Roy Hoppenbrouwer v Aurrum Pty Ltd T/A Aurrum Norah Head
[2017] FWC 6747
•15 DECEMBER 2017
| [2017] FWC 6747 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Roy Hoppenbrouwer
v
Aurrum Pty Ltd T/A Aurrum Norah Head
(U2017/7636)
COMMISSIONER SAUNDERS | NEWCASTLE, 15 DECEMBER 2017 |
Application for an unfair dismissal remedy – breaches of medication management policy – valid reason for dismissal – inconsistent treatment – summary dismissal disproportionate to misconduct – dismissal harsh and unreasonable – compensation ordered.
[1] Mr Roy Hoppenbrouwer was employed as a Registered Nurse by Aurrum Pty Ltd T/A Aurrum Norah Head (Aurrum) from 30 October 2015 until his summary dismissal on 26 June 2017. Mr Hoppenbrouwer filed an application for unfair dismissal remedy in the Fair Work Commission (Commission) on 14 July 2017 pursuant to s.394 of the Fair Work Act 2009 (Act) in which he alleges that his dismissal was harsh, unjust and unreasonable. Aurrum denies those allegations.
Determinative Conference
[2] After taking into account the views of the parties, I decided to deal with the matter by way of a determinative conference.
[3] The determinative conference took place on 16, 17 and 18 October 2017 and 3 November 2017. Mr Hoppenbrouwer was represented at the hearing by his brother, Mr Paul Hoppenbrouwer, who is not a lawyer but who has experience in human resources. Aurrum was represented with permission by Mr Benjamin Gee, solicitor, of FCB Group.
[4] Mr Hoppenbrouwer gave evidence in support of his application and adduced evidence from the following witnesses:
● Mr Sean Paton, a Registered Nurse who formerly worked at Aurrum Norah Head;
● Mrs Jennifer Hoppenbrouwer, the applicant’s wife;
● Dr Mary Dover, a General Practitioner who had patients at Aurrum Norah Head;
● Mr Vaneshkumar Nayak, a Pharmacist at Chemist Warehouse Gosford; and
● Dr Rodney Jilek, CEO of Gallipoli Health Care and Principal Adviser at Aged Care Advisory Services.
[5] Aurrum adduced evidence in support of its case from:
● Ms Glenda Walker, National Clinical and Operations Director of Aurrum;
● Ms Angy Dinevska, Human Resources Director of Aurrum;
● Ms Caroline Mwania, National Quality & Education Director of Aurrum; and
● Mr Kenneth Gleeson, a Registered Nurse working at Aurrum Norah Head.
Initial matters to be considered
[6] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of Mr Hoppenbrouwer’s application.
[7] There is no dispute between the parties and I am satisfied on the evidence that:
(a) Mr Hoppenbrouwer’s application was made within the period required in s.394(2) of the Act; and
(b) Mr Hoppenbrouwer was a person protected from unfair dismissal; and
(c) Aurrum was not a “small business employer” as defined in s.23 of the Act, so the Small Business Fair Dismissal Code does not apply to the dismissal; and
(d) Mr Hoppenbrouwer’s dismissal was not a case of genuine redundancy.
Was the dismissal harsh, unjust and/or unreasonable?
[8] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Hoppenbrouwer’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.
Valid reason (s.387(a))
Legal principles
[9] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 1 The reason for the dismissal should be “sound, defensible and well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced.”3
[10] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 4 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).5
[11] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.6 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 7
[12] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 8as follows:
“[35]... as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a “valid reason” should not impose a severe barrier to the right of an employer to dismiss an employee.
[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.”
Valid reasons relied on by Aurrum
[13] Aurrum relies on the following conduct of Mr Hoppenbrouwer to support its argument that it had “valid reasons” for Mr Hoppenbrouwer’s dismissal:
(a) First, it is alleged that on 19 May 2017 Mr Hoppenbrouwer made a progress note that Resident A 9 was delusional, anxious and hallucinating due to being administered a double dose of Endone 5mg but he did not attempt to report and escalate the incident to the Facility Manager or the resident’s treating doctor in breach of Aurrum’s Medication Management Policy;
(b) Secondly, it is alleged that on 8, 9, 10, 12, 13 and 14 June 2017 Mr Hoppenbrouwer withheld insulin from Resident B 10 without contacting the resident’s treating doctor and (in some cases) without making a progress note in breach of Aurrum’s Medication Management Policy and his training; and
(c) Thirdly, it is alleged that on 22 June 2017 Mr Hoppenbrouwer was dishonest to representatives of Aurrum during the investigation into the allegations by telling them that he had spoken to Dr Dover on 13 June 2017 about the withholding of insulin from Resident B.
Aurrum’s relevant policies and procedures
[14] It was a term of Mr Hoppenbrouwer’s employment with Aurrum that he was required to comply with Aurrum’s policies and procedures. 11
[15] The following parts of Aurrum’s policies and procedures are relevant to Mr Hoppenbrouwer’s dismissal: 12
(a) Medication Management Policy section 2.5:
“2.5 INCIDENT REPORT TRENDING
…
A medication incident is any event that may cause or lead to an inappropriate medication use or resident harm associated with medication while in the control of the Health Care Professional, Approved Care Worker or Resident.
Such events may be related to professional practice, health care products, procedures and systems. These may include: Prescribing, order communication; product labelling, packaging and nomenclature, compounding, dispensing, distribution, administration, education, documentation, monitoring and use.
(b) Medication Management Policy section 4.4:
“4.4 THE ROLE OF THE REGISTERED NURSE IN MEDICATION ADMINISTRATION
…
The role of the Registered Nurse in medication administration includes:
The delegation and supervision of medication administration to appropriately qualified Enrolled Nurses (ENs) and Approved Care Workers. The Registered Nurse is required to be aware of the organisational scope of practice of the person to whom they wish to delegate undertaking professional judgment in relation to medication use, including knowing why to administer, how to administer, when to administer, when not to administer and when to report back or refer to a Doctor or Pharmacist.”
(c) Medication Management Policy section 7.4:
“7.4 SAFE ADMINISTRATION OF MEDICATION
…
5. If medications are not administered then the Approved Care Worker/EN, RN will document the reason for this in the resident’s progress notes. The Approved Care Worker/EN should report this event to the RN, Team Leader, Facility Manager and/or General Manager.
…
14. A Registered Nurse administering medications must use their professional judgment in determining the appropriateness or otherwise of any medication. They are to contact the treating Doctor concerned if there is any query regarding the medication before it is administered and document in the progress notes.”
(d) Medication Management Policy section 7.24:
“7.25 DIABETES MANAGEMENT:
…
Management of resident’s g hypo/hyper glycaemia will be according to medical directive and facility protocol…”
(e) Medication Management Policy section 7.25:
“7.25 INSULIN ADMINISTRATION PROCEDURE:
…
Care Planning & Management
For all residents with diabetes a care plan must be prepared by the Registered Nurse in conjunction with the residents Doctor including;
…
g. clearly reiterate that insulin shall not be withheld without consultation and/or instructions to do so by a medical practitioner.
…
Registered Nurses and Enrolled Nurses will be made aware of and comply with all reporting requirements for the administration and management of insulin administration.
Registered Nurses and Enrolled Nurses will be made aware of and comply with the facility’s policy/procedure on incident reporting in the event of any error in the administration of insulin.”
(f) Medication Management Policy at section 7.27:
“7.27 MEDICATION INCIDENTS
...
A medication incident is any event that may cause or lead to inappropriate medication use. These include:
7.27.1 wrong dose, resident, time, strength, route
7.27.2 incorrect administration
7.27.3 failure to sign for a medication on the medication chart /sheet
7.27.4 incomplete order by the Doctor
7.27.5 pharmacy packing error
7.27.6 no stock
7.27.7 medication found on floor
If a medication incident occurs the RN in charge of the shift must follow the Medication Incident report process and complete a medication incident on eCase; and:
7.27.8 Notify relevant staff
7.27.9 Depending on the incident, monitor the clinical status of the resident as per the Doctors instructions
7.27.10 Complete notification requirements.
7.27.11 Record in the resident’s progress notes any adverse outcomes and management of same.
7.27.12 Medication incidents and outcomes are to be reported to the Clinical Manager to follow up with relevant staff and relevant medication competencies to be complete for the identified staff poor practice.
7.27.13 Medication Incidents and outcomes to be reported to Facility Manager and tabled and discussed at the Medical and Medication Advisory Committee.”
[16] I am satisfied on the evidence that Mr Hoppenbrouwer was trained in the relevant policies and procedures set out above and understood that he was required to comply with the policies and procedures of Aurrum. 13
[17] In addition, as a Registered Nurse, Mr Hoppenbrouwer is, and was during his employment with Aurrum, required to practice within his “scope of practice”, 14 which is defined as “that in which nurses are educated, competent to perform and permitted by law. The actual scope of practice is influenced by the context in which the nurse practises, the health needs of the people, the level of competence and confidence of the nurse and the policy requirements of the service provider.”15 Accordingly, as part of his obligation to practice within his “scope of practice”, Mr Hoppenbrouwer was required to comply with Aurrum’s policies.
First reason – alleged failure to report Resident A’s reaction to Endone to a doctor
[18] Resident A is a resident at Aurrum’s Norah Head facility. On 18 May 2017, Resident A’s treating doctor changed Resident A’s prescription from Endone 5mg to OxyNorm 10mg. Both Endone and OxyNorm contain oxycodone hydrochloride as the active ingredient, however Endone is a tablet that is only available in 5mg whereas OxyNorm is a capsule available in 5mg, 10mg and 20mg. 16
[19] The Registered Nurses who were responsible for Resident A between 18 May 2017 and 4 June 2017 did not initially order OxyNorm 10mg from the pharmacy and instead administered a double dose of the ceased Endone 5mg.
[20] It is no longer in dispute between the parties, and I am satisfied on the evidence, that between 18 May 2017 and 4 June 2017 Mr Hoppenbrouwer: 17
(a) did not administer Resident A with Endone 5mg;
(b) did not witness Resident A being administered with a double dose of Endone 5mg;
(c) had no reason to review the medication chart for Resident A to check whether the prescription had been changed to Endone 10mg or OxyNorm 10mg; and
(d) was not aware that Resident A’s medication had been changed from Endone 5mg to OxyNorm 10mg. As soon as Mr Hoppenbrouwer became aware of the error, he notified Ms Linda Brown, Facility Manager at Aurrum’s Norah Head facility.
[21] At 8:19pm on 19 May 2017, Mr Hoppenbrouwer made the following progress note in relation to his observations of Resident A:
“[Resident A] after 1700hrs has been delusional, is quite anxious and hallucinating she has had BO 17/5 and denies any pain. She was given an increased dose being 10mg Endone @ 1010hrs doubling what she was having previously the behaviour is likely attributable to an adverse reaction to the increased dose of Endone. The normal effective life of Endone should be somewhat shorter than the time period between the dose and that of the reaction, however [Resident A] has decreased kidney function which can prolong the effects of the medication. Staff to continue to monitor as [Resident A] wants to get up and is unaware that she is unable to weight bare or mobilise” 18
[22] While the progress note does not indicate that Mr Hoppenbrouwer took any steps to inform Resident A’s treating doctor of the incident, Mr Hoppenbrouwer gave evidence that shortly after making the progress note he printed it off and faxed it to Resident A’s treating doctor, Dr Black at the Toukley Medical Practice. 19 Mr Hoppenbrouwer accepts that if he did not in fact fax or otherwise send his progress note to Dr Black he would be in breach of the Medication Management Policy.20
[23] Aurrum contends that Mr Hoppenbrouwer did not fax his progress note to Dr Black on 19 May 2017 and relies on the following matters to support its contention:
(a) the fax machine at Aurrum Norah Head was not operational between 1 May 2017 and about August 2017; 21
(b) while the fax machine at Aurrum Norah Head was not operational the procedure was to email a document to the administration officer at the facility and she would then send it on to Aurrum Erina which would then send the fax to the intended recipient; 22
(c) there was no record of any emails or requests going from Aurrum Norah Head to Aurrum Erina for faxes to be sent in relation to Resident A at the relevant time; 23
(d) there was no fax error report or other documentary record of any attempt to fax the progress note to Dr Black;
(e) in other progress notes made by Mr Hoppenbrouwer he had made a comment in his progress note when he had notified a doctor about a particular matter, but he did not include any such comment in the progress note he made on 19 May 2017; 24 and
(f) the first time Mr Hoppenbrouwer claimed to have faxed the progress note to Dr Black was on 6 September 2017. 25
[24] Mr Hoppenbrouwer accepts that the fax machine at Aurrum Norah Head was not operational between 1 May 2017 and about August 2017, however he contends that he was not aware that it was not operational until several weeks after 1 May 2017, including when he believed he faxed the progress note to Dr Black on 19 May 2017. 26 Mr Hoppenbrouwer gave evidence that during that period he continued to send faxes, or believed that he had done so, and did not know that they had not been successfully sent because the fax machine did not print a report confirming whether or not the fax had been successfully sent to the intended recipient.27 Mr Hoppenbrouwer gave evidence that he did not tell Aurrum representatives during his disciplinary meeting on 22 June 2017 that he had faxed his progress note to Dr Black on 19 May 2017 because it was not a question that was asked during the meeting.28
[25] Mr Paton gave evidence that he recalled being notified by the receptionist at Aurrum Norah Head that the fax machine was not operational a couple of weeks after the fax machine had stopped working. Mr Paton says that he had been working on night shift during that period. 29
[26] I am satisfied on the balance of probabilities that Mr Hoppenbrouwer attempted to fax his progress note regarding Resident A to Dr Black on 19 May 2017, and believed at the time that he had done so, for thefollowing reasons:
(a) Ms Dinevska gave evidence that the receptionist at Aurrum Norah Head, who worked office hours, was aware that the fax machine was not working from 1 May 2017, however Ms Dinevska was not sure how or when that information was communicated to employees working at the Aurrum Norah Head facility, including employees working night shift at that facility, such as Mr Hoppenbrouwer and Mr Paton. 30 The only evidence adduced of any communications to employees at the Aurrum Norah Head facility about the fact that the fax machine was not working was that given by Mr Hoppenbrouwer and Mr Paton;
(b) Mr Hoppenbrouwer’s evidence about when he was told the fax machine was not working is consistent with the evidence given by Mr Paton, who also worked night shift. Mr Paton initially could not recall how long the period was between when the fax machine ceased working and when he became aware it was not working. 31 He was later asked to “recall roughly how long the gap was”, and in response he “estimate[d] a couple of weeks”.32 Mr Hoppenbrouwer says he sent the fax to Dr Black on 19 May 2017, which is 18 days after the fax machine ceased to operate. In my view, the period of 18 days is broadly consistent with Mr Paton’s rough estimate of a “couple of weeks”;
(c) I accept Mr Hoppenbrouwer’s evidence that the fax machine at Aurrum Norah Head did not produce error reports or otherwise inform the user of the machine whether a fax had been successfully sent;
(d) Mr Hoppenbrouwer went to the trouble of writing a detailed progress note in which he included a number of comments about what he had observed and his views as to what may have caused the problems, which were plainly quite serious. Mr Hoppenbrouwer struck me as a Registered Nurse who takes his responsibility to care to the best of his ability for residents in a very serious way. It seems to me unlikely that Mr Hoppenbrouwer would take the trouble to prepare such a detailed progress note and not communicate it to the resident’s treating doctor or anybody else;
(e) Although the suspension letter sent to Mr Hoppenbrouwer on 20 June 2017 included an allegation that he had not escalated “the severity of this incident to the treating General Practitioner for a medical follow up or without conducting any clinical monitoring”, Mr Hoppenbrouwer was not required to provide a written response to the allegations in the suspension letter; instead he was required to attend a disciplinary interview on 22 June 2017 to provide his response to the multiple allegations set out in the suspension letter. Mr Hoppenbrouwer attended that meeting. However, at no time during the disciplinary interview was Mr Hoppenbrouwer asked directly to respond to an allegation that he had failed to escalate “the severity of this incident to the treating General Practitioner for a medical follow up or without conducting any clinical monitoring”. 33 The primary focus of the discussion at the disciplinary interview in relation to this matter was whether Mr Hoppenbrouwer had administered the wrong medication to Resident A and the content of his progress note. Mr Hoppenbrouwer was adamant during the disciplinary interview that he did not administer the wrong medication and he was not aware that the wrong medication was being administered. As soon as he became aware that the wrong medication was being administered to Resident A, he raised it immediately with Ms Linda Brown, Facility Manager at the Norah Head facility. There is no challenge to any of those matters in these proceedings. Further, Mr Hoppenbrouwer was adamant in the disciplinary interview that the content of his progress note was appropriate in the circumstances. Again, that matter has not been challenged in these proceedings. Aurrum relies on the fact that Mr Hoppenbrouwer was asked during the disciplinary interview on 22 June 2017 a number of questions about “the first allegation with the resident being given the ceased Endone”34 and he was then asked whether he “had anything further to say about that incident”,35 in response to which Mr Hoppenbrouwer repeated that he did not administer the ceased medication and as soon as he became aware of the error he reported it to management, but he did not say anything about faxing his progress note to Dr Black.36 However, the omission of any statement by Mr Hoppenbrouwer at the disciplinary interview on 22 June 2017 to the effect that he faxed his progress note to Dr Black does not, in my view, demonstrate or suggest that he did not fax (or attempt to fax) the progress note to Dr Black, given the primary focus of the discussion at the disciplinary interview in relation to this matter was whether Mr Hoppenbrouwer had administered the wrong medication to Resident A and the content of his progress note, together with the fact that Mr Hoppenbrouwer was not directly asked whether he had sent his progress note to Resident A’s treating doctor or anyone else;
(f) Aurrum’s contention that the first time Mr Hoppenbrouwer claimed to have faxed the progress note to Dr Black was on 6 September 2017 is correct. Mr Hoppenbrouwer made that claim in his outline of submissions dated 6 September 2017. The timing of that claim must be considered in the following context: the allegation was initially made in the suspension letter dated 20 June 2017, but was not specifically raised in the disciplinary interview on 22 June 2017; the termination letter dated 26 June 2017 makes no reference to the alleged failure of Mr Hoppenbrouwer to send his progress note to Resident A’s doctor; Aurrum’s response dated 27 July 2017 to Mr Hoppenbrouwer’s unfair dismissal application asserts (at [3.1(2)]) that “the Applicant did not refer this event to a General Practitioner (GP) which is what would have been required of a RN”. I accept Mr Hoppenbrouwer’s evidence that after he saw this part of Aurrum’s response he understood it was one of the reasons Aurrum was seeking to rely on to justify his dismissal, so he had to respond to it in his submissions, which he did; and
(g) I found Mr Hoppenbrouwer to be a witness of credit. Notwithstanding the stress and frustration that Mr Hoppenbrouwer has clearly suffered as a consequence of the allegations made against him by Aurrum, his subsequent dismissal, and the complaint Aurrum has made to the Australian Health Practitioners Regulation Agency (AHPRA) about his conduct, I formed the view that Mr Hoppenbrouwer did his best during his evidence to give his truthful recollection of relevant matters and he was prepared to make concessions against his interest. For example, Mr Hoppenbrouwer conceded that he could not recall or explain why he did not contact Dr Dover when he withheld insulin from Resident B on 8 June 2017. Further, Mr Hoppenbrouwer’s evidence was on the whole consistent and was supported by independent witnesses such as Mr Paton and, in some important respects, Dr Dover. 37
[27] Because Mr Hoppenbrouwer attempted to fax his progress note to Dr Black on 19 May 2017 and believed he had done so, he acted in a manner consistent with his obligations under Aurrum’s Medication Management Policy. The only reason his fax did not reach Dr Black was because the fax machine was not operational at the time and Aurrum had not informed Mr Hoppenbrouwer and other employees such as Mr Paton working on night shift that the fax machine was not working. In those circumstances, I find that Mr Hoppenbrouwer’s failure to ensure that the progress note he believed he had faxed to Dr Black was in fact received by Dr Black was not a valid reason for his dismissal. Such a reason could not, in my view, be characterised as sound, defensible or well-founded.
Second reason – withholding insulin from Resident B and not informing Resident B’s doctor
[28] Resident B is a resident at Aurrum’s Norah Head facility. He suffers from diabetes and his blood glucose levels (BGL or BSL) vary significantly. 38
[29] Aurrum did not adduce evidence of any care plan for Resident B in relation to the treatment of his diabetes. Pursuant to section 7.25 of Aurrum’s Medication Management Policy, such a care plan must be prepared for a resident with diabetes and must “clearly reiterate that insulin shall not be withheld without consultation and/or instructions to do so by a medical practitioner”. Accordingly, Aurrum has not established on the evidence that Mr Hoppenbrouwer breached section 7.25 of Aurrum’s Medication Management Policy.
[30] However, Mr Hoppenbrouwer gave evidence that he understood from his training and knowledge of Aurrum’s policies and procedures that the correct procedure when deciding to withhold medication (such as insulin) from a resident was to make a progress note on the resident’s file and to inform the resident’s treating doctor as soon as possible or practical, unless the doctor was uncontactable. 39 Mr Hoppenbrouwer’s understanding of his obligations in this regard are broadly consistent with paragraph [14] of section 7.4 of Aurrum’s Medication Management Policy, which requires the registered nurse “to contact the treating Doctor concerned if there is any query regarding the medication before it is administered and document in the progress notes.” The policy does not expressly state the time at which contact must be made with the doctor.
[31] Mr Paton, also a Registered Nurse formerly employed by Aurrum, gave evidence that he would use his professional judgment to withhold insulin from a resident if he believed (based on the resident’s BGL) that the administration of insulin would cause an adverse outcome such as hypoglycaemia, but he would notify the resident’s doctor, usually in writing the next day by fax or email if the insulin was withheld in the afternoon or evening. 40
[32] Similarly, Mr Gleeson, an experienced Registered Nurse employed by Aurrum, gave evidence that he would withhold insulin from a resident if their BGL was low, and he would give the resident some glucose to bring their BGL up. 41 Mr Gleeson also gave evidence that he would take advice from the resident’s doctor if their BGL did not rise after giving them some glucose, but he would “not give the insulin without any sort of authorisation from the medical officer”.42 Dr Jilek gave evidence to a similar effect.43
[33] During the period from 23 May 2017 to 19 July 2017, Resident B’s treating doctor, Dr Mary Dover, directed that Resident B be administered with insulin four times per day at 8:30am, 11:30am, 4:30pm and 8:00pm. Resident B was to be administered with Actrapid insulin, a short acting insulin, at 8:30am, 11:30am and 4:30pm each day, and Lantus insulin, a long (24 hour) acting insulin, at 8:00pm each day.
[34] The ‘reportable range’ of Resident B’s BGL during this period was less than 4.0 mmol/l or greater than 22.0 mmol/l. 44
[35] It is not in dispute between the parties that Resident B’s Blood Glucose Level Monitoring Chart shows that Mr Hoppenbrouwer withheld administering insulin to Resident B on the following occasions: 45
Date | Time | BGL (mmol/l) | LMO Informed | Progress Notes | Comments |
8 June 2017 | 20:00 | 4.2 | No | No | Insulin withheld, supper and jubes given |
9 June 2017 | 16:45 | 7.3 | No | No | Insulin withheld |
10 June 2017 | 16:20 | 10.2 | No | No | Insulin withheld |
12 June 2017 | 16:30 | 10.9 | No | No | Actrapid withheld |
13 June 2017 | 16:30 | 7.7 | No | No | Actrapid Withheld |
14 June 2017 | 16:30 | 5.5 | No | No | Actrapid Withheld |
[36] Mr Hoppenbrouwer and Mr Paton both gave evidence that Aurrum’s computer system automatically generated a ‘Yes’ into the columns ‘LMO [Local Medical Officer] Informed’ and ‘Progress Notes’ in the BGL Monitoring Chart when the resident’s BGL is within the reportable range (i.e. less than 4.0 mmol/l or greater than 22.0 mmol/l) and this could not be manually overridden. 46 Ms Mwaina gave evidence that her current understanding of the system was that the Registered Nurse would need to manually enter information into the column ‘LMO Informed’ and ‘Progress Notes’ and that information would not automatically populate.47 Ms Mwania’s evidence on this issue was not clear and did not indicate that she had a strong operational knowledge of the system.
[37] I accept the evidence of Mr Hoppenbrouwer and Mr Paton in relation to this issue on the basis that (a) they used the system on a regular basis and had a good knowledge of how it operated and (b) their evidence is consistent with the Blood Glucose Level Monitoring Chart which shows that the only entries that have a ‘Yes’ in the columns ‘LMO Informed’ and ‘Progress Notes’ are occasions when the BGL reading is within the reportable range. This is the case even where the Registered Nurse’s comments indicate that the doctor had been contacted and there was a progress note entered. 48
[38] Aurrum contends that on various occasions in the period from 8 to 14 June 2017, Mr Hoppenbrouwer acted in a manner inconsistent with his training and Aurrum’s Medication Management Policy by withholding insulin from Resident B and not making a progress note and/or contacting the resident’s doctor.
Thursday, 8 June 2017
[39] Mr Hoppenbrouwer withheld Resident B’s Lantus insulin at 8:00pm on 8 June 2017. At 9:19pm on 8 June 2017, he made a progress note in relation to Resident B that “[Resident B]’s BSL @ 2000 was 4.2 MMOL/L given supper, jubes and juice. Insulin withheld”. 49 I am satisfied on the evidence that Mr Hoppenbrouwer did not contact Dr Dover at any time on 8 June 2017, nor at any time prior to the evening of 13 June 2017, in relation to his decision to withhold Resident B’s insulin at 8:00pm on 8 June 2017. Mr Hoppenbrouwer gave evidence that he decided to withhold Lantus insulin at 8:00pm on 8 June 2017 because Resident B had had a disagreement with someone in the dining room and had not had dinner, with the result that his BGL was close to the 0 to 4 mmol/l range. Mr Hoppenbrouwer considered there to be a risk that if he administered the Lantus insulin it could result in Resident B becoming hypoglycaemic.50 Mr Hoppenbrouwer gave Resident B supper and jubes in an attempt to bring his BGL up so that he could try and administer the Lantus insulin later on if his BGL was high enough.51
Friday, 9 June 2017
[40] Mr Hoppenbrouwer withheld Resident B’s Actrapid insulin at 4:45pm on 9 June 2017. The reason he says he withheld the insulin was because Resident B’s BGL was low (7.3 mmol/l) and if he administered the Actrapid insulin it could result in it being dangerous to administer the Lantus insulin at 8:00pm. 52 Mr Hoppenbrouwer contends that his decision was made after clinical assessment including reviewing Resident B’s BGL over the course of the previous days taking account of the fluctuations in the Resident’s BGL readings.53
[41] Mr Hoppenbrouwer did not make a progress note in relation to his withholding of insulin from Resident B on 9 June 2017 and he did not attempt to contact Dr Dover at any time on 9 June 2017, nor at any time prior to the evening of 13 June 2017.
Saturday, 10 June 2017
[42] Mr Hoppenbrouwer withheld Resident B’s Actrapid insulin at 4:20pm on 10 June 2017 because he says Resident B’s BGL was low (10.2 mmol/l) which could result in it being dangerous to administer the Lantus insulin at 8:00pm. 54 Mr Hoppenbrouwer contends that his decision was made after clinical assessment including reviewing Resident B’s BGL over the course of the previous days taking account of the fluctuations in the Resident’s BGL readings.55
[43] Mr Hoppenbrouwer did not make a progress note in relation to his withholding of insulin from Resident B on 10 June 2017 and he did not attempt to contact Dr Dover at any time on 10 June 2017, nor at any time prior to the evening of 13 June 2017.
Monday (public holiday), 12 June 2017
[44] Mr Hoppenbrouwer withheld Resident B’s Actrapid insulin at 4:30pm on 12 June 2017. At 9:38pm on 12 June 2017, Mr Hoppenbrouwer made a progress note in relation to Resident B as follows:
“[Resident B]’s BSL @ 1630 was 10.9 the decision to with hold his actrapid was made as previously when given 12 iu actrapid his following BSL @ 2000 would range between 7 and 13 mmol/l making the administration of his Lantus a risk of hypoglycemia through the night, as he derives a greater benefit from his Lantus acting for 24 hrs than the actrapid which has approx a 2 hr effective life. I considered that by with holding the actrapid and allowing his blood sugars to increase after dinner and administering his Lantus at the time charted this would be of greater benefit to his overall diabetic management over 24 hrs than administering the actrapid and being in a position that would require his Lantus to be with held as was the case yesterday.” 56
[45] Mr Hoppenbrouwer did not contact Dr Dover at any time on 12 June 2017 in relation to his decision to withhold Resident B’s insulin at 4:30pm on 12 June 2017, nor at any time prior to the evening of 13 June 2017.
Reason for not contacting Dr Dover between 8 and 12 June 2017
[46] Mr Hoppenbrouwer gave evidence that he was unable to discuss the withholding of Resident B’s insulin with Dr Dover between 9 and 12 June 2017 due to Dr Dover’s unavailability over the Queen’s Birthday long weekend. 57 Mr Hoppenbrouwer contends that he was told by another Registered Nurse during a handover on Friday, 9 June 2017 that Dr Dover had gone to the Gold Coast and was not contactable for the weekend.58 Mr Hoppenbrouwer later said, when asked whether he reported his withholding of insulin from Resident B on 8 or 9 June 2017, that he could not “remember if she [Dr Dover] went early on the Thursday night. Possibly not. So the Thursday, at 4.2, with the - from what I can gather there, no, I didn’t.”59 Mr Hoppenbrouwer concedes that he had Dr Dover’s contact number on the Queen’s Birthday weekend but did not try to call her.60 Further, he says that no other doctor’s name and contact details were identified for him to contact in Dr Dover’s absence.61
[47] Mr Hoppenbrouwer’s evidence throughout most of this matter was that he did not try to contact Dr Dover during the Queen’s Birthday weekend because he was told she was uncontactable. However, during his further cross-examination on the third day of the hearing, Mr Hoppenbrouwer gave evidence that he was quite sure he would have spoken to Dr Dover or left a message for her to be contacted the next morning. 62 I do not accept Mr Hoppenbrouwer’s evidence in this regard; it is inconsistent with his earlier evidence and is not supported by any progress or other note made by Mr Hoppenbrouwer at the time. Accordingly, I find that Mr Hoppenbrouwer did not attempt to contact Dr Dover between 8 and 12 June 2017 and he did not leave a message for her to be contacted during that period of time.
[48] Dr Dover gave evidence that she does not ordinarily work weekends but if there is a concern about a patient the Registered Nurse or Facility Manager will call her on her mobile telephone. 63 She says that she has checked her records and can confirm that she was not in the Gold Coast on the Queen’s Birthday weekend but rather was in the Gold Coast from 16 to 19 June 2017. Dr Dover says that she might have been in Sydney on the Queen’s Birthday weekend, however she would have been contactable on her mobile telephone and if the nurse could not get through to her they could have left her a message and she would have returned the call.64
[49] I accept Dr Dover’s evidence that she was not in the Gold Coast in the period from 8 to 12 June 2017. However, I also accept Mr Hoppenbrouwer’s evidence that he was told in a handover meeting on Friday, 9 June 2017 that Dr Dover had gone away and was not contactable for the weekend, and that is the reason he did not try to contact Dr Dover when he withheld insulin from Resident B on Friday, 9 June 2017, Saturday, 10 June 2017 and Monday, 12 June 2017. Mr Hoppenbrouwer’s evidence in that regard is not supported by any note in the handover notes for Resident B for that week, 65 but it is consistent with a progress note made by Mr Paton on Sunday, 11 June 2017 to the effect that he withheld insulin from Resident B and made a “note for LMO to review on next visit”.66 Mr Paton’s conduct in that regard was different from his usual practice of notifying the doctor on the following day by fax or email of a decision by him to withhold insulin from a resident.67 Although this issue was not put to Mr Paton during his evidence, I consider that a likely explanation for Mr Paton’s making of a note on 11 June 2017 for Resident B’s doctor to review on her next visit was the fact that Registered Nurses at the Norah Head facility had been told that Dr Dover was away for the weekend and was uncontactable.
[50] Further, although Mr Hoppenbrouwer did not mention in his disciplinary interview on 22 June 2017 68 that he did not contact Dr Dover because he believed she was away for the weekend and was uncontactable, that he did not do so must be considered in a context where he attended the disciplinary meeting to respond to one allegation in relation to withholding insulin from Resident B, namely:
“On the 12th of June 2017 at 9.38pm, you made a note in the resident’s progress note stating that you withheld a resident’s Novorapid Insulin, 12 Units, at 1630hrs as the resident’s BGL was 10.9mmols. The directive from the GP is to administer 12 Units Novorapid insulin at 1700hrs. You went against the GP directive and chose to withhold the insulin without consulting the resident’s GP to advise them of your decision. The resident’s GP attended the facility on the 13th of June and there is no noted follow-up note from the GP with regards to your decision to withhold the insulin.”
[51] Notwithstanding the limited scope of that allegation in the letter provided to Mr Hoppenbrouwer on 20 June 2017, at the disciplinary meeting on 22 June 2017 Mr Hoppenbrouwer referred to Resident B’s BGL chart from 1 June 2017 and started going through some of the history of the administration of insulin to Resident B from that time. 69 Ms Walker, on behalf of the Respondent, then took Mr Hoppenbrouwer to his withholding of insulin from Resident B on 9 June 2017 and asked him a number of questions about it, including whether he had “a discussion with a medical personnel to actually make the decision around this”70. Ms Walker then put a similar allegation to Mr Hoppenbrouwer in relation to the 10th of June 2017.71 Mr Hoppenbrouwer’s support person then, according to the notes of the meeting, interjected and pointed out that the allegations “are on the 20th”.72 I take the reference in the notes to the 20th to be a typographical error, for the allegations in the letter dated 20 June 2017 plainly related to events on the 12th of June 2017. Mr Hoppenbrouwer’s withholding of insulin from Resident B on 12 June 2017 was then discussed and Mr Hoppenbrouwer said that he discussed it with Resident B’s doctor on 13 June 2017.73
[52] Mr Hoppenbrouwer attended the meeting on 22 June 2017 to discuss the allegation that he had withheld insulin from Resident B on 12 June 2017 and had not made a progress note or contacted Resident B’s doctor. In those circumstances, when questions were asked of Mr Hoppenbrouwer at the meeting on 22 June 2017, without prior notice, about his withholding of insulin from Resident B on 9 and 10 June 2017, I do not take the fact that he did not mention that he was told in a handover meeting on 9 June 2017 that Dr Hoppenbrouwer had gone away for the weekend and was uncontactable as an indication or persuasive factor telling against the truth or reliability of what Mr Hoppenbrouwer says he was told in the hand over meeting on 9 June 2017.
Tuesday, 13 June 2017
[53] Mr Hoppenbrouwer withheld Resident B’s Actrapid insulin at 4:30pm on 13 June 2017. Mr Hoppenbrouwer gave evidence that he did not contact Dr Dover or make a progress note at the time he withheld Resident B’s insulin at 4:30pm on 13 June 2017 because during a handover discussion at approximately 2:30pm on that day he had been told that Dr Dover would be attending the Norah Head facility that evening and he intended to discuss it with her then. 74
[54] Mr Hoppenbrouwer gave evidence that he had a discussion with Dr Dover at approximately 6:00pm on 13 June 2017 in relation to his withholding of insulin from Resident B and during this conversation Dr Dover gave him the direction to withhold insulin from Resident B if his BGL was under 7.0 mmol/l. 75 Aurrum contends that Mr Hoppenbrouwer did not have any such discussion with Dr Dover on 13 June 2017. Aurrum relies on the following matters in support of this contention:
(a) Dr Dover did not make a progress note of any conversation with Mr Hoppenbrouwer on 13 June 2017 or any direction by her to withhold insulin if Resident B’s BGL was under 7.0 mmol/l. If Dr Dover makes a progress note about a patient while she is visiting the Aurrum Norah Head facility it is entered into Aurrum’s computer system, the same way as a Registered Nurse would do; 76
(b) Mr Hoppenbrouwer did not make a progress note of his alleged discussion with Dr Dover on 13 June 2017; and
(c) Dr Dover provided a letter to Aurrum dated 10 September 2017 77 in which she stated: “On 13th June 2017, I was at Aurrum Norah Head. The withholding of insulin was not discussed with me. Further, I had not directed that insulin be withheld from this gentleman.”
[55] Dr Dover gave oral evidence to the following effect:
(a) Dr Dover attended the Aurrum Norah Head facility on the evening on 13 June 2017. 78 Although Dr Dover could not recall when she arrived at the facility on that day, she usually arrives at about 7pm79 and she wrote in her notes at 9:15pm on that evening;80
(b) Dr Dover recalls seeing Mr Hoppenbrouwer when she attended the Aurrum Norah Head facility on 13 June 2017; 81
(c) Dr Dover saw Resident B at the Aurrum Norah Head facility on the evening of 13 June 2017 and reviewed his blood glucose levels. 82 At that time she was with the Registered Nurse on duty.83 Dr Dover could not recall which Registered Nurse was with her when she saw Resident B on 13 June 2017, however “very often Roy [Hoppenbrouwer] would have been on with me, most of the time he would have been on with the initial ward rounds so I presume it was him unless he was off on leave or there was some other reason why he wasn’t there, you know”;84
(d) Dr Dover discussed with Mr Hoppenbrouwer that she would withhold insulin from Resident B if his blood glucose levels were under 7 mmol/l, but she could not recall when she had that discussion with Mr Hoppenbrouwer. 85 Dr Dover accepted it is possible she gave that instruction to Mr Hoppenbrouwer on 13 June 2017;86
(e) when asked about whether she would document a direction to withhold insulin if a resident’s blood glucose levels were under 7 mmol/l, Dr Dover gave the following evidence: 87
“When you give a direction of that kind, do you ordinarily document it? - I would take it to have been a given, because we would have considered like if it’s under seven, he is at risk for hypo, so I would in that circumstance expect the nurse just to hold it and contact me.
Would she ordinarily have given - - -? - (Indistinct) usually the nurses, if the blood sugars are low, they give them something to eat. They re-test it after half an hour and give the insulin at that stage, so I would consider that would be the standard protocol.
If you give an instruction of that kind, that is withhold Actrapid if the BCL is under seven - if you give a direction of that kind to a registered nurse, would you ordinarily document it? -As I say, I would have kind of taken it to be a given. Very often I would write it in my notes. I don’t seem to have on that day, but, as I say, it would have - most nurses would kind of know that, that if it was low just to maybe hold it and give them something to eat, and then re-test it.”
[56] Aurrum submitted that Dr Dover’s evidence to the effect that she would “take it to have been a given” related to whether she would document her direction to withhold insulin under 7 mmol/l. I do not accept that submission. In my view, both the specific words used by Dr Dover in answer to these questions and her answers as a whole demonstrate that Dr Dover’s comment that she would “take it to have been a given” related to whether a nurse should withhold insulin if the resident’s blood glucose levels were under 7 mmol/l, rather than whether she would document such a direction. In particular, Dr Dover pointed out in her answers that Resident B was at risk of hypoglycaemia if his blood glucose level was under 7 mmol/l, so she would “expect the nurse just to hold it and contact me” and “most nurses would kind of know that, that if it was low just to maybe hold it and give them something to eat, and then re-test it.” Further, Dr Dover gave evidence that “very often” she would record the direction in her notes. If the recording of such a direction in her notes was “a given”, Dr Dover would make such a record on each occasion on which such a direction was given, not “very often”.
[57] A “Hand Over Sheet” for Resident B contains the following hand written note for “PM” on 13 June 2017: 88
“… Actrapid @1630 to be withheld if under 7 BSL”
[58] Both Mr and Mrs Hoppenbrouwer gave evidence to the effect that they attended a medical appointment for Mrs Hoppenbrouwer with Dr Dover on 23 June 2017, at which Mr Hoppenbrouwer and Dr Dover spoke about their discussion on 13 June 2017 concerning the withholding of insulin from Resident B. Dr Dover agrees that she saw Mrs Hoppenbrouwer on 23 June 2017 and she recalls Mr Hoppenbrouwer, on one of his visits to Dr Dover’s practice with his wife, saying something to her about withholding insulin. 89 Dr Dover also recalls telling Mrs Hoppenbrouwer that she remembered having a discussion with Mr Hoppenbrouwer about withholding insulin after he had done so.90
[59] On 27 June 2017, Mr Hoppenbrouwer wrote a letter to Dr Dover in which he referred to “our conversation of the 13th June 2017” in relation to withholding insulin from Resident B. 91
[60] Dr Dover gave a direction to another Registered Nurse, Ms Tracey Scognamiglio, during a telephone call on 29 June 2017 to withhold insulin from Resident B if his blood glucose levels were under 7 mmol/l. Ms Scognamiglio documented the direction in a progress note at 6:58pm on 29 June 2017 and Dr Dover documented it at 8:44am on 4 July 2017. 92
[61] I find, on the balance of probabilities, that Mr Hoppenbrouwer spoke with Dr Dover during his shift on 13 June 2017 about withholding insulin from Resident B and during that conversation she directed him to withhold Actrapid insulin if Resident B’s blood glucose level was under 7.0 mmol/l. My reasons for so finding may be summarised as follows:
(a) Dr Dover attended the facility on 13 June 2017 and reviewed Resident B’s blood glucose levels. At that time she was doing her rounds with the Registered Nurse on duty. Although Dr Dover cannot recall which Registered Nurse was with her at that time, she accepts it was probably Mr Hoppenbrouwer;
(b) Mr Hoppenbrouwer gave evidence that he spoke to Dr Dover during her rounds on the evening of 13 June 2017 about withholding insulin from Resident B. I found Mr Hoppenbrouwer to be a credible and reliable witness;
(c) The handover sheet for Resident B supports Mr Hoppenbrouwer’s contention that he was given a direction by Dr Dover on 13 June 2017 to withhold insulin from Resident B if his blood glucose levels were under 7 mmol/l;
(d) Dr Dover gave the same direction about withholding insulin from Resident B to another registered nurse, Ms Scognamiglio, during a telephone call on 29 June 2017;
(e) Dr Dover recalls telling Mrs Hoppenbrouwer that she remembered having a discussion with Mr Hoppenbrouwer about withholding insulin after he had done so. Evidence given by Mr and Mrs Hoppenbrouwer supports the fact that there was a conversation with Dr Dover on or after 23 June 2017 in which Dr Dover recalled discussing with Mr Hoppenbrouwer his withholding of insulin from Resident B after he had done so; and
(f) Mr Hoppenbrouwer’s letter to Dr Dover dated 27 June 2017 supports his contention that he spoke to Dr Dover on 13 June 2017 about withholding insulin from Resident B.
14 June 2017
[62] Mr Hoppenbrouwer withheld Resident B’s Actrapid insulin at 4:30pm on 14 June 2017 because the BGL of Resident B was 5.5 mmol/l, which was below the 7.0 mmol/l direction he says he was given by Dr Dover on 13 June 2017. 93
[63] Mr Hoppenbrouwer gave evidence that on 15 June 2017, he became aware following a conversation with Ms Linda Brown, Facility Manager of Aurrum Norah Head, that Dr Dover had not documented her direction from 13 June 2017 to withhold insulin where Resident B’s BGL was under 7.0 mmol/l. 94 As a result, he administered the insulin to Resident B on 16 June 2017 at 4:30pm and 8:00pm when Resident B’s BGL was 6.8 mmol/l and 5.7 mmol/l respectively.95
Conclusion on reason two
[64] Aurrum has not sought to challenge Mr Hoppenbrouwer’s exercise of clinical judgment to withhold insulin from Resident B at various times on the basis of his concern that if he gave insulin to Resident B at a time when he had a low BGL there would a serious risk of Resident B becoming hypoglycaemic. Mr Hoppenbrouwer’s exercise of clinical judgment in that way is supported by the following:
(a) Mr Hoppenbrouwer is himself a diabetic and has knowledge, both from his training and experience as a Registered Nurse and his own experience as a diabetic, as to the risks of giving insulin when a diabetic’s BGL is low;
(b) a number of other Registered Nurses employed by Aurrum to work at the Norrah Head facility exercised similar clinical judgment to Mr Hoppenbrouwer and withheld insulin from Resident B at various times; 96 and
(c) Dr Dover gave evidence that she “would take it [withholding insulin from Resident B] to have been a given, because we would have considered like if it’s under seven, he is at risk for hypo, so I would in that circumstance expect the nurse just to hold it and contact me”. 97
[65] The fault in Mr Hoppenbrouwer’s conduct lies in his failure to make progress notes each time he withheld insulin from Resident B and the fact that he did not, at any time prior to 13 June 2017, notify Dr Dover or any other doctor (or manager of Aurrum) of his decisions to withhold insulin from Resident B on 8, 9, 10 and 12 June 2017. In particular, I am satisfied that:
(a) Mr Hoppenbrouwer acted in a manner contrary to his training and Aurrum’s policies by not making a progress note in relation to his decision to withhold insulin from Resident B on 9, 10, 13 and 14 June 2017;
(b) Mr Hoppenbrouwer acted in a manner contrary to his training and Aurrum’s policies by not contacting Dr Dover on 8 June 2017, or leaving a note for her to be contacted the following morning, about his decision to withhold insulin from Resident B on the evening of 8 June 2017. This was at a time before Mr Hoppenbrouwer was told that Dr Dover had gone away for the weekend and was not contactable;
(c) Mr Hoppenbrouwer acted in a manner contrary to his training and Aurrum’s policies by not contacting Dr Dover (or the Norah Head Facility Manager or any other Aurrum manager) on 9, 10 or 12 June 2017 about his decision to withhold insulin from Resident B on 9, 10 and 12 June 2017. Even though he had been told that Dr Dover was not contactable, I am of the view that Mr Hoppenbrouwer should have either tried to contact Dr Dover on her mobile telephone or at least informed an Aurrum manager of his clinical judgment that insulin should be withheld from Resident B on those days but he could not, or did not believe that he could, contact Resident B’s doctor to discuss the matter until 13 June 2017. 98
[66] To the extent that Mr Hoppenbrouwer acted in a manner inconsistent with Aurrum’s policies, he has also acted outside his “scope of practice” as a Registered Nurse.
[67] In relation to Mr Hoppenbrouwer’s decision to withhold insulin from Resident B on 13 June 2017, on the basis of my finding in paragraph [61] above that he had a conversation with Dr Dover on the evening of 13 June 2017 about his decision to withhold insulin from Resident B, I am satisfied that such action was not a breach of Aurrum’s Medication Management Policy or his training because he spoke to Dr Dover at the next available time after he made the decision to withhold the insulin at 4:30pm.
[68] In relation to Mr Hoppenbrouwer’s decision to withhold insulin from Resident B on 14 June 2017, on the basis of my finding in paragraph [61] above that Dr Dover directed him on 13 June 2017 to withhold Actrapid insulin if Resident B’s BGL was under 7.0 mmol/l, I am satisfied that such action was not a breach of Aurrum’s Medication Management Policy or his training because it was in accordance with the treating doctor’s direction.
Third reason – Alleged dishonesty during disciplinary meeting
[69] Aurrum contends that Mr Hoppenbrouwer was dishonest with Aurrum representatives in the disciplinary meeting on 22 June 2017 by stating and maintaining that he had spoken to Dr Dover on 13 June 2017 about the withholding of insulin from Resident B.
[70] Based on my finding in paragraph [61] above that Mr Hoppenbrouwer did speak to Dr Dover on 13 June 2017 about withholding insulin from Resident B, I find that Mr Hoppenbrouwer was not dishonest with Aurrum representatives in the disciplinary meeting on 22 June 2017. It follows that the third reason for which Aurrum contends is not a valid reason for Mr Hoppenbrouwer’s dismissal.
Conclusion on valid reason
[71] I have found that the first and third reasons relied on by Aurrum as valid reasons for Mr Hoppenbrouwer’s dismissal have not been substantiated on the evidence.
[72] In relation to the second reason relied on by Aurrum, I am satisfied that Mr Hoppenbrouwer’s conduct was inconsistent with his training and Aurrum’s policies in a material way, with the result that there was a sound, defensible and well-founded reason for his dismissal. I am therefore satisfied that Aurrum had a valid reason to dismiss Mr Hoppenbrouwer related to his conduct.
Notification of the reason for dismissal and given an opportunity to respond (s.387(b)&(c))
[73] Ms Dinevska gave evidence that on or about 15 June 2017 Aurrum decided to suspend Mr Hoppenbrouwer’s employment on full pay, pending an investigation into the allegations against him. Ms Dinevska says that at that time, she understood the allegations against Mr Hoppenbrouwer to be as set out in an email from Ms Mwaina to Ms Brown on 8 June 2017 which provides as follows: 99
“Please find attached documents and the email below re; S8 medication mismanagement and staff giving a ceased S8 medication from the 19th of May until the 4th of June. The resident, [Resident A], received double the dose of the ceased S8 medication 9 times.
I have read through the progress notes and the GP ceased the Endone on the 18th of May, because the pain was not being managed by the 5m Endone and also because the resident was 8 days BNO. The GP recommended the resident gets 10mgs Oxynorm instead.
The RNs have gone against the GP order and they gave twice the dosage of the ceased medications and signed in the wrong place. They signed where the Oxynorm 10mg capsule has been charted, but gave the ceased Endone 5mgs x 2 tablets.
Oxynorm was not ordered from Pharmacy by the RNs when it was charted by the GP (18/05/17), instead, the staff continued to administer double the dose of the ceased Endone until the 4th of June. The Oxynorm was delivered from pharmacy on the 6th of June at 1845hrs.
Roy Hoppenbrouwer wrote a progress note on the 19th of May @8.19pm which is out of his scope as an RN. He noticed the resident was having hallucinations due to the resident getting a double dose of the Ceased medication, Endone 5 mgs, but he continues to administer the medication and also makes medical recommendations which are out of his scope and have not been validated by the treating GP. This is a serious issue that needs to be managed.
The RN’ s responsible for this practise are;
1. …
2. Roy Hoppenbrouwer…”
[74] At approximately 10:17am on 20 June 2017, Mr Hoppenbrouwer was notified by Ms Dinevska during a phone call that he was being suspended on full pay pending an investigation into certain allegations that had been made against him. Following the phone call, Ms Walker sent Mr Hoppenbrouwer a letter by email that provided relevantly as follows: 100
“Following our discussion, I write to confirm that you are suspended from your position as Registered Nurse at Aurrum Norah Head on full pay, effective immediately, pending a full and thorough investigation into the following allegation against you. There are a series of concerns related to your conduct and performance as a registered nurse. The allegations are listed below.
Particulars:
- Serious and wilful medication mismanagement of residents in you [sic] care, posing a serious risk to their health and safety
- Serious breach of clinical procedures on multiple occasions
- Serious and wilful disregard of medication management procedures
- Wilful disregard for Aurrum incident escalation policy
It is alleged that you were aware that the resident had been given a double dose of a ceased medication, Endone 5mg, on the morning of the 19th of May at 1010hrs, as per your progress notes on the 19th of May at 8:19PM. It is also alleged that you were aware that the resident has been receiving the ceased Endone 5mg medication, from the dates of 19 May 2017 and continued until 4 June 2017 and you did not attempt to report and escalate this incident to the Facility Manager or the resident’s treating Medical Practitioner as per Aurrum’s reporting and escalation scale and the Aurrum Medication Management policy.
On 19 May 2017 at 8:19PM in Ecase progress notes written via your login, noted the resident was delusional, was anxious and was hallucinating due being administered a double dose of the ceased medication, Endone 5 mgs. You note in your written progress notes that the behaviour could be attributed to an adverse reaction to the increased dose of Endone. You proceed to document and make medical related statements, which are out of your Scope as a Registered Nurse, without escalating the severity of this incident to the treating General Practitioner for a medical follow up or without conducting any clinical monitoring/observations.
On the 12th of June 2017 at 9.38pm, you made a note in the resident’s progress note stating that you withheld a residents Novorapid Insulin, 12 Units, at 1630hrs as the resident’s BGL was 10.9mmols. The directive from the GP is to administer 12 Units Novorapid insulin at 1700hrs. You went against the GP directive and chose to withhold the insulin without consulting the resident’s GP to advise them of your decision. The resident’s GP attended the facility on the 13th of June and there is no noted follow up note from the GP with regards to your decision to withhold the insulin.
…
Please note that these are allegations only and your suspension should not in any way be taken as Aurrum assuming that you have acted as alleged. We will make a decision as to what disciplinary action is taken against you once we have undertaken a full and thorough investigation, including providing you with a full opportunity to respond to the allegations.
Due to the nature of the allegation, in accordance with the legal requirements for dealing with such matters, Aurrum may report this alleged incident to the Department of Health and AHPRA, who may conduct their own investigations.
You are expected to remain contactable and available for interview during your period of suspension. Failure by you to remain contactable without appropriate excuse would be in breach of the terms of your suspension and may result in you being taken to be on unauthorised leave for that day, meaning you would not be paid for that day.
Further, I wish to formally notify you that you are directed to attend a disciplinary interview with Angy Dinevska and myself on Thursday 22 June 2017 at 9:30AM, to provide your responses to the aforementioned allegations…”
[75] On 21 June 2017, Mr Hoppenbrouwer left a voicemail message for Ms Dinevska requesting documents that were relevant to the allegations against him. At 6:03pm, Ms Dinevska sent an email to Mr Hoppenbrouwer providing the information he had requested. 101
[76] At 10:45am on 22 June 2017, Mr Hoppenbrouwer attended a disciplinary interview with Ms Walker and Ms Dinevska to provide his responses to the allegations. Mrs Hoppenbrouwer attended as Mr Hoppenbrouwer’s support person. The meeting was electronically recorded.
[77] On 26 June 2017, Ms Walker sent a letter to Mr Hoppenbrouwer on behalf of Aurrum advising that following consideration of his responses Aurrum had made the decision to terminate his employment for serious misconduct:
“… In response to the allegations, you were of the view that you had undertaken all elements questioned in your role within your scope and within legislated parameters. You were of the opinion that the progress notes written by you where [sic] within your scope as a Registered Nurse which you had written about the resident receiving Endone incorrectly instead of Oxynorm. During the meeting, you said they were the same drug. The drugs are not the same and providing such information in the meeting and to other Registered Nurses at the Facility is a breach of our medication policy and medication charts.
Following your responses and my consideration of the same, I believe that your actions in relation to the allegation specifically related to the management of insulin represents serious misconduct and a breach of medication management and clinical procedures. There is no evidence as required by our policy to suggest that you had consulted a medical practitioner prior to or even post the actions of withholding insulin. This is contrary to our medication policy, clinical standards and scope of practice.
This behaviour represents a risk to our residents’ wellbeing and duty of care and as such cannot be tolerated by the company. Your conduct represented a serious breach of the duty of care towards vulnerable persons in Residential Aged Care and in this case, Aurrum Norah Head.
As a result of your actions and your responses, I believe that your position is untenable. I have given a great deal of consideration to this matter. In light of your actions and your responses at the meeting, I have decided that termination of your employment is the only appropriate course of action. In addition, we are required to report this to APHRA under their compulsory reporting guidelines.”
[78] On the basis of the facts set out above, of the reasons relied upon by Aurrum in these proceedings for the termination of Mr Hoppenbrouwer’s employment, I am satisfied that Mr Hoppenbrouwer was (a) notified of the following reasons for the termination of his employment prior to the decision to terminate his employment, and (b) given an opportunity to respond to those reasons for his dismissal prior to his dismissal:
● Mr Hoppenbrouwer made a progress note that Resident A was delusional, anxious and hallucinating due to being administered a double dose of Endone 5mg but he did not attempt to report and escalate the incident to the Facility Manager or the resident’s treating doctor in breach of Aurrum’s Medication Management Policy; and
● on 9, 10, and 12 June 2017 Mr Hoppenbrouwer withheld insulin from Resident B without contacting the resident’s treating doctor.
[79] However, Mr Hoppenbrouwer was (a) not notified of the following reasons for the termination of his employment prior to the decision to terminate his employment, and (b) not given an opportunity to respond to those reasons for his dismissal prior to his dismissal:
● on 8, 13 and 14 June 2017 Mr Hoppenbrouwer withheld insulin from Resident B without contacting the resident’s treating doctor;
● on 9, 10, 13 and 14 June 2017 Mr Hoppenbrouwer withheld insulin from Resident B without making a progress note; and
● on 22 June 2017 Mr Hoppenbrouwer was dishonest to representatives of Aurrum during the investigation into the allegations by telling them that he had spoken to Dr Dover on 13 June 2017 about the withholding of insulin from Resident B.
Any unreasonable refusal to allow Hoppenbrouwer to have a support person present (s.387(d))
[80] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[81] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”102
[82] Mr Hoppenbrouwer was given the opportunity to have a support person present during the disciplinary meeting held on 22 June 2017, at which time he had his wife Mrs Hoppenbrouwer attend the meeting with him as his support person. Accordingly, Aurrum has not unreasonably refused to allow Mr Hoppenbrouwer to have a support person present to assist at any discussions related to his dismissal.
Warnings about unsatisfactory performance (s.387(e))
[83] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal.
[84] In this case, the reasons for dismissal related to Mr Hoppenbrouwer’s conduct, rather than his performance, so this consideration is not relevant.
Impact of size of Aurrum on procedures followed in effecting the dismissal (s.387(f))
[85] Aurrum operates a number of aged care facilities and at the time of Mr Hoppenbrouwer’s dismissal employed approximately 700 employees.
[86] I do not consider that the size of Aurrum would be likely to impact on the procedures followed in effecting Mr Hoppenbrouwer’s dismissal.
Absence of dedicated human resource management specialists or expertise (s.387(g))
[87] Aurrum employed a number of human resource employees, including Ms Dinevska, at the time of Mr Hoppenbrouwer’s dismissal, so this consideration is not relevant.
Other relevant matters (s.387(h))
Length and quality of service
[88] Mr Hoppenbrouwer commenced employment with Aurrum as a casual Registered Nurse on 30 October 2015. He converted to permanent part-time employment on 31 October 2016. Mr Hoppenbrouwer’s period of continuous service with Aurrum was just under one year and eight months at the time of his dismissal.
[89] In June 2016, a fellow Registered Nurse at Aurum Norah Head, Ms Ilana Simpson, made a written complaint to Aurrum alleging that Mr Hoppenbrouwer engaged in unprofessional and bullying conduct towards her on 12 June 2016. 103 Mr Hoppenbrouwer raised this incident with Ms Brown on 13 June 2016 and responded in writing to this allegation, including by raising issues in relation to Ms Simpson’s conduct.104 Mr Hoppenbrouwer attended a meeting with Mr Gleeson and Ms Dinevska on 20 June 2016 in relation to the issues with Ms Simpson. No disciplinary action was taken against either Mr Hoppenbrouwer or Ms Simpson in relation to the incident on 12 June 2016, although Mr Hoppenbrouwer was sent a letter from Aurrum dated 29 June 2016 in which he was reminded of his requirement to behave in a manner consistent with Aurrum’s Code of Ethics.
[90] On 25 October 2016, Mr Hoppenbrouwer was verbally counselled for rude and unprofessional behaviour when speaking to a resident’s relative. The incident arose following the introduction of a new medication system. Mr Hoppenbrouwer acknowledged that rude and unprofessional behaviour was not acceptable. No disciplinary action was taken against Mr Hoppenbrouwer for this incident save for the verbal counselling and he agreed to meet again one month later to discuss his performance. 105
[91] On 18 November 2016, Mr Hoppenbrouwer was verbally counselled for administering a S8 patch at the wrong time. No disciplinary action was taken against Mr Hoppenbrouwer for this incident save for the verbal counselling, however he was required to undertake a skills assessment on 23 November 2016. 106
[92] On 10 May 2017, Mr Hoppenbrouwer was verbally counselled for a documentation and calculation error in the S8 register. No other disciplinary action was taken against Mr Hoppenbrouwer for this incident. 107
Inconsistent treatment of other employees
[93] A relevant matter to whether Mr Hoppenbrouwer’s dismissal was harsh, unjust and/or unreasonable is whether Mr Hoppenbrouwer was unfairly afforded inconsistent treatment by Aurrum in relation to his dismissal on the basis of the second reason relied on by Aurrum for his dismissal. In particular, Mr Hoppenbrouwer contends that Aurrum did not investigate or take any disciplinary action against other employees for withholding insulin from Resident B without contacting Dr Dover and/or making progress notes.
[94] In Darvell v Australian Postal Corporation 108, the Full Bench made the following comments in relation to the question of differential treatment between employees (references omitted):
“[21] The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. In Sexton’s case, his Honour said:
“[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable …
[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a ‘fair go all round’ within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.”
[22] Section 170CG(3)(e) of the Workplace Relations Act 1996 (Cth) was relevantly similar to s.387(h) of the FW Act.
[23] Similarly, in Daly v Bendigo Health Care Group, Senior Deputy President Kaufman said:
“[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP’s observation in Sexton that ‘there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.’ There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly’s years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly’s termination of employment was harsh, unjust or unreasonable.” [Footnotes omitted]
[24] We respectfully concur with their Honours.”
[95] Mr Hoppenbrouwer gave evidence that he was one of a number of Registered Nurses working for Aurrum who made informed clinical decisions to withhold insulin from Resident B without contacting Dr Dover but he has been the only Registered Nurse to be investigated or subjected to any disciplinary action for such conduct.
[96] Aurrum’s Blood Glucose Level Monitoring Chart for Resident B for the period 23 May 2017 to 19 July 2017 shows that insulin was withheld from Resident B on the following occasions:
Date | Time | BGL | Comments | RN |
21 May 2017 | 08:00 | 3.7 | Insulin not administered at this time, before breakfast | Sean Paton |
4 June 2017 | 20:30 | 3.5 | Withheld, super given & lollies, to be rechecked, note in LMO folder | Tracey Scognamiglio |
8 June 2017 | 20:00 | 4.2 | Insulin withheld, supper and jubes given | Roy Hoppenbrouwer |
9 June 2017 | 16:45 | 7.3 | Insulin withheld | Roy Hoppenbrouwer |
10 June 2017 | 16:20 | 10.2 | Insulin withheld | Roy Hoppenbrouwer |
11 June 2017 | 20:00 | 6.5 | Insulin not administered at this time, will reassess post supper | Sean Paton |
11 June 2017 | 21:30 | 4.8 | Insulin withheld | Sean Paton |
12 June 2017 | 16:30 | 10.9 | Actrapid withheld | Roy Hoppenbrouwer |
13 June 2017 | 16:30 | 7.7 | Actrapid Withheld | Roy Hoppenbrouwer |
14 June 2017 | 16:30 | 5.5 | Actrapid Withheld | Roy Hoppenbrouwer |
15 June 2017 | 20:30 | 4.2 | Withheld, see progress notes | Tracey Scognamiglio |
17 June 2017 | 16:30 | 6.3 | Actrapid withheld | Sean Paton |
17 June 2017 | 20:00 | 8.3 | Insulin withheld at this time | Sean Paton |
18 June 2017 | 16:30 | 3.7 | Withheld prior to dinner, lollies given, attended dinner, carbs given, juice | Tracey Scognamiglio |
19 June 2017 | 16:39 | 8.8 | Insulin withheld | Sean Paton |
20 June 2017 | 21:00 | 6.4 | Insulin withheld | External Agency RN |
21 June 2017 | 16:40 | 2.7 | Insulin withheld prior to dinner. Lollies given, encourages to eat carbs at dinner. | External Agency RN |
22 June 2017 | 16:30 | 3.4 | Insulin withheld | Veronica C |
23 June 2017 | 17:00 | 2.3 | Insulin withheld. Reported to LMO. Lollies given. | Tina Kurian |
24 June 2017 | 16:30 | 5.6 | Actrapid withheld | Sean Paton |
28 June 2017 | 16:30 | 2.9 | Insulin withheld | Katherine Perry |
29 June 2017 | 16:30 | 5.3 | Insulin withheld, see progress notes, instructed from LMO to withhold if under 7.0mmol | Tracey Scognamiglio |
30 June 2017 | 20:00 | 4.7 | Insulin with held food and fluid given | Tracey Scognamiglio |
1 July 2017 | 20:30 | 2.9 | Insulin withheld. Given sweets and encouraged to have juice | Tina Kurian |
1 July 2017 | 21:00 | 3.4 | Insulin withheld | Tina Kurian |
2 July 2017 | 16:30 | 5.8 | Insulin with held as per LMO directive if under 7.0mmol | Tracey Scognamiglio |
3 July 2017 | 16:30 | 6.9 | Insulin with held as per LMO directive if under 7.0mmol, for review from LMO 4/7 | Tracey Scognamiglio |
3 July 2017 | 21:30 | 4.8 | Insulin withheld. Sandwiches offered but refused. | External Agency RN |
5 July 2017 | 16:30 | 5.0 | Insulin withheld | External Agency RN |
5 July 2017 | 20:00 | 2.3 | Insulin withheld. Juice and sandwiches given | External Agency RN |
6 July 2017 | 16:00 | 4.5 | Withheld insulin as per chart | External Agency RN |
7 July 2017 | 16:30 | 4.6 | Insulin withheld, BSL < 7 | External Agency RN |
8 July 2017 | 16:45 | 3.0 | Insulin withheld | External Agency RN |
9 July 2017 | 16:30 | 4.2 | Insulin withheld as per LMO directive < 7.0mmol | Tracey Scognamiglio |
10 July 2017 | 16:30 | 3.7 | Insulin with held as per LMO directive, jubes given, OJ, attended dining room for evening meal, LMO to review 11/7 | Tracey Scognamiglio |
11 July 2017 | 17:00 | 4.7 | Insulin withheld, BSL <7 | External Agency RN |
13 July 2017 | 16:00 | 3.8 | Lollies given / evening dose of Novo rapid withheld | Barbara Griffin |
14 July 2017 | 20:00 | 5.8 | Withheld insulin as per charted | External Agency RN |
15 July 2017 | 16:30 | 5.8 | With held insulin | External Agency RN |
16 July 2017 | 16:30 | 5.9 | Withheld as per LMO instruction | Tracey Scognamiglio |
17 July 2017 | 16:30 | 3.5 | Withheld as per LMO orders, biscuits, lollies juice given | Tracey Scognamiglio |
18 July 2017 | 16:45 | 4.9 | Insulin withheld as per sliding scale chart | External Agency RN |
[97] Aurrum submits that Mr Hoppenbrouwer and Mr Paton were the only Registered Nurses who withheld insulin from Resident B contrary to Aurrum’s Medication Management Policy during the period 23 May 2017 to 19 July 2017. I do not accept this submission for the following reasons:
(a) Ms Walker gave evidence in her witness statement that Mr Hoppenbrouwer “was not the only RN who had been withholding insulin from [Resident B] without contacting the GP, and I was concerned that these decisions by our RN’s meant that Aurrum was not meeting its duty of care to [Resident B]. I formed similar concerns regarding the administration and withholding of insulin from [Resident B] by the other RN’s as well, and for the same reasons”; 109
(b) In her oral evidence, Ms Walker said there was a “general practice by Registered Nurses at the site to withhold insulin” from Resident B without first having any discussion with Dr Dover or having a discussion with Dr Dover shortly after withholding the insulin. 110
(c) Aurrum’s documentary records 111 show that a range of Registered Nurses (other than Mr Hoppenbrouwer) exercised their clinical judgment to withhold insulin from Resident B in the period between 23 May 2017 to 19 July 2017, but did not make a progress note in relation to their decision to do so:
● Mr Paton on 17 June 2017 (twice) and 19 June 2017;
● Agency nurse on 20 June 2017, 6 July 2017, 7 July 2017, 12 July 2017, 14 July 2017, 15 July 2017 and 18 July 2017; and
● Tracy Scognamiglio on 30 June 2017, 3 July 2017, 9 July 2017 and 16 July 2017
(d) Aurrum’s documentary records 112 show that a range of Registered Nurses (other than Mr Hoppenbrouwer) exercised their clinical judgment to withhold insulin from Resident B in the period between 23 May 2017 to 19 July 2017, and there is no evidence to suggest that Dr Dover was informed in relation to their decision to do so:
● Tracy Scognamiglio on 18 June 2017;
● Agency nurse on 20 June 2017, 21 June 2017, 5 July 2017, 8 July 2017, and 12 July 2017;
● Veronica C on 22 June 2017;
● Ms Perry on 28 June 2017;
● Ms Griffin on 13 July 2017; and
● Mr Paton on 11 June 2017, 113 17 June 2017, and 19 June 2017.
(e) As to the records referred to in the previous two subparagraphs, which support Ms Walker’s evidence about the practice, I note that:
(i) Mr Paton and Mr Hoppenbrouwer gave evidence, which I accept, that putting a BGL reading outside the permitted range in the BGL Monitoring Chart for Resident B automatically resulted in the answer “yes” being included in each of the columns for “LMO Informed” and “Progress Note”. However, I do not accept that a “yes” in the column “LMO Informed” in the BGL Monitoring Chart is an accurate record of whether or not the treating doctor was informed. I accept Mr Paton’s evidence that the automatic inclusion of the answer “yes” in the column “LMO Informed” in the BGL Monitoring Chart tells the Registered Nurse that “the doctor needs to be notified”; 114 and
(ii) On some of the occasions when insulin was withheld from Resident B his BGL was within the reportable range (i.e. had to be reported to the doctor) at the time insulin was withheld. A Registered Nurse who measured Resident B’s BGL and saw that it was too low or too high (i.e. within the reportable range) and, on the basis of that information, made a clinical judgment to withhold insulin from Resident B at that time (when it had been directed to be given to him) was required to make a progress note and notify Dr Dover. So much is clear from section 7.4 of Aurrum’s Medication Management Policy, the training given to Aurrum’s Registered Nurses, and Dr Dover’s expectation that if Resident B’s BGL was under 7.0 mmol/l “he is at risk for hypo, so I would in that circumstance expect the nurse just to hold it and contact me”. 115
[98] During the disciplinary interview on 22 June 2017 Mr Hoppenbrouwer raised this practice of Registered Nurses working at the Norrah Head facility using their clinical judgment to withhold insulin from Resident B at various times without discussing the matter with Dr Dover:
“RH [Roy Hoppenbrouwer] while we are on this point when we look at let’s say Thursday 15 June at 20.00 he showed a BSL of 4.23, his dose was withheld, see progress notes, that was not me. On Sunday...
GW [Glenda Walker] can I assure you there will be no allegations held against you that were not on your shift. You have to rely on us that our integrity is if other RNs have made the same mistake the same questions will be asked, you are not being singled out.
RH I believe that I am being singled out because if you look at allegations number 1 I actually reported the incident, I never gave that medication and that medication was given 3 times by another nurse. One particular nurse, that same nurse withheld insulin from this resident and that nurse is currently on duty as we speak. You explain to me why is it that I am suspended when I did not give that medication why am I being questioned on this insulin and why I have been stood down when someone that actually gave a ceased medication and also withheld this same insulin you are talking to me about is currently on duty. Can you explain that to me please?
GW no. Because this is not about anyone else.
RH is all about me.
GW it is
RH and it is I believe singling me out for special attention…”
[99] Notwithstanding the concerns raised by Mr Hopperbrouwer at his interview on 22 June 2017 about other Registered Nurses withholding insulin from Resident B in the same way he did and Ms Walker’s assurances to him that other Registered Nurses would be asked the same questions as Mr Hoppenbrouwer, Aurrum did not undertake any investigation into, or disciplinary action against, any other Registered Nurses who engaged in the same practice as Mr Hoppenbrouwer. 116 Instead, in an internal meeting between Ms Walker and Ms Dinevska on 23 June 2017, the day after the disciplinary interview with Mr Hoppenbrouwer on 22 June 2017, the decision was made to terminate Mr Hoppenbrouwer’s employment.117 Aurrum’s decision to summarily dismiss Mr Hoppenbrouwer was communicated to him by letter dated 26 June 2017.118
[100] Ms Walker, who was the person within Aurrum who had responsibility for deciding whether to conduct such an investigation or to take any disciplinary action, was not able to provide any explanation as to why no such investigation or disciplinary action had been taken against any other Registered Nurses, including Registered Nurses who remained employed by Aurrum. 119 Other Registered Nurses were dismissed for different reasons, but Ms Walker was aware before the decision was made to dismiss those nurses of the engagement of at least some of them in the practice of withholding insulin from Resident B without consultation with or notification to Dr Dover. Again, Ms Walker could not explain why those nurses were not questioned about their practices in that regard.120
[101] Accordingly, I find that Mr Hoppenbrouwer was afforded differential treatment to other Registered Nurses in comparable circumstances, namely when they withheld insulin from Resident B without contacting Dr Dover and/or making a progress note in relation to their decision to do so. Mr Hoppenbrouwer was investigated and dismissed for engaging in such conduct, while the other Registered Nurses who engaged in the same conduct were not investigated or subjected to any disciplinary action in relation thereto.
Summary dismissal
[102] Mr Hoppenbrouwer was summarily dismissed. In a case involving summary dismissal, the determination of whether the conduct that constituted the reason for the dismissal justified summary dismissal is a relevant consideration that should be taken into account in determining whether the termination was harsh, unjust or unreasonable. 121 If the conduct did not justify summary termination, this bears on whether the termination was harsh, unjust or unreasonable.
[103] There is no rule of law that defines the degree of misconduct which would justify a summary dismissal. The touchstone is whether the conduct was of such a grave nature as to be repugnant to the employment relationship. 122
[104] I have found that Mr Hoppenbrouwer acted in a manner inconsistent with his training and Aurrum’s Medication Management Policy, with the result that he acted outside his “scope of practice”, in relation to his withholding of insulin from Resident B on specific occasions without notifying Dr Dover (or any of Aurrum’s managers) and without (on particular occasions) making a progress note. Those matters are not trivial; they are serious, including because they relate to Mr Hoppenbrouwer’s care of a vulnerable resident with significant health needs. However, it must also be recognised that Mr Hoppenbrouwer was using his clinical judgment, which has not been questioned, to do his best to avoid an adverse outcome such as hypoglycaemia for Resident B, who suffers from diabetes and whose blood glucose levels vary significantly. 123 The fault in Mr Hoppenbrouwer’s conduct lies not in his clinical judgment or his desire to act in the best interests of Resident B, but in not complying with policy by not documenting (in a progress note) every time he withheld insulin from Resident B, noting that Mr Hoppenbrouwer did make some detailed progress notes setting out his reasoning for withholding insulin from Resident B, and not contacting Dr Dover (or an Aurrum manager) to discuss his judgment to withhold insulin from Resident B on 8, 9, 10 or 12 June 2017 until Dr Dover’s attendance at the facility on the evening of 13 June 2017. It must also be recognised that Mr Hoppenbrouwer acted in a manner consistent with a practice adopted by other Registered Nurses at the facility at the time. Having regard to all the circumstances, I am satisfied that Mr Hoppenbrouwer’s conduct was not of such a grave nature as to be repugnant to the employment relationship.
[105] Because Mr Hoppenbrouwer was summarily dismissed in circumstances where I have found that his conduct did not justify summary dismissal, this weighs in Mr Hoppenbrouwer’s favour in my consideration of whether his dismissal was harsh, unjust and/or unreasonable.
Recognition of wrongdoing
[106] Mr Hoppenbrouwer did not give any evidence in which he acknowledged any wrongdoing on his part in not contacting Dr Dover when he withheld insulin from Resident B on the relevant dates and not making progress notes in relation to a number of his decisions not to do so. This failure to recognise any wrongdoing on his part weighs, to some extent, against a finding of harshness.
Personal and economic consequences of the dismissal for Mr Hoppenbrouwer
[107] I accept that the consequences of Mr Hoppenbrouwer’s dismissal have been very difficult for his personal and economic situation, including Mr Hoppenbrouwer’s family. Mr Hoppenbrouwer is 57 years of age and the sole income earner in his family.
[108] Mr Hoppenbrouwer gave evidence, which I accept, that the dismissal and the circumstances leading to it caused an existing medical condition to be aggravated which meant that from his dismissal on 26 June 2017 to 17 October 2017 he was not well enough to work or attempt to find alternative employment. As a result, Mr Hoppenbrouwer did not earn any remuneration during that period.
Conclusion as to whether the dismissal was harsh, unjust and/or unreasonable
[109] Having considered each of the matters specified in section 387 of the Act, my evaluative judgment is that Mr Hoppenbrouwer’s dismissal was harsh and unreasonable. In making that determination I have considered and weighed up all the matters addressed in paragraphs [9] to [108] above, including the seriousness of Mr Hoppenbrouwer’s conduct which I have found constituted a valid reason for his dismissal. While the existence of a valid reason is important and I have given it significant weight in this case, including because it relates to a circumstance where Mr Hoppenbrouwer was responsible for taking care of vulnerable members of society with complex and serious health issues, the differential treatment afforded to Mr Hoppenbrouwer and the harshness of his summary dismissal are the principal factors which have contributed to my evaluative judgment that Mr Hoppenbrouwer’s dismissal was, in all the circumstances, harsh and unreasonable.
Remedy
[110] In light of my findings that Mr Hoppenbrouwer was protected from unfair dismissal, and that his dismissal was harsh and unreasonable, it is necessary to consider what, if any, remedy should be granted to him.
[111] Aurrum submits that this is a matter where the Commission should exercise its discretion to not order any remedy. 124
Reinstatement
[112] Both Aurrum and Mr Hoppenbrouwer submit that reinstatement is not an appropriate remedy. Mr Hoppenbrouwer submits that the employment relationship has irretrievably broken down, with the result that reinstatement is not a viable option. 125 Aurrum submits that it no longer has the requisite trust and confidence in Mr Hoppenbrouwer such that it would not be feasible to re-establish an employment relationship.126 On the basis of those submissions, I accept that reinstatement of Mr Hoppenbrouwer is inappropriate in the circumstances.
Compensation
[113] Section 390(3)(b) of the Act provides the Commission may only issue an order for compensation if it is appropriate in all the circumstances. A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied. 127
[114] Having regard to the fact that Mr Hoppenbrouwer has suffered financial loss as a result of his unfair dismissal, I consider that an order for payment of compensation to him is appropriate in all the circumstances of this case.
[115] It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to Mr Hoppenbrouwer. In assessing compensation, I am required by s.392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a) to (g) of this subsection.
[116] In undertaking this task, I shall use the established methodology for assessing compensation in unfair dismissal cases which was set out in Sprigg v Paul Licensed Festival Supermarket and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases. 128 The approach to calculating compensation in accordance with these authorities is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 5: Apply the legislative cap on compensation.
Remuneration Hoppenbrouwer would have received, or would have been likely to receive, if he had not been dismissed (s.392(2)(c))
Mr Hoppenbrouwer’s anticipated employment period
[117] Like all calculations of damages or compensation, there is an element of speculation in determining an employee’s anticipated period of employment because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed. 129
[118] Mr Hoppenbrouwer submits that he would have been employed by Aurrum indefinitely had he not been dismissed on 26 June 2017.
[119] Aurrum submits that Mr Hoppenbrouwer may have continued to be employed by Aurrum for a period of around or up to 3 months had he not been dismissed on 26 June 2017. 130
[120] I find, in all the circumstances, that but for the termination on 26 June 2017 Mr Hoppenbrouwer would have remained in employment with Aurrum for a period of 6 months (i.e. until 26 December 2017). In so finding, I have had regard to the entire circumstances including the basis on which the termination was found to be unfair, and have been particularly persuaded by the following factors:
(a) Mr Hoppenbrouwer is 57 years of age and the sole income earner in his family. Mr Hoppenbrouwer enjoyed working at Aurrum. He got along well with the Facility Manager and had no intention from resigning from his job at Aurrum. These matters weigh in favour of Mr Hoppenbrouwer’s argument for a long anticipated period of employment had he not been dismissed on 26 June 2017; and
(b) Mr Hoppenbrouwer was employed by Aurrum for just under one year and eight months at the time of his dismissal. That is a relatively short period of time. In that period, Mr Hoppenbrouwer had a number of disciplinary matters or issues raised with him regarding his performance as set out in paragraphs [89] to [92] above. Mr Hoppenbrouwer offered his resignation in connection with these prior disciplinary issues. 131 The most serious of the prior disciplinary matters was the verbal counselling Mr Hoppenbrouwer received for rude and unprofessional behaviour when speaking to a resident’s relative. The balance of these prior disciplinary matters, whether considered in isolation or collectively, were not trivial but nor were they the most serious matters and did not result in any warnings or disciplinary action being taken against him (other than oral counselling). However, that there were these disciplinary matters over a relatively short period of employment and then the conduct on Mr Hoppenbrouwer’s part which gave rise to a valid reason for his dismissal weigh in favour of a shorter period of anticipated employment.
[121] It is, of course, possible that Mr Hoppenbrouwer could have been employed by Aurrum for a shorter or longer period than six months had he not been dismissed on 26 June 2017. In particular, Mr Hoppenbrouwer may have resigned within six months, as he had suggested in the past when dealing with disciplinary issues and matters. 132 He may also have engaged in future conduct that could have resulted in a decision being made to terminate his employment within the six month anticipated period of employment. However, it is also possible that Mr Hoppenbrouwer may have been employed by Aurrum for much longer than six months. I have weighed the risks and factors that might have resulted in a shorter or longer period of employment in evaluating an anticipated employment period of six months. Because I have already weighed those matters in determining the six month anticipated period of employment, I will not adjust the discount for contingencies on the basis of a risk of a shorter or longer period of employment than the six months.
Mr Hoppenbrouwer’s earnings
[122] In calculating the remuneration Mr Hoppenbrouwer would have earned had he not been dismissed, it is necessary to identify what his rate of payment would have been. Mr Hoppenbrouwer’s base hourly rate of pay at the time of his dismissal was $38.77 gross per hour. Mr Hoppenbrouwer gave evidence that he worked a minimum of 36 hours per week and in addition to his base hourly rate of pay he received shift loadings, penalty rates and allowances.
[123] The payroll data provided by Aurrum shows that Mr Hoppenbrouwer’s gross average taxable earnings per fortnight in the period from 13 June 2016 to 26 June 2017 were $3,901.61 ($1,950.81 per week). However, this average fortnightly amount includes a casual loading (because Mr Hoppenbrouwer was a casual employee for part of this period) and a payment in respect of his accrued annual leave on the termination of his employment. Both of these amounts should be deducted from the gross average earnings to identify what Mr Hoppenbrouwer’s weekly rate of payment would have been had he continued to be employed by Aurrum beyond 26 June 2017. The calculation becomes $3,901.61 - $139.76 (casual loading) - $70.13 (accrued annual leave paid on termination) = $3,691.72 per fortnight or $1,845.86 per week.
[124] Aurrum submits that Mr Hoppenbrouwer’s earnings over this period equate to a gross average weekly wage of $1,690.65. 133 Aurrum did not provide an explanation in its submissions as to how this amount was calculated. It seems likely that Aurrum has deducted some allowances, penalties and/or loadings from the total fortnightly gross earnings to come up with the figure of $1,690.65 per week. In my view, such allowances, penalties and loadings should not be deducted because it is likely Mr Hoppenbrouwer would have continued to receive such amounts had he remained employed by Aurrum after 26 June 2017. Accordingly, I am of the view that Mr Hoppenbrouwer would have been likely to receive a gross weekly wage of $1,845.86 had he not been dismissed.
[125] Mr Hoppenbrouwer would therefore have received $47,992.36 gross in remuneration in the six months following 26 June 2017 had he not been dismissed at that time ($1,845.86 x 26 weeks = $47,992.36).
Remuneration earned (s.392(2)(e)) and income reasonably likely to be earned (s.392(2)(f) and (g))
[126] Remuneration earned from the date of dismissal to the date of any compensation order is required to be taken into account under s.392(2)(e). Remuneration reasonably likely to be earned from the date of any compensation order to the date the compensation is paid is to be taken into account under s.392(2)(f). Any remuneration likely to be earned after that date to the end of the period of anticipated employment determined for the purpose of s.392(2)(c) is a relevant amount to be taken into account under s.392(2)(g) in accordance with the Sprigg formula. 134
[127] I accept that Mr Hoppenbrouwer did not earn any remuneration between the termination of his employment with Aurrum on 26 June 2017 and the last date of hearing of this matter (3 November 2017).
[128] As to the amount of income Mr Hoppenbrouwer is reasonably likely to earn in the period from 4 November 2017 to 26 December 2017 (i.e. the balance of the anticipated period of employment), I consider that figure to be zero, for the following reasons:
(a) Ms Mwania gave evidence that on or about 28 June 2017, she was instructed by Ms Walker to contact the Australian Health Practitioners Regulation Agency (AHPRA) to refer to AHPRA Aurrum’s concerns about Mr Hoppenbrouwer’s conduct. Ms Mwania says that during her conversation with the AHPRA representative she was informed that Mr Hoppenbrouwer’s conduct was reportable. Ms Mwania says that on or about 11 August 2017 she was advised by an AHPRA representative by phone that this particular matter would be managed by the NSW Health Care Complaints Commission (HCCC). Ms Mwania says that she emailed Aurrum’s complaint form regarding Mr Hoppenbrouwer to the HCCC on 11 August 2017 and again on 18 August 2017, after being advised by a HCCC representative that it had not been received; 135
(b) Aurrum’s complaint to the HCCC in relation to Mr Hoppenbrouwer had not been resolved at the time the evidence closed in this matter on 18 October 2017. I was also informed by Mr Hoppenbrouwer during oral submissions on 3 November 2017 that (a) the complaint to the HCCC had not been resolved by that time and (b) the HCCC advised Mr Hoppenbrouwer on 1 November 2017 that they had referred the investigation back to the Nursing and Midwifery Board of Australia (ANMAC), who wrote to Mr Hoppenbrouwer and requested him to provide his response by 23 November 2017. Although Mr Hoppenbrouwer provided that information from the bar table during oral submissions at a time when he was not under oath and had not given an affirmation, in circumstances where Mr Hoppenbrouwer was not legally represented I consider it appropriate that I accept and rely on such information. 136 I find it is reasonably likely that Mr Hoppenbrouwer will be advised of ANMAC’s determination in relation to Aurrum’s complaint against him at some point in December 2017;
(c) Mr Hoppenbrouwer believes that it is incumbent on him to disclose in any application he makes for alternative employment that Aurrum has made a complaint against him and the complaint is being considered by ANMAC. During oral submissions on 3 November 2017 Mr Hoppenbrouwer informed the Commission that he had only been for one interview for a job. Mr Hoppenbrouwer disclosed to that potential employer the complaint made about him by Aurrum and these proceedings. The potential employer informed Mr Hoppenbrouwer that while he had the skills and experience for the role, they could not employ him until these proceedings before the Commission and the HCCC/ANMAC investigation were resolved. Mr Hoppenbrouwer indicated that there is the potential that he may gain employment with that employer after the conclusion of these proceedings and the HCCC/ANMAC investigation. I accept the truthfulness and reliability of the information provided by Mr Hoppenbrouwer during oral submissions about these matters; and
(d) Mr Hoppenbrouwer is unlikely to apply for any further jobs until HCCC/ANMAC has determined Aurrum’s complaint against him and these proceedings have been resolved. Given the determination of the complaint is likely to be made in December 2017 and this decision is being issued in the same month, it is unlikely in my view that Mr Hoppenbrouwer will get a job and start earning income prior to the expiry of the expected period of employment on 26 December 2017. Although the prospect of Mr Hoppenbrouwer earning income in that period is, in my view, unlikely, there is some chance it could happen and I will have regard to that possibility when I consider whether to discount the remaining amount for contingencies below.
[129] Accordingly, I find that:
(a) the amount of any remuneration earned by Mr Hoppenbrouwer from employment or other work during the period between his dismissal and the date of the compensation order is most likely zero;
(b) the amount of remuneration reasonably likely to be earned by Mr Hoppenbrouwer from the date of the compensation order to the date the compensation is paid is zero; and
(c) the amount of remuneration reasonably likely to be earned from the date compensation is paid to the end of the period of anticipated employment is zero.
Any other relevant matter (s.392(2)(g))
Discount for contingencies
[130] It is necessary to consider whether to discount the remaining amount for “contingencies”. This step is a means of taking into account the possibility that the occurrence of contingencies to which Mr Hoppenbrouwer was subject might have brought about some change in earning capacity or earnings. 137 Positive considerations which might have resulted in advancement and increased earnings are also taken into account.
[131] Ordinarily, the discount for contingencies is only applied in respect to an “anticipated period of employment” that is not actually known. 138 However, in this case there are a number of risk factors that were present during the entire period of anticipated employment,139 such that it is appropriate to apply the discount I have decided on for contingencies to the period from 27 June 2017 to 26 December 2017.
[132] Aurrum submits that a 40% discount for contingencies should be applied.
[133] In my view, it is appropriate in the circumstances of this case to apply a 30% discount for contingencies. I have had regard to the following factors in assessing the 30% discount rate:
(a) There is the possibility to which I have already referred that Mr Hoppenbrouwer may earn some income from alternative employment or other work, whether as a Registered Nurse or otherwise, in the period between 3 November 2017 and 26 December 2017;
(b) There is the risk that, even if Mr Hoppenbrouwer had not been dismissed on 26 June 2017 and instead had been warned in relation to his failure to make a progress note and contact Dr Dover each time he withheld insulin from Resident B, Mr Hoppenbrouwer could have suffered a loss of income during the anticipated period of employment by reason of sickness or illness (most likely depression or a similar condition), particularly in circumstances where Mr Hoppenbrouwer continues to maintain that he did nothing wrong. It is unlikely that such a loss would be completely covered by Mr Hoppenbrouwer’s entitlement to paid personal leave and/or a potential entitlement to workers’ compensation benefits;
(c) There is the risk that Mr Hoppenbrouwer could have suffered a loss of income during the anticipated period of employment with Aurrum by reason of sickness (other than of a type referred to in the previous subparagraph), accident, or death. Because we know that Mr Hoppenbrouwer did not suffer from such a sickness, accident or death prior to 3 November 2017, these risk factors only apply to that part of the anticipated employment period which is unknown (i.e. 4 November 2017 to 26 December 2017). I have had regard to this in deciding on a 30% discount for contingencies to apply to the whole anticipated employment period; and
(d) Some allowance should be made for the fact that the moneys are to be received as a lump sum.
[134] Once a 30% deduction rate is applied to the sum of $47,992.36, the calculation becomes $33,594.65 ($47,992.36 x 0.7 = $33,594.65).
[135] Save for the matters to which I have referred in paragraphs [113] to [153], there are no other matters which I consider relevant to the task of determining an amount for the purposes of an order under s.392(1) of the Act.
[136] I have considered the impact of taxation, but I prefer to determine compensation as a gross amount and leave taxation for determination.
Viability (s.392(2)(a))
[137] Aurrum is a large residential aged care provider which employs approximately 700 employees. No submission was made nor was any evidence adduced on behalf of Aurrum, that any particular amount of compensation would affect the viability of Aurrum’s business. No adjustment will be made on this account.
Length of service (s.392(2)(b))
[138] In all the circumstances, I consider that Mr Hoppenbrouwer’s relatively short period of service with Aurrum (just under one year and eight months) does not in all the circumstances justify any increase or reduction to any amount of compensation otherwise calculated.
Mitigation efforts (s.392(2)(d))
[139] Aurrum submits that any order for compensation should be reduced on the basis that Mr Hoppenbrouwer failed to mitigate his loss. 140 Aurrum relies on Robat v Iveco Trucks Australia Ltd141in support of itssubmission that it is appropriate in this case to reduce any compensation in respect of the period 27 June 2017 to 29 September 2017 to nil. In the alternate, Aurrum relies on Campbell v Groovy Freighters in support of its submission that any compensation in respect of the period 27 June 2017 to 29 September 2017 should be reduced by 75%.
[140] In the period from his dismissal on 26 June 2017 to about 17 October 2017, Mr Hoppenbrouwer did not undertake any work or take any steps to attempt to find alternative employment. 142 Mr Hoppenbrouwer provided a medical certificate dated 29 September 2017 which stated that he was not fit to continue his usual occupation in the period 15 September 2017 to 17 October 2017.143 Aurrum criticises the fact that the medical certificate was completed on 29 September 2017 but certified Mr Hoppenbrouwer to be unfit from an earlier date, namely 15 September 2017. That is a valid point, but in circumstances where I accept Mr Hoppenbrouwer’s evidence that he was suffering from depression, I am satisfied that it is acceptable for the medical certificate completed by his Doctor to relate, in part, to a period of two weeks prior to its completion.
[141] Aurrum also contends that Mr Hoppenbrouwer should not be regarded as a credible witness, partly because he completed a pre-existing injury declaration form in 2016 and failed to declare that he had suffered mental health illnesses in the past, which was the case. 144 Although Mr Hoppenbrouwer did not complete the form accurately and should have disclosed his “pre-existing conditions”, I accept his explanation that he did not intentionally make a false declaration and misunderstood what he was required to disclose and declare in the form.
[142] Mr Hoppenbrouwer did not provide a medical certificate in relation to the period from 27 June 2017 to 14 September 2017. However, Mr Hoppenbrouwer gave evidence, which I accept, that he was suffering from depression during this period and was not well enough to work or seek work but he did not obtain a medical certificate because he did not realise it would be required in these proceedings.
[143] Accordingly, I am satisfied that Mr Hoppenbrouwer was not fit to work, or attempt to find alternative work, during the period 27 June 2017 to 17 October 2017 because of his medical condition.
[144] As to the period from 18 October 2017 to 26 December 2017, Mr Hoppenbrouwer applied for a job as a Registered Nurse and attended an interview. He was not offered that job, but it may be offered to him in the future once the HCCC/ANMAC investigation and these proceedings have been resolved. Mr Hoppenbrouwer does not intend to apply for other employment until the HCCC/ANMAC investigation and these proceedings have been resolved. In my view, that is a reasonable position for him to take. I accept that it is appropriate for Mr Hoppenbrouwer to disclose in any job application he makes for a position as a Registered Nurse the allegations made against him by Aurrum to the HCCC. Until those allegations have been investigated and the HCCC decides the outcome, it is unlikely that Mr Hoppenbrouwer will be offered employment as a Registered Nurse. Having regard to those circumstances and Mr Hoppenbrouwer’s inability to work on account of illness in the period from 27 June 2017 to 17 October 2017, I am satisfied that Mr Hoppenbrouwer has acted reasonably to mitigate the loss suffered by him because of the dismissal and do not consider it appropriate to reduce the compensation on this account.
[145] In addition, it is relevant to the question of mitigation that Aurrum’s letter of complaint about Mr Hoppenbrouwer to the HCCC contains a number of assertions which are inconsistent with the evidence adduced in these proceedings and/or my findings above, including:
(a) It is alleged in the complaint that Mr Hoppenbrouwer was aware that Resident A had been receiving the ceased Endone 5mg medication from 19 May 2017 to 4 June 2017 and he did not attempt to report or escalate the matter to the Facility Manager or the resident’s doctor. As set out above, Mr Hoppenbrouwer was not aware from 19 May 2017 that Resident A’s medication had been changed. He only became aware of that fact in early June, at which time he immediately notified Aurrum’s Facility Manager;
(b) It is alleged in the complaint Mr Hoppenbrouwer failed to send the progress note he made on 19 May 2017 to Resident A’s doctor. For the reasons set out above, I am satisfied that Mr Hoppenbrouwer did attempt to fax his progress note to Dr Black on 19 May 2017, to inform Dr Black of his observations concerning Resident A; and
(c) It is alleged, in effect, in the complaint that Mr Hoppenbrouwer was dishonest in his contention that he discussed withholding Resident B’s insulin with Dr Dover on 13 June 2017. I have found that Mr Hoppenbrouwer did have such a discussion with Dr Dover.
[146] In my view, if Aurrum had taken a more thorough and considered investigation into the allegations against Mr Hoppenbrouwer before making its decision (the day after his disciplinary interview) to summarily dismiss him and later report a range of matters to the HCCC, its letter to the HCCC would have contained fewer allegations. The range of allegations set out in that complaint letter will obviously take longer to consider and potentially investigate than would have been the case if the letter had contained fewer allegations. The time taken to deal with those allegations has had an impact on Mr Hoppenbrouwer’s ability to mitigate his loss.
[147] Even if I had not formed the view that Aurrum’s complaint to the HCCC was deficient for the reasons set out above and thereby contributed to the time taken to investigate the allegations the subject of the complaint, I still would have concluded, for the reasons set out in paragraphs [140] to [144] above, that Mr Hoppenbrouwer has acted reasonably to mitigate the loss suffered by him because of the dismissal and do not consider it appropriate to reduce the compensation on this account.
Misconduct (s.392(3))
[148] Section 392(3) of the Act provides that if the Commission is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the Commission must reduce the amount it would otherwise order under s.392(1) of the Act by an appropriate amount on account of the misconduct.
[149] I have found that Mr Hoppenbrouwer did engage in misconduct that constituted a valid reason for his dismissal. I am satisfied that the misconduct by Mr Hoppenbrouwer contributed to Aurrum’s decision to dismiss him. I consider it is appropriate to reduce the amount that I would otherwise order under s.392(1) by 25% on account of Mr Hoppenbrouwer’s misconduct. As a result, the compensation amount is reduced to $25,195.99 ($33,594.65 x 0.75 = $25,195.99).
Shock, distress or humiliation, or other analogous hurt (s.392(4))
[150] I note that in accordance with s.392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress.
Compensation cap (s.392(5)-(6))
[151] The amount of $25,195.99 is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which Mr Hoppenbrouwer was entitled in his employment with Aurrum during the 26 weeks immediately before his dismissal.
[152] In those circumstances, I am satisfied that there is no basis to reduce the amount of $25,195.99 by reason of s.392(5) of the Act.
Instalments (s.393)
[153] No application was made by Aurrum for any amount of compensation awarded to be paid in the form of instalments.
Conclusion on remedy
[154] In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate.
[155] For the reasons set out above, I am satisfied that a remedy of compensation in the sum of $25,195.99 in favour of Mr Hoppenbrouwer is appropriate in the circumstances of this case. I will issue an order PR598755 to that effect.
COMMISSIONER
Appearances:
Mr P Hoppenbrouwer on behalf of the applicant.
Mr B Gee, solicitor, on behalf of the respondent.
Hearing details:
2017.
Newcastle:
October 16-18.
2017.
Newcastle and Sydney (by Video Link):
November 3.
Final written submissions:
Applicant’s Final Written Submissions, 1 November 2017
Respondent’s Final Written Submissions, 1 November 2017
1 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8
2 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
3 Ibid
4 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
5 Ibid
6 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]
7 Ibid
8 [2013] FWCFB 6191
9 The parties agreed that the identity of the residents in respect of whom the allegations against Mr Hoppenbrouwer relate do not need to be disclosed in this decision. There is no dispute as to who they are. Accordingly, I will refer to those residents as Resident A and Resident B in this decision.
10 Ibid
11 Respondent’s Submissions dated 27 September 2017 at [6]
12 Exhibit R1 at p.54-133
13 Transcript at PN602-616
14 Exhibit R1 at p.211 (Nursing and Midwifery Board of Australia Registered Nurse Standards for Practice, standard 6.2)
15 Exhibit R1 at p.212
16 Transcript at PN1389-1393
17 Transcript at PN1129
18 Exhibit R1 at p.150
19 Transcript at PN956
20 Transcript at PN957-958
21 Exhibit R3
22 Transcript at PN1447
23 Transcript at PN1448
24 See, for example, Exhibit R8 at p.15
25 Exhibit A2 at 4.1.7
26 Transcript at PN924, 928
27 Transcript at PN921-923
28 Transcript at PN895-896
29 Transcript at PN1966-1970
30 Transcript at PN1467-1481
31 Transcript at PN1966
32 Transcript at PN1970
33 Exhibit R1 at pp42-51
34 Exhibit R1 at p.42
35 Exhibit R1 at p.44
36 Exhibit R1 at p.44
37 See, for example, paragraphs [55] & [61] below in relation to Dr Dover’s evidence
38 Transcript at PN1949 & PN2215; Exhibit R1 at pp245 & 250
39 Transcript at PN703-711 & PN769-777
40 Transcript at PN1929
41 Transcript at PN2121-2123
42 Transcript at PN2124
43 Transcript at PN2517-2518
44 Exhibit R1 at p.152
45 Exhibit R1 at p.152-162
46 Transcript at PN1937-1943
47 Transcript at PN1785
48 See, for example, entry on 29 June 2017 at 4:30pm
49 Exhibit R8 at p.9
50 Transcript at PN255
51 Transcript at PN314
52 Transcript PN2265
53 Exhibit A2 at 4.2.6; Exhibit A3 at [5]; Exhibit R1 at p.161; Transcript at PN 207-210, 249-255, 389, 404 and 411
54 Transcript PN2265
55 Exhibit A2 at 4.2.6; Exhibit A3 at [5]; Exhibit R1 at p.161; Transcript at PN 207-210, 249-255, 389, 404 and 411
56 Exhibit R8 at p.7
57 Exhibit A1 at [6]
58 Transcript at PN243-246
59 Transcript at PN319
60 Transcript at PN330-331 and 980-981
61 Exhibit A1 at [6]; Transcript at PN247
62 Transcript at PN3014
63 Transcript at PN2241-2242
64 Transcript at PN2238-2240 and 2273
65 Exhibit A5 (week commencing 5 June 2017)
66 Exhibit R8 at p8
67 Transcript at PN1929
68 Exhibit R1 at pp48-51
69 Exhibit R1 at p48
70 Ibid
71 Exhibit R1 at p49
72 Ibid
73 Ibid
74 Transcript at PN365-370 and 1019
75 Transcript at PN412
76 Transcript at PN2201-2203
77 Exhibit R1 at p.189
78 Transcript at PN2245
79 Transcript at PN2247
80 Transcript at PN2246
81 Transcript at PN2248
82 Transcript at PN2249-2253
83 Transcript at PN2315-2317
84 Transcript at PN2319
85 Transcript at PN2232-2234
86 Transcript at PN2261
87 Transcript at PN2263-2265
88 Exhibit A5
89 Transcript at PN2297-2298
90 Transcript at PN2308
91 Exhibit A7
92 Exhibit R8 at p.1 and 11-12
93 Transcript at PN374-376
94 Transcript at PN436 and 1035
95 Transcript at PN377
96 Exhibit R1 at pp151-161
97 Transcript at PN2263
98 Transcript at PN2710-2713
99 Exhibit R2 at [11]
100 Exhibit A1 at [4]; Exhibit R2 at [14]
101 Exhibit R2 at [15]
102 Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542]
103 Exhibit R1 at p.22
104 Exhibit R1 at p.23-4
105 Exhibit R1 at p.28-33; Transcript at PN470
106 Exhibit R1 at p.34; Transcript at PN690
107 Exhibit R1 at p.35; Transcript at PN871-872
108 [2010] FWAFB 4082
109 Exhibit R7 at [16]-[17]
110 Transcript at PN2683-2692
111 Exhibit R1 at pp151-161 and Exhibit R8
112 Exhibit R1 at pp151-161 and Exhibit R8
113 Mr Paton’s progress note at 10:02pm on 11 June 2017 states “Note for LMO to review on next visit”, but Dr Dover’s next visit did not take place until 13 June 2017 (Exhibit R8)
114 Transcript at PN1938
115 Transcript at PN2263
116 Transcript at PN2665-2692
117 Exhibit R7 at [30]-[33]
118 Exhibit R1 at p52
119 Transcript at PN2690-2692
120 Transcript at PN2677-2678; Exhibit A17 at [1]-[4] and Transcript at PN1972-1975
121 Walsh v Ambulance Victoria (2013) 233 IR 15 at 24-25; Johnson v Northwest Supermarkets Pty Ltd[2017] FWCFB 3897 at [11]
122 Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [34], applying Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 per Gillard J
123 Transcript at PN1949 & PN2215; Exhibit R1 at pp245 & 250
124 Aurrum’s Final Submissions at [68]
125 Exhibit A3 at [17]; Transcript at PN2927; Applicant’s Final Submissions at p.8
126 Aurrum’s Final Submissions at [71]
127 Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17]
128 Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431
129 Double N Equipment Hire Pty Ltd v Humphries[2016] FWCFB 7206 at [16]-[17]
130 Respondent’s Final Submissions at [73]
131 Exhibit R1 at pp23 & 29
132 Exhibit R1 at pp23 & 29
133 Respondent’s Final Submissions at [74]
134 Double N Equipment Hire Pty Ltd v Humphries[2016] FWCFB 7206 at [31]
135 Exhibit R4 at [32]-[36]
136 Sections 577 & 590 of the Act
137 Ellawala v Australian Postal Corporation Print S5109 at [36]
138 Enhance Systems Pty Ltd v Cox PR910779 at [39]
139 See paragraph [133] below
140 Respondent’s Final Submissions at [85]
141 [2011] FWA 2915 at [66]
142 Transcript at PN2908-2909 and 2971
143 Exhibit R6
144 Exhibit R1 at p20
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