A FORMER ADDICTION centre worker who claimed he was unfairly dismissed after he was seen on CCTV kicking a service user has lost his case at the Workplace Relations Commission.

The employee brought a case for unfair dismissal to the commission earlier this year stating that the termination was fundamentally unfair as his actions on CCTV footage had been misinterpreted. He argued he should be given the benefit of the inherent doubt created by the lack of audio.

The complainant worked at a homeless and drug services centre which houses up to 100 people in the city centre. 

It allows service users to live independently but the facility is overseen on a 24-hour basis by the complainant and his colleagues.

‘Self-preservation’

The incident captured on CCTV occurred on 17 February, at around 10pm. The footage was presented to the WRC and observed by the adjudicator. 

One of the service users can be seen in the courtyard area of the facility and, according to the WRC adjudicator, “It is clear to that the service user is either high on drugs or inebriated as he is unsteady on his feet.”

The man who is over six foot tall can be seen talking to another member of staff, shouting and being difficult, but as there was no sound on with the footage, the WRC adjudicator had to interpret everything from body language and gesture.

According to the WRC, the service user is seen to be unsteady on his feet and moves awkwardly with the aid of a mobilator or walker. When the complainant enters the frame of the CCTV footage his presence does not make the service user less hostile and the situation appears to continue to be volatile.

The complainant said the service user moved forward, describing the movement as sudden and gave rise to a “split-second” recognition on his part of the need for “self-preservation”. 

The complaint then kicked out hitting the service user’s walker, in order to stop him from assaulting him, the complainant claimed. 

The WRC adjudicator said that after reviewing the footage, the kick was deemed a disproportionate reaction to the forward movement made by the service user.

The walker jolted backwards and appears to have hit against the service user and, according to the WRC adjudicator, had the service user lost grip of the walker it is likely he would have fallen to the ground.

“The complainant’s own response put his employer into a very difficult position because once they are faced with the unavoidable evidence of an employee resorting to a physical response, the ability to retain that employee in that capacity becomes very difficult,” the adjudicator said. 

Based on the CCTV footage alone the WRC adjudicator found that the complainant was not unfairly dismissed and the sanction of termination for misconduct was open to the employer. 

The adjudicator added that the WRC would not accept any statement provided by the complainant’s co-worker which would negate or diminish “what is clear from the CCTV footage”.