Victor Edward v Life Without Barriers
[2023] FWC 961
•29 MAY 2023
| [2023] FWC 961 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Victor Edward
v
Life Without Barriers
(U2023/940)
| COMMISSIONER MCKENNA | SYDNEY, 29 MAY 2023 |
Application for an unfair dismissal remedy
Victor Edward (“applicant”) has made an application, pursuant to s.394 of the Fair Work Act 2009 (“Act”), in which he seeks an unfair dismissal remedy in relation to his termination of employment by Life Without Barriers (“respondent”).
Preliminary matters
As to the initial matters to be considered, as set out in s.396 of the Act, there was no issue, and I otherwise find, that: the application was made within time; the applicant is a person who was protected from unfair dismissal; the respondent is not a small business (it has about 7,000 employees), with the result that consideration of the Small Business Fair Dismissal Code does not arise; and the termination of employment was not a genuine redundancy.
Background
The respondent is a provider of social assistance services, including to people with disability. The applicant was employed by the respondent as a full-time, permanent Disability Support Worker on 2 December 2019, although he had earlier been casually employed by the respondent for a brief time in 2017. From 2 December 2019, the applicant worked at a group home in a suburb of Sydney where five clients of the respondent co-reside. The group home is a specialist disability home for adult clients with high-level care needs; it had about 15 employees on a rotating roster around the time relevant to this application.
Shortly stated, the applicant’s initial suspension and (much) later summary dismissal arose against the direct background of an allegation by a co-worker that the applicant slapped a client. The allegation concerning the slap is denied by the applicant. The male client in question was described in the evidence, among other matters, as being non-verbal and having a moderate-to-severe intellectual disability. By consent of the parties, the client’s name is not identified in this decision and I have not included any other identifying details; I will refer to him as “the client” or “Mr C”. I have informed the parties - and they have agreed to this - that should any order for transcript of the proceedings be made, I will take administrative steps to have the name of the client redacted/anonymised in the transcript.
The allegation that the applicant slapped the client was made by Pippa Ridley, who worked at the group home with the applicant. Ms Ridley had commenced employment with the respondent on 9 August 2021 as a casual Disability Support Worker and, thus, was a fairly recently-recruited employee (and still in her induction period) at the time of the alleged incident on 22 September 2021. It is common ground that Ms Ridley was in close proximity to the applicant and Mr C at the group home at the time of the alleged incident.
While I will return later to the evidence related to the alleged incident itself, in a much-abbreviated form, the following process-type developments ensued after the alleged incident:
· Ms Ridley spoke to Catia (“Cathy”) Neale (who was the Acting Team Leader at the group home) at approximately 10.30am and later sent an email to her at 2.37pm on 22 September 2021.
· Ms Neale reported the matter to her own supervisor/coordinator, Linda Gaudry - Coordinator, as well as to the NSW Police Force.
· On the evening of 22 September 2021, after the alleged incident earlier in the day, the police questioned Ms Neale. Mr C was not interviewed by the police, seemingly following Ms Neale’s subsequent advice to the police on or around 23 September 2021 that he was non-verbal.
· On a date that is not clear from the evidence (but which appears, from the respondent’s written submissions, to have been 22 September 2021), the respondent made a report to the NDIS about the alleged incident.
· By letter dated 23 September 2021, the respondent gave the applicant notification of an investigation[1] and (paid) suspension. That correspondence read, in part:
“Further to the conversation that has taken place between yourself and Linda Gaudry, I write to advise you that we have received serious allegations concerning your Conduct. These allegations require further investigation, and as such you are suspended from your position with immediate effect.
It has been alleged that you have engaged in:
• Reportable incident – Client Abuse
The allegations made require further consideration by Life Without Barriers, and as such you are suspended from your position with immediate effect. You will be notified shortly the process that will be undertaken to investigate the allegations. …”.
· Ms Ridley received a telephone call from the police on 11 October 2021 and made a police statement on 12 October 2021 about the alleged incident.
· On 25 October 2021, the applicant was charged with common assault of Mr C and served with an apprehended violence application.
· As a result of NDIS Worker Screening Check processes, the respondent advised the applicant in correspondence dated 4 November 2021 that his NDIS status had changed to suspension and that he was no longer able to work, effective 3 November 2021. In consequence of the NDIS change of status, the applicant was advised by the respondent that he was being stood-down without pay on 4 November 2021, subject to the ability to make an application to take any accrued annual leave entitlements.
· On 25 July 2022, Ms Neale made a signed police statement.
· There was no evidence that the applicant made a signed police statement.
Court proceedings
Court proceedings arising from the alleged incident and the involvement of the police were listed at Penrith Local Court on 24 August 2022 before Magistrate S Corry. As to that:
· Ms Ridley, who was the only witness to the alleged incident, was not advised by the police until 18 August 2022 that she was required to give evidence - which was one day prior to her travelling overseas. Ms Ridley’s evidence before the Commission was that she made every effort to contact the relevant police officer, including by telephone and email, to advise she would not be able to attend court for the hearing on 24 August 2022, but did not receive any response from the police.
· Ms Neale’s evidence before the Commission was that she was absent from work with COVID-19 in the period 16 August to 31 August 2022, and learned on the day of the court hearing that she was required to give evidence. She telephoned to advise the police she was unable to attend court – but did not receive any contact in return.
A Registrar’s “Advice of Court Result” was in evidence concerning the court proceedings on 24 August 2022. The document records that the proceedings concerning “… Actual offence – Common assault …” and “Application for apprehended domestic violence order, …” were each withdrawn and dismissed. A subsequent in-house Final Investigation Report dated 14 November 2022 (“Investigation Report”) recorded, in a hearsay-type way, that: “The reason for the court outcome is that the witnesses were unavailable (RIDLEY) and/or not made aware (NEALE) of their requirement in Court that particular day” (uppercase in original; bold not reproduced).
Investigation/interview and show cause processes
On 19 September 2022, the applicant received emailed advice from the NDIS that he had been issued with a Worker Check clearance. It appears that the applicant’s suspension reverted to a suspension with pay from on or around that date to 30 January 2023, when he was dismissed.
In or around September 2022, the respondent commenced its own in-house processes in relation to the alleged incident, which were to include investigation/interview processes and, subsequently, show cause processes. Due to the time-lag between the alleged incident coming to the respondent’s attention on 22 September 2021 and the ensuing police and court processes, it transpired that just over one year passed before the respondent engaged its own investigation processes about what had occurred in relation to the alleged incident. Relevantly, on 30 September 2022, the respondent sent correspondence to the applicant giving notification of allegations and an investigation which read, in part:
“Re: Notification of Allegations
Life Without Barriers has received an allegation against you that has been determined to be a Reportable Incident. The allegation relates to Unlawful physical contact with, or assault of, a person with disability.
Please find enclosed information about reportable allegations and the process of a reportable incident investigation.
The Investigator will contact you in due course to arrange an interview with you.
At the beginning of the interview, you will be provided with a written statement that contains the particulars of the allegation. You will also be asked to consent to the interview being audio recorded. An audio recording provides an accurate account of the interview and can be made available to you. You will be afforded time to consider the written statement of allegations prior to the commencement of the interview and then you will be provided with an opportunity to respond.
You are invited to have a support person present during the interview. …”.
(Bold and italics in original)
Among other steps taken in the in-house investigation conducted by the respondent, interviews were conducted with Ms Neale (19 October 2022); Ms Ridley (20 October 2022); and the applicant (20 October 2022). Mr C was not interviewed as part of the investigation on account of his “… inability to communicate due to his various disabilities …”. Extracts of the three transcripts of the interviews were in evidence as annexures to the ensuing Investigation Report, with annotations/headings by the investigator/author of that report; and the full transcripts of the interviews of the applicant and Ms Ridley also were in evidence. The text of the transcripts of interviews was considerably more detailed, in various respects, than the body of the witnesses’ formal statements of evidence before the Commission. For his part, the applicant, in his reply evidence, said that the correct account of the events was as set-out in certain paragraphs of his evidence-in-chief and in the interview transcript attached to that evidence-in-chief. In addition to being interviewed, the investigator also made follow-up telephone contact with Ms Ridley about a matter or matters arising from the interview.
In the Investigation Report, Dani Cashion, an in-house Investigations Officer of the respondent, made a finding that the following allegation concerning the applicant was sustained: “It is alleged about 6.30am on 22 September 2021 Victor EDWARD has slapped [Mr C] to the right side of his face with his left hand” (uppercase and italics in original). The Investigation Report set-out the investigator’s analyses and reasons for the finding that the allegation was sustained. The analyses and reasons in the Investigation Report are unnecessary to repeat in this decision, other than to note that they included what the investigator considered to be “Evidence supporting allegation” and “Evidence against allegation” (including an “anomaly” in Ms Ridley’s account, which led the investigator to telephone Ms Ridley about whether she had seen the applicant again after her return from the drive with Mr C).
On 15 December 2022, the respondent sent correspondence to the applicant concerning “Allegation Findings”, which read, in part:
“Re: Allegation Findings
…
I am writing to confirm the outcome of the investigation recently completed by Life Without Barriers.
On the balance of probabilities, the following was determined:
Allegation
Allegation category: Unlawful physical contact with, or assault of, a person with disability.
Details:
It is alleged about 6.30am on 22 September 2021 Victor EDWARD has slapped [Mr C] to the right side of his face with his left hand.
Finding: SUSTAINED
These findings were made upon careful consideration of all the information that was gathered and according to the NDIS Commission’s guidelines.
As required by law, a confidential report and a copy of the investigation file will be made available to the Office of the NDIS Commission. The Commission reviews the finding and process and decides if further investigation/information is required prior to closing the matter.
Life Without Barriers conducts all investigations in accordance with the NDIS Commission’s procedural guidelines. If you consider that proper procedure was not followed during this investigation, you can send a complaint to [email address].
A member of the Life Without Barriers People and Culture (P&C) will make contact with you in relation to your employment status. …”.
(Bold, uppercase and italics in original; differing font sizes and coloured text not reproduced)
Kylie Moffatt is the respondent’s Regional Operations Manager NSW ACT (and was the Acting Director of Mental Health NSW ACT over the time-period relevant to the final decision-making processes concerning the applicant). On 22 December 2022, Ms Moffatt received an email attaching the Investigation Report and show cause process approval for her review and consideration. Ms Moffatt reviewed the Investigation Report and accepted its findings, and reviewed the show cause process approval document. On 5 January 2023, Ms Moffatt received an email from Rodney Kite, People & Culture Senior Adviser, attaching a letter titled “Victor Edwards – Outcome of Workplace Investigation”. Ms Moffatt reviewed, signed and returned the letter to Mr Kite.
On 9 January 2023, the respondent sent correspondence to the applicant concerning “Outcome of investigation and direction to show cause”, which read in part:
“OUTCOME OF INVESTIGATION AND DIRECTION TO SHOW CAUSE
I refer to the recent investigation into the allegations made against you, as outlined in the letter dated 30 September 2022 and as discussed with you at a meeting on 20 October 2022 at which you were provided the opportunity to respond to allegations of misconduct in your role as a Disability Support Worker, with Life Without Barriers (“LWB”).
This investigation has now been completed. The following findings have been made on the balance of probabilities, after careful consideration of your responses to the allegations and all other relevant information and evidence identified in the investigation
· Allegation 1 - Unlawful physical contact with, or assault of, a person with disability.
This allegation is Substantiated
The above constitutes a breach of LWB’s Code of Conduct:
Point 1 - Uphold our values
Point 2 – Behave, honestly courteously and objectively
Point 3 – Make Sound and Ethical Decisions
Point 4 – Comply with the law and LWB policies and procedures
Point 5 – Ensure the safety and wellbeing of our clients
NDIS Code of Conduct:
Point 3 - Provide supports and services in a safe and competent manner with care and skill
Point 6 - Take all reasonable steps to prevent and respond to all forms of violence, exploitation, neglect, and abuse of people with disability
Your Contract of Employment:
Section 3.2 Client Care which advises “A primary duty of all employees, whether directly client facing or not, is to ensure the delivery of service to clients is of the highest quality. We expect all employees to contribute to our clients feeling safe and respected and to make sure they are cared for and protected from abuse, neglect and exploitation.[”]LWB considers that in all the circumstances, your continuing failure to comply with our policies and to behave in accordance with the LWB Code of Conduct makes your continuing employment with us untenable.
Show Cause
In these circumstances, we propose to terminate your employment on the grounds of serious misconduct, however, before a final decision is reached in this regard, we intend to provide you with a further opportunity to meet with us and make verbal submissions and to show cause why LWB should now not proceed to terminate your employment.You are directed to attend a meeting as follows: [Details relating to the meeting] …”.
On 20 January 2023, the applicant sent detailed correspondence (six pages in length) to the respondent with the subject-line “Responding to Outcome of investigation and direction to show cause dated 09/01/23”, which attached two character references. The applicant also requested that the respondent reschedule the show cause meeting so his support person could attend.
As requested by the applicant, the show cause meeting was rescheduled. The show cause meeting was held on 24 January 2023 and was conducted by Microsoft Teams videoconferencing. Ms Moffatt and Mr Kite attended the meeting for the respondent; the applicant attended with a CPSU representative as a support person. During the show cause meeting, the applicant provided verbal responses as to why his employment should not be terminated.
Ms Moffatt considered all the materials and responses the applicant provided in response to the show cause letter. To Ms Moffatt, these matters did not disclose any reason why the applicant’s employment should not be terminated for serious misconduct. Accordingly, Ms Moffatt decided to terminate the applicant’s employment for serious misconduct, and directed
the respondent’s Human Resources section to prepare a termination letter, which she reviewed.
The final dismissal letter was dated 30 January 2023 and read, in part:
“TERMINATION OF EMPLOYMENT
I refer to our letter [sic] dated 21/11/2022 and 09/01/2023, regarding the findings of our investigation into your conduct in your role as a Disability Support Worker. The purpose of these letters was to advise you of our intention to terminate your employment on the grounds of Serious Misconduct, subject to your having the opportunity to offer any mitigating circumstances which might refute the investigation findings, or otherwise to make submissions as to why your employment should not be terminated.
You provided a written submission to Rodney Kite (P&C Senior Advisor) and attended a meeting on 24/01/2023 and provided your verbal response as to why your employment should not be terminated. You provided the following responses:
1. You are the breadwinner and support your family
2. Diligently served with dedication and commitment
3. Worked for over 10 years as a Disability Support worker
4. Completed degrees in Disability, Aged Care and Community Services
5. Worked for various Disability Service providers including ADHC, Northcott Society, Achieve Australia, and Royal Rehab.
6. Respectfully and conscientiously assisted LWB in examining the complaint
7. Have no previous history of misconduct or have been subject to enquiry or complaint
8. Place others first and in many cases go’s [sic] above and beyond.
9. Always adhere to protocols, policy, and client behaviour support plans
10. Never engaged in unlawful physical contact with or assaulted a customer.
11. Maintain your innocence
12. Believe you are the victim, and that the investigation was not fair
We have reviewed your written and verbal submissions and consider on the balance of probabilities, that the findings we have reached support that your misconduct has breached the following:
The above constitutes a breach of LWB’s Code of Conduct:
Point 1 - Uphold our values
Point 2 – Behave, honestly courteously and objectively
Point 3 – Make Sound and Ethical Decisions
Point 4 – Comply with the law and LWB policies and procedures
Point 5 – Ensure the safety and wellbeing of our clientsNDIS Code of Conduct:
Point 3 - Provide supports and services in a safe and competent manner with care and skill
Point 6 -Take all reasonable steps to prevent and respond to all forms of violence, exploitation, neglect, and abuse of people with disabilityYour Contract of Employment Section 3.2 Client Care which advises:
“A primary duty of all employees, whether directly client facing or not, is to ensure the delivery of service to clients is of the highest quality. We expect all employees to contribute to our clients feeling safe and respected and to make sure they are cared for and protected from abuse, neglect and exploitation.[”]
We therefore conclude that your conduct is inconsistent with the continuation of your employment, and in view of the above LWB has no option but to terminate your employment as a Disability Support Worker with immediate effect from close of business today, 30/01/2023. As this termination is due to serious misconduct, no notice or payment in lieu of notice is required. …”.
(Uppercase and bold in original)
As may be seen from the foregoing overview, the culmination of a report on 22 September 2021 by a co-worker about the applicant having slapped Mr C was a summary dismissal for serious misconduct effective 30 January 2023.
The evidence
Having outlined the process-related matters, I now turn to an overview of the written evidence-in-chief given by the applicant, Ms Ridley and Ms Neale more directly related to the alleged incident on 22 September 2021. I will also briefly touch on the applicant’s written reply evidence. The relevant aspects of the evidence of Ms Moffatt have already been outlined. By and large, the oral examination was reinforcing of the matters otherwise set out in the witnesses’ written statements of evidence. The time taken in the oral examination of each witness was, in the scheme of things, atypically short; the entire case was heard in about half a day.
The evidence of the applicant
On 21 September 2021, the applicant accepted a request to cover a night shift at the group home and commenced work at 11.00pm that night. At about 6.00am on 22 September 2021, the applicant was in the kitchen preparing breakfast and medications for the group home residents when Ms Neale and Ms Ridley commenced their shifts. A few minutes later, Mr C woke up and came into the office. The applicant described Mr C as “a non-verbal, intellectually disabled customer who can easily become aggressive”. The applicant’s evidence was that the following occurred:
· Mr C sat at the table, then was a little bit agitated and started to throw files in the office.
· Mr C ran from the office and crossed over to the other lounge area where one of the other clients was seated and having breakfast.
· The applicant remained in the kitchen preparing a cup of coffee for Mr C and preparing breakfast for the other clients.
· Mr C returned to the kitchen, pushed the cup of coffee that the applicant was making for him, raised his right hand, and attempted to hit the applicant – which was witnessed by Ms Neale and Ms Ridley. Ms Neale and the applicant had a conversation to the following effect:
Neale: “Oh Victor you have to record ABC[2] data collection chart because [Mr C] was attempting to hit you.”
Applicant: “Okay. I can deal with those [sic] paperwork later. Let’s finish the morning routine.”
· The applicant finished making a cup of coffee for Mr C and offered him his morning medication, which Mr C then had.
· Mr C’s “usual procedure is that he gets up, he wants to go out in the van and go have his coffee”. The applicant decided to assist Ms Ridley to get Mr C to the van.
· The applicant walked with Ms Ridley and Mr C to the laundry. On the way, Mr C picked-up a laundry basket and threw it. The applicant opened the door to the laundry and the three of them went inside.
· While the applicant was trying to open the door from the laundry that leads outside, Mr C again attempted to hit the applicant[3].
· The applicant opened the door from the laundry that leads outside. The applicant used his left hand to open the door and continued to hold the door while Mr C walked outside. The applicant stood at the door holding it, to stop the door from closing and to stop other clients “absconding”. Mr C picked-up a mop bucket and threw it across the yard. Ms Ridley walked outside. The applicant watched Mr C, then Ms Ridley, get inside the van and the van leave.
· The applicant re-entered the group home and continued providing support and personal care to other clients to get ready for their day programme.
· When Ms Ridley returned to the group home, she took Mr C to the back of the main house.
· At about 8.30am, the applicant was assisting another client to dress when Ms Neale told him that Ms Ridley was having a bit of a hard time with Mr C “as he was trying to undress or maybe wanting to get a shower as he is incontinent sometimes”.
· The applicant went to support Mr C with his personal care; and showered, shaved and dressed him.
· The applicant completed his paperwork and shift-notes before finishing his shift/leaving.
· At about 4.00pm that same day, the applicant received a telephone call from his co-ordinator, Ms Gaudry. The coordinator informed the applicant not to go to work that night until she advised him otherwise.
· The applicant’s evidence was that: “At no time did I assault [Mr C]”.
The evidence of Ms Ridley
· On 22 September 2021, Ms Ridley was working a day shift from 6.00am to 2.00pm. The applicant had been working night shift and was due to finish at 9.00am that morning; Ms Ridley was taking over from him. Ms Neale was also working a day shift and was at the group home until Ms Ridley left for the day.
· Mr C was then aged 39 years. He suffers from severe intellectual disabilities, Crohn’s disease, was diagnosed with autism, and is non-verbal. Mr C communicated with Ms Ridley by taking hold of her arm and pulling her to what he wanted next.
· Ms Ridley recalls being in the kitchen with Ms Neale, the applicant and Mr C prior to taking Mr C out.
· Ms Ridley recalls Mr C throwing a coffee cup, being behaviour of a type that was not out of the ordinary for him.
· At about 6.30am, Ms Ridley was getting Mr C ready to go for his morning coffee; he had the same routine every morning. Mr C seemed a little agitated, but this was not unusual for him.
· Mr C walked through the internal laundry door. Ms Ridley followed Mr C and the applicant followed her. The client picked-up a washing basket and threw it across the laundry room. The applicant closed the internal door behind him and walked past Ms Ridley and opened the external laundry door. That door opens into the yard where the car was parked. Mr C walked through the external door into the yard. Mr C picked-up a mop bucket and threw it across the yard. Mr C walked across the yard to where the car was parked. The applicant was standing in the external door frame. Ms Ridley was standing behind the applicant.
· The applicant called Mr C over to him. Mr C looked at the applicant, but Mr C continued to wait at the front-gate to get into the car.
· The applicant again called Mr C over to him. This time, Mr C walked towards the applicant. When Mr C was close to the applicant, Ms Ridley saw the applicant raise his left hand and slap Mr C on the right side of his face. Ms Ridley also heard a loud slapping noise.
· Mr C walked back across the yard towards the car.
· Ms Ridley was in shock at what she had just witnessed. The applicant said something to Ms Ridley at this point, but she cannot recall what it was.
· Ms Ridley did not see Mr C attempting to hit the applicant at any point during the events from the time Mr C walked through the laundry door to the time of the alleged slap.
· Mr C and Ms Ridley got into the car, and they left to go to a McDonald’s restaurant. On the drive, Mr C was very quiet. After getting a coffee for Mr C at the McDonald’s drive-through, Ms Ridley drove with Mr C to the Sydney International Regatta Centre (“Centre”).
· Ms Ridley and Mr C sat on a park bench by the lake at the Centre. When Mr C was drinking his coffee, Ms Ridley noticed he had a bloodshot eye. Ms Ridley is not sure if this was from the slap; sometimes Mr C had a bloodshot eye from the shower, but that was the first time on that day that Ms Ridley noticed the bloodshot eye.
· After returning to the group home with Mr C, Ms Ridley took him to a shed, as he required one-on-one care. Ms Ridley made a note of what she witnessed in the notes app in her telephone. Ms Ridley no longer has a copy of this note.
· When Ms Ridley entered the group home again and saw Ms Neale, Ms Ridley told Ms Neale what happened. Ms Neale told Ms Ridley to put it in an email. Ms Neale told Ms Ridley she would report the incident internally and the matter probably would be reported to the police. Ms Ridley copied and pasted the note from her telephone into an email and sent it to Ms Neale later in the afternoon, after her shift had finished. Ms Ridley’s email to Ms Neale read as follows (as written – except for my square-bracketed replacement of the individuals’ given names with “Mr C” and “the applicant”):
“Hi Cathy
I would like to bring something to your attention that I witnessed today that makes me feel very uncomfortable and I feel should be reported. I understand that this would be better said face to face but unfortunately I don’t feel comfortable talking about it in the house with other staff members around.
This is what a witnessed this morning 22/09/2021.
[Mr C] had an unsettled morning before going out for coffee, around 0630 I unlocked the laundry door to take [Mr C] out for his coffee.
[Mr C] walked into the laundry and picked up the washing basket that was near by and threw it on the ground. I was still standing outside the the laundry door and [the applicant] had just walked into the laundry after [Mr C]. Cathy was standing at the top of the stairs leading into the kitchen and asked me “are you hurt are you okay” I said yes I’m fine the washing basket didn’t hit me see you when I’m back.
I walked into the laundry and [the applicant] closed the door into the house behind me and opened the outside door.
[Mr C] exited first, picked up a mop bucket that was sitting near the door and threw it across the backyard while hitting his hand into the air not aimed at staff. [Mr C] then started walking over to the van getting ready to go out with no verbal cues.
[The applicant] was standing in the door way and I was standing behind him still in the laundry, [the applicant] called out “[Mr C] come over here now”.
[Mr C] walked back over to the doorway of the house and then [the applicant] raised his hand and slapped [Mr C] across the side of his head and face. The slap was with a raised hand and made a loud sound. [The applicant] then looked at me at said something which I don’t recall as it really shocked and horrified me. I didn’t say anything and walked towards the van with [Mr C] and hoped in to go out for coffee.
I understand that I am new to the industry without much experience and other staff members have been here a long time with lots of experience with these clients but what I witnessed today I understand is not right and I needed to say something and I wasn’t sure what to do next.
Thanks
Pippa”.
The evidence of Ms Neale
Ms Neale’s evidence went only to matters surrounding the alleged slap. Ms Neale was not in the immediate proximity of the applicant, Ms Ridley and Mr C at the time of the alleged slap; she was elsewhere at the group home.
· Ms Neale recalls that Mr C was unsettled on the morning of 22 September 2021. She has no specific recollection of witnessing Mr C trying to hit the applicant with a coffee cup that morning, but behaviour of this type by Mr C was not unusual. Ms Neale otherwise noted that the ABC Form completed by the applicant in relation to the incident stated that she was present.
· At approximately 10.30am on 22 September 2021, while standing on either side of the fence that separates the yard from the back shed area, Ms Ridley told Ms Neale that she needed to talk to her about something.
· Ms Ridley said to Ms Neale that the matter “was serious” and that it had “really upset” her. In Ms Neale’s opinion, Ms Ridley “looked rattled and upset”.
· Ms Ridley told Ms Neale that she had witnessed the applicant strike one of the clients and she did not know what to do. Ms Neale was shocked. Ms Neale said to Ms Ridley that this needs to be reported. Ms Neale asked Ms Ridley to put it in writing. Ms Ridley said that she had drafted an email. Ms Neale told Ms Ridley to forward the email to her. Ms Neale reassured Ms Ridley that she was doing the right thing by reporting the incident. Ms Ridley sent an email to Ms Neale later that day.
· Ms Neale reported the incident to her supervisor, Ms Gaudry. Ms Neale raised an incident report and sent it to Ms Gaudry.
· Ms Neale had a debrief with Ms Ridley to make sure she was okay and reminded her she could access the respondent’s EAP services. Ms Neale understood that Ms Ridley was a relatively new employee, and still in her induction period, and so she wanted to ensure that Ms Ridley felt supported.
· Ms Gaudry informed Ms Neale on 22 September 2021 that the applicant was suspended and to fill all his shifts until further notice.
· On that same evening of 22 September 2021, the police attended Ms Neale’s home to question her about the incident. The following day, Ms Neale forwarded Ms Ridley’s email about the incident to the police. On or around this date, the police also contacted Ms Neale at work in relation to the incident because they wanted to interview Mr C. Ms Neale informed the police that they could come to the group home, but that the client was non-verbal.
The applicant’s reply evidence
The applicant’s evidence-in-reply was succinct. Among other matters:
· The applicant said that Ms Ridley’s recollection of what occurred on 22 September 2021 was incorrect and that the correct account of the events is set out in identified aspects of this evidence-in-chief and in its annexed interview transcript.
· The applicant said he did not notice Mr C having a bloodshot eye on 22 September 2021.
· The applicant noted that he had not previously seen the Investigation Report (i.e., prior to dismissal).
· The applicant reiterated his denial of having struck/assaulted Mr C.
The applicant’s reply evidence also referred to a post-dismissal development. That is, by letter dated 4 April 2023, the NDIS Quality and Safeguards Commission (“NDISQSC”) informed the applicant that a preliminary view had been formed that it may be appropriate in all the circumstances to make a five-year banning order prohibiting him from being involved in the provision of supports or services to people with disability. By letter dated 14 April 2023, the applicant responded to the NDISQSC. This exchange of correspondence was in evidence.
Submissions
The parties’ representatives helpfully provided written outlines of their closing submissions. The following overview of the parties’ submissions is drawn from those outlines, albeit the oral submissions elaborated upon them.
Applicant’s closing submissions
Against the background of denying the applicant had assaulted Mr C, the applicant submitted that his dismissal was unfair and noted the remedy or remedies being sought – principally, reinstatement with continuity of service and lost pay; or, if reinstatement is not considered appropriate, six months’ wages plus superannuation.
The applicant referred to the legislative framework and a range of familiar authorities that condition the Commission’s consideration of an application for an unfair dismissal remedy. The applicant submitted that:
· This is one of the usual cases where there are two directly opposing recollections of events, with no (third-party) witnesses and a client who is non-verbal.
· The applicant’s evidence is that he denies having assaulted a person with a disability at 6.30am on 22 September 2021 by slapping that person on the right-hand side of his head with his left hand.
· The applicant noted aspects of Ms Ridley’s evidence and, as to that, submitted that his evidence should be preferred for reasons including the following:
1. The applicant has an unblemished employment record, being an important matter as it goes to whether he had a likelihood or predisposition to engage in misconduct – and, in this case, a very serious allegation is made. The uncontested evidence adduced in the applicant’s case of Preetna Lal, Customer Service Coordinator for Northcott Disability Services, who has worked with the applicant, indicated (among other things) that it would be out of character for the applicant to assault a client and the applicant dealt calmly in managing clients with very challenging behaviours.
2. There is the inherent unlikelihood of the assault occurring in the manner described by Ms Ridley. The client required one-on-one care; there were many opportunities for staff, including the applicant, to be alone with Mr C. Yet, according to Ms Ridley, the applicant “brazenly call[ed] the client back to him, and slapped him in full view” of her - at the time Mr C was about to go out and the applicant was close to the end of his shift. To the extent that the Commission may be concerned that the motivation for the alleged assault was Mr C’s behaviour on the day, the relevant ABC Report states that the applicant dealt with Mr C’s (earlier) behaviour by verbally re-directing him.
3. There was no rebuke given by Ms Ridley to the applicant at the time.
4. Mr C did not react in the way his Behaviour Support Plan (“BSP”) indicates he would if the assault has happened:
- he did not hit, slap, punch and push to escape from something undesirable (being the alleged slap);
- he did not throw things at people afterwards to escape a difficult situation;
- he did not slam doors, slam/bang things, hit walls and windows to show he was upset.
5. The applicant was allowed to shower and change Mr C after he returned from coffee, something that Ms Ridley left out of her accounts both to the respondent’s investigator and the police. It would be very odd for Ms Ridley to have allowed this to occur if the assault had occurred. The client would have reacted in a very agitated manner. This did not happen. The explanation that Ms Ridley provided to the investigator was that her memory was not clear.
6. Ms Ridley completed a contemporaneous progress note that did not refer to the assault and which otherwise stated, as to Mr C, “no other issues”.
7. Only Ms Ridley says there was a bloodshot eye. Importantly, she was required to report it if Mr C’s eyes were bloodshot and there is no report of any injury – bruising, marks, bloodshot eye, etc. There was no reference to it in the i-sight record and, notably, it was not in the original email complaint, nor in the progress note made on the day.
8. Ms Ridley “cannot tell her right from left – she tells the investigator this but provides a sworn statement to the police that [the applicant] used his left hand. This shows a propensity to lie by omission.”
9. Ms Ridley says that she went to see Ms Neale to report the incident, but Ms Neale says that she was up at the gate to hand Ms Ridley something and then Ms Ridley reported it.
10. Ms Neale was “floored” by the account given by Ms Ridley, i.e., shocked and found it hard to believe that it was true.
11. The applicant fully participated in the respondent’s investigation and gave a full account of the events concerning the alleged incident.
12. It is unlikely that a laundry basket was thrown in the small room. Ms Ridley says that it was thrown here, whereas the applicant says that this occurred in the common area before the laundry.
The applicant submitted that, as to process issues, the respondent never provided him with a copy of the Investigation Report for him to comment on as part of the investigation.
The applicant submitted there was no valid reason for the dismissal relating to capacity or conduct, because he denies that he assaulted a person with a disability. The applicant’s submissions addressed matters set out in s.387(b)-(h) of the Act, in a non-controversial way. In relation to s.387(h), the applicant developed alternative submissions to the effect that even in cases involving serious misconduct arguments as to harshness remain available. For example, as to the dismissal being harsh in all the circumstances: the applicant had a short but unblemished employment record; he was suspended without pay from 3 November 2021 until September 2022 during the investigation process; and the dismissal had a profound economic and emotional effect on the applicant. The dismissal was unjust because the applicant “is not guilty of the misconduct alleged”.
Respondent’s closing submissions
In contending that the applicant’s application for an unfair dismissal remedy should be dismissed, the respondent submitted that at about 6.30am on 22 September 2021 the applicant was observed by another employee, Ms Ridley, slapping Mr C across the face. Ms Ridley reported the incident to the Team Leader, Ms Neale. The respondent then took appropriate steps to manage the incident, in accordance its relevant policies and reporting requirements. That is:
· the respondent conducted a thorough investigation into the incident;
· the applicant was accorded procedural fairness during the investigation process;
· the investigator found the allegation to be substantiated;
· Ms Moffatt accepted the findings of the Investigation Report and the respondent commenced a show cause process with the applicant;
· all information and materials provided by the applicant in response to the show cause process were considered by Ms Moffatt, prior to her making a final decision to terminate the applicant’s employment; and
· Ms Moffatt decided that the materials provided did not disclose a reason why the applicant’s employment should not be terminated, on the ground of serious misconduct. Accordingly, on 30 January 2023, the applicant was dismissed.
The respondent submitted that while the concepts of “harsh”, “unjust” and “unreasonable” may overlap, in this case, not only did it have a valid reason for dismissal, but the wilful misconduct in which the applicant engaged was so serious as to meet the threshold for dismissal, irrespective of length of service, disciplinary record and personal circumstances. The respondent submitted that when a dismissal is based on the conduct of an employee, the Commission must, if it is an issue in the proceedings, determine whether the conduct occurred on the basis of the evidence before it. In such respects, the respondent first referred to Ms Ridley’s evidence. The respondent submitted that the Commission has had the benefit of hearing the evidence of Ms Ridley, who witnessed the misconduct first-hand. The respondent made submissions including the following:
· Ms Ridley was an honest and credible witness;
· Ms Ridley’s evidence, in relation to the critical issue, being that the applicant slapped Mr C, was clear and consistent (since the day of the incident), and was not eroded by cross-examination;
· Ms Ridley confirmed in re-examination that her dyslexia does not prevent her from being able to tell left from right per se (and the applicant’s assumptions about that are unsupported and irrelevant);
· Ms Ridley confirmed in re-examination that she did not report the incident in the progress note she completed on 22 September 2021, because her report (as to the alleged incident) was about a confidential matter – i.e., the progress note can be reviewed by any person with access to the system, including other employees working with the applicant and/or caring for the client;
· Ms Ridley reported the incident to Ms Neale, as Ms Neale confirmed in her evidence;
· Ms Ridley attended a police station and gave a statement;
· Ms Ridley was prepared to go to court and give evidence in the criminal proceedings; and
· Ms Ridley willingly assisted with the respondent’s investigation.
The respondent submitted that it is implausible that Ms Ridley would lie, or make a false report, about such a matter. The respondent referred to evidence indicating that there was no “personal history” between the applicant and Ms Ridley, e.g., the applicant informed the investigator that he did not know Ms Ridley and Ms Ridley did not know him; this was confirmed by the applicant in cross-examination. Accordingly, no ulterior motive for Ms Ridley’s evidence has been established by the applicant. Nor has any evidence of fabrication been provided.
Minor inconsistencies identified in Ms Ridley’s evidence, for example, that the email Ms Ridley sent to Ms Neale reporting the incident did not include Ms Ridley’s observation that Mr C’s eye was bloodshot, are of minor import. The respondent submitted they do not disturb Ms Ridley’s crucial eyewitness testimony as to the conduct of the applicant slapping a client in the face.
The respondent described the applicant’s reliance on Mr C’s BSP as evidence for the proposition that the misconduct did not occur as “misplaced”. The purpose of the BSP is to provide staff with a plan to assist a client with his or her behaviours. The BSP does not provide conclusive evidence of how a client will react in any given situation. The applicant did not provide any medical evidence regarding this matter.
The respondent submitted that the evidence of Ms Lal is of little, if any, probative value. What the applicant was like when he worked with Ms Lal is not relevant; what is relevant is what occurred on 22 September 2021.
The respondent submitted it had a valid reason for termination of employment, justifiable on the objective analysis of the relevant facts. Accordingly, the dismissal was not unjust.
As to procedural fairness, the respondent made submissions including the following:
· the respondent conducted a comprehensive investigation into all relevant matters regarding the alleged misconduct;
· the respondent provided the applicant with the opportunity to respond to the allegations, with reasonable timeframes allowed to respond; and
· the respondent provided the applicant with the opportunity to have a support person present during the investigation.
The respondent submitted that the findings of the investigation were based on reasonable grounds, and that (through Ms Moffatt):
· the respondent honestly and genuinely believed, and had reasonable grounds to believe at the time of dismissal that the applicant was guilty of the misconduct alleged;
· the respondent engaged in a show cause process, which accorded procedural fairness, inviting the applicant to provide any information he wanted the respondent to consider, before a final decision was made regarding his employment;
· the respondent considered all the information the applicant provided in response to the show cause process, including his employment record and matters in mitigation, prior to making a final decision to dismiss the applicant.
The respondent submitted that the applicant “sought to make much of the materials considered by Ms Moffatt in relation to accepting the findings of the report”. However, it is clear on Ms Moffatt’s evidence that she was satisfied the Investigation Report provided her with all the information she needed to accept the finding – and nearly the whole of Ms Ridley’s investigation transcript was copied and pasted into that report.
As to the applicant’s submission regarding not having been provided with a copy of the Investigation Report, the respondent submitted that “this is not unusual, particularly in the industry in which the respondent operates”. In any event:
· the applicant was advised of the nature of the allegation in detail;
· the applicant was provided with an opportunity to respond to the allegation, of which he availed himself; and
· the applicant was accorded procedural fairness during the investigation process and, accordingly, the respondent complied with its obligations to provide the applicant with procedural fairness in relation to the investigation process.
By reference to authorities, the respondent submitted there is no basis for the Commission to find the dismissal was harsh. The respondent submitted that the applicant was employed for fewer than two years before the incident occurred – which is not a substantial duration of employment. Nor is age a significant concern given the applicant’s age.
In conclusion, the respondent noted that it “operates in an industry which has an exceptionally high bar for care.” Given the nature of the employment and the particular vulnerability of the clients in the applicant’s care, after establishing to the appropriate standard that the alleged conduct occurred, a proposed dismissal was the only appropriate action available to the respondent. The respondent engaged in a show cause process with the applicant and considered all the information and materials provided by him, prior to making a final decision to dismiss. In the circumstances, the applicant’s alternative submission that the dismissal was harsh, notwithstanding the serious misconduct, is not tenable.
Consideration
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account certain cumulative matters specified in s.387(a)-(h) of the Act. I now turn to those matters.
(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
I consider there was a valid reason for the dismissal related to the applicant’s conduct because I am relevantly satisfied, on the balance of probabilities, that the applicant slapped Mr C on 22 September 2021. I have reached the conclusion that I prefer and accept the evidence of Ms Ridley that the applicant slapped Mr C as against the applicant’s steadfast denials that this occurred. I find, on the balance of probabilities, that the conduct occurred. This finding has not been made lightly given Briginshaw considerations and matters that are later addressed in this decision in relation to s.387(h) of the Act.
In so finding, I have taken matters including the following into account. While the applicant’s closing oral submissions cautioned against the “trap” of trying to work-out Ms Ridley’s motivation in making the allegation, it is the case that I can discern no reason arising from the evidence and submissions, or from my observation of Ms Ridley in the witness box, why Ms Ridley would have concocted an allegation of such seriousness concerning the applicant. On what was before me, Ms Ridley had no reason or motive to lie in reporting the incident to her team leader – and, I consider, this is one of the matters that favours a finding concerning the veracity of what Ms Ridley says she witnessed on the critical matter of the applicant slapping Mr C. Ms Ridley and the applicant had scarcely interacted in their employment at the group home before their overlapping shifts on 22 September 2021; and the evidence of the applicant indicated they did not “know” each other. In closing oral submissions, the respondent submitted that, against this background, it was “simply implausible” that Ms Ridley would have fabricated matters – and I incline to the acceptance of that submission. Ms Ridley reported the matter to her team leader later during the same morning and provided the foreshadowed email later in the afternoon. Ms Ridley was a recently-recruited employee, who was still in her induction period on 22 September 2021. Ms Neale’s evidence was that Ms Ridley looked, in her opinion, “rattled and upset” before telling her that she had witnessed the applicant strike one of the clients, and that she did not know what to do. Ms Neale’s evidence was that she was shocked by what Ms Ridley told her; and Ms Neale reassured Ms Ridley that she was doing the right thing by reporting the incident. To the extent that the applicant made submissions around the implausibility of him slapping a client in the presence of a co-worker, I note that, day-in-day-out, the Commission deals with applications across various industries where employees have engaged in conduct that would self-evidently attract disciplinary action, including dismissal, in plain sight of the applicant employees’ co-worker/s and/or where the employees know, for example, that the workplace has CCTV.
Ms Ridley gave her evidence before the Commission in a matter-of-fact and unembroidered way that did not, it seemed to me, seek to either embellish or, on the other hand, downplay matters concerning what had occurred. For instance, while Ms Ridley’s evidence was that she noticed (for the first time while sitting on a park bench) that Mr C had a bloodshot eye but - rather than asserting some cause-and-effect - said she was unsure whether this was from the slap, because, she noted, Mr C sometimes had a bloodshot eye from showering. Ms Ridley also made certain concessions in cross-examination, where appropriate, and in what I might characterise as a non-combative way. The applicant made submissions around the progress note that was prepared by Ms Ridley on 22 September 2021, including its concluding reference to “no other issues” concerning Mr C. I accept, without any provisos, that it would have been inappropriate for Ms Ridley to have included a reference to the slap in Mr C’s progress note, given the confidentiality that ought reasonably be considered as apt in relation to an allegation of this nature concerning a co-worker and Mr C; and Ms Ridley had otherwise already informed Ms Neale about the incident and was advised to put that matter in an email to her (which Ms Ridley separately later did, shortly after her shift concluded). The applicant also referred to the matter of Ms Ridley’s memory in the context of what was said by her in the respondent’s investigation interview (which was conducted on 20 October 2022, more than a year after the events at about 6.30am on 22 September 2021). However, while still at work on 22 September 2021, Ms Ridley first made a note of what she witnessed in the notes app in her telephone; second, Ms Ridley informed Ms Neale about the matter at about 10.30am on 22 September 2021 and was advised to send an email; and, third, at 2.37pm on 22 September 2021, not long after her 6.00am-2.00pm shift had finished, Ms Ridley sent an email to Ms Neale setting out what she said she had witnessed, derived from what she had entered in her notes app. The contemporaneous nature of these three events militates against the applicant’s submissions positing that Ms Ridley’s account should not be accepted because of her memory about certain details, such as whether the applicant was present at the group home when she returned from the outing.
I have considered the unswerving denials by the applicant that he did not slap Mr C, and other matters including the evidence about his deep personal and professional commitment to the clients who have been in his care, and his unblemished employment record. The situation nonetheless remains that I prefer and accept the evidence of Ms Ridley on the pivotal matter for determination in this case, namely, whether, on the balance of probabilities, the applicant slapped Mr C. This is so notwithstanding my consideration of aspects of the evidence and submissions concerning, for instance (and in no particular order):
· The evidence related to the showering-type assistance provided by the applicant to Mr C after Ms Ridley and Mr C had returned from the drive, in circumstances where she had otherwise (initially) said to the investigator that the applicant was not at the group home after the drive (and this matter was not set-out in her police statement).
· Some of the exact detail about when and where an item or items (first a wash basket, second a mop bucket) were thrown by Mr C.
· The evidence indicating that Ms Ridley did not say anything to the applicant about the slap, or anything to immediately “rebuke” him, in connection with what she says she witnessed.
· The submissions by the applicant and the respondent about what reaction/s may have been expected from Mr C, based on his BSP, to having been slapped.
I have also considered the evidence by Ms Ridley about her dyslexia as it relates to delineating left and right, in the context of the applicant’s forcefully-advanced submissions that she had, for example, allegedly lied to the police and/or in her police statement and that her evidence otherwise could not be accepted by the Commission. Ms Ridley’s evidence before the Commission was that she saw the applicant raise his left hand and slap Mr C on the right-hand side of his face (and also heard a loud slapping noise) and, as already addressed above, I prefer and accept that evidence over the applicant’s denial that he slapped Mr C.
It is a self-evident proposition that a Disability Support Worker having slapped a client in the circumstances as described in Ms Ridley’s evidence, being the salient evidence that I have accepted, grounded a valid conduct-related reason for the respondent to dismiss the applicant; there was a sound, defensible and well-founded reason to dismiss. Separately, it is unnecessary to examine the policies, codes of conduct and the like to which the show cause and dismissal-related correspondence otherwise referred, given that no issue was raised about their operation to the circumstances of this case.
(b) Whether the person was notified of that reason
The initial allegation on 23 September 2021 was “Reportable incident – Client Abuse”, but all processes around this initial allegation apparently ceased around the time the police became involved. More than a year later, the 30 September 2022 allegation was changed to “Unlawful physical contact with, or assault of, a person with disability”, and it was that subsequent allegation which formed the basis of the ensuing show cause processes and ensuing dismissal. I am satisfied, for the purposes of the s.387(b) of the Act, that the applicant was notified of the reason for his dismissal in the sense considered in Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, as affirmed in cases including Mark Bartlett v Ingleburn Bus Services Pty Ltd t/a Interline Bus Services[2020] FWCFB 6429.
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
I am satisfied that the applicant was given an opportunity to respond to the conduct-related reason as contemplated in the criterion in s.387(c) of the Act - and he in fact responded in a detailed way. The applicant was not provided with a copy of the Investigation Report, being a matter which was raised in the applicant’s case concerning procedural fairness. As to that, it is not uniformly the case that an employer’s investigation report invariably would be provided to an employee during a show cause/pre-dismissal process. Moreover, there was no evidence that the applicant requested a copy of the Investigation Report at any time before the dismissal or that he requested even a copy of that document with what the respondent may have considered to be, for example, appropriate redactions.
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
There is no evidence that there was any unreasonable failure by the respondent to allow the applicant to have a support person present to assist at any discussions relating to dismissal. The respondent rescheduled discussions relating to dismissal, at the applicant’s request, so he could have a support person/union representative present at the show cause meeting.
(e) If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal
The dismissal in this case did not relate to unsatisfactory performance, so the question of prior warning is not apposite for consideration in this case. As I have noted, the applicant had an unblemished employment record over the time he was employed by the respondent.
(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal and (g) The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
With approximately 7,000 employees, the respondent is a sizeable employer in the social assistance services sector. The procedures that the respondent followed were conformable with procedures that might be expected from an employer of its size which has in-house human resources management personnel. The procedures followed by the respondent were also, it appears, conformable with its external NDIS-type reporting obligations which, relevantly, led to the applicant’s differing paid as against unpaid suspension status at the points in time described in the evidence and submissions.
(h) Any other matters that the Commission considers relevant
I have considered the fact that the termination of employment was effected by way of summary dismissal. I have also considered the matters addressed in some detail about the applicant’s prior unblemished record, the testimonial-type evidence of Ms Lal and the range of personal consequences described in the evidence and submissions about the impacts of the dismissal on the applicant. Those matters do not lead me to a view that favours an intervention in the respondent’s decision to dismiss the applicant - for example, on the basis that the dismissal was harsh - given the seriousness of the conduct in slapping Mr C.
As noted earlier, the applicant’s reply evidence referred to a post-dismissal development, being that the NDISQSC recently informed the applicant that a preliminary view had been formed that it may be appropriate in all the circumstances to make a five-year banning order prohibiting him from being involved in the provision of supports or services to people with disability. As identified in the NDISQSC correspondence, this advice concerning the banning order stems directly from the circumstances concerning 22 September 2021. The applicant made representations in his reply to the NDISQSC relevantly seeking that “the NDIS Commissioner await the decision of the FWC before determining whether to issue a banning order”. If it is the case that the NDISQSC acceded to the applicant’s request made on 14 April 2023 that the NDISQSC await the Commission’s decision in this matter before determining whether to issue a banning order, I am acutely conscious that my decision possibly may have a collateral impact on the preliminary view of the NDISQSC concerning the five-year banning order – and, relevantly, the impact on the applicant’s future employment in the sector generally as opposed to involving employment only as between the applicant and the respondent. I am also acutely conscious that the applicant has obtained post-dismissal alternative employment in the NDIS-regulated sector, with the result that any banning order will also result in the applicant being unable to continue working in his post-dismissal employment. That said, any final decision/s that the NDISQSC may make in relation to the applicant will, of course, be a matter entirely for its own determination. As I noted earlier, and I now reinforce, my finding about the incident on 22 September 2021 has not been made lightly.
Conclusion
Considering and weighing all matters, this case does not involve a dismissal that was harsh, or unjust, or unreasonable. As the dismissal was not unfair, the applicant’s application for an unfair dismissal remedy is dismissed and an order thereto will issue in conjunction with these reasons.
The proceedings are concluded.
COMMISSIONER
Appearances:
N Keats of McNally Jones Staff Lawyers for the applicant.
J Knoth of The Australian Industry Group for the respondent.
Hearing details:
2023.
Sydney:
April 27.
Final written submissions:
1 May 2023.
[1] The investigation as advised to the applicant in the respondent’s correspondence dated 23 September 2021 was, it appears, either not commenced or put on hold pending the outcome of the referral of matters to the police.
[2] This is a reference to documentation titled “UNDERSTANDING THE BEHAVIOUR – ABC form”. (“ABC Form”). The “ABC” in the name of the form appears to be a reference to, or acronym for, “Alan’s Behaviour & Consulting”. The ABC Form that was subsequently completed by the applicant on 22 September 2021 records that Ms Neale was present at this incident, but does not record Ms Ridley as having been present. On a numbered scale of 1 to 5, the applicant recorded the “INTENSITY OF BEHAVIOUR” as “1” or “LOW” in relation to Mr C having “… attempted to hit staff (Victor)”. The form was not fully-completed by the applicant, e.g., it did not contain a response to questions asking how Mr C appeared or what the applicant thought Mr C was trying to communicate.
[3] The ABC Form completed by the applicant does not contain any record/note of what is in the applicant’s evidence as to this second attempt by Mr C to hit the applicant (despite the applicant’s evidence that he was informed by Ms Neale that he had to record the earlier attempt by Mr C to hit him in the ABC Form); and there was no evidence of any second ABC Form being completed by the applicant.
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