Julie Allan v Monash Health
[2021] FWC 3450
•17 JUNE 2021
| [2021] FWC 3450 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Julie Allan
v
Monash Health
(U2020/9271)
COMMISSIONER CIRKOVIC | MELBOURNE, 17 JUNE 2021 |
Application for unfair dismissal remedy.
[1] Mrs Julie Allan (Applicant) was employed by the Monash Health (Respondent) from 22 October 2001 until 16 June 2020. The Respondent is the largest provider of public health services in Victoria and operates hospitals and other facilities across Melbourne, Victoria. The Applicant was employed in the position of Division 1 Registered Nurse at the Monash Medical Centre in Clayton.
[2] The Applicant’s employment was governed by the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2016-2020 (Agreement).1
[3] The Applicant’s employment with the Respondent was terminated on 16 June 2020 without notice on the grounds of, amongst other things, serious misconduct.
[4] On 7 July 2020, the Applicant made an application for relief from unfair dismissal under section 394 of the Fair Work Act 2009 (Act).
[5] The matter did not resolve at conciliation and proceeded to arbitration before me on 28 October 2020, 6 November 2020, 9 December 2020 and 14 December 2020.
[6] The Respondent sought permission, under s.596 of the Act. Following receipt of the Respondent’s submissions, the Applicant confirmed that she did not oppose the Respondent being represented. 2 I was satisfied having regard to the complexity of the matter that the matter would be dealt with more efficiently if the Respondent was allowed to be represented. Accordingly, I exercised my discretion pursuant to s.596(2)(a) of the Act to grant permission to the Respondent in this regard.
[7] At the commencement of the hearing, with the consent of the parties, I issued an order deidentifying patients of the Respondent, the subject of the allegations. 3
Background
[8] It is of assistance, at this juncture, to briefly set out the largely uncontested background leading up to this matter.
[9] In or around April 2019, the Applicant commenced employment with the Respondent as a Division 1 Registered Nurse on ward 54 of the Monash Medical Centre in Clayton (Ward 54).4 The Applicant had previously worked for the Respondent as a nurse from 1986 to 1996 and between 2001 and 2019.5
[10] Between late 2019 and early 2020, the Applicant took a period of time away from work due to health issues. When she returned, the Applicant was placed on a “Fit 4 Work” return-to-work plan from 27 January 2020 (RTW Plan).6
[11] Between 9 and 20 April 2020, a number of complaints and one “Comprehensive Report” recorded in the riskman recording system (Riskman) were received by the Respondent in relation to the Applicant.7
[12] On 24 April 2020, Mr Ratcliffe met with the Applicant to inform her she was being placed on a Clinical Performance Improvement Plan (First CPIP). The First CPIP was to commence on 27 April 2020 and run for four weeks, during which the Applicant would be supervised by, and receive contemporaneous feedback from a Clinical Nurse Supervisor (CNS). On each shift that the Applicant worked, the assigned CNS would be required to complete a daily Staff Performance Report (SPR) about the Applicant, which would identify her achievements and areas for further learning.
[13] During the period of the First CPIP, the Applicant worked shifts on:
• 27, 28 and 30 April 2020 as well as 1, 4, 5 and 7 May 2020 – during which her CNS was Ms Martin, Clinical Nurse Specialist. 8
• 11 May 2020 – during which her CNS was Mr Jesus Monzon, Registered Nurse. 9
• 12 May 2020, during which her CNS was Ms Rachel Hanson, Clinical Nurse Educator.10
• 14, 15, 18, 19, 21 and 22 May 2020, during which her CNS was Ms Marieke Van Venrooy, Registered Nurse.11
[14] On 27 May 2020, the Applicant met with Mr Ratcliffe and Ms Rochelle Miller, HR Business Partner, People & Culture. Ms Van Venrooy also attended this meeting and took minutes.12 At this meeting the Applicant was informed that she had not met the requirements of the First CPIP and was being placed on a further Clinical Performance Improvement Plan (Second CPIP).13
[15] On 28 May 2020, the Applicant met with Mr Ratcliffe and was handed a letter containing 13 allegations relating to both her conduct and performance which were alleged to have occurred over the course of the First CPIP (Allegations Letter). The subject line of the Allegations Letter was ‘Formal Investigation’. The Allegations Letter stated that a meeting had been scheduled on 1 June 2020 during which the Applicant would be given an opportunity to respond to each of the allegations, with the Respondent’s preference being that these responses be provided in writing.14
[16] On 29 May 2020, the Applicant worked a shift during which her CNS was Ms Van Venrooy. During this shift, there was an incident involving the two women. Subsequently, at the direction of Ms Miller, the Applicant departed her shift early.15
[17] On 1 June 2020, the Applicant attended the scheduled meeting which was also attended by Mr Ratcliffe and Ms Miller.16 There is dispute between the parties as to what transpired at the meeting, and whether or not Ms Allan was given an opportunity to respond to each of the allegations. I deal with this issue later in the decision.
[18] On 12 June 2020, the Applicant, together with a representative of the Australian Nursing and Midwifery Federation (ANMF), attended a meeting with Mr Ratcliffe and Ms Miller.17 During this meeting, the Applicant was provided with a letter dated 9 June 2020 (Findings Letter). The Findings Letter stated that each of the allegations particularised in the Allegations Letter had been substantiated and that the Respondent had determined the Applicant had engaged in serious misconduct in breach of a number of its policies and procedures, the Nursing Midwifery Board of Australia professional standards (NMBA Professional Standards) and code of conduct (NMBA Code of Conduct) and the “expectations” detailed in her position description. It also stated that the Respondent was considering taking disciplinary action against the Applicant, including termination of her employment “as per” the Agreement.
[19] On 16 June 2020, the Applicant was telephoned by Ms Miller who advised her that the investigation had concluded, and a decision had been made to terminate her employment with the Respondent.18 Later that day a termination letter dated the same day (Termination Letter) was sent to the Applicant via email. The Termination Letter relevantly stated:19
“RE: Notice of Termination of Employment
As discussed with you on 16 June 2020, this (sic) Monash Health has now concluded the investigation and review of disciplinary action relating to the allegations of serious misconduct as detailed in correspondence to you dated 9 June 2020.
Monash Health met with you on 12 June 2020 held in Meeting Room 2 at 2pm with Paul Ratcliffe - Nurse Manager Ward 54 and Rochelle Miller, Business Partner People and Culture. The purpose of the meeting was to discuss the outcome to the allegations as outlined in correspondence dated 9 June 2020 and to provide you with an opportunity to provide any further information for consideration in relation to disciplinary action.
From your responses you have not provided a reasonable explanation for your conduct/behaviour. Taking this into consideration and after careful deliberation, Monash Health has determined to terminate your employment effective immediately from 16 June 2020.”
[20] The Termination letter went on to state that the Applicant’s conduct had been in breach of the Respondent’s policies and procedures, the NMBA Professional Standards and NMBA Code of Conduct and the “expectations” detailed in her position description. It replicated sections of the Findings Letter which set out the relevant provisions of these instruments.
Initial matters to be considered
[21] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the Applicant’s application.
[22] There is no dispute between the parties, and I am satisfied on the evidence that:
(a) the Applicant’s application was made within the period required in s.394(2) of the Act;
(b) the Applicant was a person protected from unfair dismissal;
(c) the Respondent was not a “small business employer” as defined in s.23 of the Act, meaning that the Small Business Fair Dismissal Code does not apply; and
(d) the Applicant’s dismissal was not a case of genuine redundancy.
[23] Consequently, I am satisfied that the Fair Work Commission (Commission) has jurisdiction to determine the merits of the application.
Evidence
[24] The Applicant relied upon submissions from herself and evidence given at the hearing.
[25] The Respondent relied on witness statements and evidence at hearing from the following of its employees:
(a) Mr Paul Ratcliffe, Nurse Manager;
(b) Ms Rochelle Miller, Senior HR/ER Business Partner;
(c) Ms Rachel Hanson, Clinical Nurse Educator;
(d) Ms Isabell Clements, Clinical Nurse Specialist;
(e) Mr Jesus Monzon, Registered Nurse;
(f) Ms Catherine Britten, Associate Nurse Unit Manager;
(g) Ms Marieke Van Venrooy, Registered Nurse; and
(h) Ms Julie Martin, Registered Nurse.
[26] Each of the witnesses was subject to cross examination.
[27] Before turning to examine the merits of the application, it is of assistance at this juncture, to consider the evidence that was given by each of the witnesses. I note for completeness the Respondent’s submission that “in light of the applicant’s multiple admissions”, it is unnecessary for the Commission to make adverse findings “for the purpose of determining which witness’s evidence should be preferred”.20 I disagree.
[28] While I acknowledge the difficulties the Applicant faced in prosecuting her application as a self-represented litigant, regrettably, I found her to be an unimpressive witness. Her evidence was, on the whole, evasive, self-serving and , and she did not make reasonable concessions. Examples of this are set out below.
[29] In response to questions from the Respondent’s Counsel regarding a conversation between the Applicant and Ms Clements in relation to an incident of 13 April 2020, I note the following exchange:
MR J TRACEY: You haven't answered my question by what you have just said then, Ms Allan. Please just reflect on the question and answer it, if you would. The question is, and maybe you did answer this, but tell me if I'm wrong, you said that you denied that it was you who had left the Targin on the desk and you didn't know who had left it there. That's what you said to Ms Clements, isn't it?
THE APPLICANT: No
MR J TRACEY: Sorry, I didn't hear your answer?
THE APPLICANT: No, no, I didn't deny I'd left it there.
MR J TRACEY: And Ms Clements said to you that it is extremely important that the medication be locked away. That's what she said, isn't it?
THE APPLICANT: Oh, I don't remember exactly what she said, but it wouldn't surprise me that she would say something inappropriate like that. She doesn't need to reinforce that, it's so obvious. I'm well aware that - -
MR J TRACEY: Sorry, did you say that what she said was inappropriate or appropriate? I misheard your - I'm not sure what you said?
THE APPLICANT: Inappropriate, her attitude was inappropriate and - - -
MR J TRACEY: Hang on, you said that what she said was inappropriate. That was your evidence; is that right?
THE APPLICANT: Towards me, yes, it was.
MR J TRACEY: Let's just look at what she said. She said, "It is extremely important that the medication be locked away." That's not inappropriate?
THE APPLICANT: Well, it is, considering my level of experience and that I know that - registered nurse to registered nurse, we don't need to patronise each other when we make an error. It doesn't help and it doesn't improve performance, it doesn't - -
MR J TRACEY: That's not patronising you, Ms Allan, that's not patronising you, is it, that's just telling you how important it is that Schedule A medication be locked away. That's not patronising?
THE APPLICANT: No, it's - it's more than patronising.
MR J TRACEY: I suggest to you that that reveals an immaturity - - -?---(Audio malfunction.) … That reveals an immaturity in your attitude, Ms Allan. If you can't take criticism even of that most mild kind, that shows that you are not up to being a nurse; do you agree?
THE APPLICANT: No, not at all.
MR J TRACEY: Ms Clements said to you, "It is extremely important that the medication be locked away" and then you said after that, "Oh, it may have been me who left the Targin unattended on the desk." That's what you said in words to that effect, didn't you?
THE APPLICANT: I didn't say that in no words to that effect, no, I didn't say that. I didn't deny that I'd left it there.
MR J TRACEY: I suggest to you you did deny it and then you admitted it. You denied it, then you admitted it?
THE APPLICANT: No, no, I did not deny leaving the Targin there five minutes before, no.
MR J TRACEY: Five minutes before you'd left it there? It had been there for five minutes?
THE APPLICANT: I (audio malfunction).
MR J TRACEY: Is that how long it was there, five minutes on the desk?
THE APPLICANT: Yes, before Isobel went and correctly locked it up in the medication cupboard.
MR J TRACEY: You left the Targin on the desk unattended; is that your evidence?
THE APPLICANT: No, it wasn't unattended as it was in - I'm not even - I'm not so sure that I didn't say, "Here is Mrs, you know, Green's" - that wasn't her name - "Here's her Targin." I'm not so sure that I didn't actually hand it over.
MR J TRACEY: Well, the evidence will be that you didn't do that and that's from witnesses who were there?
THE APPLICANT: Well, why did she take receipt of it and lock it up?
MR J TRACEY: I beg your pardon?
THE APPLICANT: If I didn't - well, why did Isobel then, you know, walk away with it, why did she take it and - - -
MR J TRACEY: I will suggest this answer to you, Ms Allan: the reason that she did go and lock it up was because she was fixing up something that you had failed to do in the discharge of your responsibility as a nurse; do you agree?
THE APPLICANT: Yes, that's right.
MR J TRACEY: Yes. That was a serious error to leave dangerous medication lying around where patients could get access to it, wasn't it?
THE APPLICANT: Yes, it was just - it was - look, it was an inadvertent thing and from time to time, people within a team, you do those sort of things, not often, and I could say in my nursing career I would have done it - probably that would be the one and only time I've ever done that and you don't - you have faith in the people that you work with and you don't, you know, you don't - if they do it once, they do it twice, they do it three times, then you start to say that it's very serious, and that's (audio malfunction).
MR J TRACEY: It's a serious - I'll put the question to you again?
THE APPLICANT: (Audio malfunction.)
MR J TRACEY: I'm not asking you to make excuses, Ms Allan?
THE APPLICANT: (Audio malfunction.)
MR J TRACEY: I will put the question to you again. It's a serious error of yours, as a nurse, to leave a Schedule A medication, Targin, lying around on the ward; do you agree?
THE APPLICANT: It's against protocol.
MR J TRACEY: It's a serious error. Do you accept that it is a serious error?
THE APPLICANT: If it was - if it was a - no. If it was happening once, twice, three times, that would be serious. It's - it's not the way Monash Health (audio malfunction). You're not to do it like that.
MR J TRACEY: By refusing to agree that it's a serious error, you are showing that you have no insight into the serious nature of your conduct in leaving the Targin lying around. Do you wish to comment on that?
THE APPLICANT: I think I do - I think I was showing - I am showing insight in saying that its serious, and the fact that it wasn't left unattended and the fact that I had actually removed it from the patient and the previous nurse had not done so, and this patient actually wasn't a neurology patient and was a gen med patient. If you're suggesting - I mean any patient, though, shouldn't have, you know, but you specifically wouldn't term a neurology, (indistinct) patient as being of particular concern, but any patient (audio malfunction) this lady was a gen med patient and she had it there for who knows how long. That is a serious - well, that's why we work together as a team.
[30] In response to a question from Counsel for the Respondent as to whether a letter of 28 May 2020 included a number of staff performance reports, I note the following exchange:
MR J TRACEY: No, I didn't ask you about anything about disciplinary action, I just asked you whether you were invited to prepare a written response to bring to that next meeting. That's what happened, isn't it?
THE APPLICANT: I was asked for a written response.
MR J TRACEY: Yes?
THE APPLICANT: That was the preference.
MR J TRACEY: Yes. And you were also told or invited to have a support person who could come along with you to the further meetings. Do you agree?
THE APPLICANT: I agree, yes.
MR J TRACEY: And the letter - so this is the letter of 28 May - it came - with that letter were enclosed a number of staff performance reports that dealt with the CPIP period. Do you agree?
THE APPLICANT: I need to say more than agree or disagree, because Paul - they handed me some information, and they happened to be - I now know that they were that - some of the SPRs and some RiskMan - some incident reports - - -
MR J TRACEY: Yes, so you - so the answer - - - ?
THE APPLICANT: I never - pardon?
MR J TRACEY: The answer to my question is yes, you received SPRs with that letter?
THE APPLICANT: Well, no, it isn't because I - - -
MR J TRACEY: You just said you did. You just said you did?
THE APPLICANT: Yes. I think they were of a confidential nature, and I didn't understand that - I gave them back. I returned them to Catherine Britten, who said I shouldn't - - -
MR J TRACEY: I didn't ask you whether you gave them back. I didn't ask you whether you gave them back, I asked you whether you received - - - ?
THE APPLICANT: --(Indistinct reply)
MR J TRACEY: - - - very important you give truthful evidence, Ms Allan. You received the SPRs, didn't you - - - ?
THE APPLICANT: truthfully. 100 per cent truthful. I returned - so I didn't receive them. I held them and returned them.
MR J TRACEY: I'm sorry, Ms Allan, that's just being rather clever, isn't it? Let's just look at what happened. You received a letter that had enclosed with it some staff performance reports or SPRs, didn't you?
THE APPLICANT: They were handed separately. And as I said, I saw that they were of a confidential nature. I didn't take receipt of them. I returned them immediately as soon as I - to Catherine Britten.
MR J TRACEY: Nobody told you to return them, did they - - - ?
THE APPLICANT: And the person - Catherine said
MR J TRACEY: No, I didn't ask you anything about Catherine Britten. Please answer my questions, Ms Allan. I didn't ask you anything about Catherine Britten. My question is - - - ?
THE APPLICANT: Commissioner - - -
MR J TRACEY: No, I know. Answer my questions, please. Ms Britten was not part of my question, so please focus on the question, Ms Allan. The question is this: nobody told you to return those SPRs to Ms Britten or anyone, did they?
THE APPLICANT: They accepted receipt of them when I returned them. Catherine did.
MR J TRACEY: That's not an answer to my question, Ms Allan. I said to you: nobody told you to return those SPRs to Monash Health, did they?
THE APPLICANT: They were received receipts when I returned them. That is - that's equivalent to - - -
MR J TRACEY: No, it's not, Ms Allan. No, it's not - - - ?
THE APPLICANT: they accepted them back.
MR J TRACEY: I didn't ask you whether they were accepted - - - ?
THE APPLICANT: -(Indistinct reply)
MR J TRACEY: I didn't ask you whether they were accepted. Please answer my questions, Ms Allan. Please be honest?
THE APPLICANT: Yes.
MR J TRACEY: No one told you, did they? The answer is no, isn't it?
THE APPLICANT: You're answering the question for me.
MR J TRACEY: I'm putting to you that that is the true answer. It's the true answer, isn't it? No, nobody told you - nobody told you to return them - that's the SPRs - did they?
THE APPLICANT: Cirkovic C, I was handed - I was given a list of allegations. I was also given at the same time some RiskMan and some - what I now know to be the SPRs. I glanced at them. I saw that they had confidential information, and I assumed that that was an error that I had been given these, so I rolled them up, went back to - straight to the office, and gave them to Ms Britten, and she received them. And she looked down and she said, "Ratcliffe". That's what happened - - -
[31] In response to a question from the Respondent’s Counsel regarding a meeting of 12 June 2020 at which the Respondent alleges the Applicant accepted the findings of a letter dated 9 June 2020, I note the following exchange:
MR J TRACEY: You said in that meeting that you had read the letter, so that's the letter which had the substantiated findings; is that right?
THE APPLICANT: Yes, well, I saw that they were substantiated. I read it there.
MR J TRACEY: You said you had read the letter; do you agree?
THE APPLICANT: I was - when did I read the letter before the interview?
MR J TRACEY: Please, Ms Allan, it's not for you to ask me questions, I ask you questions, and my question is very simple: you said that you had read the letter?
THE APPLICANT: Well, not in the past tense, I was reading - I was reading the findings - the findings. (Audio malfunction.)
MR J TRACEY: You said that you accepted all of the findings?
THE APPLICANT: Pardon?
MR J TRACEY: You said that you accepted all of the findings?
THE APPLICANT: I said that - and I hope that I've made it clear that I accepted that they had substantiated them, that they had found - because I acknowledged they had substantiated.
MR J TRACEY: It's very simple, Ms Allan, a very simple question. You said, "I accept all the findings", or words to that effect?
THE APPLICANT: I didn't make - I didn't make a statement like that. I said that I acknowledged the fact that they had substantiated the - I was trying to be respectful - that they had substantiated them. I didn't say I agreed with them or I accepted them.
MR J TRACEY: I suggest to you that you did say you accepted the findings. Do you disagree?
THE APPLICANT: Well, it depends what you mean by "accepted".
MR J TRACEY: No, I'm just asking you what you said, I'm not asking what anything means, I'm just simply asking you: did you say that you accepted all of the findings?
THE APPLICANT: I don't recall making a statement like that, but I'm not saying that I didn't say that either.
[32] In response to questions from the Respondent’s Counsel in relation events on 28 May 2020, I note the following exchange:
MR J TRACEY: I see. I'm going to move to 28 May. Again, this is Ms Van Venrooy supervising you on that date. Do you recall that? You will just need to answer for the transcript, Ms Allan?
THE APPLICANT: Yes, yes, yes.
MR J TRACEY: Thank you. At 12.20 on that day, do you agree there was a code blue?
THE APPLICANT: No, I don't recall that.
MR J TRACEY: Well, there was a code blue, I suggest to you, that you didn't respond to and other nurses had to respond to it?
THE APPLICANT: I didn't respond to a code blue, no.
MR J TRACEY: No, but you're aware of a code blue that other nurses had to respond to?
THE APPLICANT: Not really, no - when I say, "not really", is that - there was a code blue at some stage.
MR J TRACEY: Yes, see if this refreshes your memory: on 28 May there was a code blue around the middle of the day, 12.20, approximately, and the patient actually died. Do you recall?
THE APPLICANT: No, I don't, no, no. I wasn't involved in the alert.
MR J TRACEY: Ms Van Venrooy will give evidenced that she was involved in the code blue. You agree that would be very difficult for her and for any nurse, when there is a code blue. You agree?
THE APPLICANT: This is on 27 May?
MR J TRACEY: 28 May?
THE APPLICANT: 28 May?
MR J TRACEY: Yes?
THE APPLICANT: Yes, it's a difficult - yes, it's a difficult - but people are trained so they know how to respond. Difficult but it's not within the scope of (indistinct).
MR J TRACEY: She would describe this as a horrible time. It was quite bad because the patient died. Now, that's a fair way for her to look at this, isn't it?-
THE APPLICANT: Yes. She didn't mention - she didn't discuss it with me.
MR J TRACEY: 12.35, I'm going to suggest to you, Ms Van Venrooy stepped in to help another nurse to wash, reposition one of your patients and to change their incontinence pad because you had not responded to Ms Van Venrooy’s earlier prompts to do that on the shift. Do you agree?
THE APPLICANT: No, I don't.
MR J TRACEY: She said that - she will give evidence that on that shift - this is Ms Van Venrooy- she prompted you to change the bed sheets for two of your patients and that she stripped back the beds to start that process but you didn't complete that task on the shift. Do you agree?
THE APPLICANT: She didn't - she stripped back the beds. It wasn't me who didn't complete it.
MR J TRACEY: Yes, it was, because you didn't change the bed sheets for your two patients, despite Ms Van Venrooy requesting you to do so?
THE APPLICANT: No, no. This is after the code blue?
MR J TRACEY: Yes, it is after the code blue?
THE APPLICANT: No.
MR J TRACEY: I'm not sure if I understand your answer, "No." I'm suggesting to you this - that you failed to change the bed sheets for two of your patients, despite being prompted by Ms Van Venrooy to do so. Is that correct?
THE APPLICANT: Incorrect.
MR J TRACEY: You didn't do it, did you? You didn't change the sheets?
THE APPLICANT: It's a different question you're asking me. You know, you're saying - - -
MR J TRACEY: Please answer the question. You didn't change the sheets, did you?
THE APPLICANT: I didn't - that's correct. Well, I'm taking your word for it.
MR J TRACEY: It's your evidence, Ms Allan. I put to you that you did not change the bed sheets for those two patients of yours on 28 May. That's correct, isn't it?
THE APPLICANT: I don't recall.
MR J TRACEY: I might suggest to you, Ms Allan, that your evidence is inconsistent because a moment ago you seemed to have a clear recollection of this. Now you're saying you don't recall. Which one is it?
THE APPLICANT: I hope you really - no, I didn't have a clear recollection of - this, do you mean changing sheets?
MR J TRACEY: Your evidence, as I understood it a moment ago, was to the effect that Ms Van Venrooy was at fault for not completing the changing of the bed sheets. That's what you said, isn't it?
THE APPLICANT: Yes, I did say that, yes.
MR J TRACEY: So that suggests to the Commission that you had a clear memory of this event and now you're saying you don't recall it?
THE APPLICANT: Well, I didn't - - -
MR J TRACEY: Which one is it; clear memory or don't recall?
THE APPLICANT: I don't recall. I don't recall.
[33] I consider that the evidence of each of Ms Britten, Ms Clements, Mr Monzon, Ms Martin, Ms Hansen and Ms Van Venrooy credible and reliable. They answered all the questions put to them in a forthright and direct way, and accepted propositions put to them by the Applicant.
[34] With respect to the evidence of Mr Ratcliffe and Ms Miller, I note that at times their evidence was defensive and unsatisfactory.21 Nevertheless, I consider that on the whole they gave credible evidence which I have accepted. To the extent that it has been necessary to resolve an evidentiary contest between the Applicant and Mr Ratcliffe and Ms Miller, I have made appropriate findings on a case-by-case basis.
[35] Some of the evidence before me strayed from factual matters into hearsay, opinion, assumption and commentary. I place reduced levels of weight on such evidence except where corroborated by direct evidence, where it was uncontested, or inherently believable. While I am not bound by the rules of evidence, I consider them to be a good and useful general guide. I adopt the approach of a Full Bench of this Commission which has said:
“The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s. 577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances.” 22
Was the dismissal harsh, unjust and/or unreasonable?
[36] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether the Applicant’s dismissal was harsh, unjust and/or unreasonable. I will address each of these statutory considerations in turn below.
Valid reason (s.387(a))
Legal Principles
[37] The relevant standard of proof is the balance of probabilities. The onus of proof is bore by the Applicant in proving her dismissal was harsh, unjust, or unreasonable. 23
[38] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal.24 The reason for the dismissal should be “sound, defensible and well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”25
[39] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.26 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees -and in this case, patients).27
[40] In cases relating to alleged misconduct, the Commission must make a finding on the evidence provided as to whether, on the balance of probabilities, the conduct occurred. It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. Where allegations of misconduct are made, the standard of proof in relation to whether the alleged conduct occurred remains the balance of probabilities. However, as the High Court said in Briginshaw, the nature of the relevant issue necessarily affects the ‘process by which reasonable satisfaction is attained’,28 and where serious allegations are made, such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’ or ‘circumstances pointing with a wavering finger to an affirmative conclusion’.29
[41] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post as follows:30
“[35] … as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a “valid reason” should not impose a severe barrier to the right of an employer to dismiss an employee.
[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”
Reason relied upon by the Respondent
[42] I have set out below the allegations relied on by the Respondent in support of its submission that a valid reason exists. The Respondent submits these individually and collectively constituted a valid reason for the Applicant’s dismissal.31 The allegations are taken from a document prepared by the Respondent headed “Respondent’s Table of Allegations” (Allegations Table). For completeness I note that the Respondent also relies on allegations set out in the Allegations Letter and the Findings Letter (which in essence are identical) and I note the differences between the Allegations Table and these letters. I have dealt with these differences by taking into account each of the allegations set out in both documents. These are as follows:
• Allegation 1: On 7 May 2020 at 08.00am the Applicant failed to administer patient medication in accordance with the Monash Health Medication Administration Procedure (Medication Procedure) with a delay of two and a half hours which resulted in a medical emergency team call (MET Call) response at 10.00am (according to the Allegations Table) or 10.31am (according to the Allegations Letter).
• Allegation 2: On 19 May 2020 the Applicant failed to administer medication to a patient in accordance with the Medication Procedure with a delay of four and a half hours.
• Allegation 3: On 19 May 2020, the Applicant failed to comply with the Medication Procedure when she signed for a stat dose of Apixaban at 9.38am for a patient but administered this at 11.30am.
• Allegation 4: The Applicant failed to comply with the Medication Procedure by leaving medication unattended. The incident(s) occurred on either/both 13 April and/or 12 May 2020. The 12 May incident relates to the Applicant leaving medication on the Workstation on Wheels (WOW) unattended and leaving the medication drawer on the WOW open and unattended.
• Allegation 5: On 5 May 2020, the Applicant administered Clexane to a patient contrary to the treating doctor’s written and verbal instructions which resulted in the patient's lumbar puncture treatment being delayed by 24 hours.
• Allegation 6: The Applicant failed to respond to patient requests to be toileted in a timely manner. The particulars of this allegation refer to 21 and 22 May 2020.
• On 21 May, it is alleged that the Applicant failed to respond to and acknowledge a patient’s request to be toileted which later resulted in a significant incontinent episode.
• On 22 May, it is alleged that Applicant failed to respond to several requests from a patient to be toileted and, after a delay of 45 minutes, the Applicant told the patient she was unable to take him to the toilet and provided him a bottle. The patient then voided over a litre of urine.
• Allegation 7: The Applicant placed patients at risk by failing to prioritise care in a timely manner. The particulars of this allegation refer to events on 14, 19 and 22 May 2020.
• On 14 May at 11:55am, it is alleged that the Applicant required prompting from her clinical support to wash, change the incontinent pad, and reposition a patient, and that this had not been done since she commenced her shift at 7.00am.
• On 19 May, it is alleged that:
• at 12:30pm, the Applicant’s clinical support was required to take over the wash, change the incontinent pad, and re-position the Applicant’s patient; and
• At 1:00pm the Applicant failed to provide any nutritional sustenance to a vulnerable patient with a low BMI since having commenced her shift at 7:00am.
• On 22 May 2020, at 1:00pm, a patient in the Applicant’s care did not have a wash, change of incontinent pad, or re-position for six hours.
• Allegation 8: The Applicant failed to provide timely administration of analgesia. The incidents referred to in the particulars of this allegation occurred on 11, 15 and 22 May 2020.
• On 11 May 2020 at 9.38am, it is alleged that during handover (at 7:00am) of a patient in the Applicant’s care, the Applicant was alerted to his uncontrolled pain management and strict pain regime but failed to administer analgesia at 8.00am as charted, and later requested her peer to administer the analgesia at 9.38am.
• On 15 May 2020 at 10.00am, it is alleged that one of the Applicant’s patients requested analgesia, which the Applicant failed to accommodate at that time, until her clinical support directed her to do so 20 minutes later.
• On 22 May 2020 at 12.45pm, it is alleged that the Applicant failed to administer analgesia to a patient at his request, requiring her clinical support to intervene and provide this 20 minutes later.
• Allegation 9: The Applicant woke a patient inappropriately and pressed the duress alarm, resulting in a formal patient complaint being made. It is alleged that the patient was sleeping when the Applicant went to undertake observations. Instead of checking with the senior nurse specialist in the room and the patient’s father, who was sitting next to the patient, the Applicant chose to shake him and press the duress alarm.
• Allegation 10: Over the course of four days, the Applicant required prompting from clinical supports to undertake full observations on all patients. The particulars of this allegations refer to 14 May, 18 May, 19 May and 22 May and are detailed in the SPRs prepared by Ms Van Venrooy, who was the Applicant’s CNS on these shifts.
• Allegation 11: The Applicant was argumentative, defensive and refused to accept feedback in relation to her progress against the First CPIP. The particulars of the allegation refer to a meeting on 18 May 2020. The Respondent alleges this behaviour was highlighted several times to the Applicant during the meeting but continued despite being requested to stop. The Respondent states this was a pattern of behaviour by the Applicant and provided an example of a meeting held between the Applicant and Mr Ratcliffe which had to be terminated by Mr Ratcliffe “because [the Applicant] became upset, defensive and was clearly not listening to me”. Further, the Respondent states that these types of behaviours were the subject of complaints by patients as well as staff.
• Allegation 12: The Applicant failed to comply with correct intravenous (IV) therapy procedures. The particulars of this allegation refer to incidents on 14, 15, 18 and 19 May 2020.
• On 14 May at 9.29am, it is alleged that, in relation to a patient in bed 29, the Applicant primed the line with air in it, attached the line and attempted to load it to the pump which caused it to alarm. She was unable to safely rectify this error resulting in the patient questioning her ability by stating “you don’t know what you’re doing”.
• On 15 May at 9.05am, it is alleged that, in relation to a patient in bed 42, the Applicant was managing an antibiotic infusion and let it run dry by failing to set an alarm. She then attempted to administer a 30ml flush.
• On 18 May at 9.35am, it is alleged that, in relation to a patient in bed 29, a fellow nurse alerted the Applicant to air in the line on an infusion of antibiotics the Applicant had administered on the patient. The Applicant did not respond to her colleague, who was therefore required to cease the antibiotic infusion on her behalf. Additionally, the Applicant failed to provide a flush on this antibiotic IV as per procedure.
• On 19 May at 9.45am, it is alleged that, in relation to a patient in bed 27, the Applicant was hanging a 1 litre saline bag without calculating the volume to infuse correctly.
• Allegation 13: The Applicant, on at least four occasions, delayed patient discharges and transfers. The particulars of this allegation refer to examples on 15, 18 and 19 May 2020.
• On 15 May 2020 at:
• 7.45am, it is alleged that, in relation to a patient in bed 39, the Applicant was responsible for a delay of 10 minutes with the transfer to theatre. This was intervened by the Applicant’s clinical support to prevent the delay being longer; and
• 11.18am, it is alleged that, in relation to a patient in bed 40, the Applicant was responsible for a delay of 20 minutes with the transfer to diagnostic imaging. This was intervened by the Applicant’s clinical support to prevent the delay being longer.
• On 18 May 2020 at 9.35am, in relation to a patient in bed 28, the Applicant was responsible for a delay of 35 minutes in the transfer of a patient to Moorabbin Hospital.
• On 19 May at 1.30pm, in relation to a patient in bed 28 the Applicant was responsible for a delay of transfer to the BT brain area by 20 minutes.
[43] In their closing submissions, the Respondent also relied on an incident it alleges occurred on 29 May 2020 involving the alleged unreasonable delay in providing pain medication, resulting in a patient suffering serious pain, signing for paracetamol for the same patient but refusing to administer it , refusing to follow a reasonable direction of her supervisor to leave the clinical area, and falsely asserting she was being ‘held prisoner’, as a further valid reason for the Applicant’s dismissal (29 May Allegation).
Submissions of the Parties in relation to Allegation 1
[44] It is alleged that on 7 May 2020 at 08.00am the Applicant failed to administer patient medication in accordance with the Medication Procedure with a delay of two and a half hours which resulted in a medical emergency call (MET Call) response at 10.00am (according to the Allegations Table) or 10.31am (according to the Allegations Letter). The Respondent states the MET Call “could have been avoided had Ms Allan administered the medication at the allocated time”.32 The particulars of this allegation not in dispute are that:
• a patient in the Applicant’s care had come to the ward after being in intensive care due to a constant epileptic state;33
• it was of “vital importance” that the patient was administered their anti-epileptic medication on time so that their seizures were under control;34
• the patient’s medication was due to be administered at 8.00am and the Applicant failed to administer the medication at this time;35
• By 10:30am, the Applicant had still not administered the medication to the patient, at which time the patient had a seizure, leading to the MET Call 36
[45] The Respondent submits that the Applicant’s conduct in relation to this allegation constituted “misconduct reaching the threshold of serious misconduct, due to the serious and imminent risk to the health & safety of the patient”37 and breached the:
• Monash Health Medication Administration Procedure (Medication Procedure) (requiring that medication be administered at the "right time" and noting that "Failure to administer some medicines at the prescribed time can lead to adverse patient outcomes"); and
• Professional Standards 1.4, 3.3, 6.1 and 6.5.38
My Findings with respect to Allegation 1
[46] On the material before me, I am satisfied, on the balance of probabilities that on 7 May 2020 the Applicant failed to administer patient medication in accordance with the Medication Procedure with a delay of two and a half hours. On the material before me, I am unable to conclude that the MET call could have been avoided had the medication been administered at the charted time.
[47] In coming to this conclusion, I have considered the evidence of Ms Martin that:
“it was of vital importance that the patient was administered their anti-epileptic medication in a timely manner to ensure that their seizures are under control and so that they would not need to be returned to intensive care” and further that “if the patient’s seizures flared up, there was a chance that they would have to be put on life support to regain control of their seizure”.39
[48] I have also carefully reviewed the SPR which broadly accords with Ms Martins’ evidence.
[49] I have also considered the Applicant’s acknowledgment in cross-examination that she recalls the patient in bed 22, that the medication was due to be administered at 8.00am,40 that she was responsible for the administration of the medication and that she did not administer the medication at 8.00am.41 She further concedes that it was of “vital importance” that the patient was administered their anti-epileptic medication on time so that their seizures were under control. 42
[50] As to the Applicant’s evidence during cross examination that she formed the view that the patient’s “nasogastric tube” was inappropriate for administration of the anti-epileptic medication, I do not accept this as a reason for the delay in administering the medication. Further, I note that the Applicant appears to concede that “she hadn’t actually got to that patient to deliver their medication, when I would have assessed the tube.” I note that the Applicant’s unchallenged evidence was that “there were three MET calls in that room that morning” and that “there's a leeway of an hour, an hour before, an hour after. That's the protocol at Monash Health.” 43
[51] I have also considered the fact that the Applicant is a registered nurse and comes to this job with the knowledge of a nurse with this level of qualification.
[52] I note for completeness an error in recording the bed number (22, in all documents aside from the SPR where it is 23), which in all the circumstances before me this does not disturb my finding.
[53] On the balance of probabilities, I conclude that Allegation 1 is substantiated in so far as it relates to the Applicant failing to administer patient medication in accordance with the Medication Procedure with a delay of two and a half hours. However, given the unchallenged evidence of the Applicant that three MET calls were made to that room just that morning, and the sparsity of evidence from the Respondent addressing the nexus between the MET call and Ms Allan’s delay in medication administration, I am unable to conclude on the balance of probabilities that the Applicant’s failure necessitated the MET call in question.
Submissions of the parties in relation to Allegation 2
[54] It is alleged that on 19 May 2020 the Applicant failed to administer anti-epileptic medication to a patient in accordance with the Medication Procedure with a delay of four and a half hours.
[55] The evidence of Ms Van Venrooy is that:
• She spoke with the Applicant at 12.13pm because she was concerned that a patient had not been given their medications, including an anti-epileptic medication that was due at 8.00am.44
• At the time, the Applicant was laying the patient down to change their pad, and Ms Van Venrooy suggested to her that she should “sit the patient up, give them medication, complete the full neurological observations and then continue to wash and change the patient.”45
• The Applicant refused to complete the tasks in the order stipulated by Ms Van Venrooy and Ms Van Venrooy told her she would have to "take over care now", leading to a verbal exchange between the two during which the Applicant threatened to “call a code grey” on Ms Van Venrooy.46
• The Applicant eventually administered the medication at Ms Van Venrooy’s direction.47
• Ms Van Venrooy’s evidence is broadly consistent with the SPR tendered in evidence.48
• The Respondent submits that the Applicant’s conduct in relation to this allegation constituted “misconduct reaching the threshold of serious misconduct, due to the serious and imminent risk to the health & safety of the patient”49 and breached the:
• Medication Procedure (requiring that medication be administered at the "right time" and noting that "Failure to administer some medicines at the prescribed time can lead to adverse patient outcomes"); and
• Professional Standards 1.4, 3.3, 6.1 and 6.5.50
[56] The Applicant states that she does not “recall the specific patient” but accepts the essential facts of the allegation51
My findings regarding Allegation 2
[57] On the material before me, on the balance of probabilities, I am satisfied that on 19 May 2020 the Applicant failed to administer medication to a patient in accordance with the Medication Procedure with a delay of at least four hours. In coming to my conclusion, I have taken into account the evidence of the Applicant that although she does not “recall” the specific patient, when asked by Counsel during cross examination if “what Ms Van Venrooy has suggested to you is correct”, her reply was “on the surface, yes” and that she had “no choice” and was “forced” to “complete the tasks”. Beyond that, she offers no credible explanation for the delay in administering the medication.
[58] For completeness, I note first, that there appear to be minor inconsistencies in the evidence as to the precise time that the medication was said to be ultimately administered to the patient. In all the circumstances, I have determined that these inconsistencies do not affect my overall finding.
[59] Further, I note that the Risk Man states as follows:
“Actual Degree of Impact: No Harm - Significantly inconvenienced
Actual Level of Care: No significant change
Actual Treatment Required: No treatment
Actual Severity: 3
Overall Severity (Actual): 3. Mild” [my emphasis]
[60] I discuss the Risk Man later in the decision.
Submissions of the Parties in relation to Allegation 3
[61] It is alleged that on 19 May 2020, the Applicant failed to comply with the Medication Procedure when she signed for a stat dose of Apixaban at 9.38am for a patient but actually administered this at 11.30am. The evidence of Ms Van Venrooy is that:
• the Applicant “signed for a stat dose of anti-coagulating medication, Apixaban. However, she failed to give the patient this medication until 11.30am.”
• “[G]enerally speaking, if you sign for the medication that means you are giving the medication at that time when you sign for it.”
• “Other staff reviewing the patient notes would have assumed that the medication was given at 0938 when it was signed for.”
• “The inaccuracy could have impacted on the timing and calculation of the patient's next dose.”52
[62] The SPR tendered in evidence states that: “1130 JA had given 2.5 mg of Apixaban to bed 28 at 0853. The medical team had ordered a stat dose of 2.5 mg to be given which JA had signed for at 0938 but had not given until 1130 … CNS provided feedback in regard to timely administration and documentation of anticoagulation medication and the importance of clear communication with colleagues regarding medication administration.”
[63] The Respondent submits that the Applicant’s conduct in relation to this allegation constituted unsatisfactory performance and misconduct, and breached the:
• Medication Procedure requiring medication to be administered at the "right time" (noting the Medication Procedure also states that "Appropriate documentation of medication administration is also a critical component."); and,
• Professional Standards, especially 1.6 "Maintains accurate, comprehensive and timely documentation of assessments, planning, decision making, actions and evaluations."53
[64] Whilst the Applicant accepts that it is expected that medication signed for will be administered at that time54 and that she did not administer the Apixaban until 11:30am, almost two hours after it was signed for55 she contends that she was administering the medication in accordance with “doctor’s orders”, and that she was ordered to “hold off” administering the medication until the doctor clarified something else.56
My findings regarding Allegation 3
[65] On the material before me, on the balance of probabilities, I am satisfied that on 19 May 2020, the Applicant failed to comply with the Medication Procedure when she signed for a stat dose of Apixaban at 9.38am for a patient but administered this at 11.30am
[66] In coming to my conclusion, I note that the Applicant does not contest the allegation in so far as it relates to her having “signed for that stat dose of apixaban” at 9.38am and not actually administering it until 11.30am.57 Further, she concedes that it is “expected” that medication will be administered at the time of or shortly after medication is signed for. She contends that she was administering the medication in accordance with “doctor’s orders”, and that she was ordered to hold off administering the medication “until the doctor clarified something else”.58 I note that the Applicant’s explanation has been raised for the first time at hearing.
[67] In coming to my finding about this allegation, I have had regard to the SPR tendered in evidence which broadly supports the version of events provided by Ms Van Venrooy. In particular, I note that the record of feedback given to the Applicant as to this issue makes no mention of Ms Allan stating that she was “prevented” from administering the medication “until the doctor had clarified something else”. Rather, it states that the Applicant was given feedback “in regards to timely administration and documentation of anticoagulation medication and the importance of clear communication with colleagues regarding medication administration”.59 It follows that I reject the Applicant’s explanation for the delay.
[68] On the balance of probabilities, I conclude that Allegation 3 is substantiated.
Submissions of the parties in relation to Allegation 4
[69] It is alleged that the Applicant failed to comply with the Medication Procedure by leaving medication unattended on either/both 13 April and/or 12 May 2020.
[70] Specifically, the Respondent alleges that:
• On 13 April 2020, the Applicant left “dangerous” Targin medication unattended on the nurse-in-charge desk.60
[71] The evidence of Ms Clements is that:
• On 13 April 2020, during Ms Clément’s shift where she recalls that she was the “Clinical Nurse Lead”, she found Targin medication in a bag on the nurse-in-charge desk, with Ms Britten present.61
• After finding the Targin, Ms Clements saw that the name on the “drug bag” was a patient of Ms Allan’s, and thereafter asked Ms Allan if she had left the Targin on the desk.62
• Ms Allan initially denied that she had left the Targin on the desk but subsequently admitted “it may have been her”.63
• If a patient on Ward 54 had found the Targin unattended and ingested, it “the consequences could have been extremely serious.”
• That she did not observe the Applicant informing her or any other nurse that she was leaving the Targin on the table.64
• That she did not, and would not have, allowed the Applicant to walk away from the Targin if she had observed this.65
[72] Ms Britten gives evidence that she:
• Found the Targin unattended on the desk with Ms Clements, who subsequently approached the Applicant about this and informed her of her mistake.
• Did not observe the Applicant inform her or anybody else that she was leaving the Targin on the desk.66
• Would not have allowed the Applicant to walk away from the Targin if she had observed this to happen.67
[73] The Respondent states that the conduct in relation to this allegation constituted: “Unsatisfactory performance [a]nd Misconduct reaching the threshold of serious misconduct, due to the serious and imminent risk to the health & safety of patients who might obtain the medication”.68
[74] In relation to 13 April 2020, the Applicant in essence, concedes that she “walked off and forgot the Targin on the desk”69 and was at “fault”,70 but claims that the medication was “not unattended”71 and “three staff members were aware I left the Targin on the Nurse in Charge's desk as I had told them about it as I put it down on the desk”.72 She also stated that the previous nurses in charge of the patient had failed to take the Targin from them, and that Ms Clements and Ms Britten had allowed her to walk away from the desk “without saying anything”.73
[75] I note for completeness that the Applicant accepts that Targin is a scheduled drug and must be locked away.74
[76] As to the incident on 12 May 2020, it is alleged that the Applicant left medication on the WOW unattended and left the medication drawer on the WOW open and unattended.75 Ms Hanson, states she observed the Applicant “[l]eaving medication unattended on the work station when taking a patient to the toilet” and “[l]eaving the medication drawer on the workstation open and unattended” during the shift.76 The SPR tendered in evidence, attached to Ms Hanson’s statement, broadly supports Ms Hanson’s evidence. Further, Ms Hanson recorded “detailed notes of that shift” which also broadly support Ms Hanson’s evidence.77
[77] The Applicant denies leaving the medication unattended on the WOW or leaving the medication drawer on the workstation open and unattended.78
My findings regarding Allegation 4
[78] On the material before me, I find that on 13 April 2020, the Applicant left Targin medication unattended at the nurse’s desk and that this limb of allegation 4 is substantiated. In coming to my conclusion, I have taken into account the evidence of Ms Clements and Ms Britten referred to above. I have noted the Applicant’s submissions including the suggestion that the Targin was “not unattended” “as it was in full view of three other staff members, and that she had “removed the Targin from the patient”. I agree with the Applicant that on the face of it she was assisting the patient by removing the Targin from them. However, even if I accept the explanation advanced by the Applicant, it does not in my view provide a credible justification for the conduct, namely leaving the Targin unsecured.
[79] Having carefully examined the transcript, I do not accept the Applicant’s evidence that she notified the nurses at the desk that she was leaving the medication there. I am also unable to reconcile this version of the facts against the evidence of Ms Clements and Ms Britten, who say they did not, and would not accept the Targin being left with them.
[80] As to the allegation that on 12 May 2020, the Applicant left the medication unattended on the workstation open and unattended.79 I note that the Applicant denies the incident and suggests that Ms Hanson “made up” her evidence. 80
[81] The Respondent relied on evidence from Ms Hanson, as set out above at paragraph [76]. The SPR tendered in evidence broadly supports Ms Hanson’s evidence.
[82] In relation to the Applicant’s alleged conduct on 12 May 2020, where there is a contest between the Applicant’s evidence and that of Ms Hanson, I prefer the evidence of Ms Hanson. I found Ms Hanson’s evidence to be cogent and forthright and consistent with the SPR and the note recorded by Ms Hanson in her outlook calendar. 81 I find on the balance of probabilities that this “limb” of Allegation 4 is substantiated.
[83] On the balance of probabilities, I conclude that Allegation 4 is substantiated.
Submissions of the parties in relation to Allegation 5
[84] It is alleged that on 5 May 2020, the Applicant administered Clexane to a patient contrary to the treating doctor’s written and verbal instructions which resulted in the patient's lumbar puncture treatment being delayed by 24 hours.
[85] Ms Martin’s evidence was that, on 5 May 2020:
• She “supervised (the Applicant) from 1:00pm until approximately 11:40pm”;82
• At 1:15pm, the Applicant “attended a handover where she was informed that Clexane was to be withheld” from a patient “due to a lumbar puncture that was to be performed on the patient later that day.”83
• At 3:50pm, a lumbar puncture was being performed on the patient by a Doctor and the Applicant “took handover from the Doctor regarding the procedure and ongoing plan for the patient.”84
• At 11:15pm, whilst the Applicant was completing handover, it was pointed out to her by the night duty nurse that the Applicant “had administered Clexane to the patient … at 4:00pm despite an order to withhold Clexane from the patient”. The Applicant stated in response “that she was unaware of the order at the time of administering the Clexane.”
• “Clexane should not be given directly before or after a lumbar puncture because it can increase the risk of bleeding into the spine”.85
[86] The SPR attached to the Ms Martin’s statement states:
“ND nurse pointed out to Julie that according to am medical notes Clexane was meant to be withheld due to the lumbar puncture but appeared to be given at 1600 by Julie. Julie checked the notes and med chart and observed that the Clexane order had been discontinued at 1620 and stated she was unaware at the time of administering the Clexane. ND staff said he would report it to Dr and follow up”
[87] The Respondent submits that the Applicant’s conduct in relation to this allegation constituted “misconduct reaching the threshold of serious misconduct, due to the serious and imminent risk to the health & safety of the patient”86 and breached the:
• Medication Procedure requiring the "right medication" to be administered at the "right time"; and
• Professional Standards 6.1.
[88] The Applicant stated that she had not been informed that Clexane was to be withheld from a patient87 and that the “Clexane was still on the drug administration chart” and “it had not been removed, which would be the norm.”88 Nevertheless she accepted that she “shouldn’t have given it” and “realised that (she had) done the wrong thing” because the medication can increase the risk of bleeding into the spine.89
My findings regarding Allegation 5
[89] It is not in dispute that the Applicant administered the Clexane to the patient at 4:00pm on 5 May 2020. Ms Martin, in her witness statement states that Ms Allan was told during a handover at the start of the shift that Clexane was to be withheld from the patient due to a lumbar puncture, which Ms Allan denies. It appears from the contents of the SPR that when the matter was raised with Ms Allan by “ND” she “checked her notes and Medi Chart and observed that the Clexane order had been discontinued at 16:20” whereas the Clexane “appears to be have been given at 16:00”. The relevant Medi Chart is not in evidence, Ms Allan was not challenged as to her claim and Ms Martin’s evidence does not shed any light on this entry in the SPR, which on its face, appears to offer a credible reason for the administration of the Clexane medication to the patient at 16:00, and accords with Ms Allan’s version of events.
[90] Notably, it is unclear on the material before me, how it is alleged that there was a delay in relation to the relevant patient’s lumbar puncture treatment. In this regard, I note that Ms Martin’s evidence that “I recall that Ms Allan administered the clexane to the patient in bed 32 and believe that this occurred just after the lumbar puncture” is on its face, inconsistent with the allegation that the administration of the medication “resulted in a 24 hour delay” to the lumbar puncture treatment to the patient.
[91] On the basis of the above, I find that on the balance of probabilities, Allegation 5 is not substantiated and cannot be relied upon by the Respondent as a valid reason for dismissing the Applicant.
Submissions of the parties in relation to Allegation 6
[92] It was alleged that on 21 May 2020 at 9:00am, the Applicant failed to respond to the patient in bed 39’s request to be toileted, which later resulted in a ‘significant’ incontinent episode.
[93] The Respondent relies on the evidence of Ms Van Venrooy, who states that while observing the Applicant the patient said:
“"I'd really like to go to the toilet". I responded along the lines of "Julie is here, she will take you to the toilet, right Julie?" I cannot recall if Ms Allan acknowledged that comment, but it was my impression that she had heard me. Later, I observed Ms Allan was changing the patient's sheets and she told me that the patient had had a wet bed. I formed the conclusion that Ms Allan had neglected to take the patient to the toilet when she had been asked to.” 90
[94] I note for completeness that in Ms Van Venrooy’s statement, the patient is described as an ‘older woman’ in bed 44, whereas in the SPR, the patient is identified as having been in bed 39, which in all the circumstances before me does not disturb my overall finding.
[95] The Applicant responded to this allegation during cross examination, during which she stated that she did not “dispute that that may have happened”, 91 but that she had never, and would never, refuse to toilet a patient. Instead, the Applicant says there would have been a reason.
[96] It was alleged that on 22 May 2020 Ms Allan failed to respond to a male patient in bed 44’s request to be toileted. After an alleged 45-minute delay, the Applicant provided the patient with a bottle, and the patient then voided over 1 litre of urine.
[97] The Respondent relies on the evidence of Ms Van Venrooy, who says that the Applicant was assessing the limb strength of the patient at around 10:50am, in Ms Van Venrooy’s opinion the patient was becoming stressed due to how long the testing was taking, and they were fatigued. At around 11:00am, the patient asked to be toileted, at which point the Applicant provided a bottle.
[98] Ms Van Venrooy says that the patient told her that he had made a request over 45 minutes prior that went unanswered. The Respondent has relied on this hearsay evidence to substantiate the allegation that the Applicant delayed toileting the patient for over 45 minutes. The Respondent goes further to say that the Applicant failed to consider offering the patient to use the toilet prior to testing his limb strength, and that this was also an error of judgement.
[99] When questioned about this incident during cross-examination, the Applicant could not remember it. 92 She thought that she probably would remember such an event if it did occur.93
My findings regarding Allegation 6
[100] In relation to the allegation of failing to toilet the patient in bed 39 on 21 May 2020, I am satisfied, on the balance, that the alleged conduct did in fact occur. In coming to this conclusion, I have considered the evidence of Ms Van Venrooy, who I have found to be credible and reliable, and the SPR which documents the patient’s incontinence pad leaked and wet the bed.
[101] In relation to the allegation that on 22 May 2020, the Applicant failed to respond to a patient’s request (bed 44) to be toileted with a consequent delay of 45 minutes, I am not satisfied, on the balance of probabilities, that the entirety of the alleged conduct is substantiated.
[102] The Respondent has relied on the hearsay evidence of the patient in combination with the circumstantial evidence of the volume of urine voided as supporting the finding that the patient’s bladder was full and that a request for toileting was made by the patient. I am not bound by the rules of evidence, which would usually make hearsay inadmissible, but I am guided by their principles when attributing weight to any form evidence.
[103] I find that the patient most likely did say what Ms Van Venrooy reports he said. This is consistent with my earlier finding that Ms Van Venrooy was a credible and reliable witness. The reported volume of urine is corroborative in effect and supports a conclusion that the patient had not been toileted for an extended period of time. However, on the basis of the material before me, I am unable to conclude that the patient made a request of the Applicant to be toileted. On this basis, I am prepared to conclude that the Applicant failed to consider the needs of the patient prior to conducting the limb strength test, but I do not conclude that she failed to act upon his request.
[104] On the basis of the above, I find that on the balance of probabilities, Allegation 6 is partially substantiated.
Submissions of the parties in relation to Allegation 7
[105] This allegation relates to incidents where the Applicant is alleged to have placed patients at risk by failing to prioritise care in a timely manner. The particulars of this allegation are that:
• On 14 May 2020 at 11.55am, the Applicant required prompting from her clinical support to wash, change the incontinent pad and re-position a patient. This had not been done since the Applicant commenced her shift at 7.00am.94
• On 19 May 2020:
• At 12.30pm, the Applicant’s clinical support was required to “take over the wash, change the incontinent pad and re-position [her] patient”;95 and
• On 22 May 2020 at 1:00pm, the Applicant’s patient “did not have a wash, change of incontinent pad or re-position for six hours”.96
[106] The Respondent submits that the Applicant’s conduct in relation to this allegation constituted unsatisfactory performance and misconduct and breached Professional Standards 2.6 and 6.1.
[107] The Applicant’s evidence in relation the three “limbs” of Allegation 7 is as follows:
• In respect of 14 May 2020, she stated that she did not recall the patient whose care she is alleged to have put at risk, and that is “possible” that she needed to be prompted to wash, change the incontinent pad and re-position them. In respect of 19 May 2020, the Applicant agreed that “Ms Van Venrooy had to step in and provide care to the patient in bed 30 by assisting with washing, changing, repositioning the patient and that was because (she) hadn't done any of those things”97 and that “[t]he patient had not been fed, had not been given any breakfast or lunch and so Ms Van Venrooy had to assist with feeding the patient.”98 When asked if the reason that Ms Van Venrooy needed to step in was because the Applicant was checking the blood pressure of a patient in bed 28, which was characterised by the Respondent’s counsel as “not urgent or a high priority task”, the Applicant stated “I don’t remember” and “If I was taking the blood pressure, there would be a good reason to be taking it”.99
• In respect of 22 May 2020, the Applicant stated that she did not recall the relevant patient,100 but that it was “possible” that the patient did not have her incontinence pad changed until 1:00pm that day.101 The Applicant rejected the suggestion that the patient was not repositioned for six hours.102
My findings regarding Allegation 7
[108] Having considered the material before me on the balance of probabilities, I find:
• In relation to 14 May 2020, that this limb of Allegation 7 is substantiated. In coming to this conclusion. I have had particular regard to the evidence of Ms Van Venrooy that “These are basic nursing tasks that are usually performed by the nurse on the morning shift” and that immobile patients “would usually be repositioned at least twice during a shift” as to do otherwise “can lead to pressure sores and compromises patient dignity”.103 I have also had regard to the staff performance report referring to this incident which is largely consistent with her evidence.104
• I have also taken into account the Applicant’s evidence that whilst she could not recall the specific patient, she did concede that it was a basic nursing task to re-position patients who are immobile, that failing to reposition a patient can cause pressure sores and compromise patient dignity and that Ms Van Venrooy “spent a significant amount of time” reminding her to “complete basic tasks, such as patient observations, toileting, changing incontinence pads, repositioning patients and administering pain relief”.105 I note in particular the exchange between Ms Allan and Counsel for the respondent ;106
MR J TRACEY: And you didn't need prompting did you, because you shouldn't have to be prompted when it's been five hours and that patient has not been washed, had their incontinence pad changed, nor have they been repositioned. Do you agree?
THE APPLICANT: That's right.
MR J TRACEY: You should have acted earlier than that, shouldn't you?
THE APPLICANT: It's very possible, yes. Ideally, yes
• In relation to the incident which is alleged to have occurred on 19 May 2020 at 12:30pm I am satisfied, on the material before me, on the balance of probabilities that that this limb of Allegation 7 is substantiated. In coming to this conclusion, I have had regard to the evidence of Ms Van Venrooy referred to above, and the SPR which is largely consistent with her evidence. I have also had regard to the Applicant’s evidence and do not accept the suggestion that if she was taking blood pressure measurements for another patient at the time that this was an acceptable explanation for the failure to attend to the patient in bed 30.
• In relation to the incident on 22 May 2020 I am satisfied, on the material before me, on the balance of probabilities, that this limb of Allegation 7 is substantiated. In coming to this conclusion, I have had particular regard to the evidence of Ms Van Venrooy referred to above, and the SPR which is consistent with her evidence. I have also had regard to the Applicant’s evidence referred to above.
[109] On the basis of the above, I find that on the balance of probabilities, Allegation 7 is substantiated.
Submissions of the parties in relation to Allegation 8
[110] This allegation relates to incidents where the Applicant is alleged to have failed to provide timely administration of analgesia (pain relief medication) on 11, 15 and 22 May 2020.
[111] As to the incident on 11 May 2020, it is alleged that, the Applicant was alerted to a patient’s “uncontrolled pain and strict pain regime”.107 Mr Monzon gives evidence that the patient “could not speak English” but that he observed that the patient was “suffering from pain, as she was moaning, agitated, and turning over in her bed” and that despite asking the Applicant “multiple times” during her shift, the patient’s medication was not administered until 9.38 am.108 Mr Monzon acknowledges that the 8.00am time requirement was “not a strict deadline” and that there are delays in the case of an “emergency” or when nurses are “busy”, however he did not believe that the Applicant was busy and she had “extensive supports in place” to administer the medication.109
[112] At 9.38am, the analgesia still had not been administered, and Ms Hanson asked the Applicant “if she would like her to assist her by administering the analgesia to the patient, to which Ms Allan replied that she needed assistance in giving medication to the patient.”110
[113] The Applicant concedes that she was told at the start of her shift that the patient had uncontrolled pain and was on a strict pain regime,111 that the patient, having suffered a haemorrhagic stroke would be suffering extreme headaches and would require timely pain management.112 She acknowledges that the pain medication was not administered until 9.38 am but states that “there would be a reason” and that she “arranged” for Ms Hanson to administer the medication at 9.38am. But the Applicant does not accept that the patient was writhing in pain, 113 and she did not remember Mr Monzon making several requests that she administer the analgesia, though she accepts Mr Monzon’s word that he did so.114
[114] As to the incident on 15 May 2020 it is alleged that”.115 Ms Van Venrooy had to prompt the Applicant twice to administer Panadol to a patient, which she did 20 minutes after the patient had asked for it and that it was “unnecessary to delay this pain relief. Panadol is a routine medication”.116
[115] In respect of 22 May 2020, the applicant accepted that a patient requested analgesia and that there was a 20-minute delay in administering this, requiring Ms Van Venrooy to step in and administer the medication but maintained that “20 minutes is not an overly long time to respond to an analgesic request”. 117
[116] The Respondent submits that the Applicant’s conduct in relation to this allegation constituted unsatisfactory performance and misconduct and breached Professional Standards 6.1.
My findings regarding Allegation 8
[117] Having considered the material before me, on the balance of probabilities, I find:
• In relation to 11 May 2020, that this limb of Allegation 8 is substantiated. In coming to this conclusion, I have had particular regard to the Applicant’s concessions referred at paragraph [113] above. I have also had regard to the following exchange between the Applicant and Counsel for the Respondent and do not accept the explanation proffered by the Applicant that she “arranged” for Ms Hanson to administer the analgesia:
MR J TRACEY: Yes, and you did not ensure timely pain management for that patient, did you?
THE APPLICANT: I did by organising Rachel, asking Rachel to give her analgesia.
MR J TRACEY: You didn't organise Rachel. I suggest to you, Ms Hanson, Rachel Hanson - I suggest this to you, Ms Allan, Ms Hanson asked you if you would like Ms Hanson to assist you in administering the medication. That's right, isn't it?
THE APPLICANT: In saying yes, I'm arranging her.
MR J TRACEY: No, you're not. No, that's not you arranging it, I suggest to you. That is, Ms Hanson stepping in because you had not done your duty of administering the medication on time. You agree?
THE APPLICANT: No.
• For completeness, I note that the Allegations Letter refers to the relevant patient being a male, but Mr Monzon’s evidence is that the patient was female. Given the material before me, this inconsistency does not alter my finding as to this incident.
• In relation to 15 May 2020, that this limb of Allegation 8 is, on the material before me, substantiated. In coming to this conclusion, I note that the Applicant did not make written submissions in respect of the 15 May 2020 incident, did not put anything forward during evidence in chief, and was not asked about it during cross examination. Given my findings on witness credit, I accept the evidence of Ms Van Venrooy. The balance of evidence tips in the Respondent’s favour.
• In relation to 22 May 2020, that this limb of Allegation 8 is substantiated. In coming to this conclusion, I have had regard to the Applicant’s concession that she failed to administer the analgesia with a 20-minute delay.
[118] On the basis of the above, I find that on the balance of probabilities, Allegation 8 is substantiated.
Submissions of the parties in relation to Allegation 9
[119] This allegation relates to an incident on 11 May 2020. The Respondent alleges that the Applicant woke a patient inappropriately and pressed the duress alarm. The patient was sleeping when the Applicant went to undertake observations. Instead of checking with the senior nurse specialist in the room and the patient’s father, sitting next to the patient, the Applicant chose to shake him and press the duress alarm. This resulted in a formal complaint being made against her.
[120] The particulars of this allegation, as set out in the Respondent’s evidence, are that:
• at 11.00am118 or 11.30am,119 the Applicant undertook observations of a patient, who was sleeping;
• the Applicant applied a sternal rub technique to wake the patient up and subsequently pressed the duress alarm to make an EMR Call;120
• the Applicant did not check with the senior nurse specialist in the room or the patient’s father, who was sitting next to the patient, before acting;121
• this conduct led to a formal complaint being made against the Applicant by the patient’s father.122
[121] The Respondent submits that the Applicant’s conduct in relation to this allegation constituted unsatisfactory performance and misconduct and breached the Monash iCare values including Compassion and Excellence.
[122] The Applicant did not seriously contest the factual basis of this allegation.123
[123] On the balance of probabilities, I find Allegation 9 is substantiated.
Submissions of the parties in relation to Allegation 10
[124] Allegation 10 is that the Applicant required prompting on a “regular basis” from clinical support to undertake full observations on all patients, as documented in SPRs prepared by Ms Van Venrooy. The particulars of this allegation are that:
• On 14 May 2020, during her shift, Ms Van Venrooy had to prompt the Applicant to complete her full patient observations. The SPR Ms Van Venrooy completed in relation to the Applicant for this shift indicates this occurred between 12.35pm and 1.15pm.124,
• On 18 May 2020 during her shift Ms Van Venrooy had to prompt the Applicant to complete her full patient observations. 125 The SPR Ms Van Venrooy completed in relation to the Applicant for this shift indicates this occurred between at approximately 9.40am, at which point she “explained to [the Applicant] that she had requested that another nurse to complete full neurological observations and medications for bed 27 and all had been completed while [the Applicant] was completing bed 28’s medications” and that the “Float nurse” subsequently explained to the Applicant that they “had completed a set of medications and observations to assist JA with her time management for the shift”.126
[150] The Applicant states that:
• it took her longer than normal to acquire the Endone than it should have because there was a hold up in the medication room and there were other people checking drugs and medication; 168
• the patient was escalating with pain;169
• she did not refuse to give the pain medication, that it does not make sense for her to check the medication out and then refuse to administer it; 170
• Mark the nurse educator suggested that she press the refresh button on the computer;171
• she was staring at the computer screen for an extended period of time;172
• she signed out paracetamol for the same patient and did not administer it because it was prior to the administration time; 173
• Ms Van Venrooy ordered her to leave the clinical area, 174 and that she took over the care of the patient and that the patient was in visible distress;175
• Ms Van Venrooy had to ask her three times to leave the clinical area; 176
• “When (Ms Van Venrooy) stood at the door and called me and (she) said, "You're speaking to me like I'm a dog"”;177
• she understood Ms Van Venrooy’s direction to wait in the room as a direction to be holding her against her will;178 and,
• she denies she suggested to her colleagues that she was being held against her will but accepts that she said words to that effect to her husband on the phone. 179
My findings regarding the 29 May incident
On the material before me, I am satisfied that on the balance of probabilities the 29 May Allegation has been substantiated, save for the allegation that the Applicant acted “dishonestly” by alleging to her husband that she was being held prisoner. I note for completeness that, the allegation that the Applicant made a false allegation that she was being held prisoner, is of a different character of seriousness and could not, on its own, constitute a valid reason for termination.
Findings with respect to valid reason
[151] I have made findings that allegations 2, 3, 4, 7, 8, 9, 11, and 13 are substantiated. Further, I have found that allegations 1, 6, 10, 12 and the May 29 allegations are partially substantiated. Collectively, I consider that these substantiated allegations support a finding that the Respondent had a valid reason to terminate.
[152] In these circumstances, the Respondent had a sound, defensible, well-founded and valid reason to dismiss Ms Allan. In this regard, it is worth considering that for the purposes of establishing a valid reason in the context of s.387(a), it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal.
[153] The Respondent submits that: “[v]iewed collectively, and individually in the case of Allegations 1, 2, 44 (sic, read 4) and 5 the conduct the subject of the Allegations constituted serious misconduct”. 180 The seriousness of the conduct, and the proportionality of the decision to dismiss Ms Allan and to do so summarily, are matters I shall consider further below in the context of s387(h).
[154] I note for completeness that, although this conduct is clearly inconsistent with the relevant provisions of the Medication Procedure, NMBA Professional Standards and Monash Health iCare Values, there was limited evidence adduced by the Respondent to show that the Applicant was specifically aware of, or trained in, the procedures she contravened. For that reason, I have had little regard to these instruments in coming to my conclusions above. The failures identified above are in my view inherent requirements of the Registered Nurse position. It is of little consequence, for the purposes of section 387(a), that this behaviour was also a breach of the Respondent’s policies.
Notification of the reason for dismissal and given an opportunity to respond (s.387(b)) and (s.387(c)
[155] In order to tell against a finding that the dismissal was unfair, notification of the reason for dismissal should occur before the decision to dismiss is made. Further, the notification of the reason should be made in explicit, plain and clear terms. The question of whether an employee had an opportunity to respond to reasons relating to conduct or performance should be understood in a common-sense way; the focus of the consideration is whether the employee is treated fairly, rather than on any formality.
[156] Ms Allan disputes that she was notified of the reasons for dismissal.
[157] However, I am satisfied that at least in so far as allegations 1, 2 ,3 4, 6, 7, 8, 9, 10, 11, 12, and 13, which I have found substantiated or partially substantiated, and which collectively support a valid reason for termination, Ms Allan was notified of those reasons and given an opportunity to respond at the meeting of 12 June 2020 attended by her and a representative of the ANMF, before the decision to terminate was made. Further I note that Ms Allan was provided with a copy of the findings letter dated 9 June 2020 at that meeting.
[158] To the extent that the Applicant contends that she was not given an opportunity to respond because she had “no notes around patients, around the allegations”,181 I do not accept this. In my view, the notification of the relevant reasons was explicit, plain and on clear terms. The evidence referred to above also establishes that the Respondent afforded Ms Allen an opportunity to respond to reasons for dismissal related to her conduct.
[159] That she chose to adopt the response that she did in the meetings of 9, 10 and 12 June 2020, does not change the position that if the Applicant wanted further information about the allegations and findings, she could have asked for it. She was not prevented from responding to the allegations in writing. The Act requires that a person be “given an opportunity to respond” but it does not require an employer ensure that the employee take advantage of that opportunity. In my view, the Respondent took all reasonable steps to afford the Applicant the opportunity to respond to the Allegations.
[160] As to the valid reason in relation to the allegation of 29 May 2020, Ms Allan was not notified of the reason nor was given a chance to respond to it before the decision to terminate her employment was made. That is because the incident of 29 May was raised for the first time during the course of the hearing before me. I have taken this into account in my overall assessment and conclude that the gravity of Ms Allan’s misconduct outweighs the procedural unfairness associated with the termination process.
Any unreasonable refusal to allow the Applicant to have a support person present (s.387(d))
[161] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”182
[162] The Respondent contends that the Applicant was not unreasonably refused the right to have a support person, noting the meeting attended by a representative of the Australian Nursing and Midwifery Federation (ANMF) with the Applicant.183 The Applicant accepts that she had the opportunity to bring a representative to her first meeting with the Respondent,184 that an ANMF representative attended the 12 June meeting with her and that she was encouraged to have a support person by the Respondent.185
[163] This finding weighs in favour of a finding that the dismissal was not harsh, unjust and/or unreasonable.
[164] For completeness, I note that, to the extent that the Applicant relies on her contention that Mr Ratcliffe and Ms Miller informed her she did not have to engage a lawyer for the purposes of section 387(d), 186 this is not a matter that is relevant to this consideration as in the present case, for the reasons set out above, it does not constitute an unreasonable refusal to have a support person present. As such, I give it no weight in relation to this factor but have given it further consideration when dealing with s387 (h).
Warnings about unsatisfactory performance (s.387(e))
If a dismissal relates to unsatisfactory performance, s.387 requires the Commission to consider whether the person has been warned about the unsatisfactory performance prior to dismissal. The case was essentially conducted as one relating to conduct and I agree with that approach. The allegations I have found substantiated in the present matter relate to conduct. There is not always a clear dividing line between misconduct and poor performance. To the extent that some of the allegations I have found substantiated could also be viewed as performance matters, in the circumstances, I am satisfied that aside from the allegation of 29 May, Ms Allan was notified of the reasons for her dismissal, and that she was afforded a reasonable opportunity to respond to these reasons for dismissal
Impact of size of the Respondent on procedures followed in effecting the dismissal and absence of dedicated human resource management specialists or expertise (s.387(d))
[165] I do not consider there to be any factors which might have impacted on the ability of the Respondent to follow a fair process in effecting the Applicant’s dismissal. These are neutral factors in this case.
Other relevant matters (s.387(h))
[166] Section 387(h) provides the Commission with broad scope to consider any other matters it considers relevant. It is well established that a dismissal may be “harsh, unjust or unreasonable”, notwithstanding the finding that there is a valid reason for the dismissal.187 The gravity of an employee’s conduct and the proportionality of dismissal to that conduct are important matters to be taken into account. The Commission should consider all the circumstances and weigh the gravity of the misconduct or performance issues and other circumstances telling against a dismissal being unfair with any mitigating circumstances and other relevant matters that might support the Applicant’s claim that the dismissal was harsh, unjust or unreasonable.188
[167] Given the Applicant’s status as a self-represented litigant, particularly in circumstances where the Respondent was represented by counsel, I consider it appropriate to examine a number of matters raised broadly in the course of the proceedings by the Applicant that were not expressly advanced in relation to section 387(h).
Applicant’s length of service and personal circumstances
[168] I have taken into account the following matters relating to the Applicant’s personal circumstances:
• The Applicant’s length of service, which was considerable at almost 19 years;
• The Applicant is 60 years old and “That in it self (sic) is a barrier to finding another job”;189
• The Applicant is a single parent supporting a 26-year-old daughter;190 and
• The Applicant says she is facing financial hardship, including the loss of her home.191
[169] The consequences of the dismissal for Ms Allan and her family have been significant. They support the argument that her dismissal was harsh, but this must be balanced against all the other circumstances, including the gravity of Ms Allan’s conduct.
The summary dismissal
[170] In a case involving summary dismissal, the determination of whether the conduct that constituted the reason for the dismissal justified summary dismissal is relevant to determining whether the termination was harsh, unjust or unreasonable If the conduct did not justify summary termination, this indicates that the termination was harsh, unjust or unreasonable.192
There is no rule of law that defines the degree of misconduct which would justify a summary dismissal.193 The touchstone is whether the conduct was of such a grave nature as to be repugnant to the employment relationship.
…”
[171] As noted at paragraph [100], the Respondent submitted that “[v]iewed collectively, and individually in the case of Allegations 1, 2, 44 (4) and 5 the conduct the subject of the Allegations constituted serious misconduct”. 194 As to “Allegations 1 to 13, both individually and collectively” the Respondent submits that these “constituted a valid reason for the Applicant’s dismissal”.195
[172] I have found that the Applicant acted in a manner inconsistent with her training as a registered nurse with respect to Allegations 1 (in part), 2, 3, 4, 6 (in part), 7 8, 9, 10 (in part), 11, 12 (in part), 13 and the May 29 allegation (in part), and that these allegations, collectively, support a conclusion that there was a valid reason for dismissal. There is no rule of law that defines the degree of misconduct that would justify summary dismissal, that said, whether the conduct was of such a grave nature as to be repugnant to the employment relationship is at the essence of the consideration. I have found that Ms Allan acted in a manner that is inconsistent with her training and experience as a registered nurse. And I acknowledge that the matters identified as valid reasons are serious and relate to Ms Allan’s care of vulnerable patients with varying degrees of health needs.
[173] I also note that the Respondent chose to engage in a performance improvement process rather than act immediately to terminate Ms Allan for the alleged ‘serious misconduct’ It is perhaps telling that the Respondent’s evidence as to Allegation 2, in the Riskman report, the degree of overall severity was characterised as ‘mild”. Having regard to all the circumstances, I am not satisfied that Ms Allan’s conduct was of such a grave nature as to be repugnant to the employment relationship.
[174] As Ms Allan was summarily dismissed, in circumstances where I have not found that her conduct justified summary dismissal, this weighs in favour of Ms Allan in my consideration of whether her dismissal was harsh, unjust or unreasonable.
Surveillance by Respondent and impact on performance
[175] The Applicant submits that, during the course of the Clinical Performance Improvement Plan (CPIP), she was subject to “surveillance”. The Respondent contends that the Applicant was not subject to “surveillance” but rather reasonable performance management action as part of her CPIP. When the Applicant was cross–examined as to what constituted surveillance of her, she observed “what was occurring during the CPIP” was surveillance of her and also described surveillance as “I could see people writing down making entries with pad and - pen and paper, and writing down what I was doing at the exact time, and following me around the room and being in very close physical proximity”.196 The Respondent denies the Applicant was subject to “surveillance”.
[176] I do not accept the Applicant was subject to “surveillance” as alleged. To the extent that the Applicant contends this surveillance impacted on her performance, I consider that any such impact was entirely the result of the Applicant’s unfounded perception of being under surveillance rather than actual conduct of the Respondent. This accusation is therefore not a matter relevant to determining whether the dismissal was harsh, unjust or unreasonable.
Advice regarding obtaining a lawyer
[177] The Applicant advanced the argument that she was instructed that she did not need a lawyer by Mr Ratcliffe and/or Ms Miller. I note that the file note of Ms Van Venrooy for the meeting between the Applicant, Mr Ratcliffe, Ms Miller and herself on 27 May 2020 records the following “Do I need to get a lawyer, NUM [being the Nurse Unit Manager Mr Ratcliffe] “No” explains.”.197 Given this evidence, I reject the Respondent’s contention that the Applicant, in essence, fabricated this evidence. While I consider this to be an ill-informed comment by Mr Ratcliffe, I note the following factors which weigh against it rendering the dismissal harsh:
• Mr Ratcliffe advised the Applicant of this prior to the Allegations Letter being issued;
• Both the Allegations Letter and the Findings Letter encourage the Applicant to seek the assistance of a “support person and/or representative”;
• The file notes of a number of meetings indicate that the Applicant was repeatedly encouraged to seek the assistance of the ANMF; and
• After receiving this advice from Mr Ratcliffe, the Applicant was represented by the ANMF in the meeting of 12 June 2020.
Deliberate acts of other staff and/or Respondent and hostile environment
[178] The Applicant had contended throughout these proceedings that, in essence, a series of actions have been taken by employees of the Respondent in an attempt to undermine her and/or create a hostile working environment. For efficiencies sake, I have not reproduced examples cited by the Applicant.
[179] On the basis of the material before me, I conclude that the Applicant’s allegations in this regard are unsubstantiated.
Requirements of the Agreement
[180] The Agreement prescribes the following in relation to the disciplinary process for employees covered by it:
“15 Discipline
15.1 Application
(a) Where an Employer has concerns about:
(i) the conduct of an Employee; or
(ii) a performance issue that may constitute misconduct,
the following procedure will apply.
(b) There are two steps in a disciplinary process under this clause as follows:
(i) investigative procedure; and
(ii) disciplinary procedure.
(c) An Employee will be provided a reasonable opportunity to be represented at any time (including by a Union) with respect to all matters set out in this clause.
15.2 Definitions
(a) Performance means the manner in which the Employee fulfils his or her job requirements. The level of performance is determined by an Employee’s knowledge, skills, qualifications, abilities and the requirements of the role.
(b) Conduct means the manner in which the Employee behaviour impacts on their work.
(c) Misconduct means an Employee’s intentional or negligent failure to abide by or adhere to the standards of conduct expected by the Employer. A performance issue can be considered misconduct where, despite all reasonably practicable interventions by the Employer, the Employee is unable to fulfil all or part of their job requirements to a satisfactory level.
(d) Serious misconduct is as defined under the Act and that is both wilful and deliberate. Currently the Act defines serious misconduct, in part, as:
(i) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(ii) conduct that causes serious and imminent risk to:
(A) the health or safety of a person; or
(B) the reputation, viability or profitability of the employer’s business.
Conduct that is serious misconduct includes each of the following:
(iii) the Employee, in the course of the Employee's employment, engaging in:
(A) theft; or
(B) fraud; or
(C) assault;
(iv) the Employee being intoxicated at work;
(v) the Employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.
Subclauses 15.2(d)(iii)-15.2(d)(v) do not apply if the Employee is able to show that, in the circumstances, the conduct engaged in by the Employee was not conduct that made employment in the period of notice unreasonable.
15.3 Investigative procedure
(a) The purpose of an investigative procedure is to conclude whether, on balance, concerns regarding conduct or performance are well-founded and supported by evidence. An investigation procedure must be fair including proper regard to procedural fairness.
(b) The Employer will:
(i) advise the Employee of the concerns and allegations in writing;
(ii) provide the Employee with any material which forms the basis of the concerns;
(iii) ensure the Employee is provided a reasonable opportunity to answer any concerns including a reasonable time to respond;
(iv) advise the Employee of their right to have a representative, including a Union representative;
(v) ensure that the reason for any interview is explained; and
(vi) take reasonable steps to investigate the Employee’s response.
15.4 Disciplinary procedure
(a) The disciplinary procedure applies if, following the investigation, the Employer reasonably considers that the Employee’s conduct or performance may warrant disciplinary steps being taken.
(b) The Employer will:
(i) notify the Employee in writing of the outcome of the investigation process, including the basis of any conclusion; and
(ii) meet with the Employee.
(c) In considering whether to take disciplinary action, the Employer will consider:
(i) whether there is a valid reason related to the conduct or performance of the Employee arising from the investigation justifying disciplinary action;
(ii) whether the Employee knew or ought to have known that the conduct or performance was below acceptable standards; and
(iii) any explanation by the employee relating to conduct including any matters raised in mitigation.
15.5 Possible outcomes
(a) Where it is determined that after following the procedures in this clause that disciplinary action is warranted, the Employer may take any of the following steps depending on the seriousness of the conduct or performance:
(i) counsel the Employee, with the counselling recorded on the Employee’s personnel file;
(ii) give the Employee a first warning, which will be verbal and a record of the warning recorded on the Employee’s personnel file;
(iii) give the Employee a second written warning in the event that the Employee has previously been given a first warning within the previous 12 months for that course of conduct;
(iv) give the Employee a final written warning in the event that the Employee has previously been given a second written warning within the preceding 18 month period for that course of conduct;
(v) terminate the Employee’s employment on notice in the case of an employee who repeats a course of conduct for which a final warning was given in the preceding 18 months;
(vi) terminate the Employee’s employment without notice where the conduct is serious misconduct within the meaning of the Act that is wilful and deliberate; or
(vii) as an alternative to subclause 15.5(a)(vi) above and in those circumstances, the Employer may issue the Employee with a final warning without following the steps in subclauses 15.5(a)(i) to 15.5(a)(iii) above.”
[181] The Applicant submits that, in essence, the Respondent has not complied with its obligations under this clause. The Respondent contends that in undertaking its investigative and disciplinary procedure, it complied with the process prescribed by Clause 15 of the award.
[182] Given my findings above as to summary termination, I am not satisfied that the Respondent has complied with its obligations under Clause 15. That said I note that the failure to comply does not of itself affect the fairness of the process undertaken by the Respondent as required by s 387. Further I note that the gravity of Ms Allan’s conduct is outweighed by any failure to comply with Clause 15.
Complaint to AHPRA
[183] The Applicant made a number of submissions regarding the Australian Health Practitioner Regulation Agency (AHPRA). While these submissions were not fully developed, I consider them to be broadly advancing the following:
• The Respondent has made a complaint to AHPRA regarding her registration as a nurse which AHPRA is investigating;
• It is common for AHPRA to place conditions upon a nurse’s registration and practice following such an investigation;
• These restrictions will involve regular reports being made to meet AHPRA’s requirements and without a job the Applicant will not be able to comply with AHPRA’s conditions;
• The Applicant will find it “impossible” to find another position with conditions on her registration; and
• The effect of this is that the Applicant’s dismissal is rendered harsh.
[184] The Applicant’s submissions on this point are largely speculative and as stated above, the Applicant’s submissions in this regard have not been fully developed. While I sympathise with the Applicant’s concerns on this issue, even if I were to accept these submissions as to the outcome and effect of the AHPRA investigation I do not consider that this would, of itself, render the Applicant’s termination harsh.
Conclusion
[185] Having considered each of the matters specified in s.387 of the Act, I find that the Applicant’s dismissal was harsh. In making that determination, I have considered all the relevant matters above, including the seriousness of Ms Allan’s conduct, which I have found to collectively constitute a valid reason for dismissal. Certainly, in the circumstances of this case where Ms Allan was responsible for taking care of patients with varying degrees of health issues and vulnerability, the existence of a valid reason is an important factor, and I have given significant weight to this consideration.
[186] I have considered whether the decision to terminate Ms Allan was disproportionate and have concluded that the gravity of Ms Allan’s conduct outweighs the procedural unfairness associated with the termination process, together with the length of service and personal circumstances. I have determined that the procedural inadequacy as to the 29 May allegation and any failure to comply with Clause 15 of the Agreement, is not such as to render the termination unreasonable. That said, the harshness of her summary dismissal is the principal factor that has contributed to my conclusion that the dismissal of Ms Allan was harsh.
[187] There is insufficient material before me to make a determination as to remedy. Given my findings above, the parties are invited to advise my chambers if they would like to participate in a Member assisted conference to resolve the question of remedy within 7 days of the date of this decision.
[188] If not, directions will be issued for the filing of material as to the question of remedy.
COMMISSIONER
Appearances:
Ms J Allan, on her own behalf
Mr JRM Tracey, of counsel, on instructions of Lander & Rogers, with permission, for the Respondent
Hearing details:
2020, 28 October, 6 November, 9 and 12 December,
Melbourne, video using Microsoft Teams.
Final written submissions:
Applicant, 15 January 2021, 28 April 2021, and 14 May 2021.
Respondent, 12 March 2021.
Printed by authority of the Commonwealth Government Printer
<PR730753>
1 [2016] FWCA 9039; AE422722.
2 Email from Ms Allan to Chambers, sent on 29 September 2020, at 3:53 PM.
3 PR726337, 25 January 2021.
4 Witness Statement of Paul Ratcliffe dated 9 October 2020 (Ratcliffe Statement), [3].
5 Applicant’s submissions dated 11 September 2020 (Applicant’s Submissions).
6 Ratcliffe Statement, [7].
7 Ibid, PR-4.
8 Transcript PN154 – PN155.
9 Ibid, PN628.
10 Ibid, PN940.
11 Ibid, PN 735 - PN737.
12 Ratcliffe Statement, [55] – [56].
13 Ibid, PR – 14.
14 Allegations Letter, p.1.
15 Transcript PN215 – 224, PN298 – PN307.
16 Ibid, PN225 - PN227.
17 Ibid, PN328 – 330.
18 Ibid, PN347.
19 Miller Statement at RM – 18.
20 Respondent’s Outline of Closing Submissions, 5 February 2021, p.7 [25].
21 For e.g., Transcript PN1743 – PN1752 (in relation to Mr Ratcliffe); PN3362 – PN3371.
22 Pearse v Viva Energy Refining Pty Ltd [2017] FWCFB 4701 at [14]. See also section 591 of the FW Act and King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, 17 March 2000) Print S4213 at [61] - [62]; Enterprise Flexibility Agreement Test Case (Print M0464) at page 13; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 509.
23 Nicholas Ward v Great Southern Rail Pty Ltd T/A Great Southern Rail, [2019] FWC 5064, [195].
24 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.
25 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.
26 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
27 Ibid.
28 Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at p 363.
29 Ibid per Dixon J at p 362, and Rich J at p350.
30 [2013] FWCFB 619.
31 Respondent’s Outline of Closing Submissions, 5 February 2021 (Respondent’s Closing Submissions), [3].
32 Statement of Evidence of Julie Martins dated 9 October 2020 (Martins Statement), [39].
33 Ibid, [34]; Transcript PN581.
34 Ibid, [36]; PN582.
35 Ibid, [35]; PN593 - PN594.
36 Ibid, [37].
37 Allegations Table, 1.
38 Ibid, 2.
39 Martin Statement, [34].
40 Transcript PN593 - PN594.
41 Ibid, PN582.
42 Martins Statement, [36]; Transcript PN582.
43 Ibid, PN590.
44 Van Venrooy Statement, [46].
45 Ibid, [46].
46 Ibid, [46] – [47]; “A Code Grey is an organisation-level response to actual or potential violent, aggressive, abusive or threatening behaviour, exhibited by patients or visitors, towards others or themselves, which creates a risk to health and safety”, Code Grey Standards information booklet, September 2017, Victoria Health.
47 Ibid, [50].
48 Ibid t, MVV-4.
49 Allegations Table, 1.
50 Ibid, 3.
51 Transcript PN830 – PN839.
52 Van Venrooy Statement, [45].
53 Allegations Table, 3-4.
54 Transcript PN823.
55 Ibid, PN824.
56 Ibid, PN827.
57 Ibid, PN824.
58 Ibid, PN827.
59 Van Venrooy Statement, MVV-4.
60 Respondent’s Closing submissions, [11].
61 Ibid, [19]-[20].
62 Ibid, [23].
63 Ibid.
64 Ibid, [26].
65 Ibid, [27].
66 Statement of Evidence of Catherine Britten dated 9 October 2020 (Britten Statement), [14].
67 Ibid, [15].
68 Allegations Table, 4.
69 Applicant’s Submissions, [67].
70 Ibid, [69].
71 Transcript, PN445.
72 Applicant’s Submissions, [67].
73 Ibid, [67] – [68].
74 Transcript, PN449 – PN451.
75 Allegations Letter, 2.
76 Statement of Evidence of Rachel Hanson dated 9 October 2020 (Hanson Statement), [19].
77 Ibid, Footnote notes – attached to statement.
78 Transcript PN945 – PN946.
79 Transcript PN945 – PN946.
80 Ibid, PN2918.
81 Hansen Statement, attachment RH-2.
82 Martin Statement, [26].
83 Ibid, [27].
84 Ibid, [28].
85 Ibid, [30].
86 Allegations Table, 1.
87 Transcript PN560 – PN562.
88 Ibid, PN566.
89 Ibid, PN566- PN568.
90 Van Venrooy Statement, [56].
91 Transcript, PN860.
92 Ibid, PN883.
93 Ibid, PN887.
94 Allegations Letter, 2.
95 Allegations Letter, 2.
96 Ibid, 2.
97 Transcript, PN849.
98 Ibid, PN852.
99 Ibid, PN850 – PN851.
100 Ibid, PN883 – PN887.
101 Ibid, PN888.
102 Ibid, PN893.
103 Van Venrooy Statement, [22].
104 Ibid, MVV-1.
105 Transcript, PN738
106 Ibid, PN747 – PN750.
107 Monzon Statement, [26].
108 Ibid, [28].
109 Ibid, [30].
110 Ibid t, [29].
111 Transcript PN699.
112 Ibid PN700 – PN701.
113 Ibid PN703; PN707; PN708.
114 Ibid PN704.
115 Van Venrooy Statement, [30].
116 Ibid, [30].
117 Transcript, PN895 – PN896.
118 Monzon Statement, [19].
119 Allegations Letter.
120 Monzon Statement, [22] – [23].
121 Ibid, [23].
122 Ibid, [24]-[25].
123 Transcript, PN658 – PN698.
124 Van Venrooy Statement, MVV-1.
125 Ibid, [39].
126 Ibid, MVV-3.
127 Ibid, [53].
128 Ibid, MVV-6
129 Transcript PN738 – PN739.
130 Ibid PN738 – PN739.
131 Allegations Table, 10; Ratcliffe Statement, PR-10.
132 Van Venrooy Statement, [35]
133 Ratcliffe Statement, [53].
134 Van Venrooy Statement, [24].
135 Ibid, VV-1.
136 Ibid, [24].
137 Ibid, [24].
138 Ibid, [29].
139 Ibid, [32].
140 Ibid, [32].
141 Ibid, [38].
142 Ibid, [40].
143 Ibid t, [44].
144 Transcript, PN755 – PN759.
145 Ibid, PN766 – PN779.
146 Ibid, PN786 – PN787.
147 Ibid, PN788.
148 Ibid, PN789.
149 Ibid, PN800 – PN801.
150 Ibid, PN802.
151 Ibid, PN803 – PN819.
152 Van Venrooy Statement, [28].
153 Ibid, [31].
154 Ibid, [31].
155 Ibid, [36] – [37].
156 Ibid, [52].
157 Transcript, PN764-PN765.
158 Ibid, PN781-PN785.
159 Transcript, PN799.
160 Transcript, PN797.
161 Transcript PN796 – PN799.
162 Transcript PN857.
163 Van Venrooy Statement [71] – [72].
164 Van Venrooy Statement [73]; Transcript PN993 – 998.
165 Van Venrooy Statement, [73] – [75]; Transcript PN999 – 1006.
166 Britten Statement at [19] – [21], [32].
167 Transcript, PN1008 – 1011.
168 Ibid, PN974-976.
169 Ibid, PN978.
170 Ibid, PN979-980.
171 Ibid, PN985.
172 Ibid, PN998.
173 Ibid, PN996-997.
174 Ibid, PN1000.
175 Ibid, PN1002.
176 Ibid, PN1003.
177 Ibid, PN1011.
178 Ibid, PN1033 and PN1034.
179 Ibid, PN1028.
180 Respondent’s closing submissions, 5 February 2021, 3.a.
181 Transcript PN376.
182 Explanatory Memorandum to Fair Work Bill 2008, [1542].
183 Respondent’s outline of argument, 9 October 2020, p.5, [18].
184 Transcript PN229.
185 Ibid PN1222, PN1224 – PN1225.
186 Transcript PN1237 – 1238.
187 B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191at 41.
188 Ibid.
189 Applicant’s Submissions at [15].
190 Ibid at [20].
191 Ibid at [16].
192 Walsh v Ambulance Victoria (2013) 233 IR 15 at 24-25; Johnson v Northwest Supermarkets Pty Ltd [2017] FWCFB 3897, [11].
193 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033, [34], applying Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 per Gillard J.
194 Above n. 110.
195 Ibid, 3.a.
196 Transcript PN1167, PN1173, PN1175.
197 Ratcliffe Statement at PR – 25.
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