NDIS (National Disability Insurance Scheme) has had a lot of media and business attention for many years. The human resources and employment law elements of NDIS workplace operations are no different – it also can demonstrate the tightrope that must be traversed when handling referrals coupled with conflict of interest and confidential information.
Oula Kabbara v Settlement Services International Limited [2024] FWC 1654 (24 June 2024)
In an unfair dismissal case the employee was employed by the respondent as a Local Area Coordinator to help NDIS participants access funds and connect to service providers.
However, the employee had a personal connection with Advance Minds, another NDIS service provider, including being a client for over two years.
The employee’s personal email was listed as the contact for Advance Minds on the NDIS website.
The employee referred NDIS participants to Advance Minds without disclosing her connection or providing other provider options but importantly, did not record details of provider referrals in the client management system.
As such the employee sent emails containing sensitive participant information from her NDIS email to her work email.
As the employee had:
- Listed her personal email as the contact on the NDIS website
- Referred participants without disclosing the connection
- Did not record details of the referrals on the client management system
- Sent emails with sensitive information
The employer formed a view there were breaches of:
- Code of Conduct,
- Conflict of Interest Policy
- NDIA guidelines
The employer then set out to investigate the breaches.
As a result of the misconduct the employee was terminated and an unfair dismissal claim was filed by the employee.
Findings of the Fair Work Commission
- The employee breached the employer’s requirements relating to conflict of interest management.
- The employee was initially dishonest during the investigation by failing to disclose her personal connection as a client of Advance Minds.
- The employee’s conduct resulted in the employer losing trust and confidence in the employment relationship.
- The employee’s conduct was particularly serious given she worked with vulnerable NDIS participants where management of conflicts of interest is of critical importance.
- The employee was notified of the reasons for dismissal and given opportunities to respond before the decision to dismiss was made.
- The dismissal of the employee was not harsh, unjust or unreasonable and the application was dismissed.
2 Key Learnings
Conflict of Interest
Conflict of interest in any highly regulated environment such as NDIS, Local Government, State Government and Charities is of critical importance. Regular reflections by leadership should include reinforcing policies and guidelines in place through formal and informal training.
It is also important to reinforce the guidelines through active reminders and disclosures.
Referrals
Referring clients to other parties is a regular course of action in business. NDIS providers and consultants and professionals understand the importance of doing so. However, ensure there are policies and guidelines which govern a common sense approach to referrals.
This should include:
- Non disclosure of personal information or information which should not or cannot be disclosed to another party
- Systems to record referrals and basic information on the referral
- If any disclosures are required to be made then they are followed and documented
Our Employment Lawyers at South Geldard Lawyers have essential expertise in preventing these issues occurring in the first place and helping with the legal issues when they do occur. Feel free to reach out on (07) 4936 9100 or via email to Jonathan Mamaril, Director at jmamaril@southgeldard.com.au. All Employers receive an obligation free consultation.
