Della Lehmann v Mary Mackillop Aged Care SA. [2017] FWC 478 (U2016/11131). HAMPTON, C. 8 FEBRUARY 2017

 

A patient care attendant in a residential facility was dismissed following a report from a recently trained (ie relatively inexperienced PCA) that the applicant had been rough when tending to the cleaning of a client’s private areas (body) and waved a bag of poo in her face. The resident lives with dementia.

 

The applicant had been on a previous final warning, but the Commissioner placed very little probity value on this, but still found that dismissal was valid, fair and reasonable.

 

Police and the appropriate government agency were contacted as is required under the mandatory reporting provisions.

 

The interesting part, is what do you do when it is one person – in this case, an inexperienced, but trained, worker – makes allegations against a more senior/experienced worker.

 

This is where the FWC relies on precedents; with the “gold standard” being Briginshaw v Briginshaw, which in this matter the Commissioner cited a number of cases that further interpreted Briginshaw v Briginshaw. For example, in Budd v Dampier Salt Ltd (a Full Bench of the Australian Industrial Relations Commission) stated:

 

“Where allegations are made in civil proceedings which, if proven, might found criminal liability, the standard of proof remains the civil standard. It follows that it is necessary that the court only be satisfied on the balance of probabilities. The second thing is that in such a case a proper degree of satisfaction is required having regard to the seriousness of the allegations”.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
  • Workplace investigations and mediations.
  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.