The case of the cattle-prodding care worker

Employment cases often produce strange stories. A recent case in the Employment Relations Authority is a good example.

Ms Purnima Fleet was a community support worker for IDEA Services Ltd, and cared for "service users" who were intellectually disadvantaged. In December 2007 IDEA received complaints from two services users about Ms Fleet's behaviour. During the subsequent investigation, it appears they alleged that she had yelled at a service user for wetting his bed, and hit him with, of all things, a cattle prod. The Authority referred in its decision to the service user as "Z", so as to protect his identity.

IDEA interviewed various service users and staff. The staff members said they had not witnessed Ms Fleet hitting Z, but information from another service user was consistent with previous accounts that she would hit Z on the hand with the cattle prod each time he wet the bed.

Ms Fleet denied the allegations, and so IDEA was faced with a decision as to whether to believe Ms Fleet or her accusers. It chose the latter, deciding it was more likely than not that she had acted inappropriately towards service users, and in particular hit Z with a cattle prod.

The Authority accepted that IDEA had carried out a full and fair investigation, and that hitting a service user with a cattle prod was serious misconduct. It also noted that its job was to decide what a fair and reasonable employer would have done in the circumstances (not what the Authority member deciding the case would have done).

IDEA has responsibilities to its service users and relies heavily on its staff to care for them in a "non-aversive" way (described on the Community Care Trust website as "an environment where people are not "put down" or punished"). The Authority accepted that IDEA is not able to take risks about the welfare of its service users, and noted that Ms Fleet had a sole charge position.

The Authority concluded that in the circumstances the dismissal was justified.

Apart from the unusual factual circumstances, the case is also a useful reminder that the Authority is not there to impose a counsel of perfection on employers. If an employer does not have incontrovertible proof of an allegation, that does not mean they will be hung out to dry if they dismiss anyway - the question is whether they acted as a fair and reasonable employer would have done when confronted with the same evidence.

The Authority gets a lot of flak from some commentators for supposedly making life too hard for employers. This decision shows that the Authority recognises it cannot expect employers to do more than work with the evidence they have.

 

Greg Cain

Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.