THE SLAP - heard but not seen - why it might not justify termination of employment
Posted on October 27, 2016
In Shawl v Anglican Community Services (ACS) [2016] FWC 5990, the Fair Work Commission (FWC) found that Ms Shawl, a carer at an aged care facility operated by ACS, who was terminated for slapping a resident on the mouth, was unfairly terminated.
The slap was witnessed by a colleague who was in the room at the time of the incident. The colleague reported that Ms Shawl, who was attending the resident, who was screaming, slapped him with her right hand when he would not be quiet. The colleague said that the slap was loud and could be heard over the resident’s screaming.
Mrs Shawl denied that she slapped the resident and instead claimed that she had brought her right hand towards the resident so that it was in front of his mouth and without touching him said “Shh please be quiet”.
After considering the evidence the FWC found that, on the balance of probabilities, Ms Shawl did not slap the resident and therefore there was no valid reason for dismissal.
The FWC took into account:
- The lack of any physical evidence on the resident of abuse;
- The lack of corroborative evidence from any other party. The resident suffered from dementia and could not give evidence;
- The lack of any history of complaints, over approximately 15 years of employment, that Ms Shawl had engaged in any conduct of violent, abusive or intemperate nature;
- The evidence that the colleague at the time of the incident was standing behind the resident and therefore would not have been able to clearly see the physical contact.
Ms Shawl, who was not seeking reinstatement, was awarded $16,000 in compensation.
The Full Bench of the FWC has refused permission for ACS to appeal the judgment.
The decision causes conflict for aged care providers who are faced with extremely onerous obligations regarding the welfare of their residents and under the Aged Care Act 1997 (Cth). Additionally, incidents of elder abuse can cause extreme damage to an aged care provider’s brand, as has been evident in recent times.
We recommend that a thorough investigation be undertaken whenever incidents of elder abuse are raised. The decision to terminate employment must only be made after very careful consideration of all of the evidence gathered from such an investigation. Relevant factors to consider include whether the alleged assault was actually seen and whether there is any animosity between witnesses, such as to raise ulterior motives for reporting.
Before you take action against an employee who is alleged to have undertaken elder abuse, please contact a member of Lynch Meyer’s Workplace Relations team. We are experts in industrial issues as they impact upon the aged care industry.