: Treatment of disabled resident was cruel 
and degrading

Treatment of disabled resident was cruel 
and degrading

Gudrun Dewey
Victoria

Two recent decisions highlight the type of conduct that will amount to cruel, inhuman and degrading treatment and put a spotlight on the requirement in the Victorian public sector Code of Conduct for all employees to respect and promote the human rights set out in the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’).

In March 2012, Fair Work Australia in Illesca v Department of Human Services T/A Youth Justice Custodial Services [2012] FWA 2267 upheld the Department of Human Services’ dismissal of two Disability Services Officers, who dragged a disabled resident eight metres down a carpeted hallway in a community residential unit. The resident suffered second-degree carpet burns that required ongoing treatment and gave him a permanent scar. The officers were dismissed on the basis that the incident was in breach of the Code of Conduct for Victorian Public Sector Employees, and the Practice Manual, which imposed an obligation on officers to respect the human rights and freedoms of residents in care.

In August 2012, the Supreme Court of Victoria found that the treatment of a disabled resident in a Community Residential Unit by a Disability Services Officer was cruel and degrading contrary to s 10(b) of the Charter (Davies v State of Victoria [2012] VSC 343).

The case was an action for wrongful dismissal brought by the officer against the Department of Human Services. The department terminated his employment following an incident where, after a naked resident fell to the floor, the officer dragged him almost two metres along a hallway. He did not report the incident or record it in any of the logs or notes.

The Supreme Court confirmed that the incident contravened the resident’s rights not to be treated in a cruel or degrading way (s 10(b) of the Charter). The officer was therefore was in breach of the Code of Conduct for Victorian Public Sector Employees, which requires employees to demonstrate a commitment to human rights. The breach of the Code of Conduct and the officer’s failure to uphold the obligations in the Department’s Statement of Values amounted to ‘serious misconduct’ under the Public Administration Act 2004 and justified his dismissal.

GUDRUN DEWEY is Senior Legal Advisor — Human Rights at the Victorian Equal Opportunity and Human Rights Commission.

(2012) 37(4) AltLJ 291
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