Worker argues self-defence, cites employer's failure to investigate
The Employment Court of New Zealand recently decided on the unjustifiable dismissal claim of a worker who slapped her employer’s client. In this case, the worker did not deny the act but argued that it was done in self-defence.
On the other hand, the employer said that her conduct constituted assault and found it to be “serious misconduct,” which was the cause of her termination.
Worker’s alleged verbal abuse and assault
The employer, IDEA Services Ltd, is a registered charity owned by IHC New Zealand Inc., which offers support services to individuals with intellectual disabilities, often referred to as its service users.
In November 2019, the worker began her services as a permanent support worker. However, in September 2020, she was terminated due to serious misconduct.
The employer said that she had "verbally abused" and "slapped" one of the service users while they were at the Tauranga Hospital Emergency Department.
The worker admitted to the physical contact but denied any verbal abuse. She argued her actions were in self-defence against the service user's attempt to harm her.
Additionally, she argued that the employer had failed to conduct a thorough investigation and consider the circumstances surrounding the incident.
Despite her extensive experience and qualifications as a support worker, she was challenged by the complex needs of the employer's client.
According to records, the said client has intellectual disabilities, post-traumatic stress disorder, communication difficulties, and severe visual impairment. One noteworthy aspect of the client's complex needs is his "heightened" state of behaviour when he feels unsafe.
‘Mental health crisis’
The worker's termination resulted from an incident that stemmed from an episode of the client’s "mental health crisis." Such an incident occurred in a hospital where the worker was with the client. The worker said the client approached her and attempted to grab her.
She described her response as "slapping his hand away in self-defence," as she had experienced aggressive behaviour from him earlier that day. As soon as the worker slapped the client, a nurse entered the room and reprimanded her for her actions. The hospital staff also alleged that the worker yelled at the client.
She said she apologized immediately, acknowledged her mistake, and explained that she was trying to prevent the client from causing harm. Hospital security personnel were then called in to ensure the safety of both the client and the worker.
Following the incident, the worker immediately reported her actions to the employer by sending a text message detailing the incident.
Was it unjustifiable dismissal?
The court said that “what is necessary to establish that serious misconduct has occurred to justify dismissal is conduct that deeply impairs or is destructive of the basic confidence or trust essential to an employment relationship.”
It found that the worker “did not follow the behaviour support plan in place for [the client] and that she yelled at and struck him in the emergency department as advised by nursing staff who witnessed the incident.”
“What has to be borne in mind is that [the worker] was an experienced and well-trained support worker who knew and understood [client’s] difficulties, what triggered his heightened state, and the steps necessary to avoid making matters worse,” it added.
“[The worker] knew from the safety plan what triggers activated or exacerbated the [client’s] behaviour. Part of the safety plan identified techniques designed to redirect [his] behaviour when he was in a heightened state.”
“Specifically, those techniques included always speaking to him in a calm reassuring manner because any other way of talking to him was known to escalate the situation.”
The court said that “she departed from the terms of conditions of her employment agreement, IDEA Services’ policies and code of conduct. Of all of the conduct identified, the assault on a person with an intellectual disability would have been sufficient in and of itself to qualify as serious misconduct.”
Thus, it said that the worker’s dismissal was justified. It then rejected her application.
