One Minute Summary

• A Care Coordinator working for a not for profit complains of excessive workload to his supervisor, but this is ignored.
• Following a serious of incidents 27 allegations are levelled at the employee. The employee’s explanations are ignored and the incidents are classed as misconduct and each one is found to be ‘substantiated’.
• Following a Show Cause process the employee is terminated for misconduct claiming that he placed client safety at risk.
• The Commission examines the allegations in detail and finds the allegations relate to work performance and not misconduct. Claims of client safety concerns are not substantiated by the employer’s evidence.
• The Commission determines the termination was unfair. The employee is reinstated to their former role and the employer is ordered to pay wages for the intervening period amounting to 24 weeks pay.

A not-for-profit employer in Tasmania terminated a Care Coordinator for performance reasons and claimed ‘gross misconduct’ as the reason. Commissioner Redford from the Fair Work Commission did not agree.

Mr Sonneveld had been employed as a Care Coordinator by Community Based Support Limited (‘CBS’) since 2020. Care Coordinators liaise with clients and medical professionals to assess care needs and manage staff in the provision of services.  

In August 2024 he was issued with a first and final warning for not having followed the correct policy in relation to an aged client that had not been followed up in their home and was later found deceased. However, he had followed the ‘normal’ custom and practice followed by Care Coordinators in such situations with that employer. Other than this one incident no performance or misconduct issues had been raised during his prior employment.

On 27 January 2026 he was directed to attend a meeting regarding his ‘care and management’ of clients. He was informed that CBS had “discovered a range of issues that we believe have, or have the potential to have, a serious impact on the health and safety of your clients”, “the quality of supervision and care provided to your clients”, the Respondent’s “ability to commence services in a timely manner” and its “ability to ensure field staff rosters are maximised according to their work pattern requests”.

The above review had been driven by one incident where CBS claimed Mr Sonneveld had not carried out his duties in relation to a client with wound care. As it turns out the client did not want assistance with his bandages preferring that his own Doctor deal with it, and that the client then went to hospital was under medical care of hospital staff. CBS stated Mr Sonneveld should have checked on the client.

On 3 February 2026 a further meeting was held where further allegations were raised by CBS stating Mr Sonneveld had been tardy in following up with his clients.

Mr Sonneveld provided a formal written response to the allegations on 13 February 2026. He also outlined that he had been raising concerns about his high caseload for some months which coincided with when these issues were to have occurred. The concerns were in writing to his immediate manager and stated, “it often feels as though more tasks are coming in each day than can realistically be completed, which has caused a growing backlog….” and “Client loads are starting to get a bit high. I just want to flag that from previous conversation the general expectation was that once client loads starting to get around the 40-45 mark that another coordinator would be added...” and” the high workload is getting in the way of providing quality care to our clients.”

In evidence from CBS during the hearing, it became clear that the workload issue raised by Mr Sonneveld had not been examined. Indeed, one of the senior managers stated the concerns about workload were invalid.

A further meeting was held on 26 February 2026 where Mr Sonneveld was suspended on full pay. CBS had determined his actions breached relevant policies and procedures which they stated would be provided to him in coming days.

On 27 February Mr Sonneveld was sent a list of 27 allegations relating to his ‘conduct’. These issues included the following, among others:

• He had failed to identify, escalate or act on risks to client wellbeing and delivery of safe care.
• He had failed to keep proper client notes.
• He had failed to set up services for clients in a timely manner.

Overall, it was stated that his tardiness was due to a lack of care for clients and this put clients at risk.

Mr Sonneveld provided responses to each of the allegations, some of which were quite logical explanations, in addition to reiterating the backlog due to workload.

On 25 March 2026 Mr Sonneveld was informed that all the allegations against him had been substantiated and that they constituted misconduct. After a Show Cause process, he was terminated for misconduct 31 March 2026.  The CEO, who approved the termination, stated the termination was warranted stating she believed Mr Sonneveld was grossly negligent in terms of patient care.

During Fair Work proceedings CBS stated that Mr Sonneveld’s repeated conduct constituted a serious risk to the safety and welfare of clients and that the conduct ‘in every way met the definition of serious misconduct’.

In the decision each of the allegations were closely examined and determined not to be instances of ‘misconduct’ but were ‘performance issues’ relating to the performance of his work.

The Commissioner then acknowledged Mr Sonneveld had been struggling to manage his workload and had raised this as an issue and that CBS had failed to deal with it.

Additionally, the Commission raised that while CBS had stated Mr Sonneveld’s actions placed client safety at risk very little actual evidence had been provided to substantiate this by CBS: “… on the evidence before me, the Applicant’s conduct cannot be said to have “exposed vulnerable clients to unacceptable risk, including risk to health, safety, wellbeing, service continuity and timely access to care”.

In relation to CBS’s claim that Mr Sonneveld had breached CBS policies and procedures, this argument failed once it was determined that the allegations related to work performance and not misconduct.

During proceedings CBS admitted it had considered instigating a ‘formal performance improvement plan’ for Mr Sonneveld but none was ever put in place.  Mr Sonneveld’s immediate supervisor was not called to provide evidence to show that she regularly reminded him to undertake overdue tasks. In the absence of her testimony such evidence did not actually exist.

In relation to his work performance the decision commented on the fact that for a period of 5 years Mr Sonneveld had performed adequately and had not been the subject of any performance related concerns.          

The Commission also questioned whether every allegation had been properly assessed by CBS following Mr Sonneveld’s ‘detailed and candid’ responses.  “...each of its numerous allegations to have been “substantiated”, without exception. This taints the validity of the Respondent’s reasoning in this matter.”

In relation to Mr Sonneveld’s claims about his performance being affected by his workload the Commissioner stated: “The Applicant’s culpability in not having performed his work to the standard desired by the Respondent is mitigated by the workload pressures he was experiencing, and his employer’s failure to deal with them, making the decision to terminate his employment harsh in the circumstances.”

The Commission also found that the termination occurred after 5 years of apparently unblemished service “… the decision to terminate the employment, rather than an approach supporting and allowing the Applicant an opportunity to improve was harsh.”

Upon finding that the termination was harsh, unjust and unreasonable, the Commission ordered Mr Sonneveld be reinstated into his former position and paid compensation of 24 weeks, being the duration between termination and reinstatement, less any earnings he may have received during that period.

Commentary

When you read this decision you are left with the impression that employer acted on impulse and then attempted to find a way to justify the termination. Mr Sonneveld provides what appear to be logical explanations to the various allegations. The employer appears to ignore the explanations and simply finds that all allegations had been substantiated. In real life this rarely happens.

During the lead up to the termination the employer uses the word ‘misconduct’. Once in the Commission it attempts to lift Mr Sonneveld’s behaviours to ‘serious misconduct’ and ‘gross misconduct’.  Perhaps this is an attempt to reach the level of instant/summary dismissal to justify the termination.

In such situations the Commission looks at the detail. In this case it discovers that the allegations are largely focussed on work performance. In addition, it closely examines the allegations in respect to client safety. While the employer used this to justify termination very little substantive evidence was led to support this argument.

What is also lacking in the employer’s process is a plausible warning approach – no matter whether they classify the incidents as misconduct or performance related.

Employers need to be careful in not reaching a conclusion in haste which they later have to try and build a case around. This approach quickly falls apart under cross examination.  

In the absence of any evidence to the contrary the Commission accepted the employee’s argument about excessive workload. When faced with this complaint it is important to undertake a proper analysis to determine whether there is a workload issue to address first.

When terminating an employee an employer should have done the leg work to determine whether they actually have a defensible reason for the termination. In this case they certainly did not. This resulted in reinstatement and 24 weeks wages from the termination to the date of reinstatement.

This case is quite detailed, and I can only provide a summary here. Please let me know if you wish to receive a copy of the Fair Work decision.

Employers should ensure they have comprehensive procedures and are able to substantiate a termination decision with evidence. If you need assistance with a disciplinary or termination process, please contact Hunter Employee Relations for assistance.

Kind Regards

Michael Schmidt

M 0438 129 728

[email protected]

www.hunteremployeerelations.com.au

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