Grace Mazi v Ozcare
[2016] FWC 1201
•20 APRIL 2016
| [2016] FWC 1201 [Note: An appeal pursuant to s.604 (C2016/3752) was lodged against this decision.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Grace Mazi
v
Ozcare
(U2015/12332)
| COMMISSIONER SIMPSON | BRISBANE, 20 APRIL 2016 |
Application for relief from unfair dismissal – Applicant failed to meet professional standards required of a registered nurse – Application dismissed.
[1] Ms Grace Mazi (“the Applicant”) was terminated by Ozcare (“the Respondent”) on 29 September 2015 from her employment as a Registered Nurse. Her employment had been on a permanent part-time basis and the length of her employment was fairly brief, at 8 months and 24 days. Ms Mazi was paid one weeks’ notice pay.
[2] Ms Mazi’s unfair dismissal application was heard in Brisbane on 3 and 4 March 2016. Ms Mazi was represented by Reichman Lawyers and Ozcare by DLA Piper Australia. Ozcare is a large employer with approximately 2,900 employees throughout Queensland across 60 locations. Ozcare operates ten aged care facilities, including the facility where Ms Mazi was employed.
[3] Ms Mazi worked on night shifts, and was the most senior clinically qualified employee on night shift overseeing care of 137 residents at the aged care facility.
[4] Ms Mazi was the only witness in her case 1. Ozcare called seven witnesses, Alice Wilson2, Helen Lowe3, Brett Wahurst4, Donna Patmore5, Adele Wright6, Amy Van Ree,7 Angela Aitkin Smith8 and Lanna Ramsay.9
[5] A show cause letter sent to Ms Mazi on 16 September 2015 identified eight issues. I will deal with each of them separately. Ms Mazi responded to the show cause letter on 25 September 2015 with a 5 page letter.
[6] The first two and half pages of Ms Mazi’s response to the show cause letter focus on procedural fairness issues. Ms Mazi’s response to allegations 1 through to 6 complained the allegations do not specify which role, principle, clause, standard, value, or professional conduct was breached. In response to allegation 7 again Ms Mazi criticised the process of the investigation however in the case of that issue provided some detailed response to the allegation itself. In concluding her response to the show cause letter Ms Mazi stated it was difficult to develop a comprehensive response with insufficient details and requested more information to provide a more comprehensive response.
[7] Ms Mazi’s response to the show cause letter followed a number of earlier failed attempts by Ozcare to engage with Ms Mazi about the issues that became the subject of the show cause letter. I will deal with the evidence in the course of the hearing as it pertained to each of the issues in the show cause letter, as well as the procedures adopted by Ozcare in dealing with the issues raised against Ms Mazi. The termination letter of 29 September stated that the allegations (in the show cause letter) were substantiated, and this conclusion was the reason for the termination.
ISSUE 1 - Alleged direction to personal carer who was not medication competent to give paracetamol to resident
On the 26th 27th and 29th June 2015 you directed A Wilson, a non-medication competent Care Assistant, to give paracetamol to resident AB in response to her complaints of symptoms including a sore throat, headache and sweats, even though the resident does not have an order for PRN paracetamol on their medication chart.
This action, as alleged, breaches the Ozcare procedure MM 2. 06 Delegation to Carers and MM 2.01 Role and Responsibility of the Registered Nurse and does not meet the expected standards of ethics and professional conduct of a Registered Nurse.
[8] Ms Mazi described a MPSPRN in her evidence as a medication chart for medications which can be given for when the occasion arises, and the MPS regular is a prescription from a doctor for that resident which prescribes the medications and when they are to be given. 10
[9] Ms Mazi was referred during her oral evidence to the MPS Summary Sheet for resident AB attached to the statement of Amy Van Ree. 11 Ms Mazi accepted that paracetamol was not on the list of medications under the heading ‘when required’.12 Ms Mazi accepted that the drug can be dangerous in certain quantities.13 Ms Mazi under cross examination reiterated her earlier evidence that she maintained she could vary the regular prescription as long as the oncoming registered nurse is aware.14
[10] When Ms Mazi was asked how she knew how much paracetamol the resident had taken at the time she exercised her clinical judgement to bring forward the regular order, she referred to a signing sheet and medical progress notes. It was put to Ms Mazi that she did not check these records in the case of the resident in this instance. Ms Mazi claimed the personal carer relayed this information to her by reading it to her, and this happened on each of 26th, 27th and 29th of June. 15
[11] Ms Mazi said in her statement that Ms Wilson did not inform her she was not medication competent. Ms Mazi referred in her evidence to MM 2.04 Role and Responsibility of Carers Help/Assisting with Medication and procedure 6.1 and procedure 6.3 in that document which includes that carers should only carry out tasks they have the training and experience to do, and if a carer is concerned they are not competent to help/assist with a request for medication they should discuss it with their supervisor. Ms Mazi said that she was aware the particular resident had been previously given by her doctor a standing order for Endone. Ms Mazi said the resident did not have paracetamol charted at the time but did have a regular order for Panadol. Ms Mazi said she made a clinical decision to administer Panadol from the regular order and this was consistent with The Nursing Guidelines: Management of Medicines in Aged Care. 16 It was submitted for Ms Mazi her explanation was reasonable.17
[12] Ms Mazi was provided a copy of a document titled MM 2.06 Medication Management Procedures. Ms Mazi accepted that under the policy she was accountable for delegation decisions as a registered nurse. 18 When Ms Mazi was asked what steps she took to assess the competence of Ms Wilson, the carer she had delegated the task of administering the medication she answered that there were extenuating circumstances that constrained her going to ward to administer the medication, so she dispensed the medication and sent it in a lift to the carer and the carer agreed to her decisions, and she assumed the carer would have brought it to her attention if the carer was not competent to administer the medication. Ms Mazi accepted she did not know whether Ms Wilson was competent to administer the medication.19
[13] Ozcare said it was in evidence that paracetamol was not on the residents MPSPRN as required. 20 Ozcare said that while Ms Mazi had raised that paracetamol was on the residents regular order, a regular order is prescribed by a doctor for the medication for particular times. Ozcare said that the evidence about the particular resident in regard to this incident was that Ms Mazi had decided not to enter the B wing at the relevant time (during an outbreak of a virus in B wing). It was submitted that Ms Mazi could not therefore see the regular chart order for the resident. It was submitted that the only time Ms Mazi could check the chart was in B wing.
[14] Ms Mazi said that she spoke to Ms Wilson and Ms Wilson read to her what was on the regular order medical chart. Alice Wilson denies that this conversation ever occurred on any of the times that Ms Mazi directed her to administer paracetamol to the resident. 21
[15] Further it was said for Ozcare that Ms Mazi accepts that the drugs administered was not out of the patients regular order sachet, and that they were extra drugs put into a lift and sent up to Ms Wilson.
[16] Ms Wilson said that during the virus lock down period she recalled working in the B wing and resident AB ringing her buzzer quite a lot because she did not feel well. Ms Wilson said she contacted Ms Mazi on the DECT phone and asked her to come up and review AB. Ms Wilson said Ms Mazi refused because of the lockdown in B wing. Ms Wilson said she did not understand this as Ms Mazi could have used infection control protocols. Ms Wilson said she asked Ms Mazi what she should do and Ms Mazi directed her (over the phone) to take the residents temperature and blood pressure which she did, and she reported the findings to Ms Mazi. Ms Wilson said Ms Mazi then told her to give the resident panadol and Ms Mazi put the panadol to be given to the resident in the lift. 22
[17] Ms Wilson said that the resident couldn’t swallow the panadol so she rang Ms Mazi and informed her. Ms Wilson said Ms Mazi told her to crush the panadol for the resident, which she did and mixed it in some thickening fluids and the resident then ingested the panadol.
[18] There is a clear conflict in the evidence of Ms Mazi and Ms Wilson in that Ms Wilson emphatically rejected the claim of Ms Mazi that she asked Ms Wilson to read resident AB’s progress notes to her. 23 Ms Wilson said that she recalled AB remained ill for at least two more days and she notified Ms Mazi that the resident was in discomfort. Ms Wilson said that again Ms Mazi refused to come to B wing and clinically assess the resident. Ms Wilson said Ms Mazi again directed her to give panadol to the resident and Ms Wilson followed that direction.
[19] Ms Wilson said that at one point she recalled that the resident asked to see an after hours doctor and she relayed that to Ms Mazi. Ms Wilson said that she was uncomfortable about giving the resident panadol as she understood it was contrary to Ozcare policies and procedures. Ms Wilson said that because she felt uncomfortable about the whole situation she raised it with Tania Kirisome who was a clinical nurse working at the facility at the time. 24 This was done in the context of Ms Kirisome first approaching Ms Wilson questioning Ms Wilson about issues concerning Ms Mazi.25
[20] Lanna Ramsay, the State Manager of Aged Care for Ozcare who has overall responsibility for Ozcare’s aged care facilities gave evidence that any care assistant must have completed medication competency training in order to administer medication to a resident, and confirming this competency is particularly important in the context of ensuring a registered nurse is able to delegate the assistance with medication to an individual, and particularly if it “PRN” medication which is administered as required. Ms Ramsay said this is because it is necessary for a properly qualified and competent person to clinically review the individual and reach a conclusion that the medication is required before it is administered and then evaluate the effectiveness of the medication. Ms Ramsay said to properly clinically assess someone it is necessary to physically see the person – not just give instructions over the phone. 26
[21] Ms Ramsay gave evidence that part of a registered nurses role is to ensure that the person they are delegating a task to is competent to perform it, and to understand the qualifications and competencies of all of the people the registered nurse is supervising because they may need to delegate tasks to them during the shift. Ms Ramsay said she viewed the actions of Ms Mazi in relation to this issue as a serious breach of Ozcare’s procedures and it caused her to question Ms Mazi’s competency. 27 During cross examination Ms Ramsay did not accept that a registered nurse could bring forward a regular summary order.28
[22] Ozcare says that not only did Ms Mazi inappropriately vary the regular order, but did so in circumstances where she had exercised her judgement to not even go and check the regular order, but to rely on a care assistant, on her evidence to tell her, but which the care assistant denies.
[23] I accept Ozcare’s conclusion that the actions of Ms Mazi in directing a non-medication competent care assistant to administer the medication outside the regular doses as prescribed by a doctor calls into question the judgement of Ms Mazi as the senior clinical employee on shift at the time. Her actions where in breach of the employers policy on this issue.
[24] Ms Mazi has raised in her defence that Ms Wilson should have raised with her that she was non-medication competent, however Ms Mazi is responsible for ensuring the competency of employees that she decides to delegate tasks. The seriousness of the matter is heightened by Ms Mazi’s own decision to limit her presence in B wing.
ISSUE 2 - Alleged failure to review Client from clinical perspective or document progress notes
You failed to provide evidence that at any stage that you reviewed AB from a clinical perspective, nor did you document in the progress notes any assessment of her condition.
This action, as alleged, breaches the Ozcare procedure MM 2.01 Role and Responsibility of the Registered Nurse and does not meet the expected standards of ethics and professional conduct of a Registered Nurse and the Client Services and the Administration and Documentation responsibilities in your position description.
[25] Ms Mazi explained in her statement that the lockdown in B wing was for a norovirus infection in the B wing and was in force during a period that included 26, 27 and 29 June. Ms Mazi referred to a memorandum sent to all staff dated 24 June advising that B wing was in lockdown, 29 and also to the Guidelines for the public health management of gastroenteritis outbreaks due to norovirus or suspected viral agents in Australia as well as Infection Control guidelines. Ms Mazi said on coming to work on 26 June 2016 Ms Wilson told her she had been told by administration prior to coming to work that she would be working in B wing and requested to be restricted to that area, including breaks. Ms Mazi said that on the relevant dates in view of the standard requirements regarding a locked down unit and her hands on duties with other residents in the other three wings, she decided to limit her exposure to B wing except in an emergency, thereby limiting the risk of infection in the other three wings.
[26] Ms Mazi said she remained available and in contact with the carer at all times, and the resident AB’s condition was well known to her and assessment of resident AB was done by information being provided by the carer Wilson, including vital observations carried out by Wilson at her instruction. 30 It was again submitted for Ms Mazi her explanation was reasonable.31
[27] It was put to Ms Mazi that there was another way to manage infection control other than excluding herself from B wing to only circumstances that are an emergency, and that was to wear PPE. Ms Mazi maintained her circumstances were different as on the other shifts registered nurses were placed in the B wing but not on her shift. 32 Ms Mazi accepted that the directive concerning the lock down did not say that a registered nurse is not to enter B wing.33
[28] The evidence appears to be that there were in the order of 32 residents in B wing and during the lock down period Ms Mazi attended to four of those residents. 34 The evidence indicates that with the use of PPE Ms Mazi did not need to restrict her access to B wing to emergencies only. The decision to restrict her level of supervision left the rostered carer in B wing with restricted access to her as the registered nurse for the relevant period. The directive did not instruct Ms Mazi to take the decision that she did. I am satisfied the evidence supports a conclusion that the decision of Ms Mazi to restrict her presence in B wing impacted on her ability to meet the expected standards of ethics and professional conduct of a Registered Nurse and the Client Services and the Administration and Documentation responsibilities of her role, and that this decision give rise to a legitimate concern about her judgement, and also caused her to be in breach of Ozcare policy.
ISSUE 3 - Alleged Failure to assess or follow up client who had a fall
Following a fall on 2nd July 2015 by resident IS, there is no evidence that you completed any assessment or follow up of the client and you failed to lodge a RIMS report.
These actions, as alleged, breach Ozcare procedures ND 056 Management of Client Post Incident in Residential Aged Care and OP 044 Incident Recording and Monitoring and do not meet the expected standards of ethics and professional conduct of a Registered Nurse, or the Client Services and Administration and Documentation responsibilities in your position description.
[29] Ms Mazi said in her statement that on 2 July 2015 she was in D wing on the phone to an after-hours doctor about an ill resident when a call came through from a personal carer in B wing advising that a resident had fallen. Ms Mazi said she instructed the carer to go and stay with the resident and she would be up as soon as possible. Ms Mazi said that while she was still on the phone call to the doctor the carer rang back and said the resident had been able to get herself up and was sitting on her bed, and Ms Mazi said she instructed the carer to check for any injuries, and the carer advised her the resident had no obvious injuries. Ms Mazi said she told the carer she would be up as soon as possible and to check the resident’s vital observations. Ms Mazi said while in the process of completing her after hours call with the doctor the morning registered nurse working in B wing arrived to commence her morning shift. Ms Mazi said she quickly gave her the handover of the situation with the resident who had fallen as she needed to check on another ill resident in the dementia wing. Ms Mazi said the morning registered nurse was happy to take on the care of the resident.
[30] It was put to Ms Mazi that she had not completed a RIMS report in respect of this incident in breach of Ozcare procedure. Ms Mazi accepted she did not do a report. 35It was submitted for Ms Mazi her explanation regarding the other registered nurse taking responsibility for the particular resident was reasonable given the other demands on her at the time.36 It would appear to me given the evidence that Ms Mazi was on the phone to a doctor at the time of the incident and that another registered nurse had agreed to deal with the incident in B wing, and further that Ms Mazi had another ill resident to attend to at the time, Ms Mazi’s explanation regarding this issue is reasonable.
ISSUE 4 - Alleged leaving of the facility understaffed
On 22nd August you sent two Care Assistants on their break at the same time and didn’t inform another Care Assistant that they were to cover B, C and D wings during that time, thus leaving the facility under staffed.
[31] Ms Mazi said on 22nd August a resident in B wing had a fall that had not been witnessed and required frequent neurological monitoring as per the relevant protocol. Ms Mazi said that she informed the carers in E and D wing that she would be up in B wing. Ms Mazi said at 2am she checked to see if the carers in E and D wings had commenced their break. Ms Mazi said they had finished their first round late and none of them had taken their break.
[32] Ms Mazi said she instructed the D wing carer to commence her break and instructed her to ask the C wing carer to staff D wing as Ms Mazi was still monitoring the resident who had fallen in B wing. Ms Mazi said she would usually staff D and E wing interchangeably when either of those carers went on their respective break. Ms Mazi said she instructed the C wing carer to monitor all bells in C wing as that carer was with her in B wing. Ms Mazi said it is usual practice for B or C wing carers to monitor the other unit when they swap breaks. Ms Mazi said after 2.30am she sent the B wing carer on her break as it was getting late and three other people needed to have their breaks as well. Ms Mazi said she staffed B wing and monitored the resident who had fallen while keeping an ear out for C wing call bells.
[33] Ms Mazi said she asked Ms Wilson who was staffing D wing to remain there but monitor call bells in C wing. When the B wing carer returned from her break Ms Mazi was still there and she told the B wing carer to relieve Ms Wilson in C wing so she could go on her break. Ms Mazi said the D wing carer returned from her break well before the B wing carer returned. Ms Mazi said there was never a time when the facility was understaffed or that any carer had to attend to three wings by herself. 37
[34] It was submitted for Ms Mazi that the evidence shows that the rostering of staff during the breaks in question on that day did not leave the facility under staffed. 38 Ms Wilson claimed in her evidence that Ms Mazi would often go missing during the night shift and Ms Wilson claimed she could not contact Ms Mazi when she needed her, which she found very stressful because she was not qualified to make clinical decisions. Ms Wilson gave evidence concerning the coverage of staff on the night shift of 22 August. Ms Wilson conceded there were problems with the DECH phones.39 Having heard the evidence on this issue it is insufficiently conclusive for me to be satisfied on balance that Ms Mazi failed to fulfill her duties as a registered nurse in regard to this issue and I make no finding adverse to Ms Mazi on this issue.
ISSUE 5 - Alleged sleeping on shift
On Saturday 22nd August at approximately 3am you obtained a sheet and blanket and informed a Care Assistant that you needed to go for a sleep and allegedly went to sleep in Room 49 in B wing and were not reported to be seen again until 4.45am. It is further alleged that on 22nd August you stated to a Care Assistant that when you have a break you usually sleep in the recreational room area on the blue lounge chair.
[35] It was submitted for Ms Mazi there was no evidence that she was sleeping, nor that she went missing at 4.45am. It was noted that the fourth carer on duty that night and who Ms Mazi says was relieved by her at 4am was not called to give evidence, notwithstanding that she is still employed by Ozcare. Ms Mazi was cross examined over this allegation and gave an explanation for her actions at the relevant time and denied sleeping on shift. 40
[36] Ms Wilson in her statement said Ms Mazi appeared to sleep on the relevant night shift from 22 to 23 August, 41 but conceded she did not see Ms Mazi sleeping.42 Ozcare conceded in closing submissions that the allegation of sleeping on shift was not supported by the evidence in the hearing.43 The evidence does not support the allegation and I make no finding adverse to Ms Mazi regarding this allegation.
ISSUE 6 – Alleged Failure to properly supervise Care Assistants
Care staff have reported that on your shifts you did not go to B wing at all during the Outbreak that occurred from 23rd June 2015- 6th July 2015 and that they felt unsupported and anxious, in particular in relation to IS’s fall and AB’s ongoing reports of sore throat, headache and sweats.
These actions, as alleged in points 4,5 and 6, do not meet the expected standards of ethics and professional conduct of a Registered Nurse, the Communication and Teamwork responsibilities listed in your Ozcare position description, and the expected standard of a supervisor on a shift.
[37] There was evidence that Ms Mazi was in B wing during the lock down period. It was submitted for Ms Mazi that her evidence in respect of visiting B wing was not rebutted or disputed by Ozcare.
[38] Ms Mazi’s evidence was that she limited herself to not intervening in the B wing except in cases of emergencies. Ozcare emphasised that Ms Mazi was the only registered nurse on shift for the entire facility. Ms Mazi accepted that PPE was a method of infection control she could have used to enter the B wing as required to attend to residents. Ms Mazi said B wing was in lock down and care staff were kept to the wing. Ms Mazi confirmed she only entered the B wing to attend to four of the residents during the lock down period. 44
[39] Ozcare says that at no stage was Ms Mazi directed not to go to the B wing, and she only went to B wing if there was an emergency, and not in the ordinary course of entering B wing as normal, and she only entered B wing on a small number of times over two weeks.
[40] Personal Carers, Ms Wilson, Ms Patmore and Ms Wright all made statements expressing concern about working under the supervision of Ms Mazi, including that she did not properly supervise them.
[41] I am satisfied Ms Mazi’s decision to limit her presence in B wing to emergencies during the relevant period did not meet the expected standard of professional conduct of a registered nurse, and undermined her employers confidence in her judgement as a registered nurse supervising care staff. It is understandable that the care staff would have been anxious and unsupported as was claimed during this time because of Ms Mazi’s actions.
ISSUE 7 - Failure to attend performance managements meetings
You have failed to attend 3 performance management meetings scheduled on 17th August, 21st August 2015 and 27th August 2015, in contravention of direct instructions from Ozcare management, despite having been advised that failure to do so could potentially result in the termination of your employment.
This action, as alleged, meets the definition of serious misconduct in the Fair Work Regulations, of wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment; and refusing to carry out a lawful and reasonable instruction that is consistent with your contract of employment.
[33] The matter of the way Ms Mazi’s responded to attempts by Ozcare management to engage with her over issues that later became the basis for her termination is an important element of this case, and warrants being set out in some detail. On 7 July 2015 Ms Aitken-Smith sent an email to Ms Mazi advising that a complaint from a resident had been received regarding the matters that are set out in some detail below under the heading issue 8 and her employer wanted to meet with her about the complaint, and Ms Mazi was advised she could bring a support person.
[42] The meeting proceeded on 10 July. Ms Mazi said in her statement that Amy Van Ree opened the meeting by stating that its purpose was to get Ms Mazi’s side of the story, however then informed Ms Mazi that the meeting would canvas other issues which she had no notice of and which were unrelated. Ms Mazi said she felt ambushed during the meeting with no other documentation, and the allegations were general and did not include details of dates or times. Ms Mazi said she requested that the matters be reduced to writing, and Ms Van Ree replied that it was not Ozcare policy to do this and that Ms Mazi should take note of the allegations and respond immediately. 45
[43] Ms Mazi was on leave from 15 July to 29 July. While on leave Ms Van Ree sent Ms Mazi an email to her work server on 22 July 2015. This email indicates that Ozcare had investigated a number of issues, particularly issues that later became Issues 1, 2, 3 and 6 set out above in the show cause letter. The email requested that Ms Mazi make an appointment prior to 31 July to discuss the issues. Ms Mazi said the email of 22 July did not come to her attention until 5 August 2015. 46
[44] Ms Mazi sent an email to Ms Van Ree on 7 August advising she would respond. Ms Van Ree called Ms Mazi to a meeting on 7 August however Ms Mazi advised she was not comfortable discussing the issues without a support person. Ms Mazi sent an email on 8 August 2015. The email of 8 August among other things requested that Ozcare set out in writing the detailed allegations and proposed penalty so that Ms Mazi could know sufficiently what was being said against her and get an adequate opportunity to deal with the allegations. Ms Mazi requested time and access to documentation.
[45] Ms Van Ree then sent an email to Ms Mazi on 11 August stating that she had attempted to ring Ms Mazi the day before and left a message for her to return her call but had not heard from Ms Mazi. The email requested that Ms Mazi please ring the next day to arrange a meeting, and that the meeting would be about the previously disclosed issues and will be Ms Mazi’s opportunity to give her responses to the allegations.
[46] On 13 August Ms Van Ree sent a further email to Ms Mazi proposing that as Ms Mazi worked on night shift, the meeting would take place at 11am on 17 August 2015. The email described the meeting as an investigatory meeting and would give Ms Mazi’s an opportunity to respond to the concerns previously raised and allow Ms Van Ree an opportunity to ascertain the facts from Ms Mazi’s perspective. The email again listed each of the issues.
[47] On 14 August Ms Mazi sent a further email to Ms Van Ree saying further information was required in order for her to adequately respond to the allegations against her. Ms Mazi said that while on duty on 14 August Ms Van Ree telephoned her and Ms Mazi said that she had responded to the email of 13 August and Ms Van Ree had not responded to her email of 8 August. On the afternoon of 14 August Ms Van Ree sent an email to Ms Mazi as follows;
“I have rung you and left you a message for you on your mobile phone. I have also received and read your email, sent to me this morning. However, it is our expectation and directive that you attend a meeting on Monday 17th of August 2015 at 11am in relation to the concerns raised in the email’s sent on 22nd July 2015 and the 13th August 2015. If you do not attend this meeting, further disciplinary action will be taken.
You may bring a support person with to (sic) the meeting if you choose to.
…………………………..
Once again I would like to reiterate the fact that this meeting is mandatory and your attendance is expected.
I will see you on Monday,”
[48] Ms Mazi did not attend the meeting as directed. 47 Ms Mazi said she understood it was mandatory to attend, and the issues involved serious allegations.48 Ms Mazi said in her evidence that 17 August was a Monday and she never works on Mondays. Ms Mazi said she believed it was unreasonable for Ozcare to expect her to attend a meeting when she was not rostered on for work, and there was no lawful requirement for her to do so.49
[49] At 5.22pm on Tuesday 18 August 2015 Ms Mazi was sent an email by Ms Aitken-Smith which included the following:
“As you did not attend a performance meeting with myself and Amy yesterday you are now required to attend a second meeting this Friday 21st at 630am following your night shift. You will be paid whilst attending this meeting…..”
[50] Ms Mazi said she was not rostered on to work on 18 and 19 August and on 20 August she was on sick leave. Ms Mazi did not attend the meeting she was directed to attend at 6:30am on 21 August. Ms Mazi provided a doctors certificate which covered 19 and 20 August. Ms Mazi accepted that she did not notify Ozcare that she would not be attending the meeting on 21 August. 50
[51] The evidence indicates that Ms Mazi was resisting attending any meeting to discuss the issues until she was provided with the further information she sought from Ozcare in her earlier emails.
[52] Ms Mazi was on sick leave from 23 August to 28 August. On 21 August Ms Mazi was sent a letter by registered post from Mr Brett Warhurst, the State Manager – Human Resources noting her failure to attend two previous meetings and requiring her to attend a meeting on Thursday 27 August 2015. Ms Mazi was also sent an email on 26 August advising delivery of the letter was attempted by Australia Post on Tuesday 25 August that was unsuccessful. Ms Mazi was also informed via a message on her phone that she had been suspended and was not to report for work. It transpired that Ms Mazi was hospitalised during this period and was incapacitated and did not become aware of the letter until 1 September. 51
[53] It was submitted for Ms Mazi that she was not legally obliged to attend the meeting on 17 August as she wasn’t rostered for duty at the time and she was not told that she would be paid. The medical certificate Ms Mazi’s produced states that she was unfit for duty on 20 August but not 21 August.
[54] In respect of the third proposed meeting of 27 August it was said Ms Mazi had been hospitalised in the days leading up to 27 August and was still on sick leave when the meeting was supposed to take place. 52
[55] Ozcare submitted that despite clarifying with Ms Mazi that she would be paid for the meeting on 21 August Ms Mazi did not show up and did not have a valid excuse for not showing up as the medical certificate covers her shift for 19th and 20th but not 21 August which is when she was directed to attend.
[56] Ms Mazi also gave evidence that even if she was not sick she probably would not have attended the meeting on 27 August because her requests for further information on 8 August and 14 August had not been met.
[57] Ms Mazi should have advised Ozcare she would not be attending the scheduled meetings of 17 and 21 August. It is her view Ozcare should have understood she would not be attending the meeting on 17 August given her earlier email correspondence referring to difficulty attending meetings without being provided all of the information she requested, however it is not clear from this evidence she was not going to as directed. It is arguable that she could not be required to attend the meeting on 17 August outside her rostered hours, however there was some dispute over whether Ms Mazi would have been paid to attend. Her medical certificate did not cover 21 August, however it was Ms Mazi’s view given she understood the meeting would follow on from the end of what would have been her shift starting from the previous day for which she did have a medical certificate that it was reasonable she not attend. It appears from Ms Mazi’s evidence had she not been sick on 27 August she may well have not attended the third attempt at having a meeting either.
[58] Overall the evidence creates the clear impression Ms Mazi was resisting attending a meeting with Ozcare as directed until she was provided certain particulars by Ozcare. Given the evidence supports the conclusion that Ozcare was wanting to discuss the claims in the first instance this does not appear to be inconsistent with the process as described in the policy HR009 as was argued for Ms Mazi. I do not accept it was reasonable for Ms Mazi to simply not attend the meetings of 17 and 21 August without explanation, or to not advise Ozcare of her intentions not to attend.
ISSUE 8 – Alleged failure to provide a satisfactory level of care to a resident on 2 July 2015.
On 10 July 2015 you responded to concerns raised regarding a complaint made by a resident DH in respect to her treatment by you during the night shift on Thursday 2nd July 2015. Ozcare has considered your response but in light of statements from the client and witnesses, we do not accept that your standard of care to the client was satisfactory.
[59] Some material in this matter refers to this incident having occurred on 2nd July and some material refers to the 3rd of July but it is was common ground that an incident occurred and fact of an incident having occurred was not in dispute, only the specific facts concerning the version of the incident.
[60] Ms Mazi said in her witness statement that the specifics of the allegations in regard to this matter were never put to her in writing. Ms Mazi said in her statement given the time that has lapsed since the incident her recollection of the allegations in incomplete. 53 Ms Mazi said she understood the gist of the allegation was that the resident was unaware her indwelling catheter had been removed before she was transferred to hospital. Ms Mazi said that she believed the documented evidence will show that she removed the residents IDC between the time she assumed her care at 10:35pm and 10:55pm, and she informed the resident at the time she had removed the IDC and that the residents discomfort issues started well before Ms Mazi assumed the residents care at 10:35pm.54
[61] It was submitted for Ms Mazi that her version of events should be accepted but in any event the evidence shows that Ms Mazi took control of the situation at 10.35pm, administered medication at 10.45pm, undertook a clinical assessment, set up equipment and removed a catheter by 11pm, and in those circumstances the treatment was satisfactory.
[62] Registered Nurse Helen Lowe who was on shift before Ms Mazi gave evidence that at approximately 10pm she was preparing to complete her shift and around this time she attended the resident in question who she said was experiencing severe pain in her lower abdomen region because of a catheter. It was Helen Lowe’s evidence that she decided it would assist the resident if the resident’s catheter was taken out and she was preparing to take the catheter out when Ms Mazi came to see her about handover.
[63] Ms Lowe claimed that she told Ms Mazi that she wanted to take the residents catheter out, however Ms Mazi responded by forcefully telling Ms Lowe not to take the catheter out and to proceed with the handover. 55 In her oral evidence Ms Lowe said she told Ms Mazi she was going to take the catheter out and Ms Mazi said “No, you can’t. Give me handover first.”56 Ms Lowe in her evidence attached a file note which she said accurately notes what she said to Ms Kirisome who interviewed her over the incident. The file note is dated 6 July, three days after the date of the incident. The file note also includes notes of a discussion between Ms Kirisome and the resident who had complained about her treatment by Ms Mazi, and also notes of discussions with RN Helen Lowe and personal carer Donna Patmore.
[64] Ms Lowe claims that she was not happy about how Ms Mazi had behaved toward her in relation to the incident and she felt she had been bullied into not taking the catheter out when it was the best thing for the treatment of the resident. 57
[65] Ms Patmore gave evidence 58 that Ms Mazi did not respond to the residents’ complaints that she was experiencing a large amount of pain because of her catheter. Ms Patmore said she was very distressed by the incident. Ms Patmore said the resident was screaming loudly and was obviously in a large amount of pain and it did not seem that anything was being done to help her.
[66] Ozcare submitted the evidence shows two registered nurses having a discussion for at least 5 minutes about a handover with a care assistant nearby, in circumstances where a resident was screaming. Ozcare says for Ms Mazi to insist on a handover in that scenario called into question Ms Mazi’s judgement.
[67] During cross examination Ms Mazi said she recalled a discussion with Ms Lowe and also recalled Ms Patmore saying to Ms Lowe and herself that the resident is in so much distress and she has done as much as she could to comfort her, but she is not a registered nurse and can only do so much. 59
[68] Ms Mazi said in her oral evidence that she went into the residents room and asked for the handover from Ms Lowe because she realised they were talking in front of the resident, and she could tell Ms Lowe was not really sure of what was going on. 60 Ms Mazi said the handover was about 10.30pm.61 Ms Mazi denied that the resident was yelling in pain.62 Ms Mazi said later she did hear the resident being highly agitated and calling out louder, and Ms Patmore came to the nurses’ station and Ms Mazi said she asked Ms Patmore to go and stay with the resident as she was getting the appraisal and she would be there as soon as possible.63
[69] Ms Lowe maintains she went to the nurses’ station where Ms Mazi was and denies that Ms Mazi confined the information she requested from Ms Lowe for handover to the particular resident as had been claimed by Ms Mazi, as this was never said and it was handover for D wing. 64 Ms Lowe claims the discussion at the nurses’ station took 10 minutes.65 In her oral evidence Ms Patmore said she and Ms Lowe walked to the nurses’ station to let Ms Mazi know (what was going on).66 Ms Patmore in her oral evidence largely corroborated the evidence of Ms Lowe concerning the nature of the exchange between Ms Mazi and Ms Lowe.67
[70] I accept the evidence of Ms Lowe and Ms Patmore where it is in conflict with Ms Mazi concerning this incident. They were both direct and consistent in there evidence and have no apparent motive for concocting the allegation. The version of Ms Lowe and Ms Patmore is supported by the file note made only a few days after the incident. The resident’s needs clearly should have been attended to and prioritised over the handover. Ms Lowe as a registered nurse could have ignored Ms Mazi’s demand for the handover at the time given she had equal standing to Ms Mazi, however Ms Lowe appears to have succumbed to pressure from Ms Mazi instead of dealing with the immediate needs of the resident, and has expressed regret for having done so. It appears both registered nurses showed a lack of judgement in this situation but it was Ms Mazi’s actions in placing priority on the handover over the immediate care needs of the resident that caused a resident in urgent need of assistance to go unattended for what appears from the evidence to be for a period in the order of 5 to 10 minutes.
[71] The evidence supports Ozcare’s conclusion that the standard of care provided by Ms Mazi to the resident was not satisfactory.
Progress of investigation
[72] After the failed attempts to meet with Ms Mazi to discuss the issues on 17, 21 and 27 August, on 1 September 2015 Ozcare sent a four page letter to Ms Mazi from Ms Aitken Smith setting out in detail allegations and giving her an opportunity to respond to those allegations in writing. A response was requested by 12pm Thursday 3 September, with a meeting to follow on Friday 4 September 2015 to discuss the response. Ms Mazi was advised she was suspended on pay.
[73] On 1 September Ms Mazi commenced a grievance in respect of the performance management process. Later that day Ms Mazi spoke to Mr Brett Warhurst and they later exchanged emails. Mr Warhurst advised Ms Mazi to disregard the requirement to respond to the letter from Ms Aitken Smith, and the meeting scheduled for 4 September was put back to 11 September. Ms Mazi said during a meeting with Mr Warhurst he advised that the performance management process had been poorly implemented and he would undertake an investigation, and failure to grant access to the relevant documents was inappropriate.
[74] On 15 September Mr Warhurst sent correspondence to Ms Mazi setting out his conclusions regarding her complaints concerning the investigation process and the conduct of Ms Aitken Smith and Ms Van Ree. His correspondence advised that he dismissed Ms Mazi’s claims of bullying and harassment, but acknowledging some deficiencies in the process.
[75] On 16 September Mr Warhurst sent Ms Mazi further correspondence again providing Ms Mazi an opportunity to respond in writing to the allegations made against her, and advising that her response forms part of Ozcare’s consideration to allow Ms Mazi to show cause why Ozcare should not now consider disciplinary action up to and including the termination of her employment.
[76] Ozcare submitted that the claim made by Ms Mazi that the investigation was unfair because she wasn’t given sufficient information about the allegations is unfounded. Ozcare submit Ms Mazi’s claims regarding being denied information involve the earlier stage of the process when Ozcare had not yet moved to requiring a formal response to allegations. It was put that once the facts were gathered, if Ozcare determined there was a problem, then Ozcare would meet with the employee to discuss the problem. Ozcare argued its approach was consistent with HR009.
[77] Ozcare submits that Ms Mazi was not full and frank with it in the investigation process. Ozcare said Ms Mazi understood that the issues were serious allegations against her and that she was being directed to attend a meeting about the issues and Ms Mazi did not even respond.
[78] As it was put for Ozcare in closing submissions, step one is to identify if there is a problem, and if there is a problem to meet with the employee. Ozcare denies that the fact Ms Mazi was told she would be given access to the documents at the meeting therefore meant Ms Mazi would be denied access to the documents at other times, documents she would have access to while at work.
[79] Ozcare points to Ms Mazi’s substantive response in her witness statement in the unfair dismissal proceedings and all of the attachments to her witness statement compared to her response to the show cause letter before her termination. Ms Mazi admitted that this material was available to her at the time she was responding to the show cause letter. 68Ozcare said that the fact Ms Mazi can now engage in the allegations and give her version of events, meant she was able to do that at the time she was still employed and given the show cause letter, but she did not do so. Ozcare claimed that Ms Mazi was obfuscating from the very beginning.
[80] Ozcare referred to the decision in Ikechukwu v Goodwin Aged Care Services Limited 69where it found that an employee was given a reasonable opportunity to respond to allegations, and that the paramount duty of care of an employer who operates an aged care facility is to the vulnerable elderly patients.
[81] Importantly Ms Mazi accepted that the material that informed her two hundred and twenty nine paragraph witness statement and attachments for the purposes of the unfair dismissal proceedings was available to her when she responded to the show cause letter of 16 September. 70 It is evident from her response to the show cause letter that she did not raise much of what she could have at the time, and to that extent I accept that Ms Mazi was not full and frank during the investigation process.
[82] Much time was spent in the course of the hearing of this matter on issues associated with whether Ms Mazi was afforded procedural fairness in the course of Ozcare reaching its conclusions. Time was spent examining limitations placed on Ms Mazi’s ability to collective relevant information to make a full response to the allegations. I am of the view that Ozcare should have made more effort to assist Ms Mazi in this regard and it is not a reasonable position to expect an employee to utilise rostered hours of work to also collect information to respond to issues raised against them as was suggested by witnesses for Ozcare.
[83] Ultimately however it is clear Ms Mazi was given an opportunity to address the issues raised against her before she was dismissed and could have done so in a more fulsome way had she wanted to at the time. Ms Mazi was resisting engaging with the issues and it appears focussed much energy on raising procedural arguments as opposed to confronting the issues themselves.
CONCLUSION
[84] As has been observed previously by this Commission aged care residents are totally or heavily reliant on the staff of aged care facilities for personal care including feeding, toileting, showering and dressing 71 as well as responding to their needs quickly if a medical issues arises.
[85] I am satisfied when consideration is given to the totality of the evidence concerning the conduct of Ms Mazi in performing her duties as a registered nurse and her reluctance to engage with Ozcare’s efforts to investigate the issues, particularly in connection with the findings set out above in regard to issues 1,2,6,7 and 8 that Ozcare had a valid reason for termination.
[86] Ms Mazi was notified of the reasons for termination. Ms Mazi was given an opportunity to respond to the reasons related to her conduct. Ozcare did not refuse Ms Mazi a support person for the purpose of discussions. The employer is a large employer with sophisticated procedures for dealing with dismissal and has dedicated human resources staff. I am satisfied Ozcare was entitled to have formed the view that it had lost trust and confidence in Ms Mazi, given the issues themselves and also Ms Mazi’s unresponsive attitude to the allegations levelled against her. To the extent that there were procedural failings in the course of Ozcare’s investigative process, having weighed all of considerations required by s.387 of the Act I am not satisfied the dismissal was harsh, unjust or unreasonable, and on that basis the application is dismissed.
COMMISSIONER
Appearances:
Mr Brown Reichman Lawyers for the Applicant
Mr Procter DLA Piper Australia for the Respondent
Hearing details:
Brisbane
March
3 and 4
1 Exhibit 1 Witness Statement of Grace Mazi dated 7 December 2015.
2 Exhibit 2 Witness Statement of Alice Nicole Wilson dated 14 January 2016
3 Exhibit 3 Witness Statement of Helen Lowe.
4 Exhibit 4 Witness Statement of Brett William Warhurst.
5 Exhibit 5 Witness Statement of Donna Lee Patmore.
6 Exhibit 6 Witness Statement of Adele Margaret Wright.
7 Exhibit 7Witness Statement of Amy Michelle Van Ree.
8 Exhibit 8Witness Statement of Angela Aitken-Smith
9 Exhibit 9 Witness Statement of Lana Ramsay.
10 PN 54-55.
11 Exhibit 7 Witness Statement of Amy Michelle Van Ree, attachment 13.
12 PN 151.
13 PN 157.
14 PN 159.
15 PN 173-179.
16 The Nursing Guidelines: Management of Medicines in Aged Care, pg 13 7:1.
17 PN 1741.
18 PN 184.
19 PN 196.
20 PN 1765.
21 PN 1767.
22 Exhibit 1 Witness Statement of Grace Mazi dated 7 December 2015, paragraph 9.4.
23 PN 553-555.
24 Exhibit 2 Witness Statement of Alice Nicole Wilson dated 14 January 2016, paragraph 11.
25 PN 587-588.
26 Exhibit 9
Witness Statement of Lana Ramsay, paragraph 13.3-13.4.
27 Witness Statement of Lana Ramsay, paragraph 13.7.
28 PN 1674.
29 Exhibit 1 Witness Statement of Grace Mazi dated 7 December 2015, paragraph 153 attachment CC.
30 Exhibit 1 Witness Statement of Grace Mazi dated 7 December 2015, paragraph 167.
31 PN 1741.
32 PN 224-227.
33 PN 327.
34 Exhibit 1 Witness Statement of Grace Mazi dated 7 December 2015, paragraph 216.
35 PN 274.
36 PN 1741.
37 Exhibit 1 Witness Statement of Grace Mazi dated 7 December 2015, paragraph 187-201.
38 PN 1741.
39 PN 602.
40 PN 285-16.
41 Exhibit 3 Witness Statement of Alice Nicole Wilson dated 14 January 2016, paragraph 5.3.
42 PN 677.
43 PN 1779.
44 PN 518.
45 Exhibit 1 Witness Statement of Grace Mazi dated 7 December 2015, paragraph 27.
46 Exhibit 1 Witness Statement of Grace Mazi dated 7 December 2015, paragraph 35.
47 PN 351.
48 PN 338-343.
49 Exhibit 1 Witness Statement of Grace Mazi dated 7 December 2015, paragraph 69.
50 PN 402.
51 PN 448.
52 PN 1745.
53 Exhibit 1 Witness Statement of Grace Mazi dated 7 December 2015, paragraph 225.
54 Exhibit 1 Witness Statement of Grace Mazi dated 7 December 2015, paragraph 229 -231.
55 Exhibit 3Witness Statement of Helen Lowe , paragraph 5.4
56 PN 733.
57 Exhibit 5 Witness Statement of Donna Lee Patmore, paragraph 7.
58 Exhibit 5 Witness Statement of Donna Lee Patmore, paragraph 7 7-9.
59 PN 99.
60 PN 111.
61 PN 114.
62 PN 114 -118.
63 PN 119.
64 PN 790-799.
65 PN 765.
66 PN 953.
67 PN 961-972.
68 PN 487 to PN 492
69 [2013] FWC 10064.
70 PN 491.
71 Chmielewski v Arcare Pty Ltd[2014] FWC 3076, paragraph 31.
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