Avoiding common pitfalls when investigating abuse

Abuse allegations are highly emotional and challenging for consumers, their families, carers and anyone else involved. Elder abuse can take many forms, whether as physical or psychological abuse, or stealing and taking advantage – in one recent case an informal carer was alleged to have stolen $1.2 million from an elderly man in her care.

In home care, difficulties in managing investigations and analysing evidence are amplified, as it will often be the consumer’s word against the employee’s.

As assault allegations increase, more providers will be conducting investigations into such allegations. These investigations require providers to balance a number of competing interests and obligations. In particular, the dual obligations owed to employees and consumers, which can place providers in a delicate position.

Care providers owe a range of duties to consumers at both common law and under aged care legislation, including protecting the consumers’ health and safety. These duties tend to imply that where an allegation of elder abuse has been made, the employer should err on the side of caution for the consumer’s protection. But providers must also ensure that they do not breach their obligations as an employer under the Commonwealth Fair Work Act 2009.

No matter how distressing any allegations, failure to respect an employee’s rights, including the right to procedural fairness, during an investigation into an allegation of elder abuse may result in an unfair dismissal claim. If an employee who has been unfairly dismissed is unable or unlikely to find alternative work, there is a greater risk of reinstatement being ordered.

A number of recent cases before the Fair Work Commission (FWC) demonstrate the pitfalls that aged care providers need to avoid when investigating allegations of elder abuse.

Failure to appropriately manage investigations

Mismanaging investigations is a key mistake, which often sees providers brought before the FWC.

In one well-known case (Bolden v Lyndoch Living 2014), an employer was ordered to reinstate an employee who had been summarily dismissed following an allegation that she unreasonably used force, restrained and verbally abused a resident in an aged care facility.

The FWC found that, while she did make physical contact with the resident, a more thorough investigation by the provider might have led the provider to the conclusion that summary dismissal was not warranted. The investigators had made too many assumptions around the reasons for the employee’s conduct (which they relied upon to support a finding of guilt) and needed better analysis of the evidence they had gathered (which included inconsistencies between the evidence of key witnesses). The employee was ordered to undergo immediate training in elder abuse and restraint free policies and the Code of Professional Conduct for Nurses, but was nonetheless allowed to return to work in the provider’s business.

“Failure to respect an employee’s rights, including the right to procedural fairness, during an investigation into an allegation of elder abuse may result in an unfair dismissal claim.”

Failure to correctly analyse investigation findings

Another common mistake is failing to remain objective during the emotive and challenging investigation process. Determining whether a valid reason for termination actually exists is of utmost importance.

For example, in a case (Schnell v Retirement Care Australia Operations 2012) before Fair Work Australia, an employee was dismissed (and charged by police) after it was alleged that she assaulted a consumer. FWA found that there was no valid reason for the employee’s dismissal. While the employee was afforded procedural fairness, and the investigation followed correct process, the investigation findings did not, in FWA’s opinion, give the provider a valid reason for dismissal: there were inconsistencies in the evidence of the only witness to the alleged assault; the witness’ evidence was not corroborated by any other person; and there were no physical markings on the consumer to support him having been assaulted in the manner alleged.

Care providers must also remember that even when a valid reason for termination exists, an employee will still have been unfairly dismissed where that termination is harsh, unjust or unreasonable. In a 2014 decision (Kruschel v Blue Dawn Health Care), the FWC found that a provider had a genuine reason for disciplining an employee when she dropped/threw a packet of wipes into a consumer’s lap. Despite this, the provider was ordered to pay compensation to the employee on the basis that her dismissal was disproportionate to the gravity of the misconduct.

How can the competing interests be managed?

In protecting consumers from harm, there is no substitute for comprehensive training and education of workers, and astute managerial oversight. However, most elder abuse allegations are challenging and each case may present its own difficulties.

Ultimately there are no simple solutions. Using CCTV cameras has gained some traction as a strategy to minimise elder abuse risk. However, while CCTV in public and common areas of residential facilities may be uncontroversial, using CCTV cameras in private residences is not only impractical but raises a wide range of legal and ethical issues.

The best steps aged care providers can take is having well drafted policies and procedures setting out the process for reporting a suspicion or allegation of abuse. These policies and procedures will also dictate how and when investigations are to be conducted. Staff need to be well-trained in these policies and any investigations must be consistently carried out in accordance with these policies.

Providers also need to ensure an astute analysis of the findings is undertaken. Despite their obligations under aged care legislation, providers cannot simply dismiss an accused employee if the findings of the investigation do not support that course of action.


Karl Rozenbergs

Karl Rozenbergs

Partner & Co-Lead, Health & Community

Employment lawyer Karl Rozenbergs advises clients in adverse action claims, on negotiating enterprise agreements and much more.

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