In Chioma Okoye v SACARE Supported Accommodation and Care Services T/A SACARE (2020) the Fair Work Commission (FWC) took issue with an HR manager simply “going through the motions” when she dismissed a disability care worker.

This was even though the employee engaged in misconduct that would ordinarily justify summary dismissal.

The FWC found that “a strong flavour of predetermination in the decision to dismiss” and the provision of only “superficial but not substantive procedural fairness” rendered the dismissal unfair.

‘Ambushed’ by HR manager

Prior to her dismissal, the care worker received an email from the company’s clinical director warning her it had been brought to his attention she may have been tube feeding a resident without the proper certification, which was in breach of the company’s policy.

She emailed back that day explaining she didn’t have a certificate of competency, but had attended two training courses and was authorised to tube feed by another manager.

The next day the clinical director replied:

“We will need to discuss this with Klade. Ordinarily Level 3 Procedures are competency assessed to specific clients against their Care Plans, i.e. competency is ‘Client Specific’ and delegated by the RN. I would need to verify if Klade had made a decision to delegate the task. I do appreciate that The Gums has been light on staff to be able to access this training, and we are working to provide this. This process needs to be clear however to avoid these issues.

Thank you for this information Chioma. Could I please ask though that you suspend providing this task until this is all sorted?”

The following day, the employee was directed to attend a meeting 15 minutes before the end of her shift. She was not told what the meeting was about.

The HR manager told the employee that the company did not believe she had a certificate of competency to perform tube feeding and that she had provided such care without certification.

When asked if she could produce a certificate, the employee reiterated what she had explained to the clinical director.

Within 10 minutes, the HR manager handed the employee a summary dismissal letter stating she was provided with an opportunity to respond to an allegation of serious misconduct and that the employer had decided to terminate her employment with immediate effect.

FWC Deputy President Peter Anderson described this as an “ambush”.

“In the circumstances of this matter, rather than being provided a real opportunity to respond [the employee] was provided an opportunity in name only; one in which she was being summonsed to participate in an ambush of her employment if she didn’t do what the employer already knew she couldn’t do – provide a certificate of competency,” he said.

“She agreed that she did not have a certificate but said that she didn’t think she had done anything wrong.

“[The employee] was shocked.

“There was no further discussion.

“[The employee] was escorted off the premises in the knowledge and view of clients and staff, causing her further distress.”

Employer took eye off the ball

“An employee performing a medical procedure on a client and doing so knowing that they do not hold a required qualification would, in the ordinary course, be committing an act of serious misconduct that would justify summary dismissal,” Deputy President Anderson said.

“However, in the somewhat unique circumstances of this matter, there are significant factors that mitigate the seriousness of the conduct.

“The employer itself had introduced grey into the equation – by allowing [the employee] to perform gastronomy care … without having a certificate of competency and by not stopping her from doing so … once she declared having done so on feed sheets.

“[The employee] was not blameless, but managers added to the greyness by action and inaction, including a lack of clarity in communication.

“[W]ithin 48 hours the employer escalated the issue from an operational matter that needed ‘sorting’ into a disciplinary matter without any specific warning to [the employee].

“There was no immediate need for summary dismissal.” In finding the dismissal harsh, Deputy President Anderson ordered the employer to pay the employee $5830.74 plus superannuation in compensation.