Matthew Gall v Brain Injury Association of Queensland Inc. T/A Synapse - [2014] FWC 6048

[2014] FWC 6048

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Gall
v
Brain Injury Association of Queensland Inc. T/A SYNAPSE
(U2013/17396)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 10 SEPTEMBER 2014

Application for relief from unfair dismissal; use of restrictive practice to immobilise a client suffering an acquired brain injury; whether serious misconduct; whether valid reason; conduct was serious misconduct would have justified summary dismissal; the misconduct was a valid reason for dismissal; dismissal not harsh, unjust or unreasonable; application dismissed.

Introduction

[1] Matthew Gall (Applicant) was employed as a Lifestyle Support Worker by the Brain Injury Association of Queensland Inc (Respondent) until his dismissal on 5 December 2013. The Applicant began employment with the Respondent on 24 November 2011. The Applicant’s dismissal followed an incident with a client (Client) who suffers from an acquired brain injury and is a resident in one of the Respondent’s facilities. The incident occurred on 28 September 2013 and according to the Respondent, following an investigation into the incident the Respondent was satisfied that the Applicant had applied a physical restraint which was a restrictive practice in response to the Client’s behaviour and consequently had breached his contractual obligations and the Respondent’s policy regulating restrictive practices. 1 The dismissal was effected immediately on 5 December 2013, the date on which the Applicant was notified of the dismissal and he was paid in lieu of notice.2

[2] On 13 December 2013 the Applicant applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act). Turning first to the initial matters which must be decided before the merits of an application are considered. 3 It is not in dispute4 and I find that:

● The application was made within the time prescribed in s.394(2);
● The Applicant was at the date of his dismissal protected from unfair dismissal within the meaning of s.382 in that the Applicant was an employee of the Respondent who had completed a period of employment with the Respondent which was greater than the minimum period of employment as set out in s.383(a); and the Health Professionals and Support Services Award 2010 covered the Applicant in his employment with the Respondent;
● The Respondent was not a small-business employer within the meaning of the Act and so the Small Business Fair Dismissal Code did not apply; and
● The dismissal was for alleged conduct and was not a case of genuine redundancy within the meaning of s.389 of the Act.

[3] As to the merits of the application I have reached the conclusion that the Applicant’s dismissal was not unfair. My reasons for that conclusion follow below.

Background, factual context and findings

Respondent’s service

[4] The Respondent is a Queensland-based organisation that provides support services through the provision of supported accommodation facilities to persons with acquired brain injuries and who demonstrate complex and challenging behaviours. 5 The clients housed in the supported accommodation facilities operated by the Respondent, are adults with an intellectual or cognitive disability and…

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.

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Details

AGLC: Matthew Gall v Brain Injury Association of Queensland Inc. T/A Synapse [2014] FWC 6048
Case: [2014] FWC 6048
Decision Date: 10 SEPTEMBER 2014

CaseChat Overview and Summary

Matthew Gall sought relief from an unfair dismissal decision from the Brain Injury Association of Queensland Inc. trading as Synapse. The dismissal arose from an incident where Gall used a restrictive practice to immobilise a client suffering from an acquired brain injury. The primary dispute was whether Gall's conduct constituted serious misconduct, thereby justifying his dismissal, and whether the dismissal was harsh, unjust, or unreasonable.

The court examined whether the restrictive practice used by Gall was an appropriate response to the client's situation and if his actions constituted serious misconduct. Additionally, it was necessary to determine if there was a valid reason for Gall's dismissal, given the potential seriousness of the misconduct. The court also needed to assess whether the dismissal was justified under the circumstances and whether it was harsh, unjust, or unreasonable.

In its reasoning, the court found that Gall's use of a restrictive practice was appropriate under the circumstances, and his actions did not amount to serious misconduct. The court concluded that there was a valid reason for the dismissal, as the misconduct, if proven, would have justified summary dismissal. However, the court determined that the dismissal was not harsh, unjust, or unreasonable. Consequently, Gall's application for relief from the unfair dismissal decision was dismissed.

Orders