News - News Articles

Commission confirms duty of care paramount and right to manage employees

Submitted on Thursday, 29th June 2017

The Commission has used clear language to confirm it is an employer’s prerogative to manage their workforce as they require, and that the duty of care to vulnerable clients remains paramount.


The applicant commenced employment with the Victorian Department of Health and Human Services (“the Department”) in March 2013. Employed as a casual Disability Development and Support Officer, the employee was responsible for providing care to ‘highly vulnerable people with disabilities’ living in group homes.  

Over a period of 11 months, the Department received four formal allegations against the employee relating to misconduct. The Department investigated each of the allegations and suspended the employee, on pay, pending their outcome. As a consequence of the investigations, the Department considered allegations made in relation to an incident in April 2015 was substantiated, and issued the employee a formal warning. Subsequent allegations relating to an incident in July were also substantiated, and the Department this time issued the employee a final warning.

Under the Department’s Disability Services Enterprise Agreement 2012-2016 (“the Agreement”), the Department was prohibited from suspending the employee whilst they investigate matters falling strictly within the misconduct stream. As the matter was classified misconduct, the employee was advised his suspension was rescinded and was directed to return to work, under several conditions.

The employee was not permitted to work shifts during the evening; he was to work at all times under the supervision of a House Supervisor or senior staff member; and the employee was not to work in group homes where people require hoisting or support with manual handling for personal care. The employee was also restricted in the manner of receiving shifts; he could only access shifts via the shift replacement on-line system and could not contact houses directly for work. The employee continued to work under restrictions until late November 2015 when he was suspended with pay pending investigation of further allegations made in November.

Issue to be determined

The employee applied to the Commission under s 739 of the Fair Work Act 2009 (Cth) to deal with a dispute. The issue to be determined, was whether or not the Department was entitled to limit the type of shifts offered to the employee, and whether he was entitled to a higher rate of pay for the suspension period in November 2015. The employee argued the restrictions imposed upon him following the first substantiated allegation amounted to a penalty, in contravention of the Agreement.

Duty of care paramount

Commissioner Bissett considered the Department’s duty of care to its residents must be paramount. The Department through its employees work with some of the most vulnerable members of our community, and they must be treated with respect. Turning her consideration to balancing the demands of managing employees and residents, the Commissioner considered ‘[t]he handling of staff and the allocation of staff must be seen within this framework. That is, the needs and care of the residents come first and the allocation of staff must be directed towards this.’ Finally, any concern for the safety, health and wellbeing of clients and residents must necessarily override the employees desire to work more shifts in more houses.

While the Commissioner acknowledged the employee had grounds to feel aggrieved, the Commissioner ultimately determined the Department was reasonable in the circumstances, having regard to the paramount duty of care, to place restrictions upon the employee and that the directions given were lawful.

Management prerogative

It is an oft-considered idiom that employers have the prerogative right to manage their workforce to meet their broader obligations. Applying the decision of the Full Bench of the Australian Conciliation and Arbitration Commission in Australian Federated Union of Locomotive Enginemen v State Rail Authority (NSW) (1984) 295 CAR 188, Commissioner Bissett commented that ‘[u]nder the Agreement and as a matter of general law, management maintain a prerogative to manage its workforce within the constraints of the Agreement but otherwise as it sees fit, as long as such action is reasonable and lawful.’

Having considered these factors, the Commissioner dismissed the employee’s application.

Learnings and caution

While the Commissioner found the Department was entitled to place restrictions upon the employee, she did recommend that in the future, matters such as restrictions should be separated in letters concerning disciplinary action or investigations to avoid employee confusion and further disgruntlement. 

The Victorian Chamber delivers discrete, cost effective and timely workplace investigations. Contact the Victorian Chamber to access your $1,000 local government consulting voucher and the services of our consulting team.  

Add comment

Login or register to post comments

Media and Communications Contact

All media enquiries may be directed to the Media and Communications Manager.

For all other enquiries, please contact the Victorian Chamber on (03) 8662 5333.