Thousands in compensation for sacked Support Worker who assaulted NDIS Participant

A Disability Support Worker (DSW) has been awarded over $7000 compensation for his dismissal in December 2022, despite the Fair Work Commission confirming his conduct in kneeing the Participant he was supporting in the head and swearing at him during an altercation to be “of such a grave nature” as to have warranted his summary dismissal.

The DSW had worked for the NDIS service provider for approximately three years, had no previous records of warnings and was regarded to be “a very good employee” when the Participant he was supporting lashed out at him during a shift in October 2022 and a scuffle ensued. The Participant was known to display violent behaviours at times, including towards the DSW, who regularly provided support to the Participant, but the DSW had never previously engaged in any inappropriate conduct or behaviour in relation to the Participant. In proceedings before the Commission, Deputy President Saunders observed that the DSW (and one of his co-workers), “care deeply for the Participant and are proud of their efforts in improving the Participant’s quality of life and behaviours, most of the time, over the past few years”.

During the shift in October 2022, the Participant, who has Autism and a mild intellectual disability, became aggressive and “charged” at the DSW, who was unable to retreat so raised his right knee to his chest to create some distance between himself and the Participant. The DSW’s foot came into contact with the Participant’s chest or stomach area and the DSW extended his right leg to push the Participant backwards, where the Participant fell onto his mattress in his bedroom. The DSW’s employer, and Deputy President Saunders, adjudged this initial method of “reasonable force” to have been “appropriate” but the situation escalated when the DSW, along with his co-worker, entered the Participant’s bedroom to secure his wrists and wrestle him to the floor, to the recovery position.

The Participant continued “thrashing around wildly, attempting to kick, scratch, headbutt and bite” both DSW’s and even had success “removing some skin off each of them”. During this exchange the DSW was alleged to have told the Participant to “stop attacking us, you f**king little c**t” with the DSW’s co-worker later reporting the DSW – who holds a black belt in jujitsu, and has formal training in ninjutsu, boxing, kickboxing and wrestling – was “uncharacteristically angry” during the restraint of the Participant. The DSW accepted that at some point during the altercation his knee had come into contact with the Participant, because he “sort of fell on him” when he was thrashing around but denied he had deliberately kneed the Participant in the head. Neither the DSW nor his co-worker noticed any injuries to the Participant as a result of the exchange and the DSW’s incident notes significantly downplayed the event.

The employer launched an investigation into the incident after the Support Worker who reported for the following shift noticed “a significant bruise on the back of the Participant’s head” and “a small amount of dried blood in the upper part of the Participant’s left ear”. The DSW’s co-worker who had been present during the altercation also emailed the employer after his shift, providing his account of the incident, detailing the DSW “struck [the Participant] in the head using his knee on approximately two to three occasions”. The co-worker also admitted to downplaying the incident to the Participant and his mother, suggesting the DSW had merely “slipped”, and the strikes were an “accident”, supposedly because the co-worker was fearful of the DSW. The DSW was stood down the following day.

Upon investigation, the employer determined the DSW had deliberately struck the Participant in the head, at least once during the scuffle, had sworn at the Participant, failed to report the level of force used or seek medical treatment for the Participant, and deliberately misled the Participant’s mother about the nature of the incident. The DSW’s employment was terminated on 19 December 2022, whilst the DSW was subject to a medical certificate.

Although the DSW’s conduct occurred on just one occasion when the DSW was the subject of a “violent attack”, Deputy President Saunders assessed the DSW’s actions constituted “excessive force”, albeit in difficult circumstances, and observed the DSW also failed to accurately report that “he had been involved in a physical restraint with the Participant in which his knee had come into contact with the Participant”. For these reasons, the Deputy President determined the DSW’s dismissal was for a valid reason. Deputy President Saunders was also satisfied the DSW was “afforded procedural fairness and natural justice during [the employer’s] investigation into the incident”, meaning the dismissal was neither unjust nor harsh. However, the Deputy President determined the termination was ultimately unreasonable – and therefore unfair – because the employer failed to comply with its own exhaustive internal appeals process before taking the decision to dismiss.

In recognising the DSW’s conduct warranted dismissal, Deputy President Saunders commented that, “[The employer] operates in a highly regulated industry involving vulnerable persons and funding from the NDIS. It is essential that [the employer] be able to employ persons who can deal with personal restraints, where they are required, in a safe manner and who it can trust to provide full and frank reports when an incident occurs”. The Deputy President was also not persuaded to give particular weight to the DSW’s concerns that he was required to participate in a show cause process whilst subject to a medical certificate, noting that neither the DSW nor his support person requested adjournment of the show cause meeting or suggested the DSW was too unwell to participate.  

Unfortunately for the employer, both its general legal counsel and HR Manager were unaware of the existence of the comprehensive internal appeals process that was denied to the DSW, which, in the opinion of the Deputy President, the DSW most certainly would have pursued if the opportunity had been extended, rendering the termination “unreasonable in all the circumstances”, and therefore unfair.

Whilst the Deputy President accepted the decision would have been taken to terminate the DSW’s employment even if the appeals process had been followed, he reckoned the DSW’s employment would have been extended by a further period of 8 weeks, had the appeal been allowed.

Commencing compensation calculations at $12,136.91 – being 8.4 weeks’ wages – the Deputy President discounted the amount, firstly to the equivalent of 6.2 weeks’ wages (recognising the period the DSW was out of employment between his dismissal and February 2023), then by a further 20% for the DSW’s “misconduct”. The DSW was subsequently awarded compensation of $7,166.55 (gross), notwithstanding the valid reason for his dismissal.

Hutton v Evolution Support Services [2023] FWC 919 (19 April 2023)