The Applicant v The Nursing Home (U2014/10215) [2014] FWC 6855 SENIOR DEPUTY PRESIDENT O’CALLAGHAN.

This case relied upon the word of one person against the other – both seen as “credible witnesses” by the SDP – and involved the alleged slapping of a resident.

This employment termination followed advice provided to the Nursing Home management on 29 May 2014 from another Nursing Home aged care worker, Ms X that, on 27 May 2014 she was working with the Applicant when she heard a slapping noise and the applicant subsequently said that she had slapped a Nursing Home resident in response to being slapped by the resident. The Applicant was suspended with effect from 29 May 2014. The allegation was subsequently reported to the police.

In determining the Applicant’s conduct the SDP applied the long established approach in Briginshaw v Briginshaw:

“…. The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found…It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues…. (References removed). But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.”

And concluded:

“On very fine balance I have concluded that the evidentiary material before me was insufficient to establish to the degree necessary, a finding that, on the balance of probabilities the Applicant hit the resident. I have reached that conclusion because of the clear conflict between the evidence of the Applicant and Ms X, and the lack of any corroborating evidence to support the proposition that the Applicant hit the resident. In the circumstances before me, the approach in Briginshaw favours a finding that misconduct of the nature alleged has not been established on the balance of probabilities.”

The SDP left it up to the parties to determine whether reinstatement was appropriate, or such other remedy.

Commentary: Here is a perfect example of the laws of employment colliding with other legal obligations of the employer. In this matter, the employer obviously took the word of one employee other that of the other. This had serious ramifications for the dismissed employee, including police action and (if registered) de-registration.

As there had been no previous behavioural issues with the dismissed employee, perhaps a reinforcement of the code of conduct may have been more appropriate?

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