I recently wrote an article describing the National Disability Insurance Scheme (Registered Providers of Supports) Rules 2013 (Cth) (‘NDIS Rules’) and one of the major implications is the need for disability services organisations to establish close and systematic employee monitoring. Given the current trend towards large scale casualisation, close and systematic monitoring is more difficult than ever.
The Importance of Employee Monitoring
The NDIS Rules make clear that an organisation can lose its registration if it fails to have proper mechanisms in place to ensure employees comply with the Fair Work Act and workplace health and safety laws. An organisation that fails to monitor its employees closely and systematically may risk losing its registration on that basis.
The NDIS Rules also make clear an organisation can lose its registration if one of its employees of the organisation commits a criminal offence against a law which regulates the way in which they provide services to clients. An organisation that fails to monitor its employees closely and systematically will not be able to detect and address dangerous practices that may give rise to breaches.
Similarly, in Prince Alfred College Incorporated v ADC  HCA 37, the High Court held that courts should determine whether an employer is vicariously liable for the criminal acts of an employee by considering whether the employer assigned a ‘special role’ to the employee which ‘gives the occasion’ for the abuse of the victim.
This creates significant scope for organisations to be held to be liable for abuse committed by their employees. This scope is only likely to be widened when the Royal Commission into Institutional Responses to Child Sexual Abuse hands down its final report in December.
Organisations that do not monitor their employees closely and systemically will have difficulties deterring and picking up warning signs of abuse.
The NDIS Rules also require organisations to report certain breaches of laws by employees. It is difficult to comply with these reporting requirements without monitoring employees closely and systematically.
Many not for profit disability services organisations are pursuing the opportunities created by the NDIS by employing a large number of casuals who work remotely with clients and who may have little contact with managers. Disruptors such as Hireup are adopting the same strategy.
While such an operating model makes good commercial sense, it can make it very difficult to monitor employees. How can an organisation closely and systematically monitor employees who work irregular shifts at off site locations?
Strategies which disability services organisations could adopt to closely and systematically monitor casual employees working off site with clients include:
- Asking for detailed and comprehensive reports from employees at the end of each shift.
- Adopting a ‘pools’ based shift allocation process which rewards employees who fulfil their reporting requirements with more shifts and opportunities for progression.
- Asking all employees to meet with a manager on a monthly or fortnightly basis to discuss their performance and their shifts from the previous fortnight.
- Requesting that clients or their families provide weekly or fortnightly reports on the quality of the services provided by employees.
- Making clients and their families aware of the organisation’s complaints policies.
Join Our Seminars
JFMLAW and its strategic partner, dVT Group, are running a number of half day seminars in Sydney and regional New South Wales to help disability services organisations come to grips with these challenges and to explore the solutions.
Please get in touch if you would like more information on the seminars or if you wish to talk about how your organisation can get on the front foot to meet these challenges.
John Morrissey has been a practising Sydney solicitor for 30 years, and for the past 20 a sole practitioner and the principal at JFMLAW.
His main focus employment law, advising small to medium-sized firms and their employees of their rights and obligations.
For many years he was a lecturer at UTS to students obtaining Masters in Human Resources Management with a focus on performance management and creating a culture of delivery in workplaces. John has acted for a significant number of employers, not only in developing a performance based culture in the workplace but also solving particular problems that arise relating to unfair dismissal, contract disputes, improper use of intellectual property or other property as well as enforcements of restraints of trade.
John is very happy to speak to any employer who has an issue on a free of charge basis by a phone call. Please feel free to ring John at anytime up to 6pm most days.
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- How to avoid unfair dismissal claims - November 28, 2018