$50K+ compensation for unfair dismissal over alleged assault of patient

A security officer who was summarily dismissed for “physical assault” of a patient in the mental health ward he was assigned to has been awarded over $50,000 compensation for his dismissal, with the Fair Work Commission unable to conclude on the evidence that the alleged serious misconduct occurred.

The security officer (SO) had achieved nearly eight years’ service when the altercation with the patient occurred in February in the mental health ward of the medical site he had been regularly working at since December 2020. The SO was working with two other hospital employees on the morning of 19 February 2024, when a patient of the ward approached him and attempted to pull off his name badge then “grew a fist”. The SO’s incident report indicated the patient was agitated, calling him “racist names” and preparing to strike him, so he pushed the patient away before “putting” him to the ground to restrain him.

The SO was stood down on pay several days later and over the course of the next three weeks given several opportunities to respond in writing and in person to the employer’s concerns that he was alleged to have “struck the patient in the back of the head with his hand as he walked away using a disproportionate amount of force” and “had to be pulled away from the patient by [a hospital employee] and a medical staff officer while the distressed patient screamed for him to stop”. Despite the SO repeatedly refuting the suggestion the patient was retreating; that he had inappropriately restrained the patient; or, that he had attacked or struck the patient at all, the SO was summarily dismissed for serious misconduct on 15 March 2024.

After painstakingly analysing the evidence during Commission proceedings, Deputy President Clancy was “not satisfied…that serious misconduct occurred”. The Deputy President was unimpressed with the employer’s strategy to rely on “unsworn and untested statements” of hospital employees who allegedly witnessed the incident, while the CCTV footage referenced by the employer captured the “aftermath” of the incident rather than the altercation itself. Deputy President Clancy ultimately preferred the evidence of the SO over that of the sole hospital employee who was cross-examined during the hearing, and who provided “varying evidence” and “differing accounts” of the incident, adding he (the hospital employee) had been “inattentive during the build-up to the incident and was not proactive in the face of the abuse directed at [the SO]”.

In the end, Deputy President Clancy concluded:

“I have not been persuaded that [the SO] assaulted the patient in the manner alleged so as to cause a serious and imminent safety risk to the patient, himself or others in [the mental health ward] and nor have I been persuaded that the actions of [the SO] were in breach of the OHS Act. I consider the response of [the SO] to the very challenging situation that confronted him on 19 February 2024 was, in all the circumstances, appropriate, reasonable, and proportionate. I have not been persuaded that the actions taken by [the SO] constitute a valid reason for the termination of his employment. The absence of a valid reason for dismissal weighs in favour of a conclusion that the dismissal… was unfair.”

Having found that there was no valid reason for termination and that summary dismissal was disproportionate, the Deputy President turned to consider compensation, accepting that reinstatement was not appropriate because it was not sought. Acknowledging the SO’s “previously unblemished record over nearly eight years” along with the SO’s unchallenged evidence that he was “a well-liked and well-regarded security guard at the client site”, Deputy President Clancy awarded compensation of $57,838.56 (gross) plus superannuation.

Woods v MSS Security Pty Limited [2024] FWC 1702 (18 October 2024)