NDIS UPDATE

An ex-employee of a disability service provider has failed in his appeal to have his dismissal overturned. Drake v Melba Support Services Australia Ltd TERMINATION OF EMPLOYMENT – misconduct – ss.387, 394 Fair Work Act 2009 – applicant employed as disability support worker at a supported independent living home – allegation of misconduct – alleged applicant placed his lips on a naked resident’s stomach and ‘blew a raspberry’ while assisting dressing – alleged breach of code of conduct – applicant denied allegation – applicant maintained he blew a raspberry on his own arm in attempt to distract resident who was banging on the walls – applicant sought reinstatement – respondent relied primarily on evidence of one witness – witness heard resident banging on the walls and went to investigate – witness opened door and observed applicant engaged in conduct alleged – witness did not intervene but immediately reported incident – applicant contended witness account was mistaken or formulated maliciously – third witness gave evidence that the door was never opened – on balance of probabilities Commission accepted respondent witness testimony [Brigginshaw] – held that witness had specific knowledge of applicant and resident that could only have been known if door had been opened – Commission held applicant’s evidence was not mistaken and there no evidence or motive to support contention that witness acted maliciously – Commission held applicant’s conduct amounted to serious misconduct – valid reason for dismissal – allegation of shortcomings in investigation and failure to comply with enterprise agreement not accepted – procedural fairness afforded to applicant – other matters taken into account – age, financial impact, ability to find another role, applicant’s denial of allegation – dismissal was fair – application dismissed.

U2022/11835                                             [2023] FWC 677

Colman DP                 Melbourne            21 March 2023