Ms Julie Tait v The Commissioner for Public Employment
[2023] FWC 1264
•6 JUNE 2023
| [2023] FWC 1264 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Julie Tait
v
The Commissioner for Public Employment
(U2023/865)
| COMMISSIONER RIORDAN | SYDNEY, 6 JUNE 2023 |
Application for an unfair dismissal remedy
On 3 February 2023, Ms Julie Tait (the Applicant) filed an application with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act).
The Applicant was dismissed by the Commissioner for Public Employment (the Respondent) on 16 January 2023 due to concerns with the Applicant’s performance, in particular to patient’s safety and her attitude to patients and her colleagues.
The Applicant was employed by the Northern Territory Department of Health as a level ‘N2’ Registered Nurse from 3 February 2022 until the date of her dismissal. The Applicant’s employment with the Respondent was covered by the Northern Territory Public Sector Nurses and Midwives’ 2018—2022 Enterprise Agreement.
Background
The ‘Intention to Terminate Employment Letter’, which is basically a show cause letter, was issued to the Applicant on 14 December 2022, and stated:
“Since your employment with the Department of Health on 3 February 2022, the agency has provided ongoing support, direction and feedback to you through your manager Ms Carolyn Duffey, Clinical Nurse Manager, to assist in your ability to develop the required level of skills expected at the N2 Registered Nurse level. This includes formal feedback outlining areas for further development at the 9 month probation period. In addition to this throughout your employment, Ms Duffey has provided you with feedback regarding concerns with your performance in particular the safety aspect of yourself and your patients/clients. In an effort to provide you with extra support, a formal performance improvement plan was put in place to document the concerns and determine a way forward to best assist you to grow, develop and improve however to date unfortunately there are still significant concerns with your performance, behaviour and overall safety in the workplace.
The specific concerns relating to competencies you have not demonstrated at the N2 level as specified in the Job Description for the Registered Nurse N2, position include:
● Ability to lead and co-ordinate client care resulting in positive clinical outcomes;
● Works respectfully and collaboratively within the multidisciplinary team
● Knowledge and application of Continuous Quality Improvement (CQI) principles in a health care setting.
● Foster a positive workplace culture through exemplary leadership practices and role modelling behaviour.
● Follows defined service quality standards, Workplace Health and Safety (WHS) policies and procedures relating to the work being undertaken in order to ensure high quality, safe services and workplaces.”
This letter provided the Applicant 14 days to provide a written submission outlining any reasons why she should not be dismissed. The Applicant sought an extension of time to respond, which was granted.
The Applicant provided a 38-page written response to the Respondent.
The Applicant was formally dismissed by written letter dated 13 January 2023 – which it is noted was not provided to the Applicant until 16 January 2023. The Respondent has accepted that the dismissal did not take effect until the letter was delivered on 16 January 2023. The termination letter provided:
“Dear Ms Tait
RE: TERMINATION OF EMPLOYMENT – PROBATION
Further to the letter dated 14 December 2022, informing you of my intention to terminate your employment under the Northern Territory Government probation process in accordance with Section 32(5)(b) of the Public Sector Employment and Management Act (the Act), I invited you to provide me with a written submission outlining any reason as to why I should not terminate your employment under probation.
On 4 January 2023 you submitted your response. I note you expressed your gratitude for granting an extension for your submission. In your submission you confirmed:
· The primary reason why I should not terminate your employment under probation is because you are a young new aspirational novice nurse with significant redeeming qualities affected by a late probation procedure and challenging social origin, regardless over that time you have made rapid and marked improvements towards improvements and meeting competencies outlined in my letter dated 14 December 2022 with a passionate mind to becoming a professional asset to the health service;
· You are an adoptee that has been living with the ongoing negative effects of being adopted. You have experience and have navigated feelings of loss, identify formation issues, reduced self-esteem and self-confidence. As a result, you have struggled with psychological disorders, behavioural challenges, and a sense of “not belonging” which at times has negatively affected your mental state;
· You advised you are mindful that you often feel very little sense of mastery or control over your life, which results in power struggles with authoritative figures and a reduced sense of responsibility;
· You acknowledge and reflect on concerns and short comings. Over the 2-3 months of your Performance Improvement Plan (PIP) you have demonstrated rapid improvements and overall competency and potential;
· You understand the potential seriousness of your medication errors, and their outcomes. The Safety and quality systems support clinicians in the safe and effective use of medicines and reduce medicine-related risk. You have substantially improved regarding this since the PIP meeting and training;
· You are aware that your humour or tone can sometimes be taken as sarcasm, and you are working on improving this as to not offend co-workers. This is very much a personality issue that you can appropriately manage in the workplace, with already significant improvements;
· You have repetitively requested for concerns to be addressed immediately so you can recognise your behaviours and where they may be impacting the work environment. The wide diversity of staff allows for communication to be misinterpreted, repeating back and clarifying would minimise this and you would be more mindful of this, with further reflection.
I have taken into account your entire response including the attachments. I can confirm that although you have been on a formal PIP for 2-3 months, your manager Ms Carolyn Duffey has been providing you with regular feedback regarding your poor performance and behaviours since your commencement in the role in February 2022.
Although the formal probation process commenced at the 9 month mark, as soon as Ms Duffey was made aware of the probation policy guidelines a meeting was scheduled and took place with HR which outlined the concerns Ms Duffey had already raised with you throughout the initial 9 months of your employment however was now documented as part of the probation process as required.
After careful consideration of information provided to me in relation to your probation, this letter is to confirm that your employment is ceased with the Department of Health effective as per date of this letter. I am concerned with what you have raised in your response about your personal history regarding your childhood, and encourage you to utilise the professional assistance the Northern Territory Government offers through our EAP program. Refer to below contact.
RIGHT OF REVIEW AND AVAILABLE SUPPORT
In accordance with section 59 of the Act, if you are aggrieved by my decision to terminate your employment, pursuant to section 32(5)(b) of the Act, effective from the date of this letter, you have the right to request the Commissioner for Public Employment review my decision in accordance with section 59(1)(aa)(ii) of the Act.
Any such grievance is required to be lodged with the Office of the Commissioner for Public Employment within 14 days of your receipt of this letter, by email to [redacted].
I appreciate that receiving this notice and dealing with the issues it raises may be difficult. If you would like support, the Employee Assistance Program has a range of confidential and professional counselling services that I encourage you to access. You may also wish to seek advice and assistance from your union.
You may choose an EAP provider from the list below:
[redacted]
FURTHER INFORMATION
For your information, I have attached a copy of the following:
1. Section 59 of the Act (Review of grievances)
If you have any questions about the contents of this letter, please contact Andrew Karaolias, Workforce Relations Senior Manager on [redacted].
Yours sincerely
Helen Mason
Executive Director
Royal Darwin and Palmerston Regional Hospitals13 January 2022 (sic)”
The Applicant sought a review of this decision by lodging a formal grievance with the Commissioner for Public Employment.
The Commissioner for Public Employment ultimately upheld the decision to terminate the Applicant’s employment.
The Applicant has applied to the Fair Work Commission seeking reinstatement to her position with the Northern Territory Department of Health.
The matter was Heard at Darwin on 29 and 30 May 2023, with video link to the Brisbane Commission office to allow attendance of the Applicant’s representative, Mr William Parry of the Nurses Professional Association of Australia. The Respondent was represented by Mr Mark Hathaway, Assistant Director Employee Relations, Office of the Commissioner for Public Employment.
The Applicant gave evidence on her own behalf at the Hearing. The following persons gave evidence on behalf of the Respondent:
· Ms Helen Mason, Executive Director for the Royal Darwin and Palmerston Hospitals;
· Ms Carolyn Duffey, Clinical Nurse Manager for 3B at Royal Darwin Hospital;
· Mr Alan Wales, Co-Director (Nursing) for the Division of Medical Services at Royal Darwin and Palmerston Hospital; and
· Mr Andrew Karaolias, Workforce Relations Senior Manager within the Department of Corporate and Digital Development.
Statutory Provisions
The relevant sections of the FW Act relating to an unfair dismissal application are:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(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.
381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer--6 months ending at the earlier of the following times:
(i)the time when the person is given notice of the dismissal;
(ii)immediately before the dismissal; or
(b) if the employer is a small business employer--one year ending at that time.”
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee’s period of employment with the new employer.
385 What is an unfair dismissalA person has been unfairly dismissed if the FWC 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.
see section 388.
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.”
Summary of the Applicant’s Submissions
The Applicant submitted that in the first 6 months of her employment with the Respondent, she learnt from her peers about ‘workplace etiquette’. The Applicant submitted that there were “minor” performance notes against her during this period, and an Australian Health Practitioner Regulation Agency investigation that finalised with “no action recommended”.
The Applicant submitted that on 20 September 2022, she attended a meeting with management regarding appropriate use of PPE.
The Applicant attended a further meeting with management on 21 October 2022 regarding the Applicant’s probation period and to discuss medications errors and concerns about the Applicant’s behaviour. The Applicant noted that a Performance Improvement Plan (PIP) was recommended, to which the Applicant allegedly agreed.
The Applicant submitted that the PIP was published on 24 October 2022 including requirements for the Applicant to “demonstrate safe and competent administration of medications in accordance with hospital policy” and to comply with “Integrity / Professional Conduct” requirements.
The Applicant submitted that from the date of the PIP until the ‘Intention to Terminate’ letter being issued, there were “few incidents”, and she claimed none of these were major or unsafe, such as to require a stand-down or being identified as a notifiable incident.
The Applicant submitted that there was no valid reason for her dismissal.
The Applicant submitted that the reasons given for her dismissal were “erroneous”, and not serious misconduct or performance related that had an effect on the safety and welfare of other employees.
The Applicant submitted that the Respondent has failed to provide evidence of an inherent inability to perform her role, or any significant underperformance or serious misconduct requiring termination.
The Applicant submitted that the reasons for dismissal relied on by the Respondent were “vague” and unfairly critical of her as a graduate nurse. Further, that they lacked reference to specific behaviours, events, or omissions. The Applicant noted that this impacted her ability to respond to the intention to terminate her employment, and therefore, her lengthy response to the show cause letter covered “every single possible particular” in an attempt to satisfy the Respondent’s concerns and maintain her employment.
The Applicant submitted that the Respondent failed to comply with its obligation to communicate employment instructions and guidelines. The Applicant referred to her letter of employment, which outlined that she was required to serve a probationary period. It included words to the effect of “Your manager will discuss this with you when you commence employment”. It also provided that “For the majority of employees, the standard probationary period prescribed under the Act is six months”. The Applicant submitted that her relevant manager failed to discuss her probationary period with her.
The Applicant referred to Employment Instruction Number 2, which provides that –
“the employee must be provided with the details of the probation process as soon as practicable after commencing duty” and “must be provided with appropriate assistance and support during the period of probation”.
The Applicant submitted that Respondent failed to comply with this instruction which resulted in a “deficient introduction to the nursing industry for the Applicant”.
Further, the Applicant highlighted that her probation period was “irregular” – as the Respondent failed to initiate the probation pathway until the 9th month of work. The Applicant submitted that in her first 8 months of employment with the Respondent, she underwent no probation reviews, and therefore became “more confident as a Nurse within the culture of the workplace, with gradual improvements, despite the workplace culture”.
Further, the Applicant highlighted that the Respondent initiated the PIP as a remedial action before following the standard probation journey guideline.
The Applicant also submitted that the Respondent failed to provide her with adequate supervision during her probation period.
The Applicant submitted that all of these matters unfairly affected her ability to remain employed with the Respondent. The Applicant submitted that “but for” the Respondent’s relevant failures, she would have had a successful start to her nursing career in the public sector, noting her “significant redeeming qualities”.
Further, the Applicant alleged that she was treated unfairly. The Applicant submitted that she received “enhanced scrutiny” compared to her colleagues and was therefore subjected to unfair treatment. The Applicant submitted that her behaviours and professional habits were learned from her colleagues in her first 8 months of employment with the Respondent. She submitted that those teachings ultimately led to her termination.
Additional matters raised by the Applicant
The Applicant submitted that she was raised by foster carers which she says informs her personality. Despite this, the Applicant submitted she has taken on feedback and made significant improvements, with a commitment to training and/or therapy. The Applicant submitted her behaviours are not “serious, aggressive or violent” – rather, based in sarcasm and attempted humour.
The Applicant submitted that during her employment with the Respondent, she made significant progress and effort in improving her communication skills. The Applicant claimed that she significantly improved throughout the Performance Improvement Plan and has described in detail her improvements and plans for future improvements in her response to the show cause letter.
The Applicant seeks reinstatement to her position with the Respondent.
Respondent’s Submissions
As to preliminary matters under the Act, the Respondent accepted that the Applicant has met the jurisdictional requirements to bring an application for relief from unfair dismissal under s.382 of the FW Act.
However, the Respondent submitted that the Applicant was dismissed based on her capacity and conduct in relation to the performance of her duties as a Registered Nurse. The Respondent argued that the dismissal was not unfair, that it had a valid reason for dismissing the Applicant, and that the dismissal complied with the probation process as applicable under the Public Sector Employment and Management Act 1993 (PSEM Act).
Further, the Respondent submitted that the process that led to the dismissal of the Applicant accorded with the principles of procedural fairness as set out in s.387 of the FW Act.
The Respondent disputed a number of assertions in the Applicant’s submissions, including:
i.that there were ‘minor’ performance issues relating to the Applicant;
ii.that from the time of the instigation of the PIP that there were ‘few incidents, none of which were major or unsafe requiring stand-downs or could be regarded as notifiable incidents’.
iii.that the Applicant’s workplace behaviours could be characterised as sarcasm, rather than aggression, noting the Respondent’s submission that such behaviours are inappropriate in a clinical setting;
iv.that the Applicant made significant progress in her efforts to improve her communication skills;
v.that the Applicant has ‘significantly improved throughout the PIP; and
vi.that the Respondent failed to comply with the relevant employment instructions and guidelines associated with the Applicant’s probation.
Specifically, as to the Applicant’s probation period, the Respondent submitted that s.32(7) of the PSEM Act provides for those circumstances where the Chief Executive Officer has failed to take action to extend a probationary employee’s probation at the end of the initial 6-month probation period. It provides for a default extension of the probationary employee’s probation for the ‘maximum period that it could have been extended’ under s.32(3)(c) of the PSEM Act.
For completeness, s.32 of the PSEM Act relevantly provides:
“32 Probation for ongoing employees
…
(3) Where an employee has been on probation for 6 months or an extension of that period under paragraph (c), the Chief Executive Officer must:(a) confirm the employment, and the employee ceases to be on probation; or
(b) terminate the employment; or
(c) extend the probation for a further period not exceeding 6 months or, where under subsection (4) a maximum period of probation has been determined in relation to the class of employee to which the employee belongs, for the period the Chief Executive Officer thinks fit, but so that the total period of probation does not exceed that maximum.
…
(5) At any time during which an employee is employed on probation in an Agency, the Chief Executive Officer of the Agency may:(a) confirm the employment, and the employee ceases to be on probation; or
(b) terminate the employment.
…
(7) If, at the end of an employee's period of probation, the Chief Executive Officer does not take action as mentioned in subsection (3):(a) for an employee whose period of probation has not previously been extended – the employee's period of probation is extended for the maximum period for which it could have been extended under subsection (3)(c); or…”
The Respondent disputed any imputation that its treatment of the Applicant’s probation breached either the PSEM Act, its subordinate legislation or the Respondent’s Guidelines.
As to additional submissions by the Applicant, the Respondent disputed the relevance of:
i.the Applicant’s aspirations, given the fact that the Respondent terminated her employment on probation, based on her workplace performance and competency;
ii.the relevance of her redeeming qualities for the current matter before the FWC; and
iii.the relevance of the fact that the Applicant had been raised by foster carers;
Further, the Respondent submitted that it had no knowledge of a reference to the AHPRA investigation, so it was not a relevant matter in its consideration.
Relevantly, the Respondent acknowledged the following matters:
i.The Respondent accepted that the Applicant provided a lengthy response to the letter foreshadowing an intention to terminate her employment. In this regard, the Respondent relies on this as supporting the fact that the Applicant was notified of the reason for her dismissal and given an opportunity to respond to those reasons.
ii.While the Applicant had raised in her submissions that she was not paid in lieu of notice, this has since been remedied and the Applicant has been paid an additional weeks’ pay in lieu of notice.
iii.The Respondent accepted that on 16 January 2023, the Applicant received her termination letter which was dated 13 January 2023. The Respondent accepted that the effective termination date for the Applicant was the date she received the letter, being 16 January 2023.
The Respondent submitted that it could not comment on the Applicant’s challenging social origin, but submitted that these challenging aspects of the Applicant’s personal history cannot be used to overlook the Respondent’s serious concerns about her clinical safety and behaviours.
Dealing with the specific criteria for harshness outlined in s.387 of the FW Act, the Respondent submitted as follows.
Valid Reason
The Respondent submitted that it had a valid reason for the dismissal of the Applicant, based on the ongoing concerns about the Applicant’s clinical safety, which ran the risk of leading to adverse outcomes for patients.
The Respondent submitted that these safety concerns related to repeated issues associated with the administration of medications. It submitted that a number of these incidents were recorded in Riskman either by the Applicant or others, but there were also incidents that had been noted or observed throughout the Applicant’s employment in NT Health.
The Respondent submitted that on the evidence before the Commission, the medication errors were repeated, and the Applicant was prone to deflect responsibility for the errors or did not learn from them.
Further, the Applicant demonstrated behaviours that were inappropriate in a clinical setting, to such an extent that her behaviours upset patients, their families and her colleagues.
Notified of the Reason
As to notification of the reasons for dismissal, the Respondent submitted that the Applicant was notified formally on two occasions – at a meeting held on 15 December 2022, further to which the ‘Intention to Terminate’ letter was issued. And secondly, at the formal meeting of 16 January 2023, where the Applicant was provided her formal letter of termination.
The Respondent noted that in addition to these formal letters, the Applicant’s Clinical Nurse Manager provided her with informal feedback and direction throughout her employment with NT Health, which included directions to redo a number of clinical competencies.
Opportunity to Respond
The Respondent submitted that it gave the Applicant an opportunity to respond to the reasons related to her termination, and the Applicant availed herself of this opportunity.
The Respondent noted the Applicant was also afforded multiple informal opportunities to respond to any reasons relating to her capacity and conduct throughout her employment.
Support person
As to any refusal to allow the Applicant to have a support person at relevant meetings, the Respondent submitted that it did not refuse to allow the Applicant to have a support person present. It submitted that in one instance, the Applicant had specifically been offered the opportunity to have a support person, which was declined. The Respondent noted that the Applicant had a support person for the meeting to discuss her probation and personal improvement plan on 21 October 2022 and at the meeting on 16 January 2023 where she was terminated.
Unsatisfactory Performance
The Respondent submitted that the Applicant had been warned about her unsatisfactory performance throughout her employment:-
“As well as the formal advice to the Applicant about her unsatisfactory performance, throughout her employment, she received feedback about her performance directly from her Clinical Nurse Manager. In addition to the feedback she was provided with opportunities to re-learn important skills and protocols for her work as a registered nurse. Amongst other things, this involved being placed on a personal improvement plan and rostered on for day shifts only, such that she could complete work supervised by her Clinical Nurse Manager or other more senior nurses to improve her professional
performance.”
Size of the Employer’s Enterprise and Dedicated HR Specialists
The Respondent acknowledged that the Northern Territory Public Sector is a large employer and has the capacity to manage its human resource procedures. It has dedicated human resource management specialists. Relevantly, the Respondent submitted that in this case, there is evidence that these specialists were involved in the management of the Applicant’s probation, and ultimately, termination.
Any other matters
The Respondent submitted that the Commission should have regard to the potential risks to patient safety that the Applicant’s work performance presented. It submitted that luckily, serious adverse outcomes were avoided, but the risk remained.
Further, the Respondent submitted that the Commission should consider not only the Applicant’s clinical mistakes, but her behaviour and attitude to these errors and to patient comfort and safety.
Remedy
The Respondent submitted that in the event the Commission finds that the Applicant was unfairly dismissed, an order for reinstatement is inappropriate in this matter. The Respondent submitted that its concerns with the Applicant’s clinical competence and the risks to patient safety remain.
Applicant’s Reply Submissions
As to the Respondent’s reliance on the “automatic extension of probation” under the PSEM Act, the Applicant did not dispute the Respondent’s interpretation of the Act in this regard, however, sought input and clarification regarding the effect of this “unique provision of probation for up to 12 months” in the absence of the Respondent’s non-compliance with Employment Instruction 2 and other probation guidelines.
The Applicant submitted that it is uncommon for a large employer to have an automatic 12-month probationary period, even State public service providers with their own assented Industrial Relations Acts limit probation to around 6 months. The Applicant again noted that a probation process commenced at around 8 or 9 months after she began employment with the Respondent.
As to valid reason, the Applicant submitted that medications errors are not uncommon, the particular medications errors did not pose a significantly high risk and were within the realm of “clinical discretion”. The Applicant submitted that she was committed to improving in this regard.
The Applicant disputed the claim that she “deflected errors”, submitting that she most commonly reported them and when criticised, would offer explanations including feedback about how these situations may be improved in future.
The Applicant disputed the claim that her ‘humour’ or communication style upset patients and their families, however, acknowledged that it may have upset other staff.
The Applicant submitted that her desire to return is not one of conflict or defiance, and is one of recognising the problem within the workplace and the many colleagues that might benefit from a determined nurse and aspiring leader.
The Applicant restated her submission that she has been working on improving her communication skills.
The Applicant maintained that for all of these reasons, an order for reinstatement to her position with the Respondent should be made.
Consideration
I have taken into account all of the submissions that have been provided by the parties and I have attached the appropriate weight to the evidence of the witnesses.
It is not in dispute and I find that the Applicant is protected from unfair dismissal, submitted her application within the statutory timeframe, was not made genuinely redundant and did not work for a Small Business.
When considering whether a termination of an employee was harsh, unjust or unreasonable, the oft-quoted joint judgement of McHugh and Gummow JJ in Byrne v Australian Airlines (Byrne)[1] is of significance:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
In analysing Byrne, a Full Bench of the Australian Industrial Relations Commission in Australian Meat Holdings Pty Ltd v McLauchlan (AMH)[2] held:
“The above extract is authority for the proposition that a termination of employment may be:
· unjust, because the employee was not guilty of the misconduct on which the employer acted;
· unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or
· harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct”.
Further, a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd[3] said:
“[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination”.
Preliminary matters – minimum employment and probation period
I raised the issue of minimum employment period and probation with the respective advocates. It is not in dispute that the Respondent extended the Applicant’s probation some 8½ months after she commenced her employment in accordance with the PSEM Act. Further, the 6-month anniversary of her employment commencing passed without comment or fanfare.
Section 382-382 of the FW Act states:-
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i)a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer--6 months ending at the earlier of the following times:
(iii)the time when the person is given notice of the dismissal;
(iv)immediately before the dismissal; or
(b) if the employer is a small business employer--one year ending at that time.”
The Respondent has relied upon the provisions of the PSEM Act in extending the probation period of the Applicant.
“32 Probation for ongoing employees
…
(3) Where an employee has been on probation for 6 months or an extension of that period under paragraph (c), the Chief Executive Officer must:(a) confirm the employment, and the employee ceases to be on probation; or
(b) terminate the employment; or
(c) extend the probation for a further period not exceeding 6 months or, where under subsection (4) a maximum period of probation has been determined in relation to the class of employee to which the employee belongs, for the period the Chief Executive Officer thinks fit, but so that the total period of probation does not exceed that maximum.
…
(5) At any time during which an employee is employed on probation in an Agency, the Chief Executive Officer of the Agency may:(a) confirm the employment, and the employee ceases to be on probation; or
(b) terminate the employment.
…
(7) If, at the end of an employee's period of probation, the Chief Executive Officer does not take action as mentioned in subsection (3):(a) for an employee whose period of probation has not previously been extended – the employee's period of probation is extended for the maximum period for which it could have been extended under subsection (3)(c); or…”
In relation to s.32(7)(a) of the PSEM Act, the probation of an employee who has not had their probation period extended previously, is extended automatically if the CEO has not confirmed the employee’s employment or terminated their employment.
Relevantly, the Respondent submitted that it was prepared to accept that the Applicant was protected from unfair dismissal in accordance with s.382 of the FW Act.
The Respondent submitted that, based on its practices and commitment to procedural fairness and the provisions of the PSEM Act, no employee is ever terminated from the Northern Territory Public Service without good reason or cause.
The minimum employment period for the Applicant is determined by s.383 of the FW Act. I note that the FW Act does not contain any provision in relation to probation. The Applicant’s probationary period is determined by the PSEM Act. The PSEM Act provides for the functionality requirements that the Respondent must undertake when terminating any employee.
The test of the current application therefore becomes one of whether the Applicant was unfairly dismissed taking into account the provisions of s.387 of the FW Act in relation to harshness.
Section 387(a) – valid reason
The meaning of the phrase “valid reason” has been universally drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd:[4]
“In broad terms, the right is limited to cases where the employer is able to satisfy the Court of a valid reason or valid reasons for terminating the employment connected with the employee’s capacity or performance or based on the operational requirements of the employer. …
In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly…”.
In Rode v Burwood Mitsubishi,[5] a Full Bench of the Australian Industrial Relations
Commission held:
“… the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”
In Qantas Airways Ltd v Cornwall (Cornwall)[6] the Full Court of the Federal Court of Australia said:
“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”
(My emphasis)
The Applicant was placed on a PIP commencing on 24 October 2022. Prior to the PIP, it is not in dispute that the Applicant was involved in a number of reported workplace situations.
In her witness statement, Ms Duffey, the Applicant’s CRN, whom I find was a witness of credit, described a number of these situations:
a)Ms Duffey stated that within her first few weeks, the Applicant was not administering medications as per hospital policy – preparing them “before huddle” or before handover and not beside the patient’s bed as required. Ms Duffey stated that she raised this breach of policy with the Applicant. The Applicant was apologetic and understanding of her processes being incorrect. Despite this, Ms Duffey witnessed the Applicant following the same incorrect process on a subsequent occasion. Ms Duffey again informed the Applicant that her processes were incorrect and asked her to discard the medications as she had been moved to a different patient load.
b)Ms Duffey stated that she had also received a complaint from a nurse who had been ‘abused’ by a family due to a miscommunication on the part of the Applicant. The Applicant had provided incorrect information on a patient that was not allocated to her, which caused the family to become ‘abusive’ towards the allocated nurse. Ms Duffey stated that she spoke with the Applicant about this informally, explaining that she needed to ensure correct disclosure of information and further that questions should be correctly directed to the allocated nurse. Ms Duffey’s evidence was the Applicant lacked understanding regarding her actions, and felt that she was not in the wrong nor should she apologise to the other nurse.
c)Ms Duffey stated that above incidents were not reported in Riskman, as she noted the Applicant was new to the ward and thought the conversations would help her to improve. Riskman is a reporting tool for individuals or their colleagues to log incidents which occur.
d)On 11 March 2022, Ms Duffey received a notification for “Riskman 126425… Right medication wrong time”, reported by the Applicant. Ms Duffey noted it was unclear whether the medication was given or not, and that the Applicant had reported the medication was signed that morning but she got distracted and put the medication aside for later. Ms Duffey’s evidence was that the Applicant lacked insight into the risks of this situation, and she asked the Applicant to review hospital policy for the administration of medications. The Clinical Nurse Educator was also asked to work alongside staff members for a few days to observe administration technique.
e)Notably, on 15 May 2022, Ms Duffey stated she received a notification “Riskmans 129126 / 129125”, same incident reported twice for ‘wrong blood in tube’, reported by another staff member. Ms Duffey stated the incident related to a blood sample collected which did not match the blood group on file for the patient. The Applicant had informed Ms Duffey that she had labelled the tubes and went to the bedside, but did not complete the patient safety check at the bedside as per policy. The Applicant did not realise that she took blood from the wrong patient. Ms Duffey stated that she informed the Applicant of the risks, including that the patient was a haematology patient who would have been possible for a blood transfusion the next day. Ms Duffey noted that if they had not known the patients’ blood type on record, and had it not been noted and questioned by the lab, they could have given the patient the wrong blood which could have resulted in death. Ms Duffey stated the Applicant appeared to not fully understand the seriousness of this situation.
f)Ms Duffey stated the Applicant was later reported to have laughed when notified about this situation. Ms Duffey raised this with the Applicant and stated that the Applicant’s response was something to the effect that it was ‘just her sense of humour’ and she meant nothing by it. Ms Duffey explained to the Applicant that this was not an appropriate response and set an action plan for the Applicant to re-do the blood safe module and to complete five supervised ‘venepunctures’. Ms Duffey confirmed this was completed and uploaded to Riskman. The Applicant provided her with a reflection.
g)Ms Duffey also noted an incident reported in Riskman by the Applicant, being violence/aggression against her from a patient and family. On investigating this situation, Ms Duffey stated that the team leader advised they had tried to move the Applicant away from a patient as per the family’s request but that the Applicant had refused to change allocation. Ms Duffey stated that she advised the Applicant that if the team leader asked her to re-allocate, then she was to abide by that request. Ms Duffey stated she discussed the matter with the family and was advised by the mother that the Applicant’s “behaviour to her son was belittling and downgrading (sic) and showed no empathy towards someone who was dying”. The family did not have any concerns about the other staff on shift.
h)Ms Duffey received a complaint in late August 2022, to the effect that the Applicant had been rude, cruel and showed no care to a patient who had sought assistance to go to the bathroom. Ms Duffey stated that on investigating the incident, she found that the patient had requested to go to the bathroom and that the Applicant had refused to take him, telling him instead to use the bed pan. The incident had been de-escalated by the team leader asking another nurse to assist her in covering the patient’s wounds and taking him to the toilet. The complaint was provided to the Applicant for her to respond to. Ms Duffey stated she did receive a response from the Applicant, and the Applicant was asked to complete appropriate workplace behaviour training and to reflect on the incident.
Ms Duffey stated that on 15 September 2022, she received a call from the staff member covering her role while she was off. The call was to the effect that the Applicant had been reported as not complying with the hospital PPE policy in relation to COVID-19 and that when approached about it, the Applicant shrugged it off. On her return to work, Ms Duffey was notified of three Riskmans relating to the Applicant not wearing correct PPE. Ms Duffey had a meeting with the Applicant regarding these concerns. She recalled the Applicant’s response being to the effect that she was trying to save on supplies, due to short supply. The Applicant was asked to re-do relevant training and was advised that despite supply shortages, correct PPE was to be worn.
j)On 4 October 2022, Ms Duffey received a notification from Riskman that the Applicant had carried out “medication error wrong route” in administering medication orally instead of intravenously. The Applicant reported to Ms Duffey that she had misread the order, and when questioned, told Ms Duffey that she had not gone to the administration page on ‘EMMa’ until after the medication was given, at which time she had realised it was the wrong route. Ms Duffey stated that the Applicant did not appear to be concerned or properly understand the risk she put the patient in. She stated that the Applicant gave a response to the effect of: “why, it’s the same drug”.
k)The Applicant was also reported to have caused a “stat dose delayed in administration”, which, as a result of the missed medication administration, caused a delay in treatment and investigation for the patient. Ms Duffey stated the Applicant had blamed this incident on the system error.
I have taken these situations into account.
It is obvious from the above situations that the introduction of a PIP was an appropriate measure which was introduced to try and improve the Applicant’s performance. I do not agree with the Applicant’s representative that these reported incidents were “minor performance notes”. I have taken this into account.
Ms Duffey stated that on 21 October 2022, a formal meeting was held with the Applicant and her representative regarding her probation period. Ms Duffey stated the Applicant was standoffish at the meeting. The Applicant was placed on supervised practice as part of her PIP. The Applicant was also offered and accepted to work day shifts Monday to Friday so that she could be properly supported by senior nursing personnel. The Applicant was asked to re-do medications training online and a medication learning pack, which she did complete.
On 27 October 2022, at the first weekly PIP meeting, the Applicant refused to sign her PIP. Mr Karaolias testified that he advised the Applicant that she needed to improve during the PIP process otherwise she may be terminated. The Applicant has no recollection of this discussion. Whilst I am surprised that no documentation was provided to the Applicant which clearly stated the possible ramification of termination if she did not improve her performance and attitude, I am satisfied and find that Mr Karaolias did advise the Applicant of this possible scenario. Ms Duffey testified that the first week of the PIP had seen the Applicant improve her medication management but that she still required a lot of prompting in relation to the correct route of medication, the required dosage and the expiration of the medication. Relevantly, Ms Duffey claimed that the Applicant blamed the Respondent’s medication management for her mistakes and that the Applicant appeared to be unaware of the seriousness of her medication mistakes. I have taken this into account.
On 31 November 2022 at the next PIP meeting, the Applicant signed her PIP. The Applicant was advised that one of the haematology doctors had commended her on the care that she provided to her patients. However, clearly not understanding the reasons or methodology for the PIP, the Applicant questioned whether any of her colleagues were under the same scrutiny. I have taken this into account.
It is not in dispute that the Applicant was involved in another medication error on 9 November 2022. The Applicant sought clarification on preparing medications. It was noted that the Applicant had prepared an incorrect dose of medication in a medicine cup. The Applicant reported this medication error. Further, the Applicant was also unsure if ‘clexane’ had been administered to the patient, but noted that it had been signed off. It was stated that the Applicant blamed other staff and the system for this error.
The Applicant was supervised by Ms Duffey on a medication round on 16 November 2022. The Applicant completed 7 medication distributions in accordance with the relevant policies. However, when the Applicant was required to administer medication to a patient using a syringe, the Applicant drew the medication using a small and inappropriate syringe. Whilst the Applicant’s own evidence on this situation is inconsistent and contradictory, I accept the evidence of Ms Duffey that she stopped the Applicant from administering the medication with the wrong syringe. If the Applicant had administered the medication with the smaller syringe, then the patient may have been affected detrimentally due to the increased pressure from the 3mm syringe. I have taken this into account.
On 24 November 2022, the Applicant was caught in a difficult situation in relation to a patient being transferred to the theatre for an operation. The Applicant used an IV pole which did not fit the patient’s bed. From what I can ascertain, the IV pole eventually hit the patient in the face, albeit not when in the care of the Applicant. I accept that the Applicant was improvising in this scenario to try and satisfy the medication needs of the patient and the demands of the treating doctor. However, the Applicant’s decision was unsafe. The Applicant’s responses to her Manager when questioned about the incident were disappointing and unprofessional. I have taken this into account.
On 8 December 2023, Ms Duffey received a complaint from another staff member (the Applicant’s Team Leader) about the Applicant. The staff member claimed that the Applicant did not perform her duties as required and had “stormed out the room”. This staff member described the Applicant as disruptive, judgemental and that she had used derogatory language towards indigenous patients. I have taken this into account.
On 28 December 2022, the Applicant administered fluid intravenously four times faster than it was prescribed, i.e., over a 15-minute period rather than 1 hour. I have taken this into account.
A PIP is put in place to give an employee a chance to significantly improve their performance and behaviour. Whilst Ms Duffey accepted that there was some marginal improvement in her performance, Ms Duffey claimed that the Applicant’s attitude had actually deteriorated. I have taken this into account.
Based on the regularity and type of incidents involving the Applicant since the PIP was introduced and the Applicant’s ongoing poor attitude, I am satisfied and find that that Respondent had a valid reason to terminate the Applicant.
Section 387(b) – Notified of the reason
It is not in dispute that the Applicant was notified of the reason for her dismissal.
Section 387(c) – Opportunity to respond
It is not in dispute that the Applicant was given an opportunity to respond to a show cause letter. Following an extension granted by the Respondent, the Applicant provided a 38-page response.
Section 387(d) – Refusal of a support person
The Applicant was not prevented from having a support person attend any of the meetings that she had with the Respondent.
Section 387(e) – Unsatisfactory performance
I am satisfied that the Applicant was warned about her unsatisfactory performance. The Applicant had numerous meetings with management in relation to the regular Riskman notifications with which she was identified. Further, the PIP was put in place as a result of her unsatisfactory performance, which required weekly meetings to assess her ongoing performance.
Section 387 (f) and (g) – Size of Enterprise and HR Staff – procedures followed
The Respondent is a large organisation which has set procedures and policies that it follows in relation to terminating any employee. I am satisfied that these processes were adequately followed in this instance.
It is not in dispute that the Respondent has a large human resources department.
Section 387(h) – Any other matters
The Applicant submitted that she did not receive a proper probationary process, which, if delivered, may have resulted in her working in a safer and more appropriate manner. Whilst I accept that the Applicant did not receive the initial probation familiarisation training or the 3-month and 6-month reviews, I do not accept that these oversights were of such significance to detrimentally affect the overall performance of the Applicant. Whilst the Northern Territory Department of Health is the Applicant’s first job as a nurse, she is not an impressionable 20-year-old. She is a tertiary trained and qualified nurse. There is no doubt that she cares about her patients and her colleagues. She would attend work an hour early, without pay, in order to prepare for her shift. However, if the Respondent had conducted the probation process properly, I am of the view that the Applicant’s employment would have been terminated within the 6-month probation. A number of the Applicant’s mistakes could have resulted in the death of a number of patients. Incorrect medication being administered, the wrong dosage, the wrong frequency and the incorrect labelling of a blood sample taken from the wrong patient are all situations which occurred in the first 6-months of the Applicant’s employment. These repeated mistakes would have provided, in my view, the Respondent with a valid reason to terminate the Applicant in that timeframe. I have taken this into account.
The Applicant submitted that the Respondent did not take into account the personal and family circumstances of the Applicant. Under re-examination, the Applicant, to her credit, stated that she did not talk to anyone at work about her private business and her upbringing. The Applicant first raised the fact that she was adopted as a child in response to the show cause letter. I am unaware of what conclusion the Respondent or the Commission should draw from this information. I have taken this into account.
I have taken into account the many failures of the Respondent in relation to their internal processes. I was surprised to hear that Ms Duffey was unaware of her duty in relation to the probation of new employees and the lack of training which had been afforded to her in relation to this issue. As a result, the Applicant’s probation/minimum employment simply passed without review or assessment.
I do not accept that the Applicant has displayed significant improvement during the period of the PIP or that the detailed reflections of the Applicant display an eagerness to learn from her mistakes. Repeated and simple errors in relation to the distribution of medication do not signify significant improvement. Giving a patient 4 times the prescribed dose of a drug is not a significant improvement. I do not accept that the Applicant’s medication errors are “within the realm of medical discretion” as submitted by the Applicant’s representative. Further, claiming to be picked on or over-scrutinised during a PIP process is not a significant improvement in the Applicant’s attitude. I have taken this into account.
In relation to the decision in Fichera v Thomas Warburton Pty Ltd[2012] FWA 4382 of Gooley C (as she then was), I am satisfied that this decision can be distinguished on the facts. I accept that the Respondent did not follow its probationary processes. That is why it placed the Applicant on a PIP. Any deficiency arising from the flawed probationary process has been rectified by the PIP. I have taken this into account.
I have taken into account the evidence of Ms Mason, who testified that she wanted to give the Applicant every opportunity to “make it” as a nurse, on the basis of the Applicant’s stage of life that she sought a career in nursing. In my view, Ms Mason has been very patient and generous with the Applicant.
I have taken into account Ms Mason’s views that her ongoing concern about the Applicant relate to her inability to accurately follow medication directions and her ongoing interaction issues with staff, patients and their families.
I have taken into account the Respondent’s concerns about the inappropriate attitude of the Applicant. The most obvious example of the Applicant’s attitude was in relation to the blood sample incident (see paragraph [85] above). Ms Duffey testified that when advised by an employee from the haematology department of the possible error, the Applicant laughed. When questioned by Ms Duffey as to how this error happened, the Applicant admitted to making a number of fundamental mistakes by not checking the patient’s name and date of birth before taking the blood. Further, the Applicant showed no remorse, sympathy or empathy for her mistake – even though it may have resulted in the patient’s death. The Applicant didn’t even say sorry for her mistake. Ms Duffey claimed that in contrast, most other nurses would be in tears for a mistake such as this, which could have had serious ramifications for the patient’s ongoing care.
Conclusion
The Applicant has not been helped in this proceeding by a number of the clearly inaccurate statements from her representative. To suggest that taking blood from the wrong patient or not complying with COVID-19 safety protocols in relation to the wearing of PPE when surrounded by vulnerable patients are ‘minor performance issues’ is clearly not accurate.
When terminating an employee, the Respondent has an obligation to comply with the provisions of the FW Act. However, I do accept that the PSEM Act provides the Respondent with a checklist which ensures that procedural fairness is afforded to every employee. The PSEM Act also provides for an internal review, although this process cannot interfere with, or extend, the timeframes of the FW Act.
I do not agree that the Applicant has shown significant improvement over the PIP process. The Applicant was on notice that significant improvement was necessary during this PIP for her to maintain her employment. This improvement did not occur.
The administration of medication is a core duty and competency of a nurse. The Respondent needs to have confidence that its nurses can perform this function. After 11 months of employment, the Respondent was not confident the Applicant was sufficiently competent to perform this task without error. Relevantly, patients need to have confidence that their nurse is not going to detrimentally affect their health due to avoidable errors or incompetence. Clearly, the Respondent and the Applicant’s patients could not be confident that the Applicant possessed this competency.
Further, the attitude of the Applicant is difficult to understand. I accept that some individuals make ‘light’ of difficult situations – that is their way of dealing with that situation. However, to show no remorse or empathy to a significant error with possible catastrophic ramifications cannot be condoned. The Applicant’s practice of finding fault with her colleagues or with the Respondent’s procedures, rather than take responsibility and acknowledge her own mistakes, is an attitudinal attribute which she needs to change.
I have previously found that the Respondent had a valid reason to dismiss the Applicant. When assessing the rest of the criteria in s.387(b)-(h) of the Act, I am satisfied that the Applicant received her statutory entitlement to a fair go.
I find that the Applicant has not been unfairly dismissed.
The application is dismissed.
I so Order.
COMMISSIONER
[1] (1995) 185 CLR 410.
[2] (1998) 84 IR 1.
[3] [2000] AIRC 1019.
[4] (1995) 62 IR 371.
[5] PR4471.
[6] (1998) 84 FCR 483.
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