A disability carer has lost his unfair dismissal claim after he was sacked for misconduct, which included washing a client’s bottom with a broom.
Clinton Dahler was suspended from his job at the Burn Group House in the ACT after a number of allegations were made about his conduct, including that he had yelled at disabled clients, pushed and hit them, and misappropriated their money.
After an investigation, he was found to have showered three disabled clients together, and had washed the bottom of another with a broom.
He was sacked by Disability ACT for serious misconduct.
Sacked for exercising a workplace right
Mr Dahler claimed that his dismissal had been unlawful because he was fired for exercising a workplace right – namely family or carer responsibilities – as they related to his work at the Burn Group House.
The case started in the Fair Work Commission, but ended up in the Federal Circuit Court where his claim was dismissed by Judge Rolf Driver.
“First, Mr Dahler was not dismissed because he had (or exercised) a workplace right,” Judge Driver wrote in his judgement.
“Rather he was dismissed because the employer determined that he had engaged in misconduct.
“Secondly, the dismissal was not adverse action because it was authorised under the [enterprise bargaining agreement].”
Mr Dahler had tried to use a provision in fair work laws preventing adverse action from being taken against an employee because of that person’s family or carer responsibilities.
But the court found that the provisions were designed to protect people who were caring for their own family or a member of their household, and did not extend to work responsibilities.
Judge Driver said Mr Dahler had failed to prove any contravention of the Fair Work Act in his dismissal.
Miles Heffernan, Director of Litigation at Industrial Relations Claims, said the case was troubling.
“It is extraordinary that this bloke argued that he was sacked for exercising a workplace right, when it was clear he was sacked for serious misconduct,” he said.
“To suggest that family and carer responsibilities extend to your workplace is a bit rich – considering he was being paid for the so-called care he was providing.
“If you are showing disabled people together and washing them with a broom, then I think it’s best you find work in another industry.”
To read Judge Driver’s full judgement, please click here.
If you believe you have been unfairly sacked from employment, we can help. Please call Industrial Relations Claims today on 1300 853 837. Strict time limits apply to make a claim.
For more information about unlawful dismissal, please click here.
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