Background of decision
The respondent, Evolution Support Services (ESS) is a NDIS service provider. ESS terminated the applicant, Mark Hutton, after approximately three years of employment with ESS in December 2022 after an investigation by ESS found that Mr Hutton had injured a highly autistic NDIS participant by deliberately striking him in the head with his knee without justification.
The participant attempted to attack Mr Hutton whilst he was on shift after Mr Hutton congratulated him on getting through the previous night despite the neighbour’s loud music. Noise was a known trigger for the participant. Following Mr Hutton’s comment, the participant’s demeanour changed, and he approached Mr Hutton to attack him. Mr Hutton and his colleague shut the participant in his room and tried to keep the door closed, but the handle broke and the participant charged at them. ESS accepted that Mr Hutton appropriately used his leg to push the participant away, but whilst Mr Hutton and his colleague were attempting to physically restrain the participant, Mr Hutton’s colleague claimed that Mr Hutton deliberately struck the participant in the head with his knee on two to three occasions and swore at him.
Mr Hutton denied deliberately striking the participant or swearing at him, but the Commission, like ESS, found that he had done so. The Commission also found that Mr Hutton had failed to properly report the incident and tell the participant’s mother, which breached ESS’s Abuse, Neglect and Exploitation Policy. The Commission held that this was a valid reason for Mr Hutton to be dismissed.
Failure to comply with internal appeals process
The Commission considered that Mr Hutton was afforded procedural fairness and natural justice during ESS’s investigation, however ESS admitted that it did not comply with its internal appeals process in ESS’s ‘Investigation Procedure’ before it decided to dismiss Mr Hutton. The Commission accepted that ESS’s legal counsel was not aware of the process when he informed Mr Hutton that there was no internal appeals process in place.
The Commission held that “ESS ought to have known about, and complied with, its own policies” and it “should have informed Mr Hutton that he had a right under the Investigation Procedure to lodge an internal appeal against the investigation outcome”.
The Commission noted that there was no doubt that Mr Hutton would have pursued an internal appeal had it been known to him, and although the Commission was of the view that Mr Hutton’s internal appeal would have been rejected for the same reasons the Commission found regarding Mr Hutton’s conduct, the internal appeal would have taken a significant amount of time and Mr Hutton would have remained stood down on pay throughout.
Termination was unreasonable – compensation ordered
It was ultimately held that although Mr Hutton’s dismissal was not harsh or unjust, the Commission considered the failure to comply with the internal appeal process meant Mr Hutton’s dismissal was unreasonable.
The Commission held that it was “unreasonable for ESS to fail to comply with its own internal appeals process and thereby deny Mr Hutton income for a period of about eight weeks”.
The Commission subsequently ordered Mr Hutton receive compensation for the wages he would have received if he remained stood down with pay until he started a new job six weeks later, less 20% due to his misconduct.
Reminder to review workplace policies
This decision serves as an important reminder to employers to ensure that its workplace policies are up to date, that all employees are aware of these policies and the procedures within them, and that they are complied with.
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For assistance with reviewing and/or updating your workplace policies and contracts, or advice on disciplinary processes, please contact our Employment, Workplace Relations and Safety team.
