Employer argues worker compromised workplace safety
The Fair Work Commission recently dealt with a worker’s claim that she was unfairly dismissed, serving as a “scapegoat” for her employer’s staff shortages and the management’s alleged incompetence.
In September 2022, the employee filed an unfair dismissal claim before the Fair Work Commission against her employer, Moonta Health Aged Care Services T/A Parkview Aged Care.
Moonta Health is a privately run not-for-profit charitable facility providing aged care accommodation and respite care in Moonta, a town on the Yorke Peninsula of South Australia.
The employee was a personal care assistant in January 2021 and remained in that role until her dismissal. She was notified of her dismissal in August 2022, which took effect on the same day.
The reason for dismissal given by Moonta Health at that time was alleged to be “serious and wilful misconduct” that compromised workplace safety in one of the employee’s shifts, involving:
- Professional misconduct – documenting safety checks without attendance;
- Neglect resulting from failure to provide duty of care to residents – pressure care and safety checks;
- Breach of infection control – not wearing Personal Protective Equipment (PPE gown) during a Covid-19 outbreak.
During the alleged shift, part of the facility (the high care section) was subject to a Covid-19 outbreak, and this led to enhanced PPE requirements, some staffing constraints, and other consequences.
In the early hours of 4 August 2022, a resident in the high care section had a medical episode and fell from her bed, and was left unattended for some time before being discovered by a Registered Nurse (RN) who attended the resident’s room for something other than a standard safety check.
The said resident was taken to the hospital and passed away some days later following a subsequent medical episode.
According to records, the enquiries that immediately followed these events led to the various allegations against the employee that ultimately led to her dismissal.
The worker’s arguments
The worker said that during the incident with the resident, she was “looking after clients in the low-care part of the facility.”
She also said she was “not solely responsible for the 70 residents that night and worked under the direction of 2 RNs”.
She said, “there were other staff working that evening, but she was the only one questioned and held responsible without reason.”
She further described “understaffing on the night in question” and said, “the management should be held responsible for any consequences associated with the absence of care.”
As for her alleged failure to wear a PPE, in relation to CCTV screenshots showing that she was not wearing her full gear, she said that “those were instances where she was either changing gowns because she has been exiting residents’ rooms and moving between low and high care or she is in certain areas where it was an acceptable practice not to be wearing one, such as in the staff kitchen area.”
The employee said that “she was being blamed (thrown under the bus) as a scapegoat for the staff shortages” and “incompetence of management.”
She also speculated that she was “being singled out and blamed due to being gay.”
She further raised that the employer’s disciplinary policies were “not followed,” saying that an employee may have up to three serious and wilful misconduct matters in 12 months without being dismissed.”
Meanwhile, the employer maintained that there was no unfair dismissal since the employee failed to meet the required duty of care to their residents.
The commission’s decision
The commission noted that the employee “may have been under pressure due to the facility being short-staffed (at least in the context of the Covid-19 outbreak),” however, it said that “taking the time to review the documents and worksheets was vital and realistic.”
Additionally, the commission said that the employee “should have known that all residents in the high care unit required hourly safety checks.”
The commission said that although the employee did not have “sole responsibility” over the resident who died during the shift in question, she still failed to perform the necessary measures required in their industry.
“The fact that the conduct took place in the context of an aged care facility and the associated need for compliance with care requirements and record-keeping are factors compounding the seriousness of the conduct in this case,” the commission said.
Thus, the commission ruled that there was no unfair dismissal.
