By Mike Toten Freelance Writer

An employee of an NDIS provider who had autism was dismissed after her employer concluded that actions that included disposing of a customer’s medication, questioning a client aggressively, and trying to rescue an unwell dog went beyond the scope of her employment. The employee lodged a claim of adverse action but the Fair Work Commission (FWC) found that the employer had a valid reason to dismiss her, and had not done so because of her autism or the complaints she made about lack of on-the-job assistance.

Facts of case

The casual employee’s conduct included the following:

  • Instructing a client to hand over her medication to her, and returning it to a pharmacy. The client told her she was still taking antidepressants despite telling her doctor and support workers that she had stopped.
  • Transferring ownership of a client’s sick dog into her own name and taking possession of it after the client said that she intended to euthanase the dog. She took the dog to a vet for treatment, believing the client had neglected and mistreated it.

The employee claimed she had not been trained in how to deal with situations such as the above, and believed that she needed to intervene. She had previously complained about a claimed lack of on-the-job information and guidance in dealing with NDIS clients.

The employer had already prepared a performance improvement plan after another client complained that the employee had questioned her aggressively, but never gave it to the employee. She claimed that the employer took adverse action against her because it knew of her autism and because she had made complaints about perceived lack of support. However, the employer’s reason for dismissal was that her conduct "demonstrated a recurring pattern of behaviour that involved breaching professional boundaries, making unfounded assumptions, and engaging in decision-making that posed significant risks to both the business and the safety and welfare of their clients". 

Decision

Although noting the rapid progression (one week) from commencing the performance improvement plan to dismissing the employee, the FWC found that the employer had discharged the onus of proof required in adverse action cases. That is, the employee’s autism was not a reason for the action it took, although it was found to be adverse action. The employee’s conduct on several occasions went beyond the scope of her duties and breached the employer’s guidelines. The FWC noted that the employer was in the business of serving people with special needs, and a claim that its managers took adverse action against such an employee was offensive to them. 

The FWC rejected the employee’s claim.

What this means for employers

When adverse action claims arise, the onus of proof is on the employer, who has to prove that it did NOT take action against an employer for any of the reasons prohibited by the Fair Work Act 2009.

Read the judgment

Jessica Hastings v Platform To Pty Ltd. [2024] FWC 2475 (9 October 2024)