Mr Christopher Michael Skinner v Sunrise Health Services Aboriginal Corporation - [2011] FWA 617

[2011] FWA 617

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Application for unfair dismissal remedy

Mr Christopher Michael Skinner
v
Sunrise Health Services Aboriginal Corporation
(U2010/9986)

COMMISSIONER SMITH

MELBOURNE, 31 JANUARY 2011

Alleged unfair dismissal; administration of medication without authorisation.

INTRODUCTION

[1] This is an application by Mr Christopher Skinner challenging his termination of employment on 18 June 2010 by the Sunrise Health Services Aboriginal Corporation. (Sunrise). The application is made pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Skinner does not seek reinstatement but seeks compensation.

[3] In the proceedings, Sunrise was represented by Mr T. Anderson of Counsel and Mr C. Skinner, in the final result, represented himself.

BACKGROUND

[4] Mr Skinner is a Registered Nurse with a conditional practising certificate and had been employed by Sunrise since 13 March 2009.

[5] Mr Skinner operated as a Remote Area Nurse. A Remote Area Nurse is a person who provides health care services in remote Communities. Sunrise states that its “main purpose is to improve the health and wellbeing of the people in the region east of Katherine in the Northern Territory using a holistic approach that includes a high standard of medical care, the promotion of social justice and the overcoming of the sickness that affects so many people in our region. This is done through our health clinics and health education, mixing together traditional Indigenous culture and the best of mainstream medicine.” 1

[6] On 13 May 2010 Mr Skinner was suspended on full pay while two incidents were investigated. By letter dated 18 May 2010, Sunrise wrote to Mr Skinner putting certain allegations to him alleging misconduct in relation to:

the alteration of an electronic prescription and administration of certain medication in an excessive amount; and

the administration of medication contrary to the instructions of the treating physician together with inappropriate use of the recording technology.

[7] By letter received on 21 May 2010, Mr Skinner responded to the allegations and denied the substance of what was put against him and raised concerns about the reliability of the Communicare System. In addition, Mr Skinner made a number of recommendations directed towards enhancing the service and overcoming technological difficulties with the Communicare system.

[8] By letter dated 26 May 2010, Sunrise acknowledged Mr Skinners response and advised that a formal investigation would take place into the incidents. Mr Skinner was advised that the team would comprise the acting Human Resources Coordinator, a General Practitioner and another Remote Area Nurse. In that letter, Sunrise advised Mr Skinner that the investigation could lead to further action being taken including termination of employment. By letter dated 26 May, Mr Skinner noted the contents of the letter sent to him including “the ominous threat of termination”.

[9] The investigation report was completed on 3 June 2010. The investigation team acknowledged deficiencies in the Communicare system but found that Mr Skinner:

had poor documentation;

appeared, from the records, to be unsure of prescribed dosages;

had administered medication without obtaining a prescription.

[10] The report concluded that Mr Skinner had been “the subject of numerous verbal reports and two documented incident reports indicating that he did not always follow the established guidelines in patient care and documentation, showing a negligent unawareness or disregard for them, and his actions may constitute a danger to Sunrise Health clients.” 2 The report found that a medication error had occurred and that medication was dispensed without any oral or documented prescription.

[11] The report recommended that Mr Skinner cease working for Sunrise.

[12] There was another matter raised in the report which related to Mr Skinner but it appeared not to constitute a reason for the termination of employment and over which Mr Skinner took strong exception. These issues have not formed any part of my consideration of the application made by Mr Skinner. The report also made some recommendations in relation to the use of Communicare.

[13] The Acting Chief Executive Officer examined the report and it is recorded in the termination letter that: ‘Given the serious nature of that recommendation, I then sought a further review of both the circumstances of these incidents and the panel’s recommendations by a senior physician with significant experience in medical administration and public health management. This second review upheld the recommendations of the panel.’ 3

[14] On 4 June 2010, the Acting Chief Executive Officer of Sunrise advised Mr Skinner by letter that he had decided to summarily dismiss him effective 18 June 2010. Mr Skinner was advised to take the time until 18 June to vacate the premises he occupied.

[15] On 16 June 2010, the Nursing and Midwifery Board of the Northern Territory suspended Mr Skinner’s right to practice given the serious nature of the allegations.

[16] On 25 June Mr Skinner made his application to Fair Work Australia (FWA). The matter came on for mention before Her Honour Senior Deputy President Drake on 2 September 2010. The matter returned before Her Honour on 17 September. At that time some submissions were put in relation to the NT Poisons and Dangerous Drugs Act (PADDA). In this connection, Counsel for the respondent, invited Her Honour to advise Mr Skinner that he was not obliged by law to give evidence which would tend to incriminate him in the commission of an offence. Following some submissions about the possible impact of such evidence and brief adjournments, Mr Skinner was represented by Counsel from the Darwin Community Legal Aid Service who sought, on his behalf, an adjournment to permit him to obtain legal advice. Her Honour granted the adjournment and the file was allocated to me.

[17] When the matter returned before me I turned my mind to ss.397, 398 and 399 and considered that it was appropriate to hold a hearing. This was particularly so given that the matter had proceeded in open hearing before Her Honour.

[18] I also note at this stage that, before me, the only matter relied upon by Sunrise in relation to the termination of Mr Skinner’s employment was that he provided a drug to a patient in circumstances where he was not authorised by law to do so.

THE EVIDENCE

[19] The only evidence led was that of Mr Skinner. As background to his oral evidence, his written response to the allegations put to him was admitted as evidence. As to the crucial matter of providing a drug (Olanzapine) for which he was not authorised by law, Mr Skinner’s evidence was that:

The patient presented with his carer and produced the empty drug packet of Olanzapine and advised that he needed more of this medication.

He accepted and respected the word of the carer.

He had previously treated this patient and he knew his medication history.

He believed that there was an extant prescription permitting him to provide the drug to the patient.

He had 35 years of experience as a nurse with indigenous communities and particularly in matters relating to metal health.

He was a caring and competent nurse who was committed to closing the gap with aboriginal health.

He believed his actions were preventative (i.e. the safety of patient and the community including health care workers) in nature given the history of the patient and the remote locality.

He believed his actions were consistent with his competencies and skill.

He considered the response by Sunrise to be an overreaction to the incident and was motivated by his complaint alleging the poor facilities Sunrise provides at Ngukurr.

[20] The facts over which there is no dispute include that when the patient presented he was seen by the attendant medical practitioner who advised Mr Skinner to check the dose of Risperidone (medical records showed that Risperidone was the medication currently prescribed) with another clinic. Further, the medical practitioner had stated that it was not safe to change to oral medication (Olanzapine) at this stage, although, it was Mr Skinner’s evidence that he was going to check to see if there was a current prescription for this drug.

[21] It is also not disputed that Mr Skinner was not able to confirm either the dose of Risperidone that was currently prescribed or the existence of a prescription for Olanzapine.

[22] There is, however, a dispute on the facts in relation to whether the medical practitioner ordered that Risperidone be administered in a particular dose. Mr Skinner’s evidence was that it was ordered but the medical notes do not adequately deal with this matter. On this matter I accept the evidence of Mr Skinner as it was unchallenged.

THE REGULATORY SCHEME

[23] I turn first to the provisions of the Act. Section 382 protects a person from unfair dismissal in particular circumstances. Section 385 provides that a person has been unfairly dismissed if Fair Work Australia is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

[24] To begin, I am satisfied that Mr Skinner has been dismissed. Mr Skinner argues that his dismissal was harsh, unjust and unreasonable. Section 387 provides the criteria for considering that ground. It provides:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.

[25] At the time of the termination of the employment of Mr Skinner his terms and conditions of employment were regulated by the Sunrise Health Service Aboriginal Corporation Union Collective Agreement 2007—2010 [AG841567]. That Agreement provides, at clause 10.2.18:

Where summary dismissal is appropriate it is understood that the Disciplinary Procedure will be waived. An employee may be dismissed without notice for, neglect of duty wilful or reckless misconduct or breach of confidentiality in accordance with SHS policies and procedures.

[26] The employment of Mr Skinner was terminated in accordance with this clause.

CONCLUSION

[27] No controversy arises in relation to the application of ss.387(b), (c), (d), (e), (f) or (g). The real focus of this matter is ss.387(a) and whether or not there was a valid reason for the summary dismissal of Mr Skinner. It is to that matter that I now turn. It has been various held that for there to be a valid reason it must be sound defensible and well founded and not capricious, fanciful, spiteful or prejudiced. 4

[28] At the conclusion of the submissions and evidence of Mr Skinner, Sunrise moved that FWA should dismiss the application based upon the facts as presented by Mr Skinner. It was submitted that on his own case he could not succeed.

[29] It appears to me to be clear that:

Notwithstanding his belief, Mr Skinner could not have had sufficient certainty about whether or not the patient he was treating had a prescription for Olanzapine. He made enquires but he was unable to confirm the existence of such a prescription.

The treating medical practitioner had not authorised the administration of Olanzapine and had expressed concern about the safety of changing to an oral medication at that stage.

Two medical practitioners were available for Mr Skinner to obtain a prescription for Olanzapine if he was able to persuade them given his experience.

Mr Skinner decided to provide eight oral Olanzapine 5mg which he was not authorised to do so by law.

[30] The seriousness of the allegation against Mr Skinner was such that it led the Nursing and Midwifery Board of the Northern Territory to suspend his right to practice.

[31] This is not a matter where there had been an error made by Mr Skinner. As an experienced nurse who has practiced over many years he is fully aware of the legal parameters in which he is permitted to practice. His decision to provide the Olanzapine was inconsistent with those legal parameters. His long standing experience as a nurse is a factor, on this occasion, which weighs against him. Mr Skinner accepted that the administration of medication where uncertainty may exist is inconsistent with proper nurse practice. In this case, Mr Skinner had a level of trust and belief that was not supported by any factual base.

[32] I find that Sunrise had a valid reason to dismiss Mr Skinner from his employment. The next matter to which I turn is whether or not the termination was otherwise harsh, unjust or unreasonable.

[33] This is not an insignificant matter and I must balance his actions against what has been a very long career in nursing. Whether or not it comes to an end will, of course, be a matter for the Nursing and Midwifery Board of the Northern Territory, but it is probable that these proceedings will be a part of its considerations.

[34] During the proceedings I asked Mr Skinner the question that if I found his actions to be reasonable in all the circumstances then wouldn’t it undermine the importance of the legislation which determines the parameters of nursing practice? Where would the line be drawn if the legislation did not provide that line? Despite his passion and conviction to his work, he was unable to assist me with a suitable answer. Given the important public interest considerations inherent in the legislation governing nursing practice I find that his termination of employment was not harsh, unjust or unreasonable. I have also had regard to the finding of the investigation committee that Mr Skinner has been the subject of numerous verbal reports and two incident reports indicating that he does not always follow established guidelines.

[35] The application made by Mr Skinner is dismissed.

COMMISSIONER

Appearances:

Mr C. Skinner the applicant.

Mr T. Anderson, of Counsel on behalf of Sunrise Health Services Aboriginal Corporation.

Hearing details:

2011.
Darwin,
January, 27.

1 Extract from website:

2 Investigation report

3 Letter dated 4 June from Mr R. Brailsford

4 Selvachandran v. Peteron Plastics (1995) 62 IR 371

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