The FWC recently found SA CARE’s dismissal of a casual
disability care worker to be unfair and ordered compensation.
The employee in question was warned off tube-feeding
clients due to her lack of certification. In response, she advised that she had
been signed off on two appropriate training courses, had experience providing
gastronomic care at another facility and had been approved by Disability SA.
She believed she had been approved to provide that care.
Two days later, the employee was called without warning
into a disciplinary meeting with HR where her lack of certification and other
qualifications were discussed again.
The HR officer stepped out of the disciplinary meeting
for five minutes.
On return, the officer handed the employee a summary
dismissal letter which recorded that the employee had received an opportunity
to respond to a serious misconduct allegation. the letter terminated her
employment with immediate effect.
FWC’s Deputy President Anderson stated the “shocked” care worker was then “escorted off the premises in the knowledge and view of clients and staff, causing them further distress.”
FWC Findings
Ordinarily, an employee performing a medical procedure on
a client, knowing they lacked the required certification would justify summary dismissal.
Anderson acknowledges the care worker’s assumptions can be reasonably
criticised, but also found that the “unique circumstances of this matter” with
factors that significantly “mitigate the seriousness of the conduct.”
Anderson found the lack of notice and the timing of only
48 hours between the instruction and the disciplinary procedure to be harsh and
unfair. The process also had only superficial procedural fairness, since the
employee’s ability to respond was limited and she was not fully warned of the
risks to her employment or afforded the right to support during the
process. Anderson also found that the
urgent treatment of the matter was unnecessary.
Anderson awarded the care worker four weeks compensation minus 25% for misconduct with SA CARE paying over $5830.74 in compensation. If you would like to read more about this case, please see: Chioma Okoye v SACARE Supported Acomodation and Care Services T/A SACARE [2020] FWC 704 (12 February 2020).
what can we learn from this case?
Matters involving dismissal must be handled with utmost sensitivity, caution and procedural fairness even in matters of perceived urgency. There is often grey area in matters of misconduct that may seem black and white. To ensure you are best informed and equipped to handle these challenging circumstances, WISE offer expert third party HR services including training, investigations and reviews.
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