An employee breaching company policy and engaging in serious misconduct is no excuse for an employer not to follow its own disciplinary procedures, the Fair Work Commission (FWC) has recently ruled.
Latrobe Regional Hospital in Victoria summarily dismissed a security guard who had worked there for more than eight years, after he used excessive force to restrain a mental health patient.
The employee had responded to a Code Grey (violence threat) announcement in the hospital’s emergency department when a “large in stature” man affected by alcohol attempted to leave the hospital.
When the nurse advised him that the patient was not allowed to leave, the security guard stood in front of the patient and blocked his path. The security guard then took hold of the patient’s shoulder, after which the patient kicked him in the groin.
The security guard shouted words to the effect of “take him down” and brought the patient to the ground. The patient suffered a cut to his nose.
Hospital management decided that the employee had engaged in serious misconduct as his response to the patient “was an unauthorised deviation from the DEEP [De Escalation Engagement and Prevention] training and related policies”.
Employee let down by other staff
While FWC Commissioner Tanya Cirkovic accepted that the security guard had used excessive force and had breached the hospital’s DEEP policies, she found that the employee’s dismissal was “disproportionate” to his conduct.
She also noted that two other security guards who were present at the scene had failed to assist him.
“I accept that [the employee] got too close and in the face of the patient,” Commissioner Cirkovic said.
“I accept that [the employee] made physical contact with the patient with some force and said words to the effect of take him down and get on the ground, and took the patient to the ground in a neck lock, causing bleeding to the nose and I accept that [the employee] was not in imminent personal danger so as to be in a position of self-defence.
“However, this must be viewed in the context of the apparent tension between, on the one hand, [the employee’s] responsibility to perform his role and prevent the patient from leaving the hospital and, on the other, [the hospital’s] Restraint Policy, requiring that he limit physical restraint to the circumstances and in the manner specified therein.
“The fault in [the employee’s] conduct was that he acted too soon in placing himself in front of the patient and taking him down in a ‘neck lock’.
“That said, he was let down by the other employees on the scene, who appeared to have failed to de-escalate the situation.
“Further, [the employee’s] conduct must be viewed in the context of the absence of a clinical lead of the Emergency Response Team.
“As stated above, the only members of the Response Team who were present at the time of the incident were the security officers, one of whom was [the employee].
“Even though on a strict reading of the policies and their application, [the employee’s] conduct was in breach, in the circumstances I am of the view that termination was disproportionate to [the employee’s] conduct.”
Hospital failed to follow disciplinary procedures
“The written outcome of the investigation, including findings and the bases of [the hospital’s] conclusions, was provided to [the employee] in the letter of termination … Pursuant to clause 8.4 [in the enterprise agreement], [the hospital] was required to ‘meet with the employee’ before taking the disciplinary action that it did,” Commissioner Cirkovic said.
“I am satisfied that [the hospital] failed to follow the disciplinary process set out in the Enterprise Agreement, and in the circumstances, this contributes to the unreasonableness of the dismissal.”
Although the hospital had a valid reason to dismiss the security guard, Commissioner Cirkovic found that his dismissal was harsh and unreasonable.
Neither the employee nor the hospital believed that reinstatement would be appropriate.
Commissioner Cirkovic ordered the hospital to pay the employee $31,618.34 in compensation.