Mark Andrew Hutton v Evolution Support Services - [2023] FWC 919

[2023] FWC 919

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mark Andrew Hutton
v

Evolution Support Services

(U2023/199)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 19 APRIL 2023

Application for relief from unfair dismissal – valid reason for dismissal – dismissal not harsh, or unjust but unreasonable because the respondent failed to comply with its own appeals process – compensation ordered.

Introduction

Mr Mark Hutton was employed by Evolution Support Services Pty Ltd (ESS) as a Disability Support Worker until his dismissal on 19 December 2022. Mr Hutton was dismissed as a result of events which allegedly took place while he was caring for a highly autistic NDIS participant on 30 October 2022. Mr Hutton denies that he engaged in any misconduct and contends that his dismissal was harsh, unjust and unreasonable. ESS contends that it had a valid reason to dismiss Mr Hutton and the dismissal was not harsh, unjust or unreasonable.

I heard Mr Hutton’s unfair dismissal case against ESS on 22, 23 and 24 March 2023. Mr Hutton gave evidence in support of his case. Ms Chantal Nash, Mr Hutton’s partner, and Mr Cameron Howells, former NDIS – National Access Assessor, also gave evidence for Mr Hutton. The witnesses for ESS included Mr Jeremy Kennedy, General Legal Counsel, Mr Roman Abbassi, Disability Support Worker, Mr Benjamin Lawrence, Operations Coordinator, Ms Lynn Butterworth, Human Resources & WHS Manager, Mr Geoff Neate, Strategic Operations Manager, and Ms Shaye Mahon, Practice Consultant. Mr Matthew Probert, a previous employee of ESS, was also ordered to attend the hearing to give evidence upon request of ESS.

Initial matters to be considered

Section 396 of the Fair Work Act2009 (Cth) (Act) sets out four matters which I am required to decide before I consider the merits of the application.

There is no dispute between the parties and I am satisfied on the evidence that:

(a)Mr Hutton’s application for unfair dismissal was made within the period required in s 394(2) of the Act;
(b)Mr Hutton was a person protected from unfair dismissal;

(c)the Small Business Fair Dismissal Code did not apply to Mr Hutton’s dismissal; and

(d)Mr Hutton’s dismissal was not a genuine redundancy.

Was the dismissal harsh, unjust or unreasonable?

Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Hutton’s dismissal was harsh, unjust or unreasonable. I will address each of these matters in turn below.

Valid reason (s 387(a))

General principles

It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal.[1] In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”[2] and should not be “capricious, fanciful, spiteful or prejudiced.”[3]

The Commission will not stand in the shoes of the employer and determine what the Commission would do…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mark Andrew Hutton v Evolution Support Services

Details

AGLC: Mark Andrew Hutton v Evolution Support Services [2023] FWC 919
Case: [2023] FWC 919
Decision Date: 19 APRIL 2023

CaseChat Overview and Summary

Mark Andrew Hutton applied to the Fair Work Commission for relief from his dismissal by Evolution Support Services Pty Ltd (ESS). Mr Hutton was employed as a Disability Support Worker until his dismissal on 19 December 2022. He was dismissed as a result of events which allegedly took place while he was caring for a highly autistic NDIS participant on 30 October 2022. The participant woke up at about 9:30am on 30 October 2022 and attacked Mr Hutton. Mr Hutton followed the participant into his room and restrained him. Mr Probert, who was also present, alleges that during the restraint, Mr Hutton deliberately struck the participant in the head with his right knee on two to three occasions, calling him a "little cunt." Mr Hutton denies deliberately striking the participant and making the comment suggested by Mr Probert. Mr Hutton says that when the participant did a "crocodile roll" during the restraint, Mr Hutton stood up, lost his footing and then fell, causing his right knee to come into contact with the back of the participant's head. Mr Hutton was aware that his knee had hit the participant at some stage because he "sort of fell on him." Mr Probert reported the incident to Mr Lawrence, Operations Coordinator at ESS. Mr Lawrence read Mr Probert's account of the incident on the night of 30 October 2022. Mr Lawrence did not call an ambulance or take any steps on the night of 30 October 2022 to have the participant medically examined. Mr Lawrence accepted during his evidence that he should have called an ambulance after he read Mr Probert's account on the night of 30 October 2022. Mr Lawrence, Mr Neate, and Ms Mahon attended the property in which the participant was residing and told Mr Hutton that he was suspended, on pay, pending an investigation into the incident. Mr Neate then called an ambulance to have the participant medically examined. The paramedic who examined the participant at about 1:10pm on 31 October 2022 wrote a report which relevantly stated: "[The participant] was struck behind his left ear 1 day ago. Pt states it was a 'knee to head'. Nil report of any LOC, N&V or headache through the day post event." The Commission concluded that ESS had a valid reason for dismissing Mr Hutton. ESS had found that Mr Hutton (a) deliberately kneed the participant in the back of his head on two or three occasions, and called him a "little cunt," during a physical restraint on 30 October 2022, (b) failed to report the extent of the level of force used in physically restraining the participant, including that his knee came into contact with the participant during the physical restraint, and (c) did not inform the participant's mother after the incident of the level of force and the manner in which it was used during the physical restraint. Mr Hutton's conduct in this regard was in breach of ESS's Abuse, Neglect and Exploitation Policy. The Commission concluded that ESS's dismissal of Mr Hutton was not harsh or unjust, but it was unreasonable. ESS had a valid reason for Mr Hutton's dismissal and, save for the appeals process issue, it afforded procedural fairness to Mr Hutton prior to making a decision to bring his employment to an end. ESS operates in a highly regulated industry involving vulnerable persons and funding from the NDIS. It is essential that ESS be able to employ persons who can deal with personal restraints, where they are required, in a safe manner and who it can trust to provide full and frank reports when an incident occurs. There is no dispute that Mr Hutton was ordinarily dedicated in his care to the participant, but the Commission found that he used excessive force in difficult circumstances on 30 October 2022 and did not report to his employer that he had been involved in a physical restraint with the participant in which his knee had come into contact with the participant. For these reasons, the Commission considered that Mr Hutton's dismissal was not unjust or harsh. However, because ESS failed to comply with its own appeals process, Mr Hutton was denied the opportunity to participate in an internal appeals process and remain employed (and paid) by ESS for a period of about eight weeks. In the Commission's assessment, ESS's failure to comply with its own internal appeals process and thereby deny Mr Hutton income for a period of about eight weeks warranted a conclusion that Mr Hutton's dismissal was unreasonable in all the circumstances. The Commission found that ESS's dismissal of Mr Hutton was unfair because it was unreasonable. The Commission ordered that ESS pay Mr Hutton compensation in the sum of $7,166.55 (less taxation as required by law) in respect of his unfair dismissal.

Orders