to maximise a positive outcome for the client in relation to the value client focus;
·did not act in accordance with the clients interests, did not use sound professional practices and did not treat the client with respect in relation to the value of Professional Integrity and Respect [sic]; and,
·did not take responsibility for providing services to the client in an effective way, did not take all appropriate actions to maintain the safety and wellbeing of client and did not accepting [sic] responsibility for, and ownership of, the decisions and actions he took.
31.3Mr Davies was negligent in the manner in which he treated the client and in not treating the client’s injury or reporting the injury on either 2nd or 8th of May 2009.
After accepting written submissions from Mr Davies and the Department as to the appropriate sanction, Mr de Carlo determined that Mr Davies’ employment should be terminated.
Associate Professor McVilly’s evidence
The State obtained an expert report from Associate Professor Keith McVilly, a clinical psychologist specialising in the area of intellectual and developmental disability. A former disability care worker himself, he provides advice to the Victorian Government as to how carers should manage and support people with disabilities.
Associate Professor McVilly was given background information including a history of the Department’s investigation into the incident and a summary of the account Mr Davies gave as a part of the investigation. He was told of the admission to Ms Newman about his reason for dragging CJ to the bathroom.
Associate Professor McVilly concluded that Mr Davies’ actions were inappropriate. Forcibly moving CJ would have been likely to exacerbate any psychological distress or physical injury he may have suffered in the fall. Any concern that CJ might urinate on the carpet would not have justified physical force. Dragging would only be acceptable if necessary to avoid serious injury to the client or others, if less restrictive practices were impracticable or ineffective and if the dragging did not pose a risk to the health and safety of staff. It would be necessary to document and report any such action. Physical force could not be justified if there was another less restrictive alternative course of action available. In the circumstances, the alternatives available to Mr Davies could have included leaving CJ on the floor, directing others away from the area, providing him with a dressing gown or clothes to preserve his dignity, wiping him and providing a urine bottle for future use.
Submissions
Each of the parties relies upon the context in which the incident occurred.
The State argues that Mr Davies engaged in serious misconduct in the context of the nature of his work in supporting and assisting vulnerable disabled individuals. It refers to the Department’s 2007 publication entitled, ‘Our Values, Department of Human Services’ and its affirmation of the importance of treating all people with respect and dignity. It contends that he was required to be respectful, not to denigrate his clients and to maximise their dignity. The incident involved an assault and a gross abuse of the power imbalance between Mr Davies and CJ, who was mentally ill. There were a number of available alternative responses to the situation which would not have been disrespectful to CJ.
Mr Davies responds that he was in a difficult situation, being the only staff member present and required to supervise five difficult clients who all, at times, exhibited challenging behaviours. He might not have been relieved for another 30 to 60 minutes. There was a risk of physical injury to the three unsupervised clients in the kitchen. CJ himself was difficult to deal with, and there had been times when he had had to be manhandled, such as when he had refused to get out of a taxi. He intended no harm and was motivated by a desire to help CJ to move from the undignified position in which he was placed: being naked and covered with urine on the floor in the hallway. CJ was not severely injured and had not sustained lasting or permanent damage. Mr Davies does acknowledge that he should have reported the matter to Mr Gooding.
Whilst Mr Davies accepted in evidence that, in hindsight, it would have been better to have covered CJ with a towel or sheet, he relies upon there being no clear direction or rule in the Department’s Residential Services Practices Manual or any other document covering the situation he found himself in. He maintains that the Department could easily have formulated a rule prohibiting the use of physical force other than in specified circumstances.
Mr Davies says that he made an isolated error of judgment and refers to the authorities to the effect that summary dismissal will not usually be justified in such a situation.[9] He says that he was not habitually negligent and had had a 15 year career, without disciplining or warning. He had limited options and lacked clear guidance from his employer. When his superior, Mr Gooding, had noted the incident in Departmental records, he had characterised it as ‘misconduct’ rather than ‘serious misconduct’. Mr Davies argues that his behaviour did not amount to serious misconduct in all the circumstances.
[9]Citing Rankin [240]-[243], [247]-[250], [262]-[267] (Gillard J) and Connor v Grundy Television Pty Ltd [2005] VSC 466, [40], [47]-[48], [63], [65] (Osborn J).
The State maintains that Mr Davies’ actions could fairly be described as conduct striking at the very heart of the contract of employment and inconsistent with its continuation.
It cites Fair Work Australia’s decision in Illesca v Department of Human Services t/a Youth Justice Custodial Services[10], where termination of employment was found to be justified for serious misconduct in a similar fact situation. There, a CRU client could not speak, he was intellectually disabled and suffered from epilepsy and spasticity. He did not wish to leave for a scheduled day placement and had communicated this by yelling, sitting on the floor and refusing to get ready. After enticement techniques had failed, the two staff members had dragged him approximately eight metres down a carpeted hallway to the front door of the CRU. He suffered a second degree carpet burn which required ongoing treatment and left a permanent scar. Both staff members had noticed red marks on his back immediately after dragging him, but neither treated or reported the injury.
[10][2012 FWA 267 (‘Illesca’).
Mr Davies distinguishes Illesca on the basis of the factual differences between the two cases in terms of the respective nature of the disabilities, the distances over which the clients were dragged and the more serious injury suffered in Illesca.
Discussion and conclusion
The essential facts of the case are not in dispute.
Mr Davies dragged CJ, who was naked, approximately 1.5 metres across a carpeted hallway and in so doing, caused his injury. He then failed to report the incident to his supervisor. I consider this treatment to have been disrespectful, cruel and degrading to CJ. It contravened CJ’s human rights under s 10(b) of the Charter and was in breach of paragraphs 6 and 8 of the code of conduct. It also failed to give effect to the values of ‘client focus’, ‘respect’ and ‘responsibility’ described in the statement of values, which Mr Davies was obliged to uphold. It amounted to misconduct within the meaning of the Act.
Whilst an isolated act of misconduct or negligence by an employee may not ordinarily justify summary dismissal, in my opinion, Mr Davies’ termination was justified under s 33(1)(d) of the Act in all the circumstances. I am satisfied that his treatment of CJ and his subsequent failure to report the incident constituted the requisite ‘serious misconduct’.
It is true that when completing the Incident Report form, Mr Gooding characterised the incident as ‘misconduct’, rather than ‘serious misconduct’. Mr Gooding’s assessment is of only limited relevance and the Court must reach its own conclusion. Each case must be considered in light of its own facts and I note the differences between the facts in Illesca and those the subject of this proceeding. Those distinguishing features do not dissuade me from my conclusion as to the proper characterisation of Mr Davies’ conduct.
Mr Davies was required to spend significant periods of time as the sole supervisor of the vulnerable residents of the Inkerman Street house. He conducted himself in a manner totally at odds with what would have been reasonably expected of him. He used unjustified physical force in a manner that exposed CJ to the risk of injury when, as Associate Professor McVilly pointed out, less risky alternative courses of action were open and his behaviour would be regarded as inappropriate. Despite being effectively the only witness to the incident in which CJ was injured, he then continued to misconduct himself by failing to report it.
The fact that there was no specific Departmental rule covering situations such as that which faced Mr Davies, a very experienced employee, does not excuse his misconduct. His behaviour was not in accordance with the code of conduct or the statement of values.
As the termination of his employment was justified under s 33(1)(d) of the Act by his serious misconduct, Mr Davies’s claim must fail.
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