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FIRED FOR SHOUTING AND SLAPPING CLIENTS, WORKER CRIES UNFAIR DISMISSAL Employer argues actions amounted to 'serious misconduct'   The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a disability support worker and a large disability services organisation. The case centred around allegations of misconduct towards clients with disabilities.   The worker had been employed as a disability development and support officer since January 2021, having transferred from the Department of Health and Human Services. She worked in a disability accommodation house, supporting four clients with disabilities.   In November 2023, the employer began investigating two separate allegations that the worker had physically and emotionally abused two clients.   This investigation substantiated the allegations, leading to a show-cause process and, ultimately, the termination of the worker's employment in January 2024.   The worker then filed an unfair dismissal application with the Fair Work Commission, challenging the grounds for her dismissal. The FWC’s considerations In evaluating whether the dismissal was harsh, unjust or unreasonable, the FWC considered several factors as outlined in section 387 of the Fair Work Act. These included whether there was a valid reason for dismissal, if the worker was notified of the reason, and if she had an opportunity to respond.   The FWC also noted that while serious misconduct can constitute a valid reason for dismissal, it is not necessary to prove serious misconduct to establish a valid reason. The key consideration is whether the conduct was sufficiently grave to justify dismissal as a reasonable response.   After weighing all the evidence and arguments, the Fair Work Commission ultimately found that the worker was not unfairly dismissed. The Commission concluded that the employer had a valid reason for the dismissal related to the worker's conduct, which had been properly investigated and substantiated.   ASSISTANCE Information provided in this post is general only and it does not constitute legal advice and should not be relied upon as such. HRGS provides no warranty as to its accuracy, reliability, or completeness. Before taking any course of action related to this post you should make your own inquiries and seek independent advice (including the appropriate legal advice) on whether it is suitable for your circumstances.   Our HR Advice Service is here to help businesses manage their workplace and compliance issues. Employers requiring assistance, support, and guidance, please call us at 1300 46 47 47 or visit us at www.hrgs.com.au.   #hrgsbusinesspartner #hrgsnews #hrgshelp #hrgsadvice #hrgsconsulting

NHS Cleaner Awarded £50,000 After Unfair Dismissal Due to Disability Discrimination In a significant ruling, an NHS cleaner has been awarded nearly £50,000 after a tribunal found her unfairly dismissed despite clear evidence of her disability. Zoe Kitching, who worked for the University Hospitals of Morecambe Bay NHS Foundation Trust from 2019 to 2023, took over 400 days of sick leave due to complex mental health issues, including anxiety and bipolar disorder. The tribunal revealed that NHS managers failed to acknowledge substantial medical evidence supporting Kitching's disability status. Instead, they wrongfully categorised her as not disabled, which ultimately led to her dismissal. Judge Robert Childe criticised the decision, stating, "The decision to deny that Ms. Kitching was disabled was irrational and wrong." As a result of her successful claim for disability discrimination and unfair dismissal, Kitching has been awarded £49,147 in damages. This case highlights the importance of recognising and accommodating employees with disabilities, ensuring that workplaces adhere to fair practices and respect employees' rights. Kitching's experience serves as a reminder for organisations to prioritise inclusivity and support for all employees, particularly those facing health challenges. By promoting a more understanding and accommodating work environment, employers can not only comply with legal obligations but also promote a culture of well-being and support for their workforce.

Don't take this as legal advice. Instead, think of it as good business. If a worker needs help because of a medical condition, focus more on what you can do to help and less on whether they technically have a "disability." In a recent decision, a federal appellate court made this strong case for employers under the Americans with Disabilities Act (ADA). It involved a physical therapist who experienced a miscarriage, which exacerbated her pre-existing PTSD, anxiety, and depression. After her employer denied her request to transfer to another location, it eventually terminated her for job abandonment. The district court, which entered summary judgment in favor of the employer, concluded that the plaintiff did not have a disability. Why? Because the plaintiff's mental health conditions substantially limited her ability to work one job as opposed to a class or broad range of jobs. However, the United States Court of Appeals for the Sixth Circuit found this myopic approach to be erroneous. The plaintiff provided evidence that her PTSD and anxiety substantially limited her ability to sleep, care for herself and her children, concentrate, and interact with others, all of which the ADA contemplates. For example, following her miscarriage, she could not sleep, "function," or care for her children. Since the district court failed to consider these limitations and erroneously focused solely on the plaintiff's inability to work at one location, the Sixth Circuit reversed the entry of summary judgment for the employer. Key Takeaways: 📡Broader Definition of Disability: The court emphasized that the ADA's definition of disability is broad and includes impairments that are episodic in nature. The district court had erred by limiting its analysis to the major life activity of working and failing to consider other major life activities affected by the employee's condition. 😖2. Personality Conflicts Aren't the Issue: The employer argued that the employee's issues were due to a personality conflict, which is not considered a disability under the ADA. However, the court found this argument unpersuasive, stating that it did not address the broader limitations on the employee's major life activities. This serves as a reminder that employers should look beyond interpersonal conflicts and consider the overall impact of an employee's condition. 🔬3. Keep the Main Thing the Main Thing: For HR professionals and employment lawyers, the takeaway from this decision is clear: spend less energy debating whether an employee has a disability and more effort on ascertaining whether a reasonable accommodation exists that will enable them to perform the essential functions of their job without creating undue hardship on the business. #TheEmployerHandbook #employmentlaw #humaresources

💰 Understanding Temporary Total Disability Benefits in Nevada 👷♂️ "But Marquis, how do I pay my bills if I am temporarily unable to work after a work-related injury?" I’m glad you asked. In Nevada, Temporary Total Disability (TTD) benefits are crucial for workers who have been injured on the job and are temporarily unable to work. TTD benefits are designed to provide financial support to workers temporarily unable to work due to a job-related injury or illness. Eligibility of TTD Benefits Under NRS 616C.475, an employee injured by an accident arising out of and in the course of employment is entitled to receive 66 2/3 percent of their average monthly wage for the period of temporary total disability. To be eligible for TTD benefits, your authorized medical provider must certify, through a Certification of Disability, that you could not work or perform your regular job functions for five days after your injury or for five days within a period of 20 consecutive days. Additionally, and a critical point, your employer must not have offered you "light-duty" work that accommodates your temporary restrictions and pays net wages at your TTD rate. If they do offer you a light-duty position that accommodates your restrictions and you refuse the assignment because you “don’t like it,” you likely will not be able to receive TTD benefits. When TTD Benefits Ceases According to NRS 616C.475(5), payments for temporary total disability must cease under specific circumstances. These circumstances include when a physician or chiropractic physician determines that you are physically capable of any gainful employment suitable for you, considering your education, training, and experience. Additionally, benefits will stop if your employer offers you light-duty employment or modified work that accommodates the limitations or restrictions imposed by your physician. Lastly, if you become incarcerated, your temporary total disability payments will also cease. These provisions ensure that benefits are provided only for the duration of the actual disability and encourage a return to work when medically appropriate. Additional Considerations - If you work multiple jobs, you can request that all income be added together to calculate your average monthly wage. - If you elected to declare tips for income tax and workers' compensation, your tips should be included in your average monthly wage calculation. In closing, understanding the wage replacement process and protecting your rights and responsibilities through timely filings are the first steps in ensuring you receive the benefits you're entitled to under Nevada law.

✋ NDIS Bill Amendments are needed to ensure fair NDIS Assessments ✋ . At a minimum, the primary legislation should be updated to include: 1. 💥 A definition of 'assessment of support need'. 2. 💎 Clarify that assessors will be qualified allied health professionals working within scope of practice. 3. 🧠 The assessors will be independent in the performance of their functions 4. 🌻 That assessment of need will be carried out in good faith, irrespective of the cost of identified support needs. 5. 🌱 Where the assessment finds identified supports to be the responsibility of another system (health, education), this is clearly stated in the assessment report and that these systems must have capacity to meet the identified need.  6. 🏆 The assessment will include 'whole of person' support needs, not limited to a single impairment (s) 7. 📃 A copy of the full assessment report will be provided to the participant.  8. 🛎 The right to at least one replacement assessment; and additional assessments if priors were found to be flawed. 9. ⌛ The assessment report will include a review date. Let's learn from existing legislation in other jurisdictions 🌍. In Ireland, there is a legislated Assessment of Need contained in the Disability Act (2005). ⚡ ⚡ ⚡ The Disability Act 2005 sets out the details of the Independent Assessment of Need. https://lnkd.in/gDtYXEDM Disability Act 2005, Section 8: Independent Assessment of Need* (*extract) (4) An assessment officer shall be independent in the performance of his or her functions. (5) An assessment under this section shall be carried out without regard to the cost of, or the capacity to provide, any service identified in the assessment as being appropriate to meet the needs of the applicant concerned. (6) Where an assessment officer carries out or arranges for the carrying out of an assessment under this Part, he or she shall prepare a report in writing of the results of the assessment and shall furnish a copy of the report to the applicant, the Executive, and, if appropriate, a person referred to in section 9 (2) and the chief executive officer of the Council. (7) A report under subsection (6) (referred to in this Act as “an assessment report”) shall set out the findings of the assessment officer concerned together with determinations in relation to the following— (a) whether the applicant has a disability, b) in case the determination is that the applicant has a disability— (i) a statement of the nature and extent of the disability, (ii) a statement of the health and education needs (if any) occasioned to the person by the disability, (iv) a statement of the period within which a review of the assessment should be carried out. Bill Shorten Hollie Hughes Jordon Steele-John El Gibbs Dr George Taleporos (GAICD, PhD) Michelle Oliver Naomi Anderson Mitchell Skipsey Samantha Connor Neil Turton-Lane Simon Katterl Katy Gagliardi Sue Olney

"The tension between autonomy and risk in personalisation schemes has long been acknowledged (Glasby, 2011; Needham & Glasby, 2014) and has underpinned many debates in the design and implementation of these schemes. Implementing governments have struggled with how to manage risk and protect the safety and rights of socially marginalised people while allowing them the maximum freedom and autonomy to determine their lives—especially in the context of a market-based system with large corporate interests at stake." The last statement sums up the problem. There are consequences to putting a price to every interaction with a person and some of those consequences are disabling. No amount of training or regulations will weed out the dark personalities who are drawn to this industry for nothing other than money. Participants and their families need to be supported and validated to weed them out. Capacity Build 101. "For participants in our study, there was a significant disconnect between the expectation of service users and the actual skills that trained DSWs brought to the job, which should be of concern for those responsible for building workforce capacity. Like Leahy (2022) and Cortis and Van Toorn (2020), our research indicates that current DSW workforce training frameworks may not be fit for purpose. We have demonstrated that some NDIS participants have already sidestepped existing formal workforce training frameworks, and with the flexibility enabled by the option to use unregistered providers, are constructing training and supervision mechanisms to meet their own service needs." "Much has been written about problems with scheme implementation in the first decade of the NDIS (Dickinson & Yates, 2023). However, evidence also shows that when given choice and control over their services, NDIS participants can achieve positive outcomes, which in some cases transform their lives and allow them to participate much more fully in society (Dickinsonet al., 2022; Fisher et al., 2023). To understand the potential of individualised funding schemes, it is important to highlight the strengths and achievements of people with disability in self-directing their services" Training and supervision of disability support workers: Perspectives of NDIS participants using unregistered providers https://lnkd.in/gCWRq_Xf

Excellent summary of what is needed to ensure any assessments are comprehensive, well informed and above all fair.

Contact with a sick employee. Was this harassment? An employee (T) worked for HMRC as a customer service consultant. On her first birthday of working on 2 August 2020, her manager (H) mentioned in a team meeting that it was her birthday. H had a practice of keeping a list of the birthdays of the members of his team so that he could wish them “happy birthday”. The next day, T emailed H to say that she did not celebrate her birthday for personal reasons. She asked to be removed from his birthday list. H agreed to remove her. However, T was subsequently transferred to a different team and H did not brief the new line manager about her birthday wishes. T then went on sick leave with work-related stress on 30 June 2021. She had been diagnosed as suffering from a pituitary gland tumour, a disability which is exacerbated by stress. She asked that, during her sick leave, she only be contacted if it was “essential”, and that correspondence be conducted by email only, because interactions with HMRC made her “emotional”. In the following three-week period though, T was sent eleven emails to check whether she was okay, as well as an attempt being made to phone her. She was also sent a birthday card on or around her birthday. In November 2021, T received a letter warning her that she faced formal steps regarding her absence, and she then made a tribunal claim, inter alia, for harassment related to disability. The tribunal ruled in T’s favour. It said that HMRC’s conduct in repeatedly contacting her and sending her a birthday card during the early part of her sick leave, despite being asked not to do so, was “unwanted” and the effect of this repeated conduct was to create a “hostile and intimidating environment” for her. It cast doubt on HMRC’s contention that it had a duty of care to check on T’s welfare, saying this duty would have been more “effectively observed” had HMRC complied with T’s expressed wishes for minimal contact. The tribunal thought that it was impossible to separate HMRC’s conduct from the fact T was absent for a reason which was linked to her disability, and so it upheld her claim. The issue here was the excessive number of emails, on average more than one every day, in the face of T’s express (and reasonable) wishes for minimal contact. NB. It is best to strike a balance and to agree with the employee how often they will be contacted during sick leave, for example fortnightly, and the content, for example social events and notification of job vacancies. Finally, if an employee asks to be taken off a birthday card list, respect their wishes and don’t send cards that poke fun at a person’s age. #sickleave #harassment Posts sent via this LinkedIn account are for information purposes only. They are believed to be accurate in content at the time of sending. Further guidance and /or interpretation is available from the relevant Acts of Parliament, Statutory Instruments, courts and the government / CIPD websites. 

Changes To Past Relevant Work and Disability Determinations Effective June 22, Social Security began considering work going back 5 years, not 15. In addition, work is no longer relevant if the job lasted less than 30 calendar days. Decreasing the relevant work period from 15 to 5 years will make it easier for people to accurately report their work history. The reduction also makes sense given Social Security’s recent efforts to modernize the vocational policy that is used to make disability decisions. Research indicates that certain types of skills – namely, “manual” skills – can significantly deteriorate in 5 years. Read the full story on SSA Blog

When you are injured at work, life can feel overwhelming. Suddenly, you may find yourself facing lost wages, medical bills, and a mountain of questions. What are your rights? Will you still be able to pay your bills? At The Myers Law Group, APC, we understand how confusing and stressful this process can be. If you are looking for help with a Workers Compensation case, we are here to stand by your side. We approach every case with care and empathy because we know how important it is for you to secure the benefits you deserve. Understanding Temporary Disability Benefits in California Temporary disability benefits are payments given to workers who have been injured on the job and cannot perform their usual duties while they recover. These benefits are a part of California’s Workers Compensation system, designed to support injured workers until they are able to return to work. If your doctor determines that you cannot work temporarily or if your injury limits you from doing your regular tasks, you may be eligible for these benefits. They help cover lost wages and provide some financial stability while you focus on your recovery. How Are Temporary Disability Benefits Calculated? The amount you receive for temporary disability benefits depends on your average weekly earnings before your injury. In California, the general rule is that these benefits will equal two-thirds of your average weekly pay, up to a maximum amount set by state law. This amount changes each year to account for inflation and other factors. For example, if you earned $900 per week before your injury, two-thirds of that would be $600. However, if the maximum limit for benefits is lower than that amount, your benefits would be capped at the state’s maximum rate. If you have multiple jobs, your total income from all sources may be considered when calculating your benefit amount. Types of Temporary Disability Benefits Temporary disability benefits are divided into two main categories. The first is temporary total disability. This applies when your injury prevents you from doing any kind of work during your recovery. The second type is temporary partial disability. This applies when you can still perform some tasks but are unable to work at full capacity. For example, if your doctor allows you to work part-time while recovering, you may qualify for temporary partial disability benefits to make up for the wages you lose by not being able to work full-time. How Long Do Temporary Disability Benefits Last? Temporary disability benefits are meant to last as long as your doctor says you cannot work or perform your regular duties. In California, these benefits can be paid for up to 104 weeks within a five-year period. To Learn More Please Click Our Link: https://lnkd.in/eZDyuj5b #WorkersCompensation #CaliforniaLaw #MyersLawGroup #LegalHelp #DisabilityBenefits