AGED CARE HOUSING NEWS

ADELAIDE: A personal care worker has failed to persuade an appeal tribunal that she be allowed to challenge her dismissal. Jacobs v Moonta Health Aged Care Services T/A Parkview Aged Care TERMINATION OF EMPLOYMENT – misconduct – valid reason – s.394 Fair Work Act 2009 – applicant was a personal care worker at aged care facility – respondent dismissed applicant alleging serious and wilful misconduct which occurred during a night shift – this included misconduct in documenting safety checks; negligence involving a failure to conduct pressure care and safety checks; and a breach of infection control by failure to wear PPE during a Covid-19 outbreak – a resident of the facility had a medical episode, fell out of bed, and was left unattended for some time – resident admitted to hospital and after a subsequent medical episode the resident passed away – Commission emphasised its role is not to determine whether the events relevant to the dismissal contributed to this outcome – several facts relating to the applicant's conduct and responsibility of this conduct were contested – applicant submitted dismissal was unfair because alleged misconduct did not occur as alleged – applicant submitted she was not properly advised of increased care requirements for particular resident and the facility was understaffed during the shift – with respect to allegation she failed to wear PPE, applicant submitted she did not breach any facility policy – applicant submitted the procedure adopted by the respondent was not fair and breached its own policies – respondent submitted applicant erroneously documented safety checks but in fact failed to perform them – respondent further submitted applicant’s failure to wear correct PPE at specific times was in breach of policy and applicant had no reasonable excuse to not do so – the Commission preferred the evidence of the respondent – the Commission found the applicant failed to perform all the required safety checks and pressure care – the Commission found this was partially mitigated by understaffing and context of the Covid-19 outbreak – the Commission found the applicant provided false accounts of the safety checks – however the Commission was not satisfied the applicant deliberately and substantially breached the PPE requirements – further, the Commission stated it was not clear whether the applicant was solely responsible for the resident in question at critical times – on balance the Commission found the applicant's conduct constituted a valid reason for dismissal for the purposes of s.387(a) – the Commission gave consideration to the other relevant matters raised by the applicant under s.387(h), including impact to the applicant – ultimately the Commission found dismissal not harsh, unjust or unreasonable – application dismissed. U2022/9272                                                  [2023] FWC 330 Hampton DP                Adelaide                 30 March 2023

An ex-employee of a disability service provider has failed in his appeal to have his dismissal overturned. Drake v Melba Support Services Australia Ltd TERMINATION OF EMPLOYMENT – misconduct – ss.387, 394 Fair Work Act 2009 – applicant employed as disability support worker at a supported independent living home – allegation of misconduct – alleged applicant placed his lips on a naked resident’s stomach and ‘blew a raspberry’ while assisting dressing – alleged breach of code of conduct – applicant denied allegation – applicant maintained he blew a raspberry on his own arm in attempt to distract resident who was banging on the walls – applicant sought reinstatement – respondent relied primarily on evidence of one witness – witness heard resident banging on the walls and went to investigate – witness opened door and observed applicant engaged in conduct alleged – witness did not intervene but immediately reported incident – applicant contended witness account was mistaken or formulated maliciously – third witness gave evidence that the door was never opened – on balance of probabilities Commission accepted respondent witness testimony [Brigginshaw] – held that witness had specific knowledge of applicant and resident that could only have been known if door had been opened – Commission held applicant’s evidence was not mistaken and there no evidence or motive to support contention that witness acted maliciously – Commission held applicant’s conduct amounted to serious misconduct – valid reason for dismissal – allegation of shortcomings in investigation and failure to comply with enterprise agreement not accepted – procedural fairness afforded to applicant – other matters taken into account – age, financial impact, ability to find another role, applicant’s denial of allegation – dismissal was fair – application dismissed. U2022/11835 [2023] FWC 677 Colman DP Melbourne 21 March 2023