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Eyewitness account was not sufficient proof of elder abuse

20 Sep 2016

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Earlier this year, Anglican Retirement Villages (ARV) relied upon the eyewitness account of a co-worker to support the termination of a long-standing personal carer over an allegation of elder abuse.

It was alleged that the employee (Mrs Shawl) had slapped a resident on the mouth whilst telling him to keep quiet. The incident had been reported by one of Mrs Shawl’s co-workers (Ms Jimenez) who was in the room at the time the alleged conduct occurred.

According to Ms Jimenez, Mrs Shawl attended the resident who was screaming and then slapped him with her right hand when he would not respond to her requests for him to be quiet. 

The resident at the centre of the incident was suffering from dementia and whilst ARV spoke to the resident about the matter, they were unable to obtain clear or reliable information from him.

When questioned about the matter, Mrs Shawl denied that she has slapped the resident and instead claimed that she had brought her right hand toward the resident so that it was in front of his mouth (but did not touch him) and at the same time said: “shh please be quiet”.

Following an investigation into the matter, Mrs Shawl was dismissed for gross misconduct (specifically slapping a resident) and ultimately brought an unfair dismissal case.

In considering whether the termination was unfair, one of the key matters to be determined was whether or not the alleged conduct (the slap of the resident) had in fact taken place. As there were two conflicting versions of the event, Ms Jimenez’ and Ms Shawl’s, this required Deputy President Booth to weigh the likelihood of one version being more probable than the other.

After considering the evidence, DP Booth found that on the balance of probabilities Mrs Shawl did not slap the resident and therefore there was no valid reason for dismissal. 

In making this decision, DP Booth took into account:

  • the lack of any physical evidence of the slap on the resident;
  • the lack of corroborative evidence such as a complaint by the resident or a third person witnessing or overhearing the incident;
  • the evidence of Ms Jimenez and the fact that at the time the alleged conduct occurred she was standing behind the resident and therefore would not have been able to clearly see whether Mrs Shawl’s right hand actually made contact with the resident; and
  • the lack of any history of complaints against, or issues being raised with, Mrs Shawl regarding violence, abuse or losing her temper. 

In the circumstances, the Deputy President found that she was unable to conclude on the balance of probabilities that Mrs Shawl did, in fact, slap the resident. It was not enough that ARV (or even Ms Jimenez) genuinely believed that the slap had occurred, as there was insufficient evidence to establish that this was, in fact, the case. 

Whilst the Deputy President found that ARV had afforded Mrs Shawl procedural fairness throughout the investigation and in the lead up to the termination, the fact that there was no valid reason for the dismissal rendered it unfair. 

On the issue of compensation, DP Booth concluded that Mrs Shawl would have been likely to have remained in her employment for a further two years and therefore awarded her compensation equivalent to 2 years’ wages less anticipated earnings during that period from the new casual job she had secured.

Lessons for aged care providers

This matter highlights some of the difficulties aged care providers encounter where faced with allegations of resident abuse (particularly incidents involving a resident suffering from dementia who may not be able to provide clear information regarding the alleged conduct). 

In situations where a resident is unable to provide a reliable account of the situation, and in the absence of any other corroborating evidence, this often creates a “he said, she said” situation with conflicting accounts of what occurred. Providers need to tread carefully in these situations and weigh up the conflicting accounts to make a decision as to whether the alleged conduct is likely to have occurred. In reaching this decision, providers should also consider: 

  • any account that can be given by the resident;
  • whether there is any physical proof of the conduct taking place (e.g.,. a mark or a bruise on the resident);
  • whether it is physically possible for the eyewitness to have seen what they claim to have seen; 
  • whether there is likely to be any ulterior motive behind the eyewitness’ reporting of the matter; and
  • the alleged wrongdoer’s work history and whether there have been previous incidents or complaints of a similar nature.

It also essential to ensure that the facility’s internal policies and procedures regarding investigations and termination are complied with and that the alleged wrongdoer is given a proper opportunity to respond to the allegations and any proposed termination of employment.

At Hynes Legal, we are experts in providing employment and human resources advice to Aged Care providers. We can assist you to put in place policies and procedures regarding incident investigations and termination procedures and provide training to relevant line managers regarding these procedures, to ensure you don’t end up in a similar position to ARV. 

Please contact Kristin Ramsey – Director and head of the Employment & Workplace Relations team for a confidential discussion on 07 3193 0542 or at kristin.ramsey@hyneslegal.com.au
Shawl v Anglican Retirement Villages [2016] FWC 5990 (5 September 2016) 

 

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