The Alleged Slap That Could Not Be Proven: Analysis by Principal Consultant Michael Alkan, who assisted the Applicant in Shawl v Anglican Retirement Villages

By HR Experts’ Michael Alkan

Introduction

The Fair Work Commission decision in Mrs Daisy Shawl v Anglican Retirement Villages remains a significant authority on the evidentiary threshold required to justify dismissal for alleged misconduct in aged care settings. The case highlights the importance of substantiated findings of fact, procedural fairness, and the Commission’s role in determining whether alleged conduct actually occurred.

This matter also provides useful guidance for employers navigating allegations of serious misconduct where direct evidence is limited or contested.

Factual background

Mrs Daisy Shawl had been employed as a carer for approximately 15 years prior to her dismissal in March 2016. The employer alleged that Mrs Shawl had slapped a resident suffering from advanced dementia while providing care.

The allegation arose from an account provided by a co-worker who claimed to have witnessed the incident. Mrs Shawl denied that any physical contact occurred and maintained that she had merely attempted to calm the resident.

The resident was unable to provide reliable evidence due to cognitive impairment. There was also no contemporaneous physical evidence of injury.

The Commission was therefore required to determine whether, on the balance of probabilities, the alleged misconduct had occurred.

Commission findings on the alleged misconduct

In assessing whether there was a valid reason for dismissal, the Commission carefully evaluated the competing accounts of events. The Deputy President concluded that the evidence did not establish that the alleged slap had occurred.

Key considerations included:

• the absence of objective evidence of any physical injury or observable mark on the resident
• the lack of corroborative evidence supporting the allegation
• the evidentiary limitations arising from the resident’s advanced cognitive impairment
• the timing and circumstances in which the alleged incident was reported
• the need to assess the credibility and reliability of the competing accounts
• the totality of the evidence when considered on the balance of probabilities

On this basis, the Commission determined that there was no valid reason for dismissal, notwithstanding that the employer had conducted an investigation and afforded procedural fairness.

Procedural fairness versus substantive fairness

A notable aspect of the decision is the distinction drawn between procedural fairness and substantive justification.

While the employer:

• conducted interviews
• involved human resource personnel
• provided opportunities to respond
• permitted a support person

the Commission nevertheless found the dismissal to be unfair due to the absence of a substantiated factual basis.

This reinforces a recurring principle in unfair dismissal jurisprudence:
procedural compliance cannot compensate for a lack of evidentiary proof.

Appeal outcome

The employer sought permission to appeal the decision. The Full Bench refused permission, concluding that no arguable error had been demonstrated and that the public interest threshold for granting leave to appeal had not been satisfied.

The Full Bench also emphasised that findings regarding credibility and evidentiary weight are matters primarily for the original decision-maker.

Eyewitness evidence and evidentiary sufficiency

The decision has attracted broader commentary concerning the evidentiary weight that may be given to eyewitness testimony in workplace misconduct matters, particularly where such evidence is uncorroborated or arises in sensitive care environments.

In Shawl, the allegation relied substantially upon a single eyewitness account. The Commission’s reasoning illustrates that, while eyewitness testimony may be capable of establishing misconduct, its probative value must be assessed in the context of the available corroborative evidence and the surrounding factual circumstances.

Further analysis of the evidentiary issues in this decision is available in external case commentary, including:

• a detailed case decision commentary published by CaseNote
• a legal analysis of evidentiary thresholds in misconduct dismissals published by Lynch Meyer
• an official decision summary available via AustLII
• commentary addressing the sufficiency of eyewitness proof in employment disputes

These analyses collectively reinforce that uncorroborated eyewitness evidence may not be sufficient to discharge the evidentiary burden in unfair dismissal proceedings, particularly where the alleged victim is unable to provide reliable testimony or where objective evidence is absent.

Professional involvement

During the proceedings, Principal Consultant Michael Alkan of HR Experts assisted Mrs Shawl, including in relation to:

• refinement of her unfair dismissal application
• participation in conciliation
• preparation of evidentiary material
• procedural steps including seeking production of relevant documents

Mrs Shawl later elected to conduct the hearing herself with support from her son.

Remedy determination

The Commission determined that reinstatement was not appropriate due to the breakdown of the employment relationship.

Instead, compensation of $16,020.26 before tax was ordered.

In assessing compensation, the Commission considered:

• the likely duration of continued employment
• the employee’s efforts to mitigate loss
• earnings obtained following dismissal
• income likely to be earned in the future
• notice payments already received

Practical implications for employers

The decision provides important guidance for employers, particularly within the aged care sector:

1.      Allegations of serious misconduct must be supported by reliable evidence.

2.      Investigations should focus on evidentiary sufficiency rather than perceived risk exposure.

3.      Decisions to dismiss should be based on substantiated factual findings.

4.      Long service and contextual employment factors remain relevant.

5.      The Commission will independently assess credibility and evidentiary weight.

Conclusion

Shawl v Anglican Retirement Villages illustrates the critical importance of evidentiary proof in misconduct-based dismissals. The case demonstrates that even serious allegations will not justify termination unless supported by persuasive evidence.

For employers, the decision underscores the need for rigorous investigative processes and a careful HR risk assessment prior to dismissal.