Mr Trevor McLean v Latrobe Regional Hospital

[2012] FWA 3337

[2012] FWA 3337

FAIR WORK AUSTRALIA

DECISION

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

Mr Trevor McLean
v
Latrobe Regional Hospital
(U2011/13996)

COMMISSIONER CRIBB MELBOURNE, 13 JUNE 2012

Application for unfair dismissal remedy.

[1] This decision concerns an application by Mr Trevor McLean (the applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). It is alleged that the termination of his employment by Latrobe Regional Hospital (the respondent) (the Hospital) was harsh, unjust or unreasonable. Mr McLean is seeking a remedy in respect of his dismissal.

[2] There was no conciliation conference held and the application was heard on Tuesday, 20 March 2012 in Morwell.

[3] Mr McLean was represented by Mr J McKenna of Counsel and the Hospital by Mr J Forbes of Counsel.

[4] Evidence was given by Mr McLean. For the respondent, evidence was given by Mr L Ryan Co-ordinator of Human Resources Health and Safety Manager (Employee Services Manager), Ms L Billington, Deputy Pharmacy Manager, Ms A Leversha, Pharmacy Services Manager and Ms C Greaves, Director Corporate Services.

THE EVIDENCE

APPLICANT

Mr McLean

[5] It was Mr McLean’s evidence that he was not currently working and that his only source of income was Centrelink. 1 He stated that he had approached two hospitals and taken his resume and a cover letter with him. At one of the Hospitals he was able to speak to the Director of Pharmacy. As well, he had enquired at a couple of other community pharmacies but there were no vacant positions.2 He said that he had also investigated opportunities in retail pharmacy but there were no jobs available.3 In addition, it was recounted that he had also been keeping an eye on the Society of Hospital Pharmacists of Australia (SHPA) website (he is a member) which has a register of hospital job vacancies.4 He said that he had not applied for any other jobs because, currently, he had been acting as a carer for his wife.5 Mr McLean stated that he was also subject to an investigation by the Australian Health Practitioners Regulation Agency (AHPRA).6

[6] Mr McLean confirmed that, as of 15 March 2011, he was to be performance managed whilst working in the clinical ward pharmacy area. This involved a three-month period of workplace monitoring of key performance areas. 7

[7] With respect to the Trend Care sheets, it was Mr McLean’s evidence that the form is a ward list which sets out each patient’s name, bed number, age, treating doctor, diagnosis and comments about treatment. Mr McLean explained that usually the pharmacist who arrived first each morning printed off the Trend Care sheets for each of the pharmacists rostered to the wards that shift. 8 He indicated that, during that shift, he would keep the form with him and would jot down notes that were relevant to a particular patient eg. admission medications that may have been missed, things to be followed up. It was confirmed that the form was used as a running sheet for the day's work and it was his understanding that the other pharmacists used these sheets in the same manner that he did.9 It was Mr McLean’s view that the primary purpose of the Trend Care sheets is as a working sheet which may be used for hand over but routinely, he did not believe that they were kept. It was not mandated within the Hospital that they were kept. He said that they were used by health practitioners, throughout the course of the day, to do their job.10 Mr McLean said that the Trend Care sheets sometimes had a patient's UR number and sometimes not.11 It was Mr McLean's understanding that, at the end of the day, the sheets were left in the tray for the following day and that, once that was the case with, they were filed somewhere. He was not aware of where they were kept.12 It was also Mr McLean's evidence that he knew that sometimes, the Trend Care sheets had been photocopied and on other occasions, they had gone home with other pharmacists.13

[8] Mr McLean stated that he had started copying the sheets at the beginning of his performance management (March 2011) and continued until the discussion with Ms Billington on 17 August 2011. 14 The reasons for this were so that he could refer to them, if required in the future, at a coronial inquiry or when a question arose as to what had treatment had been provided to a particular patient and also in the event that his performance might have been questioned in the future.15 He stated that the Hospital was using the sheets to work out the statistics regarding his work performance and he just wanted to double check/cross reference that. He said that he could not do this at work because he was not given any time to do so.16 It was recalled that Ms Billington, on 17 August 2011, requested that he stop taking the sheets off the premises.17 He stated that he did as requested. It was indicated that the documents were kept out of sight in a drawer in his study. Mr McLean said that he did nothing much with the documents - that they were just there. It was recalled that, when he received a letter on the same day regarding continued poor performance, he had a bit of a look back at the documents to see if he could work out whether the statistics that were put to him were correct or not.18

[9] Evidence was given by Mr McLean that, around 10 October 2011, he had sought legal advice regarding whether he had a right, as the health practitioner looking after that ward, to retain a copy of the Trend Care sheets. It was recalled that the reason he sought the advice, was because the Hospital had requested the return of the sheets. 19 Mr McLean said that he was seeking clarification as to whether the Trend Care sheets constituted medical records which were covered by the relevant legislation. He stated that he believed that, because of his notes on the sheets, they were his own clinical notes.20 It was agreed that the Trend Care sheets contained information which would allow one to identify a person to whom health services were provided.21 He did not show the solicitor any of the Trend Care sheets as he did not have one with him and they still contained confidential information which was visible.22 It was indicated that he had received verbal but not written advice from the solicitor at the first meeting and also at a subsequent meeting. Mr McLean recalled that, at the second meeting, the solicitor advised that he had also discussed the issue with the Fair Work Ombudsman’s office. It was his recollection that he had received the first legal advice and which was subsequently reiterated, prior to his dismissal.23

[10] Mr McLean confirmed that he had not told the Hospital that he had received that advice or that the reason he was not returning records was because he had received legal advice that the documents were his and he did not have to return them. 24 Mr McLean believed that he had told Mr Elliott about the advice.25 He said that he had not advised the Hospital about the legal advice because Mr Elliott had told him to deal with the return of the sheets, if necessary, when he returned to work. As well, Mr Elliott had told him that he thought it was ridiculous that the Hospital was demanding the return of the sheets whilst he was on sick leave.26

[11] Mr McLean agreed that, at the time that he sought legal advice, the Hospital had advised him that his holding of the documents and refusal to return them was in breach of various statutory obligations. He did not believe that he was in breach of those obligations because he had not used or disclosed health information. Rather, he had looked at information to assess the statistics presented by the Hospital. 27 He confirmed that he had taken the sheets home for a personal purpose which was not to deliver patient care. It was stated that he believed that, as a health professional, he had a right to his clinical notes.28

[12] It was indicated that he had given the documents to the lawyers in around late October, early November and that they were in a redacted form. Mr McLean stated that he had removed patient names and UR numbers, where included, as it would have been inappropriate for anybody else to have seen them. 29 He confirmed that the redaction was not done until a time well after he had taken them home.30

[13] Mr McLean acknowledged that the Hospital wrote to him requesting him to return the documents but said that he was on sick leave and so was unable to return them. He agreed that he was able to attend meetings with his solicitor and said that it was because he did not have to deal with the Hospital. 31 It was confirmed that he was able to deal with Mr Elliott from the union and was in regular communication with him because he needed to be. He agreed that he knew that he had been directed by the Hospital to return the documents but said that Mr Elliott had told him to deal with this when he returned to work.32

[14] Mr McLean confirmed that Mr Elliott had forwarded to him the letter from Ms Greaves to Mr Elliott, dated 27 September 2011. 33 He agreed that Mr Elliott had been engaged by him to represent his interests and that Mr Elliott had acted on his authority.34 It was confirmed that Mr Elliott usually kept him abreast of what was going on. He was aware that Mr Elliott was in communication with the Hospital over a period of at least a couple of months.35 He agreed that he was aware of the request in this letter for all confidential patient records to be returned by 7 October 2011 and that he attend a meeting on 12 October 2011.36 It was Mr McLean’s evidence that this was the first time he had been requested to return the documents.37

[15] With respect to the e-mail from Ms Greaves to Mr Elliott, dated 13 October 2011, it was confirmed by Mr McLean that Mr Elliott had either told him about this e-mail or had forwarded it on to him. 38 He agreed that he was aware of the allegations made against him and that immediate return of any confidential patient-related records (by 16 October 2011) was requested.39 Further, Mr McLean confirmed that he received the letter from Ms Greaves, dated 27 October 2011, which also requested the return of the patient records by 31 October 2011.40

[16] Mr McLean confirmed that he received the notice of termination letter from Ms Greaves, dated 3 November 2011. 41 It was agreed that the letter confirmed that he had not returned the records despite repeated requests and he indicated that he had not returned to records. Mr McLean indicated that he had received legal advice that he should return the records and that this had been done last Friday.42

[17] The following was accepted or commented upon by Mr McLean:

• He had been invited to respond to the allegations made by the Hospital. 43



• A meeting had initially been proposed for 20 September 2011 with Mr Ryan and Mr Chesterton. One of the reasons why he could not attend the meeting was because he was on sick leave.



• He commenced on sick leave on 29 August 2011 almost immediately after he received (on 25 August 2011) a letter in relation to performance matters and the letter from Mr Chesterton regarding the documents, both dated 24 August 2011. 44



• He was subsequently asked to provide a written response to the allegations rather than attend a meeting. He had started working on a response document but was terminated prior to completing it and forwarding it to the Hospital. 45 He said that he was not too fond of the idea of ringing up the Hospital.46 Mr McLean explained that, at the time, he was very stressed by his dealings with the Hospital and therefore his doctor had put him on sick leave and referred him to a psychologist.47 He said that he found it easier to deal with other people but that dealing directly with the Hospital was very stressful for him.48



• Mr Elliott was acting as his representative and Mr Elliott was communicating with the Hospital. He stated that he had told Mr Elliott that he was working on the document but did not think that Mr Elliott had contacted the Hospital on his behalf regarding holding things off. 49 He did not seek an extension of time but was aware that Mr Elliott, twice, had sought that the Hospital withdraw their threat to instigate disciplinary proceedings (late October and around 2 November 2011).50



• As his termination was effective immediately, he did not think to contact the Hospital to say that he had been working on a response. 51



• He had not contacted the Hospital to say that he had legal advice that he could retain the documents because Mr Elliott had suggested that he dealt with the matter on his return to work. He stated that he had every intention of returning to work. 52



• By 3 November 2011, he had been requested and had refused to return the Trend Care sheets, copies of which he had in his possession. 53



• He had not been requested by his employer to either copy or retain those documents and had not provided the Hospital with an explanation for doing so. 54



• Between mid August 2011 and 28 October 2011, he wrote to the Hospital once regarding performance issues. 55



• The performance management issues were never concluded because he was absent on sick leave. 56

[18] It was confirmed by Mr McLean that the Hospital had advised him that the investigation was complete. The Hospital had also put in writing that disciplinary action of some description may take place if the health records were not returned. He agreed that the Hospital had stated that his conduct constituted a probable breach of the Health Records Act and the Information Privacy Act. The Hospital had also stated that it had the potential to undermine the trust and confidence between the Hospital and its patient and between hospital and himself. 57 He confirmed that he was aware of the Health Records Act in his day to day practice at pharmacist and also the various Privacy Principles.58 Mr McLean's evidence was that he was quite shocked when he was terminated. He had not believed that he would be terminated. He had thought that, when the Hospital said that termination was a possible outcome, he had thought that that may have been a standard clause. He had not expected that to be the actual outcome.59

[19] Mr McLean’s evidence was that he was seeking reinstatement. In the alternative, he sought the maximum compensation. This was on the basis that it is extremely difficult to find work in the region. He believed that he might be unemployed for a significant period of time. 60

[20] Mr McLean answered a number of questions regarding the bullying complaint he had raised against the Chief pharmacist in mid-February 2011. 61

RESPONDENT

Mr Ryan

[21] Mr Ryan gave oral evidence and also provided a written witness statement. 62

[22] It was confirmed by Mr Ryan that, on 17 August 2011, he had been advised by Ms Billington that she had observed, the previous day, Mr McLean copying patient Trend Care sheets, placing them in a folder and leaving the Hospital's premises with them. 63 It was recalled that he had directed Ms Billington to approach Mr McLean and to ask him about it. She reported back later that Mr McLean had confirmed what she had seen.64 He stated that 25 August 2011 was the first opportunity he had to give Mr McLean the letter as Mr McLean had been absent prior to then.65

[23] It was Mr Ryan's evidence that, on 25 August 2011, he handed Mr McLean a letter dated 24 August 2011, signed by Mr Chesterton. 66 He confirmed that the letter stated that the copying removal of medical records for personal reasons by Mr MacLean is a serious breach of the Standards relating to privacy and confidentiality which potentially constituted an ongoing breach of the Health Records and Privacy legislation.67 The Standards were said to be the SHPA Standards, the Health Privacy Principles and the Information Privacy Act. Mr Ryan confirmed that these were the standards relating to privacy and confidentiality which formed the basis of the allegations set out in the letter.68 Mr Ryan agreed that it was not a clear cut matter and that the Information Privacy Principles and the Health Privacy Principles complex documents.69 He indicated that he had assisted in the drafting of this letter.70

[24] Mr Ryan agreed that the letter requested Mr McLean to immediately cease copying patient files. It was confirmed that the letter did not ask Mr McLean to return any patient files that he may have. 71 Further, Mr McLean was directed to attend a meeting on 31 August 2011 to determine whether a breach of privacy and confidentiality standards had occurred.72

[25] It was recalled that, on 26 August 2011, Mr McLean had advised by e-mail that he would be unable to attend the meeting on 31 August 2011 and had attached a medical certificate. It was accepted by Mr Ryan that Mr McLean was absent on a medical certificate from 29 August 2011 and that medical certificates had been supplied until the date of his dismissal on 3 November 2011. 73 Mr Ryan confirmed that the medical certificates stated that he did not have the capacity to work.74

[26] With respect to the performance management plan, Mr Ryan indicated that it was being overseen by Ms Billington. It was his understanding that Ms Billington would go through the Trend Care sheets and calculate Mr McLean’s achieved outcome as against his expected outcome. 75 Mr Ryan confirmed that none of the allegations against Mr McLean related to dishonesty or any breach of his ethical responsibilities.76

[27] It was stated that the formal performance management process for Mr McLean was not concluded as the three month period ended just prior to Mr McLean going on extended long service leave and leave without pay. Mr Ryan recalled that the week in which they were to meet was a time when Mr McLean also was unwell. Therefore, it was not possible to conclude that performance management plan at that time with the next opportunity being on his return. It was Mr Ryan's view that there were other matters, in particular the grievance issue and Mr McLean's application for another position, which needed to be resolved prior to proceeding with the performance management program. 77

[28] Mr Ryan's evidence was that, whilst Mr McLean was on leave, he had a number of conversations with Mr Elliott of the Health Services Union (the union). He confirmed that the McLean was told that he was to return the Trend Care sheets and provide written submissions by 31 October 2011. He agreed that he was aware that Mr McLean was on sick leave at the time. It was stated that he had a conversation with Mr Elliott on 28 October 2011. It was recalled that, during that telephone call, Mr Elliott had asked whether the Hospital would agree not to take disciplinary action whilst Mr McLean was on sick leave. Mr Elliott had followed up the request in an e-mail at 1.51pm that day which he had forwarded to Ms Greaves. Mr Ryan said that Ms Greaves had responded directly to Mr Elliott and then, at a later date, to himself. It was his evidence that he did not recall sending Mr Elliott a letter drafted by Ms Greaves. He confirmed that he had sent Mr Elliott an e-mail at 5:55pm on 28 October 2011, the Friday before the Melbourne Cup weekend. He agreed that, following Friday, 28 October 2011, he would not be returning to work until the following Wednesday. 78

[29] It was indicated by Mr Ryan that the termination of Mr McLean's employment was not related in any way to either the bullying claim made by him or his poor performance. Rather, it was on the basis of serious misconduct, being the copying of patient records (Trend Care sheets) without a legitimate reason, removing these records from the Hospital and refusing to return the copies of the records. 79

Ms Billington

[30] Ms Billington gave oral evidence and also provided a written witness statement. 80

[31] Ms Billington indicated that Mr McLean did not report directly to her but rather to Ms Leversha. Her relationship with him was as one of the Pharmacy team. 81

[32] It was explained by Ms Billington that the Trend Care sheets were the daily working sheet for pharmacists who were rostered in a clinical capacity on the ward. The pharmacist would mark off what work had been done with each particular patient. The sheets were also used to annotate any notes regarding follow-up actions that might need to be taken. At the end of the day, the pharmacist would put the sheets in a tray to be filed and held in the Department. 82

[33] Ms Billington confirmed that she had been involved in Mr McLean’s performance management process. This meant that she was responsible for filling out the achieved part of the performance management plan on an ongoing basis. She confirmed that she measured the outcome of Mr McLean's performance against the performance criteria set down in the plan by using the Trend Care sheets. It was stated that she would go to where the Trend Care sheets had been filed, take them out again and go through them and make an assessment of the achieved outcomes. She would then meet with Mr McLean to discuss the plan and talk to him about the achieved outcomes. 83

[34] Ms Billington did not recall asking Mr McLean if he had also been keeping a tab on how his performance was tracking against the achieved outcomes. 84 It was agreed that the only way that Mr McLean could himself check how he was tracking against the achieved outcomes was by doing the same thing that she was doing and checking the Trend Care sheets.85 She said that no specific time had been allocated for him to do this but that it would only take a few minutes to do.86

[35] On 16 August 2011, it was Ms Billington’s evidence that she observed Mr McLean photocopying patient Trend Care sheets and then leaving the Hospital with them. She recalled that she had contacted Mr Ryan the following morning and had advised him of what she had observed and asked his advice about what to do. Mr Ryan was said to have told her to confirm with Mr McLean whether or not he was photocopying the Trend Care sheets and removing them from Hospital. 87 Ms Billington indicated that Mr McLean was not making any attempt to hide what he was doing. Further, when she spoke to him about it on 17 August 2011, he had not denied that he was doing it and he had readily accepted that he was copying them and taking them home.88 It was stated by Ms Billington that, on 17 August 2011, she did not say to Mr McLean that he should stop copying the Trend Care sheets. She recalled that she had said that he should stop taking them home and that if he wished to keep the copies for his own records he could do so as long as they remained at the Hospital.89

[36] It was Ms Billington's view that it would be acceptable for Mr McLean to make copies and retain them for his own records but that would have to be done on Hospital premises. She said that, where Mr McLean had gone wrong, was when he had taken them home. 90 This was because she had concerns over patient privacy and confidentiality because if removed from hospital, other people may have access to the Trend Care sheets which was not appropriate and would not be legal.91 It was confirmed that she did not direct or ask Mr McLean directly to return the documents to the Hospital as she thought it was implicit in saying that they should be kept at the Hospital. Ms Billington accepted that she did not say “return them”.92

[37] Ms Billington indicated that none of Mr McLean’s performance issues related to dishonesty or ethical issues. 93

Ms Leversha

[38] Ms Leversha gave oral evidence and also provided a written witness statement. 94

[39] It was Ms Leversha’s evidence that Mr McLean and the other pharmacists reported to her. 95

[40] With respect to the Trend Care sheets, Ms Leversha explained that they were worksheets and that, each day, they were printed out and were used as a working document for the ward to document the work that the pharmacist does eg. check pathology, look at the patient notes etc. 96 She stated that on the sheet already was the patient's name, their diagnosis, their medical history and any other notes to do with their treatment. She indicated that the Department held on to the Trend Care sheets for the next day. If you were handing over to somebody else you would use them as a handover sheet or if you were on the ward, you would retain them. When you were finished with them, you put them in a tray and they were filed in the Pharmacy Department.97

[41] In terms of the performance management plan, Ms Leversha explained that there were agreed criteria against which Mr McLean was going to be measured. She indicated that the Trend Care sheets were used to provide the data for assessing his actual performance. 98 It was her view that this was a legitimate use of the Trend Care sheets by the Hospital for the purpose of the performance management of an employee.99 Ms Leversha also believed that the purpose for which Mr McLean was using the Trend Care sheets was legitimate.100 She was not aware of other pharmacists having taken home the Trend Care sheets.101

[42] With regard to the management of Mr McLean's performance, Ms Leversha stated that that was not pursued because, at the time, he had a current harassment claim and he had also applied for a promotion at the Hospital. 102 It was confirmed that none of the performance management issues related to his honesty, integrity or personal or professional ethics.103

[43] Ms Leversha confirmed that, in her letter to Mr McLean dated 24 August 2011, she had directed him to attend a meeting on 22 September 2011. She said that the meeting did not occur and that Mr McLean was on sick leave for a prolonged period of time but that she did not have the exact dates in front of her. 104 It was accepted that it would be legitimate for a person to delay a meeting to discuss ongoing performance issues or a disciplinary meeting if they were unwell.105

[44] It was stated by Ms Leversha that, except for the letter that she received from Mr McLean around 24 October 2011, she did not receive any other correspondence from him other than documents relating to his sick leave. 106

[45] Ms Leversha indicated that Mr McLean's employment was terminated for serious misconduct in relation to his copying, removal and refusal to return patient records to the Hospital. She stated that his dismissal did not relate in any way to his poor work performance. 107

Ms Greaves

[46] Ms Greaves gave oral evidence and also provided a written statement. 108

[47] It was indicated by Ms Greaves that she had commenced as Director Corporate Services on 25 July 2011. 109

[48] Ms Greaves confirmed that she had had a number of conversations and written communications with Mr Elliott who was representing Mr McLean. She said that she had communicated with Mr McLean but only in writing. There had been no verbal communication as she understood that Mr McLean was unwell and so it was appropriate to deal through his representative. 110

[49] It was explained by Ms Greaves that, the statement in the termination letter to Mr McLean that his actions posed a risk to the Hospital’s reputation referred to him being in possession of confidential patient information and the moving of it to outside the Hospital. It was stated that there was a very well understood protocol around the handling and movement of patient information, both within and outside of the Hospital. 111 Ms Greaves indicated that there were written protocols around confidentiality and the storage and retrieval of patient documents. It was stated that they discussed the general movement and storage of documents around the Hospital.112 Ms Greaves said that it was a “no brainer” that the documents should not have left the Hospital - “that just doesn’t occur outside of the appropriate protocols and permissions”.113 She did not believe that the protocol was referred to in any of the correspondence to Mr McLean or is representative.114 Further, there was said to be a risk to the Hospital’s reputation if documents were seen to be floating around outside of the protocols.115

[50] It was stated that the Hospital had asked on numerous occasions for the documents to be returned - with no response. There was consequently absolute frustration on the part of the Hospital - trying to retrieve the documents and no recognition that they had left the premises or any intention of returning them. 116

[51] With respect to her contention that Mr McLean had ever suggested that he had not taken the documents, Ms Greaves stated that, during a telephone conversation with Mr Elliott around 5 October 2011, about the non acknowledgement of or intention to return the documents, Mr Elliott had said that he was aware that Mr McLean had some documents and that he would check if they contained patient information. 117

[52] Ms Greaves confirmed that she had spoken to Ms Billington who indicated that Mr McLean had admitted, right at the very beginning, that he had taken the documents home. 118 She agreed that there was no doubt at any time about the location of the documents and that, at no time, did Mr McLean suggest that he did not have them.119

[53] It was confirmed by Ms Greaves that she had carriage of this matter from about mid September 2011. She accepted that Mr McLean was on sick leave from 29 August 2011 until his dismissal. Ms Greaves agreed that her first formal involvement was her letter to Mr McLean of 15 September 2011 and that the letter did not request that the documents be returned. 120

[54] In terms of the letter of 27 September 2011, Ms Greaves stated that her understanding was/is that Ms Billington verbally requested that Mr McLean return the records around the time that she spoke to him. 121 With regard to her reference in this letter to the one sent to Mr McLean dated 24 August 2011, it was Ms Greaves’ evidence that she was now aware that the 24 August 2011 letter had not requested the return of the files. She could not recall as to when she became aware of this - possibly after Mr McLean had been dismissed. It was indicated that the Chief Executive had made the decision to terminate and, in doing so, had acted on her advice.122

[55] Ms Greaves expressed the opinion that, if Ms Billington had not asked Mr McLean to return the documents, that would not have changed her view about the reasonabless of the request to return them. She confirmed that it was her understanding that Mr McLean was verbally asked by Ms Billington to return the documents. She said that there was then numerous other correspondence to either Mr Elliott or Mr McLean requesting the return of the documents. 123 Ms Greaves accepted that the first time the request to return the documents was put in writing was her letter of 27 September 2011.124

[56] It was confirmed by Ms Greaves that, following receipt of the letter of 27 September 2011, Mr Elliott telephoned her to discuss the last paragraph of the letter. She indicated that she agreed with Mr Elliott that Mr McLean could only reasonably be expected to attend a performance meeting (on 12 October 2011) if he was well. It was recalled that she made it very clear to Mr Elliott that the Hospital would not take any disciplinary action on the basis that Mr McLean was unable to attend a meeting. Also, during that conversation, it was recalled that she made it very clear that the Hospital was very concerned about the documents as there had been no attempt to return them. She had asked Mr Elliott to get the documents returned as a separate issue to the performance issues which could be dealt with when Mr McLean was well enough. 125

[57] It was not Ms Greaves’ understanding that Mr Elliott’s email 126 to her dated 5 October 2011, meant that Mr McLean may not have medical clearance to do certain things (return the documents) or attend the meeting.127 With respect to her email response128, Ms Greaves confirmed that it meant that the Hospital would not take disciplinary action against Mr McLean if he could not attend the scheduled meeting because he was on sick leave.129 It was also agreed that, as the Hospital was prepared to accept a written response “assuming that Trevor is able to provide instructions”, Ms Greaves was aware of the possibility that Mr McLean may not be able to provide instructions.130 She also stated that Mr Elliott had been in contact with Mr McLean after Mr Elliott and her phone conversation.131

[58] With respect to her contention that, as of 13 October 2011, Mr McLean had been provided with ample opportunity to return the documents, Ms Greaves stated that this was based on him being first asked to return the documents on 17 August 2011. She agreed that, if the first request was not made until 27 September 2011, the opportunity would be rather less ample.

[59] Ms Greaves confirmed that she knew that Mr McLean was not well and that he had been unfit for duties since 29 August 2011 (5 weeks). Ms Greaves stated that no real inquiries had been made as to the nature of his illness at that point in time. 132 She agreed that an absence of that length would be of concern to the Hospital.133

[60] In terms of Mr McLean’s capacity to return the documents it was Ms Greaves’ opinion that Mr McLean was communicating with the Hospital and was able to communicate with the Hospital. This was based on Mr Elliott not indicating that he would have any trouble getting a response from Mr McLean, Mr McLean having sent a letter attaching a medical certificate and a brief letter saying that he could not attend the scheduled meetings because he was ill. 134

[61] With respect to her recollection that Mr Elliott had not told her that Mr McLean was not in a position to respond, Ms Greaves was not able to explain as to why she had included in her letter of Thursday 27 October 2011 “Assuming that Trevor is able to respond or provide instructions.” 135

[62] Ms Greaves stated that she had made an offer to Mr Elliott to assist in the retrieval of the documents, eg the HR person could go and collect them. She said that this had not been included in her witness statement as she had not seen it to be important enough at the time. It was agreed that none of the contemporaneous correspondence had referred to any such potential arrangements. Rather, the correspondence had included demands to return the documents. 136

[63] With regard to the letter 137 of Thursday 27 October 2011 to Mr McLean, it was accepted by Ms Greaves that it did not contain any particulars of how the conduct was said to breach the Health Records Act or the Information Privacy Act. Further, no reference was made to any Hospital policies or procedures.138 Ms Greaves confirmed that, at the time this letter was sent, Mr McLean was still on sick leave (two months) and that she had not made any particular inquiries as to the nature of his illness.139

[64] It was confirmed that the letter of 27 October 2011 required a written response and return of the documents by Monday 31 October 2011 with Melbourne Cup Day being the next day (Tuesday) which was a public holiday for the Pharmacists. Ms Greaves stated that both she and Mr Ryan were on leave on both Monday 31 October and Tuesday 1 November 2011. 140

[65] Ms Greaves agreed that Mr Elliott had raised a similar concern in relation to the 27 October 2011 request as he had when the Hospital had made the 27 September 2011 request. She said that she knew that Mr Elliott had spoken with Mr Ryan on the morning of Friday 28 October 2011 and indicated that Mr Ryan had spoken to her about those discussions. It was confirmed that Mr Ryan had forwarded to her his email correspondence with Mr Elliott. 141 Ms Greaves explained that, at that stage, the Hospital sought external legal advice and that they had drafted a response on her behalf. The response, however, was sent out under her hand.142

[66] It was indicated that the covering e-mail and the Hospital’s response was sent at 5:55pm on the Friday before the Cup weekend (28 October 2011). Ms Greaves confirmed that she did not receive any communication, either in writing or by telephone, subsequent to her letter of 28 October 2011. This included any advice that Mr McLean was working on a written response or a request for an extension of the deadline. 143 As a consequence, Mr McLean was terminated on 3 November 2011.144 It was agreed, once again, that between Friday, 28 October 2011 and Wednesday, 3 November 2011, she was on leave.145

[67] With respect to Mr Elliott’s request that the Hospital not take action, it was Ms Greaves’ understanding that the request only concerned the meetings and was not about the return of the documents. Her responses to Mr Elliott were purely around the meetings. It was agreed that previously, the Hospital had set deadlines about the return of documents and that disciplinary action was not taken when Mr McLean failed to meet those deadlines. Ms Greaves explained that the Hospital then sent a request with a further threat of disciplinary action was the next step in the process. 146 This was said to have followed by a similar request from Mr Elliott to his last one.147

[68] It was stated by Ms Greaves that Mr Elliott’s request was immediately responded to at 5.55pm on the Friday night, 28 October 2011. She agreed that it was unlikely that Mr Elliott would have been on email at 5.55pm on Melbourne Cup eve. She said that it was possible that, until the email was sent, Mr Elliott’s request was pending. Ms Greaves said that she could not recall whether Mr Ryan had responded verbally and the letter of 5.55pm was confirmation of that. 148

[69] Ms Greaves indicated that she was aware that the termination of a pharmacist for serious misconduct has very significant ramifications for the person concerned. It was acknowledged that there had been an AHPRA notification and likely to be an investigation. She thought it would be reasonable to expect that a pharmacist with an inexplicable termination on his record would make it very difficult to obtain alternate employment. 149

[70] During re-examination, Ms Greaves indicated that, as part of her discussion with Mr Elliott, she had offered to do anything to assist in the retrieval of the documents. She recalled saying that, if Mr McLean did not want to come to the hospital, something could be worked out in terms of a person from the Hospital collecting them from Mr McLean. It was stated that Mr Elliott’s response was that he undertook to speak to Mr McLean about it.

CLOSING SUBMISSIONS

APPLICANT

Valid reason

[71] With respect to valid reason, the Tribunal was taken to the decision of Lacy SDP in Christine Wright v Telstra Corporation Limited. 150 It was argued that there was a high threshold in relation to summary dismissal at common law, particularly, with respect to the meaning of serious misconduct and also with respect to Regulation 1.87. The applicant contended that the conduct must cause both “serious and imminent” risk. That is, that it must be both serious and imminent where imminent can be taken to mean likely to occur at any moment. Reference was made to the evidence of the witnesses who worked closely with the applicant. It was stated that none of them suggested that there was previously any reason to have concern regarding the applicant's honesty and ethics.151

[72] It was said that the heart of the respondent's case appeared to be that there was a risk that the applicant might do something with the Trend Care sheets. Mr McKenna said that the applicant had these documents every day in his job and he handled them appropriately. It was accepted that Mr McLean had taken the sheets home. However, what serious and imminent risk does this cause given the uncontroverted evidence about his character and nature. It was submitted that there was no serious or imminent risk. 152

[73] With respect to the Latrobe Hospital confidentiality policy, it was stated by Mr McKenna that this policy is not in evidence and was not referred to in any of the correspondence to Mr McLean or his representative. It was argued that there is nothing in this policy that would prevent Mr McLean doing what he did. 153

[74] In terms of the respondent’s contention that Mr McLean's conduct amounted to a breach of the Health Privacy Principles at principle 2.2, it was argued that the copying and removal of a document is not the “use” of that document and that is what Principle 2.2 is primarily directed towards. Mr McKenna provided the Macquarie Dictionary definition of “use” - to employ for some purpose; put into service; turn into account; to avail oneself of and to apply to one's own purposes. It was submitted that copying and taking the documents does not amount to employing those documents for some purpose, putting them into service, turning them into account or to avail oneself of or to apply to one's own purposes. 154

[75] Mr McKenna accepted that, by taking the documents and extracting information out of them to check what was included in his performance plan may amount to use. However, principle 2.2 was said to contain a number of exceptions including at paragraph 2.2 (a) and paragraph 2.2 (f). The latter was said to provide an exception if “the use or disclosure is for the purpose of funding, management, planning, monitoring, improvement or the evaluation of health services”. The evidence of Ms Billington was highlighted where she said that, as part of Mr McLean's performance management, she would get the copies of the Trend Care sheets and would complete the performance management table based on these documents. Further, Ms Leversha’s evidence that it would be legitimate to use the Trend Care sheets by a person being performance managed was referred to. 155

[76] It was contended by Mr McKenna that generally, there was an acceptance from the witnesses that, had Mr McLean retained the documents on the Hospital’s premises, there would not have been a concern. Rather, the issue seemed to be the removal of the documents from the Hospital. The applicant's submission was that there is nothing in Health Privacy Principle 2 that would prohibit the copying and removal of the documents by Mr McLean in the way that he did. 156 It was argued that the copying and removal of a document did not constitute “use” of the document ie. employing those documents for some purpose. It was accepted that what Mr McLean did may amount to a “use”. However, it was argued that the Privacy Principle provided for exceptions, one of which was that, where the secondary purpose was directly related to the primary purpose and that the patient would reasonably expect the organisation to use or disclose the information for a secondary purpose. It was said to be arguable that the use for performance management is directly related to the primary purpose and that the patient would expect that information might be used for that purpose. However, the exception at paragraph 2.2(f) was highlighted - if the use or disclosure is for the purpose of funding, management, planning, monitoring, improvement or the evaluation of health services. It was pointed out by Mr McKenna that it was Ms Leversha’s evidence that the Trend Care sheets were used as part of Mr McLean’s performance management. It was also her view that it was legitimate to use the Trend Care sheets by a person being performance managed. The concern raised by the Hospital’s witnesses was said to be that Mr McLean had removed the documents from the Hospital rather than the copying of them.157

[77] With respect to Health Privacy Principle 1, it was argued that it has no relevance to downstream use or disclosure of that information. 158

[78] In relation to the SHPA Standards, it was submitted that these were not in evidence and that there was nothing to indicate that they went beyond referring the practitioner back to their obligations under the Health Records Act and Information Privacy Act. 159

[79] Ms Greaves’ evidence that there was a well understood protocol that the documents do not go off site and a strict protocol about this was referred to by Mr McKenna. It was stated that the respondent had failed to identify such a protocol either in its correspondence to the applicant or in the evidence put before the Tribunal. Reference was made to the decision 160 in Stacie Noutsis v Through Road Child Care Association Inc T/A Through Road Kindergarten & Children’s Centre (the Noutsis case).161

[80] With regard to the third reason given by the respondent as to why the applicant's conduct was serious misconduct - failure to obey a lawful and reasonable direction - Mr McKenna indicated that he understood that this related to a direction to return the documents not the direction to cease copying them. This was because there is no suggestion that Mr McLean failed to comply with the direction to cease copying them. It was submitted that the question for the Tribunal is whether the direction to return the trend care sheets was lawful and reasonable. 162

[81] In terms of lawfulness, it was submitted that it is not conceded that the direction was lawful on the basis that Mr McLean had legal advice as to his entitlement to retain the sheets. The focus of the applicant's submissions was, however, on reasonableness. It was stated that, despite Ms Greaves’ understanding about what had happened, there was no request made for Mr McLean to return the documents prior to her letter of 27 September 2011. The issue of reasonableness needed to be addressed in the context of Mr McLean being on sick leave and providing medical certificates to his employer about his lack of capacity to perform his normal duties. 163

[82] Further, it was contended that there is no evidence that there was an enquiry as to Mr McLean’s ability or otherwise to comply with the request to return the sheets. This was said to be despite Ms Greaves, in her letter to Mr Elliott, dated 6 October 2011, raising this as a possibility. It was stated that Ms Greaves had suggested that there were a number of offers made to Mr Elliott in relation to picking up the documents. Mr McKenna submitted that there was no such offer in writing and that Ms Greaves’ evidence should be rejected. It was contended that Mr McLean was not able to comply with the request to return the documents at the time. His evidence about the difficulty he felt if he had to return to the Hospital was referred to. The fact that there was no discussion about the direction was relevant to the reasonableness of the request. 164

[83] Mr McKenna submitted that a further factor in the unreasonableness of the request is the urgency for their return and the steps taken by the respondent. It was stated that no request for return of the documents was made until about 40 days after Mr McLean accepted that he had removed them from the Hospital. There was no reason to believe any dishonesty or unethical behaviour on the part of Mr McLean who every day, as part of his job, handled these documents. 165

[84] It was argued that the approach taken by the respondent was to shoot first and ask questions later. 166 The applicant submitted that there was a difference between the reasons put to Mr McLean for his dismissal in the correspondence and the case now presented to the Tribunal. The most obvious difference was said to be the reference to the confidentiality policy and whatever other policy it was that Ms Greaves purported to rely on. It was stated that there are bald assertions that Mr McLean’s actions related to a breach of policy and procedure but with no explanation as to how and why that is the case.167

Opportunity to respond

[85] With respect to the requirement for an opportunity to respond, it was submitted that it must be a genuine one. It was contended that the opportunity to respond can only exist where an employee has the capacity to respond. Mr McKenna stated that it is not open for an employer to provide an opportunity to respond when the employee is not in a position to take up that opportunity. Mr McLean was said to have been on sick leave between 28 or 29 August 2011 and his termination. He was referred to a psychologist for acute stress. It was contended that there was no enquiry by the employer as to Mr McLean’s capacity to respond even though, at least by 28 October 2011, Ms Greaves was expressly on notice that the basis of the leave was stress leave. 168

[86] Further, in regard to Mr McLean’s request that the employer not act upon its threat of 27 September 2011, it was stated that the Hospital did not take action in relation to those deadlines. Mr McKenna said that another threat was made on 27 October 2011. This was to the effect that, if Mr McLean not provide written submissions and return the documents by 31 October 2011, the Hospital would take disciplinary action even if a response was not provided. Mr Elliott was said to have reacted similarly to the earlier threat. Mr Elliott contacted Mr Ryan on 28 October 2011 who forwarded the request to Ms Greaves. Ms Greaves drafted a response which was sent out under her signature by Mr Ryan at 5:55pm on the Friday before Melbourne Cup Day with a guillotine hanging over Mr McLean’s head for close of business on the Monday. 169

[87] It was stated that Mr McLean's evidence was that he did not receive the Hospital's response until the Tuesday. Therefore, it was submitted that Mr McLean was not given an opportunity to respond. It was said to be undisputed that Mr McLean did not take any opportunity to respond because there was no genuine opportunity. This was because a genuine opportunity implies an ability to respond within the timeframes and the capacity to do so. Given the circumstances, that did not occur. 170

Proportionality

[88] In terms of the submissions in relation to proportionality, it was stated that Mr McLean had almost 9 years of service and was a long-term employee. Further, even though there were work performance management issues going on, there was no question as to his honesty or ethical integrity. Under the terms of the applicable collective agreement, it was stated that Mr McLean does not have any entitlement to long service leave until he accrues 10 years service. 171 It was not something that was available to him upon his termination. Further, it was argued that, even in the event that the AHPRA investigation makes no adverse finding against Mr McLean, the prospect of his finding employment as a pharmacist in a specialist field is further diminished. It was stated that, as Mr McLean has already discovered, he will have to explain as to why he left his previous employment and, being the candid person he, he is going to answer that directly. It was said that the Tribunal can take judicial notice of the effect that that is going to have on his future employment prospects.172

[89] The fact that Mr McLean was terminated whilst an sick leave, and in particular over the Cup weekend when there was a request from the union pending, were said to also be aggravating factors as to the unfairness of his dismissal. It was stated that they undermined the possibility of complying with the request. Mr McKenna submitted that, weighing up the factors in the context of a fair go all round, Mr McLean has not been accorded a fair go all round. His conduct and what he has done in the circumstances was said not to warrant the consequences that flow from a summary dismissal. 173

Remedy

[90] Mr McKenna stated that reinstatement, as the primary remedy, was being sought or compensation in the event that reinstatement is not appropriate. 174 With respect to reinstatement, it was submitted that this was a case where there has been a breakdown of communication between Mr McLean and the Hospital. He said that there is no reason why restoring that communication could not mend any ill feeling that may exist. If the Tribunal found that reinstatement is not an appropriate remedy, the maximum compensation should be awarded. It was submitted that the applicant’s length of service was a significant period of employment and that, had he not been dismissed, he would have continued to earn his salary. Mr McKenna argued that the applicant has sought to mitigate his loss but has been unable to do so. Further, there has been some restriction on him taking other work due to his role as a carer for his wife. The amount of remuneration earned has been limited to unemployment benefits and there is no prospect of immediate employment given the enquiries he has made and the responses that he has received.175

RESPONDENT

[91] Mr Forbes, on behalf of the Hospital, submitted that the termination of the applicant on the basis of serious misconduct was justified. It was said that it was the only sensible course open to the respondent when all of the circumstances of this case are taken into account. 176

[92] It was submitted that the grounds on which the Hospital rely are those cited in the letter of termination to Mr McLean, dated 3 November 2011. It was conceded that the Hospital did not expressly refer to any direct policy in terminating the applicant's employment. The grounds relied on were the removal of copies of patient records, the refusal to obey lawful and reasonable direction, conduct in breach of the Health Records Act and the Information Privacy Act. This conduct undermines trust between patients and the Hospital and the trust and confidence in the employment relationship. 177

[93] The Tribunal was urged to apply commonsense to what actually took place. In essence, it was said that it was a situation where an employee of nine years, a professional, tertiary educated pharmacist working in a large regional hospital, a member of a professional association, with an awareness of the Health Records Act and the Information Privacy Act, photocopied and took home documents which, on any view, constitute health records. The obvious sensitivity of those records was said not to have been lost on Mr McLean as he had blacked out the patient names and UR numbers prior to returning the documents. This was said to be a concession that this material does not belong outside the Hospital environment. Ms Greaves’ evidence that it was a “no-brainer” was highlighted. It was stated that it is a no-brainer that one does not do this - it was just common sense in a hospital environment. 178

[94] It was contended that the Hospital was dealing with a difficult situation - where an employee has taken records home and the Hospital wants to get them back. It was stated that the Hospital needed to get the documents back from an employee who has filed a medical certificate. The evidence of the applicant himself was that he was suffering stress so the Hospital, understandably, trod very carefully over a period of about three months. In endeavouring to deal with these issues, the point came when Mr McLean said - please speak to my representative. This is what the Hospital did on the basis that the representative is authorised to speak on behalf of Mr McLean and that the said representative was communicating with Mr McLean. Mr Forbes indicated that there seems to be some veiled suggestion of representative error over the Cup weekend. It was argued that this is not something that should be visited upon the Hospital. 179

[95] In terms of the letter 180 from Ms Greaves of 27 October 2011, it was stated that it referred to repeated requests to Mr McLean to return the patient-related confidential information. A further request was made to return the documents by 16 October 2011. Further, the letter set out the preliminary findings that had been made on the evidence before the Hospital. The basis of the findings was said to be that Mr McLean had potentially placed the Hospital in breach of the SHPA Standards, the Health Records Act and the Information Privacy Act. This had undermined the trust of the patients in the Hospital and put its reputation at risk.181

[96] The letter further indicated that Mr McLean’s conduct amounted to serious misconduct which justified disciplinary action. The Hospital was stated to have asked for Mr McLean’s input prior to a final determination being made and he was requested to attend a meeting on 12 October 2011. 182

[97] Mr Forbes referred to the email from Mr Elliott at 1.51pm on Friday 22 October 2011 requesting the withdrawal of disciplinary action against Mr McLean. He stated that the Hospital had responded at 5.55pm on the same day. The Hospital refused the union’s request and indicated that, before a final decision is made, Mr McLean’s input was sought and any mitigating factors outlined, in writing, by close of business on 31 October 2011. It was submitted that there was no real basis for either Mr Elliott or Mr McLean not to have responded by that time. 183

[98] No real justification was said to have been given for Mr McLean’s removal of the records other than for his own self-interest and purpose - to use as a reference point in relation to his performance appraisal. It was stated that the justification had moved to this from keeping the documents for possible coronial inquests and the like. 184

[99] The Hospital submitted that Mr McLean sought to use the Trend Care records for purposes other than the primary purpose - for matters associated with the delivery of health services. It was argued that the Trend Care sheets were used by the Hospital in the delivery of health care services to the patients listed on the sheets. The use of the Trend Care sheets for “another purpose” was stated to be a breach of the Health Records Act. Further, it was contended that “another purpose or primary use” was a use which is other than the primary purpose for which they were collected. Mr McLean was said to have taken the sheets home to use them. To have walked out of the Hospital with them was sufficient to constitute a “use” as was having them at home as a reference point. 185

[100] It was argued that the real issue for the Hospital was the failure to return the documents and the refusal to obey the direction to return when the documents in question contained patient information. Mr Forbes submitted that the failure to obey the direction to return the documents superseded all of the other arguments. 186

[101] With respect to the argument about the capacity to return the documents whilst on sick leave, the Hospital contended that Mr McLean had not provided a satisfactory explanation. His evidence had been that he feared dealing with the Hospital. However, it was stated that he was being represented by Mr Elliott and that Mr Elliott and Ms Greaves had spoken about how to resolve this. It was argued that Ms Greaves evidence should be accepted on this point. 187

[102] Further, the Hospital submitted that no reason was given to the Hospital for not doing so, for example, legal advice received. Neither was an extension of time sought if it was felt that they did not have enough time. It was argued that the return of the documents was entirely within Mr McLean and Mr Elliott’s hands. The Hospital could not just storm in and take them back. 188

[103] It was accepted by the Hospital that the first written direction to return the documents was Ms Greaves’ letter of 27 September 2011. The Hospital submitted, though, that implicit in the 24 August 2011 letter was that Mr McLean ought not be in possession of the documents. However, it was stated that the 27 September 2011 letter contained clear directions for the documents to be returned. 189

[104] With respect to the SHPA Standards of Practice for clinical pharmacy, it was indicated that the Standards require Hospital Pharmacists to comply with the Hospital Records Act and the Information Privacy Act. 190

[105] Mr Forbes submitted that the Hospital was relying on the grounds set out in the letter of termination and the preceding letters for the termination of Mr McLean. 191

[106] In terms of the Health Records Act, an important aspect was said to be “identifying information”. It was argued that the Trend Care form contained patient identifying information. The fact that Mr McLean had blacked out information on the sheets was highlighted. 192

[107] With respect to the refusal to obey a lawful and reasonable direction, the Hospital submitted that, in a hospital environment where trust needs to be maintained between patients and the hospital, it is both lawful and reasonable to require a person to return the sensitive information they have in their possession. This direction was said to supersede every other point as there should be no argument about this from an employee who holds patient confidential documents. It was argued that Mr McLean knew of multiple requests. However, neither he nor his representative informed the Hospital of the reason for the refusal to comply with the request. This failure was said to constitute a wilful act on the applicant’s part. Mr McLean had made a conscious and wilful decision not to return the documents and had been informed of the consequences of not doing so. 193

[108] Mr Forbes submitted that it was the applicant’s failure to comply with the lawful and reasonable direction in the circumstances of this case, which justified summary dismissal. The Tribunal was urged to consider this case in a commonsense way. Regard should be had to the environment in which it occurred where trust and confidence between professionals, between them and the Hospital and between the Hospital and its patients is paramount. The failure of an employee to follow a direction was said to shake at the very core of the confidence that is required for that relationship to continue. In these circumstances, it was argued that the employer was entitled to summarily dismiss the employee. 194

[109] With regard to notifying the applicant of the reasons for the dismissal, it was submitted that the Hospital’s correspondence made it very clear as to the basis upon which the employer would act. The core allegations were said to have been set out in sufficient detail in the letter of 24 August 2011. It was contended that Mr McLean could have been in no doubt about where the Hospital stood and what he was being invited to respond to. 195

[110] It was submitted that Mr McLean was given an adequate opportunity to respond. The Hospital was said to have trodden on eggshells for two and a half months. Also, it had pulled back from proposed courses of action when confronted by protests from Mr Elliott or where the practical impossibility of having a meeting has been identified. The shift in the Hospital’s approach from seeking a meeting to seeking a response in writing was highlighted. There was said to be no rational reason for a response not being provided. 196

[111] With respect to the definition of “summary dismissal”, it was argued that the Act effectively says that the common law definition applies. This is that, if the conduct of the employee is such as to strike at the heart of the employment relation and fracture the trust and confidence, then that is sufficient. In terms of the Noutsis case, this was said to be distinguishable from this matter as the Hospital had laid out the Health Privacy principles and the Information Privacy Act. 197

[112] Mr Forbes pointed to the fact that Mr Elliott was not called to give evidence. The Tribunal was therefore entitled to draw an inference that his evidence would not have assisted the applicant. As well, no explanation had been provided as to why he was not called. Therefore, with respect to discussions between Mr Elliott and Ms Greaves, Ms Greaves’ evidence must be preferred. 198

[113] The Tribunal was requested to take account of the notification to AHPRA and that there is an ongoing investigation. This was said to be a reflection of how seriously the Hospital regards Mr McLean’s conduct. 199

[114] It was submitted that the email to Mr Elliott at 5.55pm on the Friday before Cup weekend was not an aggravating factor. The Hospital had responded to Mr Elliott within four hours of receiving his email and had set him straight. It was argued that this had not prevented Mr McLean having a fair opportunity to respond. 200

[115] In terms of remedy, it was argued that it is reasonable to expect that Mr McLean has made all reasonable efforts to explore everything that would be suitable for his profession including retail pharmacy. The significant issue was said to be the likely period of ongoing employment. A relevant factor here was that Mr McLean was working to a performance plan and that, to date, his performance had been less than expected. The Hospital was keen to engage in a review or further process in relation to his performance. 201

[116] With respect to the issue of reinstatement, it was submitted that, from the Hospital’s perspective, Mr McLean’s conduct has gone to the very core of the Hospital’s responsibilities to its patients and the trust and confidence that has to be shared between health professionals. The applicant was terminated due to the strength of the Hospital’s feelings in relation to ensuring adherence to the Standards - in relation to health records - zero tolerance. 202

SUBMISSIONS IN REPLY - APPLICANT

[117] The following submissions in reply were made by Mr McKenna:

• The fact that Mr McLean redacted the documents reflect the seriousness with which Mr McLean takes his privacy obligations. 203



• This is not a case where there is a serious and imminent risk of any ill effect flowing to the Hospital from misuse of the documentation. 204



• The evidence that every health practitioner knowing that one does not remove such documents came from a hospital administrator and not a health practitioner. 205



• The issues regarding the communications on Friday 28 October 2011 was not about representative error but rather the Hospital was responsible. There had been a telephone conversation between Mr Elliott and Mr Ryan in the morning. Mr Elliott subsequently sent an email requesting the Hospital’s urgent written confirmation that the threat of disciplinary action is withdrawn. 206



• To extend the word “use” to cover having the documents at one’s home is an unnatural stretching of the ordinary meaning of the word “use”. 207



• What is missing in the documentation to Mr McLean are the particulars and explanation of what law, policy and procedures have been breached. 208



• The notification to AHPRA is not a reflection of how seriously the Hospital takes this matter but is a reflection of the mandatory reporting requirements. The consequences of a summary dismissal with these mandatory reporting requirements adds to the significance of the dismissal. It should therefore be taken account of. 209



• As an employee with nine years’ service, it would be hoped that the purpose of the Hospital’s performance improvement plan would be that rather than dismissal. This should be accorded significant weight by the Tribunal. 210

CONCLUSIONS

[118] Section 396 of the Act sets out four matters which must be decided in applications of this kind before the merits are considered. These matters are:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[119] The application was made days 14 after the dismissal which is within the period required in subsection 394(2). With respect to the requirements of s.396(b), the applicant was covered by an enterprise agreement. 211 Therefore, the applicant was protected from unfair dismissal within the meaning of s.383 of the Act. Sections 396(c) and (d) have no relevance in this matter.

[120] Section 385 of the Act 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

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

In this matter, s.385(a) has been met and s.385(c) and (d) have no relevance. Therefore, what remains is to determine whether or not Mr McLean’s dismissal was harsh, unjust or unreasonable (s.385(b)).

Was the dismissal harsh, unjust or unreasonable?

[121] In order to determine whether Mr McLean’s dismissal was harsh unjust or unreasonable, Fair Work Australia is required to take into account the factors set out in s.387 of the Act. Those factors are as follows:

“Section 387 Criteria for considering harshness etc.

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.”

I will deal with each of these factors in turn.

Valid reason – s.387(a)

[122] Mr McLean’s employment was terminated, effective immediately, on 3 November 2011, for serious misconduct. The Notice of Termination letter stated that the serious misconduct was:

“- copying patient records without a legitimate reason.

- removing those copies of patient records from LRH’s premises.

- refusing to return the copies of patient records to LRH”. 212

[123] Further, Mr McLean’s actions in his failure to comply with the Hospital’s request to return the copies of the patient records constituted a refusal to obey a lawful and reasonable instruction. This was said to have been the real (and most serious) issue for the Hospital. 213 In addition, Mr McLean’s conduct was said to be in breach of section 10 of the SHPA Standards which may have resulted in the Hospital breaching the Health Records Act 2001 and the Information Privacy Act 2000. The letter also indicated that Mr McLean’s actions had undermined the trust and confidence in the employment relationship.214 It was also submitted by Mr Forbes that Mr McLean’s conduct had undermined the trust patients place in Latrobe which put the reputation of the Hospital at risk.215

1. and 2. Copying patient records without a legitimate reason and removing them from the Hospital

[124] It was Mr McLean’s and Ms Billington’s evidence that, when he was approached by Ms Billington on 17 August 2011, he had not denied that he was copying the Trend Care sheets and that he was taking them home. 216 Mr McLean stated that the reason for copying the records was in case he needed them in the future for a coronial inquiry or if there was an issue about a patient’s treatment. It was also in case his work performance was questioned and he needed to double check the statistics. During the hearing, Ms Billington explained that she had told Mr McLean that it was acceptable for him to keep the copies for his own records but that they had to remain at the Hospital. Ms Leversha was also of the view that it was legitimate for Mr McLean to have been using the Trend Care sheets for performance management purposes.217

[125] It was common ground in their evidence that Ms Billington did not tell Mr McLean to stop photocopying the Trend Care sheets but that he should not take them off the Hospital premises. 218 It was Ms Billington’s view that where Mr McLean had gone wrong was in taking the Trend Care sheets home.219 It was also Ms Billington’s evidence that she did not directly ask Mr McLean to return the copies to the Hospital. She said that she thought that that was implicit in her telling him that the copies should stay at the Hospital.220

3. Refusal to return documents/refusal to obey a lawful and reasonable instruction

(a) Refusal to return documents

[126] As at the time of Mr McLean’s dismissal, it was common ground that the copies of the Trend Care sheets had not been returned to the Hospital. Mr McLean, in his evidence, agreed that he had been requested to return the Trend Care sheets and had refused to return them. 221 It was submitted by Mr McKenna that there had been no request made by the Hospital, prior to 27 September 2011, for return of the documents.222 This was said to be 40 days after the conversation between Ms Billington and Mr McLean.223 Also, Mr McLean had given evidence that he had sought and received legal advice that, as a health professional, he had a right to retain his own clinical notes (the Trend Care sheets).224 It was also Mr McLean’s evidence that he was advised by Mr Elliott to deal with the issue of the return of the documents when he returned to work.225

[127] Further, it was contended that Mr McLean was on sick leave during this period and was providing medical certificates to the Hospital about his lack of capacity to perform his normal duties. 226 It was Mr McLean’s evidence that he was not too fond of the idea of ringing up the Hospital and that dealing directly with the Hospital was very stressful for him.227

[128] For the Hospital’s part, it was argued by Mr Forbes that the Hospital was dealing with a difficult situation. This was stated to be that an employee had taken records home and the Hospital wants to get them back - from an employee who is away on sick leave. Because of this, it was said that the Hospital, understandably, had trod very carefully over a three month period including communicating with Mr McLean’s representative. 228

[129] It was contended that Ms Greaves’ letter of 27 October 2011 had referred to repeated requests for Mr McLean to return the patient-related confidential information which included the letters of 27 September 2011 and 13 October 2011 to Mr Elliott. 229

[130] Ms Greaves, in her evidence, stated that she had made an offer to Mr Elliott to assist in the retrieval of the documents eg a Human resource person could go and collect them. As to why this had not been included in her witness statement, Ms Greaves said that she had not seen it to be important enough at the time. 230

Findings

[131] Having considered all of the material before me I find that:

• At the time of his dismissal, Mr McLean had not returned the copies of the Trend Care sheets.



• I accept Mr McLean’s evidence that the reasons for not doing so were that he had legal advice that he was entitled to retain them and that he was unable to return them as he was very stressed by dealing directly with the Hospital.



• I accept Mr McLean’s evidence that the advice of his representative had been to deal with the return of the documents once he was back at work.

[132] It is noted that Mr McLean does not appear to have told the Hospital about the legal advice or that he was unable to return the documents due to a medical condition.

(b) Refusal to obey a lawful and reasonable instruction

[133] It was submitted by the Hospital that, in not returning the copies of the patient records, Mr McLean was refusing to obey a lawful and reasonable instruction. Mr Forbes contended that this was a lawful and reasonable direction, particularly in a Hospital environment. The Hospital stated that Mr McLean knew of the multiple requests for the return of the documents. However, neither he nor Mr Elliott had provided the Hospital with a reason for not returning them. This failure was said to be a wilful act on the part of Mr McLean as he had made a conscious and wilful decision not to comply with the Hospital’s request. 231

[134] Further, it was argued that the direction to return the documents was lawful and reasonable. This was because the Hospital is obliged to take all reasonable steps to protect health information from misuse, loss or unauthorised access. In addition, patient records are property of the Hospital. A direction to return copies of patient records is a lawful and reasonable step to protect health information from misuse, loss or unauthorised access. 232

[135] On the other hand, it was not conceded by Mr McKenna that the direction was lawful. This was on the basis that the applicant had received legal advice that he had an entitlement to retain the copies of the Trend Care sheets. 233

[136] However, Mr McLean submitted that there were serious difficulties for the Hospital as to the reasonableness of the direction. This was on the basis of:

• No request was made of Mr McLean to return the documents prior to Ms Greaves’ letter of 27 September 2011. 234


• Mr McLean was on sick leave providing certificates of his lack of capacity to fulfil his normal duties. 235
• There was no inquiry as to Mr McLean’s ability to comply with the request to return the documents despite Ms Greaves having raised this in the email to Mr Elliott on 6 October 2011. 236


• There was no offer put in writing by the Hospital to assist Mr McLean return the documents. This is despite Ms Greaves’ suggestion that a number of offers were put to Mr Elliott. Therefore, that evidence should be rejected. 237
• Mr McLean did not return the documents because he was unable to comply with the request at the time. 238
• There was no discussion about the directions. 239
• There was no basis to the urgent requirement for the documents’ return. 240

Findings

[137] Having carefully considered all of the material before me, I find that the direction by the Hospital to Mr McLean to return the copies of the Trend Care sheets was lawful but, in all of the circumstances, was not reasonable. It was lawful because Mr McLean had, at his home, documentation that was Hospital property and which contained patient identifying information. However, in all of the circumstances, it was not a reasonable direction because, at the time, Mr McLean was away from work on sick leave and was providing medical certificates to the Hospital. Secondly, there does not appear to have been any inquiries made as to Mr McLean’s ability to comply with the request. This was despite Mr McLean having been on sick leave for more than a month when the first request to return the documents was made by the Hospital in Ms Greaves’ letter of 27 September 2011. I have not been persuaded that, prior to that date, Mr McLean was asked to return the documents.

[138] Within the context of a disciplinary process with the ultimate penalty being dismissal, I do not accept the respondent’s proposition that it was a “no-brainer” that, within the regulatory health environment and given the nature of the information, those kinds of documents do not leave the Hospital. 241 Outside of the disciplinary context, that may well be so. However, in the disciplinary context, the request needed to be explicit and this was not the case until Ms Greaves’ letter of 27 September 2011.

[139] With respect to whether the Hospital offered to assist Mr McLean return the documents, I have considered carefully all of the evidence before me. On the balance of probabilities, I find that the Hospital did not make such an offer. This was not mentioned in Ms Greaves’ witness statement but only at the hearing. There is no written offer of assistance in the evidence before me.

4. Breaches of the Health Records Act 2001 and Information Privacy Act 2000

[140] It was submitted by Mr Forbes that, copying the patient records and removing them from the Hospital, placed the Hospital in potential breach of the Health Records Act and the Information Privacy Act. 242 With respect to the Health Records Act and the Health Privacy Principles (Schedule 1 of theHealth Records Act), it was argued that Mr McLean did not copy and remove the health records for any of the “primary purposes” set out in Principle 1.1 of the Health Privacy Principles. Further, the Hospital contended that Mr McLean’s copying and removal of copies of the health records constituted a “use” of the health information for a “secondary purpose”. This is prohibited under Health Privacy Principle 2. As well, it was stated that Mr McLean had not offered any legitimate reason for the copying or removal of the records.243

[141] On the other hand, it was contended on behalf of Mr McLean that there was nothing in Health Privacy Principles 1 or 2 that prohibited Mr McLean copying and removing the documents in the way that he did. It was conceded that Mr McLean’s copying and removal of them may have constituted “use” but that paragraph 2.2(f) of the Health Privacy Principles provided an exception which covered the situation. Privacy Principle 1 was said to be not relevant.

[142] It was Mr McLean’s evidence that one of the reasons he had photocopied the Trend Care sheets and taken them home was in the event that his performance might be questioned in the future. It was also to double check his work performance statistics as the Hospital was using the sheets to assess his work performance. 244 As well, Mr McLean indicated that he had kept copies in case he was required to give evidence at a coronial inquiry or if there were queries about what treatment or action had been provided for a particular patient.245

Findings

[143] There was common ground between the parties that the Hospital was using the Trend Care sheets as part of Mr McLean’s performance management plan. Mr McLean began copying these sheets at the time the performance management commenced. It was his evidence that that was one of the reasons that he was copying the sheets. On the basis of the material before me, it would appear that both the Hospital and Mr McLean were using (the Hospital actively and Mr McLean passively) the Trend Care sheets to assess Mr McLean’s work performance as part of his performance management. Such a use would seem to fall within the exception in paragraph 2.2(f) of Health Privacy Principle 2. I have not been persuaded that Health Privacy Principle 1 is relevant in this case.

[144] Therefore, I find that Mr McLean’s actions in copying and removing the documents were not in breach of the Health Records Act 2001 or the Health Privacy Principles contained therein.

[145] The SHPA Standards of Practice for Clinical Pharmacy, at section 10, specifies that pharmacists need to be aware and comply with the Health Records Act 2001 and the Information Privacy Act 2000. On the basis of the above findings, I also find that Mr McLean’s conduct was not in breach of the SHPA Standards.

5. Serious misconduct

[146] It was submitted by the Hospital that Mr McLean had engaged in serious misconduct by copying the Trend Care sheets, removing them from the Hospital and refusing to return them. Mr McKenna argued that Mr McLean’s conduct did not meet the requirements of “serious misconduct” as it had posed neither a serious nor imminent risk to the Hospital.

[147] The Fair Work Regulations 2009 define serious misconduct for the purposes of the Act as:

“1.07 Meaning of serious misconduct

(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault;

(b) the employee being intoxicated at work;

(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

(4) Subregulation (3) does 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.

Findings

[148] I have previously found that:

• In copying and removing the copies of the Trend Care sheets Mr McLean was not in breach of the relevant legislation nor the AHPA Standards.



• The instruction to Mr McLean at the time it was made was a lawful but an unreasonable direction from the Hospital in all of the circumstances.

[149] Having considered all of the material before me, I am not satisfied that Mr McLean’s non compliance with the Hospital’s request was a wilful act on his behalf as submitted by the Hospital. It was argued that Mr McLean was unable to comply with the request at that time. Mr McLean’s evidence was that he had sought legal advice which had confirmed his view that, as a health care professional, he was entitled to retain a copy of the Trend Care sheets (his clinical notes). 246 He also said that, at that time, he was on sick leave and not really able to return the documents.247 He agreed that he was able to attend meetings with his solicitor “...because I didn’t have to deal with the Hospital”.248 Dealing directly with the Hospital was said to be very stressful for him and the reason he was unable to return the documents.249 I accept Mr McLean’s evidence that he had received legal advice that he could retain the documents and that he was unable to comply with the direction due to health reasons. He was firm in his belief that he was entitled to retain the documents as they were his clinical notes. What appeared to the Hospital as a wilful refusal to return the documents may well have been a breakdown/absence of direct communication between the Hospital and Mr McLean.

[150] Therefore, I find that, in all of the circumstances, Mr McLean’s failure to return the documents was not wilful or deliberate behaviour that is inconsistent with the continuation of the contract of employment (Regulation 1.07(2)(a)).

[151] With respect to the issue of whether Mr McLean’s conduct caused serious and imminent risk to the reputation of the Hospital, I have not been persuaded that Mr McLean’s conduct had or was likely to have posed a serious and imminent risk (Regulation 1.07(2)(b)(ii)). Approximately 40 days elapsed before the Hospital requested that Mr McLean return the documents. A further five or so weeks passed before he was dismissed. At the time of his dismissal, the documents had still not been returned. Therefore, for about two and a half months the documents remained at Mr McLean’s home. Further, the evidence of the Deputy Chief of Pharmacy (Mr McLean’s supervisor) and the Chief of Pharmacy was that none of the performance management issues related to Mr McLean’s honesty, integrity or personal or professional ethics.

[152] Finally, in terms of Regulation 1.07(3)(c), for the reasons I have set out in paragraphs 133 - 139 above, I do not find that Mr McLean refused to carry out a lawful and reasonable instruction.

[153] Therefore, I am satisfied that, on balance, Mr McLean’s conduct was not serious misconduct. In reaching this conclusion, it needs to be said that this should not be taken to be implying that the Tribunal approves of Mr McLean’s actions. That is not the case. However, for all of the reasoning set out above, in all of the circumstances of this particular case, Mr McLean’s actions do not constitute serious misconduct.

Valid reason

[154] Taking all of this into account, I find that, on balance, there was not a valid reason for Mr McLean’s dismissal. His behaviour did not constitute serious misconduct; the documents were not returned because he was unable to as he was on sick leave and he had legal advice that he could retain them; the Hospital had not sought to find out whether Mr McLean could have complied with the request; and, on the balance of probabilities, the Hospital did not make an offer to facilitate the return of the documents. As mentioned above, the Tribunal does not condone what appeared to the Hospital to be happening. Mr McLean showed a lack of judgement and was misguided in taking the copies of the Trend Care sheets home. It was common ground that they contained patient identifying information. The sensitive nature of the information was clearly understood by Mr McLean. The reason he took them home (for his protection regarding his performance management) is understandable. However, it does not excuse his poor judgement and misguided behaviour. Further, from the Hospital’s perspective, not only were the documents not being returned but it does not appear that there were any reasons given for this. This is, understandably, a most unsatisfactory position from their perspective.

Notification – s.387(b)

[155] Mr McLean was provided with a letter of termination dated 3 November 2011. The letter set out the basis for the finding of serious misconduct and also referred to breaches of the SHPA Standards and relevant legislation. The termination letter had been preceded by a letter on 27 October 2011 which set out the allegations, a chronology of subsequent events and the Hospital’s preliminary findings. This letter also stated that the Hospital would make a decision about possible disciplinary action which may include summary dismissal. Before the letter of 27 October 2011, the Hospital had written to Mr McLean on 24 August 2011 and had outlined the allegations and referred to the relevant parts of the SHPA Standards and the Health Records Act 2001.

[156] On the basis of the evidence before me, I am satisfied that Mr McLean was notified of the reasons for his dismissal.

Opportunity to respond – s.387(c)

[157] It was Mr McKenna’s contention that the opportunity to respond can only exist where the employee has the capacity to respond. It was argued that Mr McLean was on sick leave between 28 August 2011 and his dismissal. Further, Mr McKenna stated that the Hospital had not inquired about Mr McLean’s capacity to respond even though Ms Greaves was on notice that the basis of the leave was stress leave. In particular, it was stated that Ms Greaves’ response to Mr Elliott’s request for a stay of the termination was sent at 5.55pm on the Friday of the Melbourne Cup weekend (28 October 2011). The letter required a response by close of business on Monday 31 October 2011 (the day before Cup Day). Mr McLean’s evidence was said to have been that he did not receive the Hospital’s Friday 28 October 2011 letter until Cup Day (Tuesday 1 November 2011).

[158] The respondent submitted that the times given to the applicant to respond were generous and reasonable. The time limits had also been extended at the request of Mr McLean and his union representative. In addition, the Hospital had changed its approach from seeking a meeting to seeking a response in writing.

[159] In its correspondence to Mr McLean on 24 August 2011, 27 September 2011, 27 October 2011 and 3 November 2011, the Hospital has requested that he either attend a meeting to respond to the allegations or provide a written response. On 6 October 2011, the Hospital indicated that it would not take disciplinary action against Mr McLean because he was unable to attend a disciplinary meeting. Instead, the Hospital was prepared to accept a written response. By letter of 28 October 2011, Ms Greaves wrote again to Mr Elliott and requested, for the final time, a written response by close of business on Monday 31 October 2011.

[160] Despite the Hospital’s request to attend a meeting or to respond in writing to the allegations, there was no response forthcoming from Mr McLean to the Hospital. It was Mr McLean’s evidence that, at the time of his dismissal, he was in the process of preparing a written response. He said that he did not tell the Hospital this on 3 November 2011 when he was dismissed or had sought an extension of time prior to then.

[161] There was a dispute between the parties about whether or not Ms Greaves was aware that Mr McLean was away from work because of stress. It was asserted by Mr Elliott in his email to Mr Ryan on Friday 28 October 2011 that the Hospital was fully aware that Mr McLean was absent on personal leave because of a stress related medical condition and that, because of this, he had been unable to respond to the allegations. In her response letter of the same date, Ms Greaves stated that, until Mr Elliott’s email of earlier that day, she had not been aware of the nature of his illness. Further, she had not been aware of any claim by Mr McLean that he was incapable of providing a response to the allegations because of his medical condition. No medical evidence had been provided to support Mr McLean’s contention. During her evidence, Ms Greaves was not able to explain why, in her email to Mr Elliott the day after speaking to him, she had included the words “Assuming Trevor is able to respond or provide instructions”.

[162] In assessing all of the material before me, it would seem that, from the Hospital’s perspective, there was a deafening silence from Mr McLean concerning a written response to the allegations. On the other hand, it was Mr McLean’s evidence that he was unable to respond due to his medical condition and that he was very stressed about having to deal with the Hospital. It would seem that, technically, the Hospital provided Mr McLean with an opportunity to respond either in a meeting or later, in writing, to the allegations. Given that, in Ms Greaves’ view, she was only made aware of Mr McLean’s stress related medical condition earlier in the day on Friday 28 October 2011, it would appear disingenuous of the Hospital to then send a letter, after close of business on the Friday before Cup weekend, requesting a response to the allegations by the Monday before Cup Day (31 October 2011). It would appear that, by 28 October 2011, Ms Greaves, perhaps out of frustration, having determined a cause of action, was not going to be diverted from following it.

[163] Also, the request for responses to the allegations all took place while Mr McLean was on sick leave over a period of more than two months. This could therefore be seen to cast a shadow over some of the opportunities provided to respond, particularly as the period on sick leave extended out.

[164] Therefore, I find that, technically, up until the Hospital’s letter of 28 October 2011, Mr McLean was provided with an opportunity to respond. Whether the opportunities provided were genuine, in that the Hospital knew that Mr McLean was on extended sick leave but did not inquire as to his capacity to respond, may have some doubt about it.

Support person – s.387(d)

[165] Mr McLean was represented by a union official throughout most of the disciplinary process.

Previous warnings regarding the unsatisfactory performance – s.387(e)

[166] As Mr McLean was dismissed for serious misconduct, this section does not apply.

Impact of the size of the business/absence of dedicated human resources – s.387(f) and s.387(g)

[167] The Hospital is a large public health organisation and has a dedicated human resources department which was involved in the disciplinary process.

Any other matters – s.387(h)

[168] It was submitted by the applicant that account should be taken of:

• The applicant had completed 9 years of service.



• He has been deprived of the opportunity to attain 10 years service. Under the enterprise agreement, an employee becomes entitled to long service leave after 10 years service.



• The Hospital made no effort to inquire as to Mr McLean’s state of mind when it requested the return of the copies of the Trend Care sheets.



• The complaint by the applicant against Ms Leversha and Ms Billington.

[169] For the respondent’s part, it was submitted that the issues concerning the applicant’s work performance and his unsubstantiated bullying complaint were irrelevant. Account was to be taken of:

• The position held by the applicant was one of trust and it was important for him to maintain the confidence of his employer, his colleagues and the patients.



• He is an experienced pharmacist who has worked in the health care environment for years. He was well acquainted, therefore, with hospital policies’, practices and the legislative environment.

[170] Having considered these submissions, account will not be taken of the work performance issues, Mr McLean’s complaint nor the long service leave issue.

Conclusions

[171] In all of the particular circumstances of this matter and, having taken account of each of the factors in s.387 of the Act, I determine that Mr McLean’s dismissal was harsh, unjust or unreasonable. The lack of a valid reason for Mr McLean’s dismissal, together with the procedural flaws regarding his opportunity to respond render his dismissal harsh, unjust or unreasonable. On the other hand, it needs to be noted that the Hospital was in a difficult position. It had an employee whom it believed had engaged in serious misconduct who was on sick leave. Despite numerous attempts to retrieve the documents, they had not been forthcoming. Ms Greaves’ evidence is accepted that there was “absolute frustration” felt by the Hospital.

[172] It therefore follows that, pursuant to s.385 of the Act, Mr McLean has been unfairly dismissed.

REMEDY

[173] Section 390 of the Act sets out when Fair Work Australia may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:

“390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[174] With respect to the requirements of s.390, I am satisfied that the applicant was protected from unfair dismissal at the time of his dismissal (s.390(1)(a)) and that the applicant has been unfairly dismissed (s.390(1)(b)). Further, Mr McLean has made an application under s.394 of the Act (s.390(2)).

[175] Section 390(3) states that Fair Work Australia must not order the payment of compensation unless two conditions have been met. The first condition is that Fair Work Australia is satisfied that reinstatement is inappropriate (s.390(3)(a)).

[176] Mr McLean seeks reinstatement or, in the alternative, the maximum compensation. The applicant’s reinstatement was vehemently opposed by the Hospital. In all of the circumstances of this matter, I am satisfied that reinstatement of Mr McLean is inappropriate. In my view, it would be an extremely difficult situation for all concerned if Mr McLean was reinstated to the Hospital even though, from his perspective, it would be by far the best outcome.

[177] Section 390(3)(b) requires that Fair Work Australia consider it appropriate in all of the circumstances of the case to order compensation. Taking into account all of the circumstances of this matter, an order for payment of compensation is considered appropriate.

[178] The requirements regarding an order for compensation are contained in section 392 of the Act. Section 392(2) sets out the criteria for deciding the amount of compensation. These criteria are:

“(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that FWA considers relevant.”

[179] Unfortunately, the Tribunal is unable to proceed to determine an amount of compensation as the Hospital has sought to be heard and to make further submissions if the Tribunal found that the dismissal was harsh, unjust or unreasonable. The applicant has already provided submissions on the issue of compensation in their written and oral submissions.

[180] Accordingly, the respondent is directed to file with the Tribunal and serve on the applicant, written submissions addressing the criteria set out in s.392(2) of the Act by close of business on 26 June 2012. The applicant is to file with the Tribunal and serve on the respondent any submissions in reply by 3 July 2012.

COMMISSIONER

 1   Transcript PN 42 - 43

 2   Ibid PN 122 - 127

 3   Ibid PN 350 - 352

 4   Ibid PN 122 - 131, 345 - 346 and 382

 5   Ibid PN 347 - 348

 6   Ibid PN 132

 7   Ibid PN 79 - 83, Exhibit A2 at paragraphs 3 and 6 and Exhibit A3

 8   Ibid PN 134 and 355 - 361

 9   Ibid PN 134 - 137, 164 - 168, 171 and 362 - 363

 10   Ibid PN 398 - 400

 11   Ibid PN 169

 12   Ibid PN 172 - 175 and 365

 13   Ibid PN 364 and 404 - 405

 14   Ibid PN 138 and 161 - 162

 15   Ibid PN 366 - 374 and Exhibit A2 at paragraph 8

 16   Ibid PN 138 - 140

 17   Ibid PN 141 and Exhibit A2 at paragraph 8

 18   Ibid PN 141 - 143

 19   Ibid PN 176 - 179 and 201 - 202 and Exhibit A2 at paragraph 18

 20   Ibid PN 384

 21   Ibid PN 388

 22   Ibid PN 176 - 182

 23   Ibid PN 190 - 195

 24   Ibid PN 196 - 197

 25   Ibid PN 198 - 199, 304 and 416

 26   Ibid PN 198 - 200

 27   Ibid PN 203 - 218

 28   Ibid PN 219 - 222

 29   Ibid PN 144 - 147, 224 - 225 and 226 - 228

 30   Ibid PN 223 and 271 - 272

 31   Ibid PN 230 - 235

 32   Ibid PN 236 - 238

 33   Ibid PN 243 - 244, Exhibit A2 at paragraph 15 and Exhibit R6 at Attachment CG3

 34   Transcript PN 245 - 246 and 273

 35   Ibid PN 247 and 274 - 275

 36   Ibid PN 243 - 251

 37   Exhibit A2 at paragraph 15

 38   Exhibit R6 at Attachment CG5

 39   Transcript PN 254 - 258

 40   Ibid PN 259 - 261, Exhibit A2 at paragraph 19 and Exhibit R6 at attachment CG6

 41   Ibid PN 262 - 263 and ibid at attachment CG9

 42   Ibid PN 265 - 270

 43   Ibid PN 276

 44   Ibid PN 277 - 282 and Exhibit A2 at paragraphs 9 - 10

 45   Ibid PN 288 - 290 and ibid at paragraph 20

 46   Ibid PN 286 - 292 and 305 - 308

 47   Exhibit A2 at paragraphs 12 and 14

 48   Transcript PN 413

 49   Ibid PN 292 - 294

 50   Ibid PN 407 - 412

 51   Ibid PN 295

 52   Ibid PN 200 and 297 - 298

 53   Ibid PN 299 - 300

 54   Ibid PN 276 - 303

 55   Ibid PN 111 - 117 and 309 - 310 and Exhibit A5

 56   Ibid PN 311 - 314

 57   Ibid PN 335 - 341

 58   Ibid PN 375 - 377

 59   Ibid PN 343 - 344

 60   Exhibit A2 at paragraph 26

 61   Ibid at paragraphs 4 - 5 and Transcript PN 315 - 335

 62   Exhibit R3

 63   Ibid at paragraph 4 and Transcript PN 461

 64   Ibid at paragraph 5

 65   Ibid at paragraph 4 and Transcript PN 461 - 462

 66   Exhibit R3 at Attachment LR-1

 67   Ibid at paragraph 6

 68   Transcript PN 471 - 475 and 542

 69   Ibid PN 542 - 543

 70   Ibid PN 541

 71   Ibid PN 476 - 478

 72   Ibid PN 459 - 460, 479 and Exhibit R3 at paragraph 6

 73   Exhibit R3 at paragraph 7

 74   Transcript PN 484 - 488

 75   Ibid PN 495 - 498

 76   Ibid PN 499 - 504

 77   Ibid PN 463 - 464 and Exhibit R3 at paragraphs 9 - 11

 78   Ibid PN 505 - 540

 79   Exhibit R3 at paragraph 12

 80   Exhibit R4

 81   Transcript PN 560

 82   Ibid PN 571 - 572

 83   Ibid PN 578 - 588

 84   Ibid PN 589 - 590

 85  Ibid PN 591

 86   Ibid PN 599

 87   Exhibit R4 at paragraphs 4 - 5

 88   Ibid at paragraph 6 and Transcript PN 600 - 602

 89   Ibid at paragraph 7and Ibid PN 606 - 608

 90   Ibid PN 608 - 609

 91   Ibid PN 617

 92  Ibid PN 606 - 611 and 616

 93   Ibid PN 603 - 605

 94   Exhibit R5

 95   Transcript PN 649

 96   Ibid PN 668 and 693 - 694

 97   Ibid PN 668 - 669

 98   Ibid PN 672 - 676, 687 and 689

 99   Ibid PN 698 - 701

 100   Ibid PN 702

 101   Ibid PN 703 - 704

 102   Ibid PN 678

 103   Ibid PN 681 - 684

 104   Ibid PN 705 - 710

 105   Ibid PN 711 - 713

 106   Ibid PN 714 - 717

 107   Exhibit R5 at paragraph 8

 108   Exhibit R6

 109   Transcript PN 740 - 742

 110   Ibid PN 759 - 764

 111   Ibid PN 768

 112   Ibid PN 808 - 818

 113   Ibid PN 769

 114   Ibid PN 808 - 818

 115   Ibid PN 768

 116   Ibid PN 769

 117   Ibid PN 774

 118   Ibid PN 772 and 775 - 776

 119   Ibid PN 777 - 778

 120   Ibid PN 781 - 786

 121   Ibid PN 788

 122   Ibid PN 789 - 799 and 867

 123   Ibid PN 800 - 802 and 866

 124   Ibid PN 803 - 804 and Exhibit R6 at paragraph 7

 125   Ibid PN 835 and ibid at paragraph 8

 126   Exhibit R6 at Attachment CG14

 127   Transcript PN 836

 128   Exhibit R6 at Attachment CG4

 129   Transcript PN 842 - 843

 130   Ibid PN 846

 131   Ibid PN 845

 132   Ibid PN 820 - 828

 133   Ibid PN 830 and 832

 134   Ibid PN 852 - 861 and 880 - 882

 135   Ibid PN 882- 889

 136   Ibid PN 862 - 865

 137   Exhibit R6 at Attachment CG6

 138   Transcript PN 872 - 874

 139   Ibid PN 876 - 879

 140   Ibid PN 891 - 897 and Exhibit R6 at paragraph 14

 141   Ibid PN 891 - 905 and Exhibit R6 at paragraph 16

 142  Ibid PN 906 - 908 and 922 - 923 and Exhibit A4

 143   Ibid PN 920

 144   Ibid PN 915 - 918 and Exhibit R6 at paragraph 17

 145   Ibid PN 919

 146   Ibid PN 928 - 937

 147   Ibid PN 941

 148   Ibid PN 945 - 948

 149   Ibid PN 949 - 953

 150   PR932349

 151   Transcript PN 973 - 982

 152   Ibid PN 983

 153   Ibid PN 984 - 985

 154   Ibid PN 986 - 989

 155   Ibid PN 990 - 992

 156   Ibid PN 985 and 993

 157   Ibid PN 985 - 992

 158   Ibid PN 993

 159   Ibid PN 994

 160   [2011] FWA 8816

 161   Transcript PN 994 and Exhibit A1 at paragraph 28

 162   Ibid PN 996 and ibid at paragraphs 29 - 30

 163   Ibid PN 997 - 998

 164   Ibid PN 998 - 1000

 165   Ibid PN 1001

 166   Ibid PN 1002

 167   Ibid PN 1002 - 1003

 168   Ibid PN 1003 - 1009

 169   Ibid PN 1009 - 1010

 170   Ibid PN 1009 - 1011 and Exhibit A1 at paragraph 33

 171   Ibid PN 1012 and ibid at paragraph 37

 172   Ibid PN 1012 - 1013 and ibid at paragraphs 31 - 32

 173   Ibid PN 1014

 174   Ibid PN 1020 - 1027 and 1090

 175   Ibid PN 1092 - 1094 and Exhibit A1 at paragraphs 40 - 44

 176   Ibid PN 1100

 177   Ibid PN 1100 - 1101 and Exhibit R2 at paragraph 35

 178   Ibid PN 1102 - 1104

 179   Ibid PN 1105 - 1107

 180   Exhibit R6 at Attachment CG6

 181   Transcript PN 1109 - 1111

 182   Ibid PN 1112 - 1114

 183   Ibid PN 1119 - 1122

 184   Ibid PN 1122 and Exhibit R2 at paragraphs 64 - 65

 185   Ibid PN 1123 - 1128 and ibid at paragraphs 43 - 53

 186   Ibid PN 1136 - 1161

 187   Ibid PN 1163 - 1167 and Exhibit R2 at paragraph 67

 188   Ibid PN 1168 - 1177 and ibid at paragraph 53

 189   Ibid PN 1178 - 1179

 190   Ibid PN 1182 - 1187

 191   Ibid PN 1197

 192   Ibid PN 1197 - 1198

 193   Ibid PN 1199 - 1200 and Exhibit R2 at paragraphs 58 - 63

 194   Ibid PN 1201 and ibid at paragraph 68

 195   Ibid PN 1202 and ibid at paragraphs 70 - 72

 196   Ibid PN 1204 and ibid at paragraphs 73 - 75

 197   Ibid PN 1205 - 1208

 198   Ibid PN 1209

 199   Ibid PN 1210

 200   Ibid PN 1211 - 1215

 201   Ibid PN 1229 - 1230

 202   Ibid PN 1231 - 1232

 203   Ibid PN 1234

 204   Ibid

 205   Ibid PN 1235

 206   Ibid PN 1236 - 1237

 207   Ibid PN 1239

 208   Ibid PN 1240

 209   Ibid PN 1243

 210   Ibid PN 1243 - 1244

 211   Public Sector Medical Scientists, Psychologists, Pharmacists Multi-Enterprise Agreement 2008 - 2011

 212   Exhibit A2 at Attachment TM9

 213   Transcript PN 1137 - 1150

 214   Ibid and Exhibit R2 at paragraph 35

 215   Ibid PN 1101 and ibid at paragraph 35

 216   Ibid PN 601 - 602, Exhibit A2 at paragraph 8 and Exhibit R4 at paragraph 6

 217   Ibid PN 704

 218   Ibid PN 141 and 606 - 608, Exhibit A2 at paragraph 8 and Exhibit R4 at paragraph 7

 219   Ibid PN 607 - 609

 220   Ibid PN 610 - 611

 221   Ibid PN 299

 222   Ibid PN 997

 223   Ibid PN 1001

 224   Ibid PN 176 - 179 and 201 - 202 and Exhibit A2 at paragraph 18

 225   Ibid PN 200 and 238

 226   Ibid PN 998

 227   Ibid PN 235 and 292

 228   Ibid PN 1105 - 1106

 229   Ibid PN 1108 - 1115 and Exhibit R6 at Attachment CG6

 230   Ibid PN 862 - 863

 231   Ibid PN 1200 and Exhibit R2 at paragraph 53

 232   Exhibit R2 at paragraphs 54 - 56

 233   Transcript PN 997 and Exhibit A2 at paragraph 29

 234   Ibid PN 997

 235   Ibid PN 998 and Exhibit A1 at paragraph 30(b)

 236   Ibid

 237   Ibid PN 999 and Exhibit A1 at paragraph 30(c)

 238   Ibid PN 999

 239   Ibid

 240   Ibid PN 1001 and Exhibit A1 at paragraph 30(d)

 241   Ibid PN 1151

 242   Ibid PN 1101 and Exhibit R2 at paragraph 35(e)

 243   Ibid PN 1123 - 1129 and ibid at paragraphs 48 - 53

 244   Ibid PN 139, 161 and 373 - 374.

 245   Ibid PN 366 - 371 and Exhibit A2 at paragraph 8

 246   Ibid PN 221

 247   Ibid PN 234

 248   Ibid PN 235

 249   Ibid PN 413

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