Claire Button v Wesley Central Mission

[1995] IRCA 133

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 740 of 1994

BETWEEN:

CLAIRE BUTTON
Applicant

AND

WESLEY CENTRAL MISSION
Respondent

REASONS FOR JUDGMENT

31 March 1995  Judicial Registrar Fleming

Findings Of Fact

The applicant was employed by the respondent on 31 January 1991 and was dismissed on 30 May 1994.  She was employed as a charge nurse and during her shift she had responsibility for administering medications along with numerous other duties.

The circumstances surrounding her dismissal center on an incident on Sunday 22 May 1994 during the course of the applicant's shift.

On Sunday 22 May 1994 the applicant intended to administer drugs to a respite care patient by the name of Mr Seely ("the respite resident").  The applicant removed the prescribed drugs, the identity of which I will deal with later, from a container known as a doset (Exhibit 16).  When she removed the drugs from the doset she signed off her initials as having taken and administering them.  When the applicant attended to the respite resident she found him asleep and made a decision not to wake him in order to administer the drugs.

There was a maximum capacity at the respondent's premises for seven respite resident's and on the night of 22 May 1994 there were three respite resident's in attendance.

I accept the applicant's evidence that she had many duties to perform on her shift and that although it was her intention to cross off the entry she had made on the patients drug chart (Exhibit 14) she failed to do so.  I also accept the applicant's evidence that the duties she was performing on 22 May 1994 were the normal duties she performed on a Sunday evening and she was not being asked to do anything she did not normally do.  I furthermore accept the evidence of Mrs Smith who stated that the work at Beach House was no busier than at any other institutions she had worked in.

As a result of the applicant's failure to administer the drugs and to correct the drug chart an enquiry was conducted by the respondent.

I accept that the respondent discovered five tablets in the respite resident's doset on the morning of 23 May 1994.  I accept that these five tablets were two Mogodon and three Clobazam.  I accept that the drug chart indicated that these drugs had been administered.  I accept that the respite resident had no side affects as a result of not receiving his medication.

An investigation was initiated whereupon the drugs were placed in an envelope and put in the safe by Mrs Smith, the Health Care Co-ordinator.  Mrs Smith told the manager, Mr Nicholls and attempts were made to contact the applicant.  Ms Donald the Administrative Assistant to Mr Nicholls contacted the applicant about the failure to dispense the medication and I accept the applicant's first reaction was that it all came back to her and she wanted union representation.  She was invited to a meeting at 4:00pm on Monday 23 May 1994 but did not attend and she was also unable to attend other meetings earlier that week.

On Friday 27 May 1994 at the ANF office the applicant attended a meeting and present at the meeting were two ANF organisers that being Ms Wylie and Ms Austin, Mr Young, the Human Resources Manager and Mr Nicholls as well as Ms Button.  The allegations were put to the applicant and the applicant conceded that she had not given a sleeping tablet to the respite resident.  The applicant's explanation was that she made a clinical judgment to withhold the sleeping tablet and she conceded it was sloppy practice.  The applicant's union representative made submissions on her behalf.

The position of the respondent was that unless there was an adequate explanation as to why the medication had not been given and why the drug chart was not corrected that the applicant's employment would be terminated.  I accept that subject to such a satisfactory explanation the respondent had not made a decision to dismiss the applicant prior to the meeting on 27 May 1994.

After the meeting however Mr Young and Mr Nicholls decided to terminate the applicant's employment for the reasons set out in Exhibit B that being the letter of termination which states:

"Following the meeting held at the ANF offices of Friday last, we confirm the termination of your employment, on the grounds of serious misconduct, effective 22nd May 1994.

The circumstances causing this decision specifically concern a failure to dispense medication, which you signed-off as dispensed, to a particular resident of Beach House, during the course of your shift as Charge Nurse, on Sunday 22nd May, 1994.  Your claim in response, that you made a 'clinical judgment' in the circumstances, is an unsatisfactory and unacceptable reason for signing, but not issuing medication, without reference or record as to the circumstances.

We view this incident in the context of two previous established incidents of a similar kind, in April and September 1993.

Attached is a cheque in payment of monies owing."

I accept the applicant's evidence that she exercised her clinical judgment by not waking the respite resident to give him a sleeping tablet.  On its own this seems to be a common sense approach.

I accept the evidence however of the respondent that there were two types of drugs that should have been administered to the respite resident on 22 May 1994 and that the applicant failed to administer both types.  The first type of drug was the Mogodon or sleeping tablet and the second type was the Clobazam or anti convulsant tablet.  I make this finding based on the evidence of Mrs Smith who discovered all five tablets in the doset in the following morning, and also on the evidence of the applicant who had admitted she had failed to administer the Mogodon.  The applicant's evidence was not consistent in relation to the administration or failure to administer the Clobazam.

The respite resident suffered from a severe form of epilepsy called "Lennoex Gustard Syndrome".  The respite resident has no communication skills, walks randomly and has highly variable sleep patterns and also the applicant gave evidence that she knew him well.  I find the failure to administer an anti convulsant as prescribed by a doctor to a patient with such a serious disability is a serious omission.  It would quite, understandably be of great concern to the respondent and to the parents of the respite resident, that a qualified Charge Nurse, particularly of the applicant's calibre, well qualified and experienced and who was undertaking further studies in an ongoing search to improve her already obvious skills could make such an omission.

I find that the applicant not only failed to administer the Mogodon but also failed to administer the Clobazam.  I refer to the submission of Mr Parry and I quote:

"As noted by Parkinson JR in AWU - FIME -v- Conagra (Unreported, 15 September 1994), 'the employer in this circumstance to be able to establish that it had a valid reason for the termination of the employment it is necessary for it to satisfy the Court that the facts relied upon by the employer which resulted in the termination were true.'"

I find that the employer had a valid reason to dismiss the applicant given the seriousness of her omission to administer the drugs and to rectify the drug chart.  The fact that no harm came to the respite resident is in my view irrelevant.

I find that the respondent has not breached the Nurses (Victorian) Health Services Award 1992.

The applicant has breached the policies of the respondent in relation to the dispensing of drugs on two prior occasions in the previous fourteen months.  On 14 March 1993 the applicant received a verbal warning.  I accept Mr Harris' submission however in regard to this verbal warning that:

"the applicant's self critical notation on the file is somewhat given to Hyperbole and ... quite out of proportion to the conduct complained of"

Having said that however this was still a verbal warning and the applicant has acknowledged it.

I accept that on 12 September 1993 there was a further incident which the applicant acknowledge and for which she was given a second written warning.

I accept that there was no third or final warning as is required by the award but I also accept that the conduct of the applicant amounts to conduct which can and in this case did lead to summary dismissal.

I find that the respondent has complied with section 170DC and section 170DE of the Act and accordingly I dismiss the application.

Order Of The Court

1. The application be dismissed.

I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of Judicial Registrar Fleming.

Associate:

Dated:  31 March 1995

Representative for the Applicant: Counsel for the Applicant:	Australian Nursing Federation Mr Parry
Representative for the Respondent: Counsel for the Respondent:	VECCI Mr Harris
Dates of hearing:	21 & 22 February 1995
Date of Judgment:	31 March 1995

CATCHWORDS

INDUSTRIAL LAW - Termination of employment.

Industrial Relations Act 1988, ss.170DC, 170DE and 170EE.

Adami -v- Maison de Luxe [1924] 35 CLR 143

North -v- TV Corporation (1976) 11 ALR 599

Williams -v- Printers Trade Services (1984) 7 IR 82

Pillai -v- Messiter (No.2) (1989) 16 NSWLR 197

G. Weels -v- E. & A. West Ltd (1975) IRLR 269

Gunton -v- Richmond-Upon-Thames-London-Borough Council (1981) Ch 448

Dietman -v- London-Borough of Brent (1987) IRLR 259

BP Oil -v- Nothern Distributions Union (1989) 3 NZLR 580

Sewards -v- Canon Copiers (1983) 5 IR 227

Byrne & Frew -v- Australian National Airlines Limited (1994) 52 IR 10

Bostik (Australia) Pty Ltd -v- Gorgevski (No. 1) (1992) 36 FCR 20'

CLAIRE BUTTON -v- WESLEY CENTRAL MISSION

NO. VI 740 of 1994

Before:     FLEMING JR

Place:      MELBOURNE

Date:       31 MARCH 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 740 of 1994

BETWEEN:

CLAIRE BUTTON
Applicant

AND

WESLEY CENTRAL MISSION
Respondent

MINUTES OF ORDER

31 March 1995  Judicial Registrar Fleming

THE COURT ORDERS THAT:

1. The application be dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.