Davies v State of Victoria  VSC 343 (15 August 2012) Summary
In a landmark decision, Justice Williams of the Supreme Court found that the conduct of a disability support worker in dragging a person with an intellectual disability across a carpeted hallway such as to cause a burn or abrasion constituted “cruel, inhuman or degrading treatment” contrary to section 10(b) of the Charter of Human Rights and Responsibilities.
The plaintiff, Mr Davies, was employed by the Department of Human Services as a Disability Development and Support Officer. On 24 September 2009, the Department terminated his employment on the ground of “serious misconduct” following a departmental investigation into an incident on 2 May 2009 involving CJ, a person with disability in his care. Mr Davies appealed against his dismissal.
Justice Williams found that “Mr Davies dragged CJ, who was naked, approximately 1.5 metres across a carpeted hallway and in so doing, caused his injury” (namely, a large burn or abrasion on his buttock). The Court also found that Mr Davies “then failed to report the incident to his supervisor”.
The issue in this case was whether the State had established that Mr Davies’ behaviour during the incident amounted to “serious misconduct” within the meaning of s 33(1)(d) of the Public Administration Act 2004 (Vic).
While “serious misconduct” is not defined under the Act, “misconduct” is defined to include contravention of the Code of Conduct, which, in turn, requires that public officials “respect and promote the human rights set out in the Charter of Human Rights and Responsibilities”. Section 10(b) of the Charter provides that a person must not be treated or punished in a cruel, inhuman or degrading way.
The Court held that Mr Davies’ treatment of CJ in dragging him naked across a carpeted hallway and thereby causing injury, in circumstances where there were other options available to move CJ, amounted to “disrespectful, cruel and degrading” treatment and violated CJ’s human rights under section 10(b) of the Charter. Together with breaches of the Code of Conduct, the Court held that this, and the failure to report the incident, constituted “serious misconduct” such as to justify termination of Mr Davies’ employment.
The decision is available online at: http://www.austlii.edu.au/au/cases/vic/VSC/2012/343.html.
Phil Lynch is Executive Director of the Human Rights Law Centre.