Employer's policies stymied dismissal for kneeing NDIS participant in the head

In a recent Fair Work Commission (FWC) decision, a NDIS service provider was ordered to provide compensation to a disability support worker who was dismissed for, among other things, ‘deliberately and without justification’ striking an autistic NDIS participant in the head with his knee.

The FWC found that by failing to comply with its own internal appeals process, the dismissal of the worker by the employer was ultimately unreasonable in the circumstances.

The employer terminated the employment of a disability support worker following an incident that took place in October 2022. The worker injured a NDIS participant by deliberately kneeing him in the back of the head on two or three occasions and calling him a ‘little c***’. It was also alleged that the worker failed to inform the participant’s mother that her son had suffered an injury and misled her with respect to both the level of force used and the manner in which it was used.  

Events leading to dismissal

The Commission heard that the worker and his colleague regularly attended the home of the participant, who had been diagnosed with a mild to moderate intellectual disability and autism spectrum disorder, to provide in-home care.

On this occasion, the worker and his colleague were working with the participant the morning after a loud party took place at a neighbouring property. After praising the participant for getting through the previous night, as loud music was a known trigger, the demeanour of the participant changed - he came towards the worker to attack him.

In response, the worker and his colleague exited the participant’s bedroom and held the door closed, trying to calm him verbally. When the participant broke the door handle and charged at the worker, it was accepted by both the employer and the Commission that the worker used his leg to exert reasonable and appropriate force on the participant to push him away.

In the course of trying to physically restrain the participant, who was attempting to ‘kick, scratch, headbutt and bite’ to free himself and attack the workers, his colleague alleged that the worker ‘deliberately struck the participant in the head with his right knee on two to three occasions.’ He also alleged that the worker said words to the effect of, ‘stop attacking us, you f*cking little c***’.

Valid reason for dismissal

The FWC held that on the evidence, the employer had a valid reason to terminate the worker’s employment. His actions in kneeing the participant, using explicit language and subsequent failure to inform the participant’s mother and accurately report the incident amounted to a sound, defensible and well-founded reason to terminate the worker’s employment. These actions were a breach of employer’s Abuse, Neglect and Exploitation Policy in which the worker was trained.

Unreasonable in the circumstances

Despite the Commission’s determination that the worker’s termination was neither harsh nor unjust, it was nevertheless held to be unreasonable in the circumstances. This because the employer failed to comply with its own policies. Specifically, the employer failed to inform the worker about the opportunity to participate in an internal appeals process about the investigation outcome, prior to his dismissal. Had the employer done so, the Commission accepted that the worker would have pursued an appeal with ‘vigour’.

The worker was effectively denied around eight weeks’ income during the period in which he would have been stood down with pay while the appeals process was taking place.

This failure of the employer to comply with its policy was held to be unreasonable. This was despite the fact that neither the employer’s general counsel nor their HR manager was aware of the existence of the policy.

Compensation

The worker was awarded $7,166.55 in compensation by the Commission. This included a 20% reduction in the amount of compensation to account for the employee’s misconduct.

Learnings

This decision accords with our observations of employers in the care sector who impose additional procedures and policies on themselves. While well intended, these can give rise to significant legal issues.

In our experience, the best policies are those which clearly tell employees what they must and must not do.

Policies that place prescriptive obligations on employers, which subsequently are not followed, can result in an otherwise ‘fair’ dismissal being harsh, unjust or unreasonable.

‍This article in no way constitutes legal advice. It is general in nature and is the opinion of the author only. You should seek legal advice tailored to your individual circumstances before acting on anything related to this article.