A support worker employed by an NDIS provider was dismissed after colleagues reported flirtatious behaviour towards a vulnerable client and an incident in which she shaved his pubic region. The Fair Work Commission found the dismissal was not harsh, unjust or unreasonable and dismissed her application.
What the Commission decided
Victoria Nguyen worked as a support worker for Home Caring Pty Ltd, assisting clients including Duc Hoang Tran, a man with significant physical disabilities arising from a stroke. The company dismissed her over two allegations: that she had an inappropriate, flirtatious relationship with Mr Tran, and that she performed tasks outside her role, including shaving his face and pubic region.
Commissioner Walkaden found that text messages between Ms Nguyen and Mr Tran were flirtatious and went well beyond work matters. A colleague gave evidence that he saw Ms Nguyen holding the client's hand, singing to him and sitting close to his bedside, and that the client made a comment about her body to which she laughed. The Commissioner preferred this colleague's evidence over Ms Nguyen's denial.
The client and his father both gave evidence supporting Ms Nguyen, including that the father, not Ms Nguyen, had shaved the client's private parts. The Commissioner did not accept this evidence, finding the client's account was likely influenced by an ongoing inappropriate relationship with Ms Nguyen, and that the father's evidence was coloured by a wish to help her case. The Commissioner found Ms Nguyen had, in fact, shaved the client's pubic region, a finding reinforced by evidence that she initially denied doing so in an investigation meeting before changing her account minutes later.
The Commissioner also rejected Ms Nguyen's claim that she had never seen the client's care plan before the hearing, pointing to a text message she sent months earlier that referred to the plan. The care plan specifically noted that shaving was to be assisted by family, not support workers.
What was actually in dispute
The case largely turned on who the Commission believed. Ms Nguyen denied all of the conduct alleged against her, while the company relied on a colleague's eyewitness account, photographs of text messages, and the inconsistent explanation she gave during the investigation.
The Commissioner found Ms Nguyen's evidence was not credible, pointing to her shifting account about the care plan and her denial of the shaving incident, before concluding this both breached the provider's obligations under the NDIS Code of Conduct and fell outside the scope of her duties as set out in the client's care plan.
Having found a valid reason for dismissal connected to conduct, the Commissioner went on to find the worker was properly notified of the allegations, given a real chance to respond at a meeting with interpreter assistance, and was not refused a support person. The Commissioner treated the size of the employer and its access to HR specialists as neutral factors, since no problems were found with how the dismissal was handled. The Commissioner also rejected arguments that the process felt pressured or unsupported, finding it unremarkable that someone facing serious allegations would feel that way, and found the consequences Ms Nguyen pointed to, such as loss of income, flowed from her own conduct rather than any unfairness in the process.
What this means
This decision illustrates how the Commission weighs each of the statutory factors relevant to whether a dismissal was harsh, unjust or unreasonable, including whether there was a valid reason connected to conduct and whether the worker had a genuine chance to respond before being dismissed. It also shows how credibility findings, built from inconsistent accounts and contested evidence, can decide the outcome of a case even where the dismissed worker calls witnesses in her support.
For employers and workers navigating conduct-related dismissals, particularly in care and disability support settings, this case demonstrates how seriously the Commission treats breaches of professional boundaries involving vulnerable clients, and how closely it will scrutinise the reliability of evidence from all sides before reaching a conclusion.