Susan Hanlon v Ramsay Health Care Australia Pty Ltd
[2024] FWC 2241
•21 AUGUST 2024
| [2024] FWC 2241 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Susan Hanlon
v
Ramsay Health Care Australia Pty Ltd
(U2024/4651)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 21 AUGUST 2024 |
Application for relief from unfair dismissal – valid reason for dismissal – dismissal not harsh, unjust or unreasonable – application dismissed.
Introduction
Ms Hanlon was employed by Ramsay Health Care Australia Pty Ltd (Ramsay) as a Hospital Coordinator until her dismissal on 2 April 2024. Ms Hanlon was dismissed as a result of an incident in which she provided a patient (Patient X), who was a friend of hers, with medication without first having the medication labelled and dispensed by a doctor. Ms Hanlon accepts that there was a valid reason for her dismissal but contends that her dismissal was harsh, unjust and unreasonable. Ramsay denies that Ms Hanlon’s dismissal was unfair in any way.
I heard Ms Hanlon’s unfair dismissal case against Ramsay on 12 and 13 August 2024. Ms Hanlon gave evidence in support of her case. She also adduced evidence from Mr Stephan Kokowski, Nurse/Midwife Advocate of the New South Wales Nurses and Midwives’ Association, and Ms Melanie Crimmins, Registered Nurse employed by Ramsay and Lake Macquarie Private Hospital (Hospital) Branch President of the Australian Nursing and Midwifery Federation, NSW Branch. Ramsay adduced evidence from Ms Heidi Atkins, Assistant Director of Clinical Services at the Hospital, Ms Kathryn Boslem, Nurse Unit Manager for Scott Ward at the Hospital, and Ms Chelsea Page, Acting Chief Pharmacist at the Hospital.
Relevant facts
Ms Hanlon commenced employment at the Hospital on 10 September 2018. She was initially employed as a Registered Nurse at the Hospital. In about October 2018, Ms Hanlon took up the position of Hospital Coordinator (Coordinator) at the Hospital, working on a part-time basis, 56 hours per fortnight.
The Coordinator role at the Hospital is an afternoon, night or weekend shift role. This is because Ms Atkins performs the Coordinator role during weekday day shifts.
The person working in the Coordinator role is a member of the senior clinical team at the Hospital, with accountability for the operational management of all human and material resources within the Hospital’s nursing services after hours. Because the Coordinator role is responsible for providing leadership in the after-hours management of the Hospital, it is the most senior position within the Hospital when the Director of Clinical Services and Assistant Director of Clinical Services are not present in the Hospital.
The Coordinator is relied on to identify and manage risks and issues occurring within the Hospital after hours and on weekends, act within the delegations of their authority, and to escalate events and incidents occurring within the Hospital to the Director of Clinical Services. The Coordinator is responsible for ensuring that the after-hours Hospital team conforms and adheres to Ramsay’s policies and procedures, as well as nursing standards of practice set by statutory authorities and regulatory bodies.
At the time of her dismissal, Ms Hanlon worked a 12 hour night shift each Saturday and Sunday from 7:30pm until 8am, as well as an eight hour afternoon shift each Wednesday from 1:30pm until 10pm.
On the evening of Saturday, 16 March 2024, Ms Hanlon commenced her shift at the Hospital and completed it at 8am on Sunday, 17 March 2024. Ms Hanlon was aware that Patient X, who works at the Hospital as a Registered Nurse, had been an in-patient at the Hospital since 16 March 2024, having recently undergone surgery in connection with her gall bladder.
At about 6am on 17 March 2024, Ms Hanlon received a call from Patient X, who told Ms Hanlon that she had been cleared by a doctor to go home. Ms Hanlon asked how Patient X was getting home. Patient X said she did not know. Ms Hanlon then offered to take Patient X home. Ms Hanlon was aware from her friendship with Patient X that Patient X’s spouse had recently had surgery and was not able to drive. Ms Hanlon was also told by Patient X that her adult children were not arriving until the following day.
Ms Hanlon did not check with a doctor at the Hospital that Patient X had been cleared to go home. I am also satisfied that Ms Hanlon did not check with any nursing staff at the Hospital whether Patient X had been cleared to go home. Ms Hanlon could not recall whether she made such a check with nursing staff; there is no evidence to satisfy me that she conducted any such check. Instead, Ms Hanlon acted in a manner inconsistent with her usual practice and relied on what Patient X had told her about her clearance to go home.
After finishing her handover at the end of her shift, Ms Hanlon was exhausted, tired and wanted to go home. She went to pick up Patient X from the ward to take her home. Patient X told Ms Hanlon that Dr Shah had charted Augmentin Duo for her to take after her discharge. Patient X’s medication chart states that she was to take Augmentin Duo at 8am and 8pm each day for five days from 17 March 2024. Rather than waiting for a doctor at the Hospital to write out a prescription for Augmentin Duo, which Patient X then would have had to take to a community pharmacy to obtain the Augmentin Duo, Ms Hanlon offered to obtain Augmentin Duo for Patient X from the pharmacy within the Hospital. The Pharmacy within the Hospital is not open to the public; it is a hole in the wall dispensary. There was no pharmacist working in the pharmacy on the morning of Sunday, 17 March 2024, as is usually the case at that time of the weekend.
Ramsay’s After-hours Dispensary Access Policy (Access Policy) governs access to medications in the pharmacy within the Hospital when the pharmacy is closed and a pharmacist is not available. A number of the requirements set out in the Access Policy are necessary to comply with relevant legislation concerning poisons.
Ms Hanlon was aware of the Access Policy, and knew she had to comply with it, on 17 March 2024. The Access Policy was also available on Ramsay’s intranet. It relevantly provides:
“Any requests for medication during the hours that the dispensary is open should be directed to
the pharmacist
Any urgent requests for medication when the dispensary is closed should be directed to the
Hospital Coordinator.
The Hospital Coordinator must decide whether the medication is deemed to be urgent or can
wait until the dispensary re-opens.
If the medication is considered urgent, the Hospital Coordinator needs to access the dispensary
to obtain the medication.
The Hospital Coordinator must complete the Hospital order form to record details of any
medication supplied from the dispensary to a patient and/or ward:
• Affix a patient identification label to the top of the form.
• Indicate which ward the medication is supplied to by ticking the corresponding box.
• Specify the time the ward requested the medication and the time the medication is due
to be administered to the patient.
• Attach a copy of the patient’s drug chart and/or doctor’s original order (prescription) to
the form.
• Specify the medication, form, strength and quantity supplied. (Note: It is preferable
that full boxes are supplied and NOT single tablets, vials or ampoules.)
• Specify the reason for supply of the medication. This may enable the dispensary to
identify deficiencies in the ordering process.
• Sign and print full name on the form, accepting responsibility for the supply.
Completing the after-hours order form accurately ensures the dispensary can follow up
and charge the medication the following business day.
• The form must be left in the dispensary along with the copy of the medication chart
and / or original prescription. If the medication is for discharge the original prescription
must be retained and NOT given to the patient.
• If the medication is for discharge it is a legislative requirement that the medication be
dispensed and labelled by either a pharmacist or a doctor. Dispensing labels are
available for doctors to perform this task out of dispensary hours. The following
information must be provided on the dispensing label:
• Patient name
• Medication name, form, strength and quantity
• Dose and directions
•Date
•Name of person dispensing the medication”
Ms Hanlon obtained Patient X’s medication chart and photocopied it, including the part where Dr Shah had charted Patient X to take Augmentin Duo for five days from 17 March 2024. Ms Hanlon then took the photocopy of Patient X’s medication chart to the pharmacy within the Hospital, filled in and signed the after hours pharmacy book, wrote that the Augmentin Duo medication was for discharge, which ensured the patient could be billed for the medication, and took a box of Augmentin Duo from the pharmacy to provide to Patient X. This was the first time that Ms Hanlon had obtained medication from the pharmacy within the Hospital after hours to provide to a patient on their discharge from the Hospital. Ms Hanlon had previously obtained medication from the pharmacy after hours for use on the ward. When obtaining medication for use on the ward it is not necessary to have the medication labelled and signed because the Hospital pharmacist comes in the next day to attend to those matters.
When Ms Hanlon returned to the ward on which Patient X was located, the nursing staff on the ward were discussing obtaining a prescription from a doctor at the Hospital for Augmentin Duo for Patient X. Ms Hanlon told them not to worry about it because she had already obtained Augmentin Duo from the pharmacy. Ms Hanlon then handed the box of Augmentin Duo to Patient X. Although Ms Hanlon did not have the Augmentin Duo checked by a second staff member before providing it to Patient X, there was no requirement for this to occur. The box of Augmentin Duo which Ms Hanlon handed to Patient X was not labelled with Patient X’s details and instructions as to when and how the medication should be taken.
Patient X and Ms Hanlon then left the Hospital. It was about 8:30am at that time. Ms Hanlon dropped Patient X home and went home herself.
On the morning of 18 March 2024, Ms Hanlon had a discussion with Ms Boslem. It is contended by Ms Boslem that the conversation took place in words to the following effect:
Ms Hanlon:“Patient X was discharged yesterday morning. Has the patient’s discharge summary been mailed to her home?”
Ms Boslem:“Was Patient X ok to go home? I received a Riskman that her oxygen stats were not the greatest the day before.”
Ms Hanlon:“Yes.”
Ms Boslem:“Was the doctor happy for her to go home?”
Ms Hanlon:“Yes.”
Ms Boslem:“Ok. Did she go home with any antibiotics?”
Ms Hanlon:“Yes. I obtained doxycycline from the Pharmacy.”
Ms Boslem:“Doxycycline? Is that appropriate for this patient?”
Ms Hanlon:“Yes.”
Ms Boslem:“Did you label that appropriately?”
Ms Hanlon: “Yes.”
Ms Boslem explained in her oral evidence that in asking whether Ms Hanlon had labelled the medication appropriately Ms Boslem meant whether Ms Hanlon had taken the medication to the Career Medical Officer (CMO) at the Hospital to be labelled and signed. A CMO is a medical practitioner.
Ms Boslem’s account of her conversation with Ms Hanlon on the morning of 18 March 2024 is supported by the content of her email to Ms Atkins on Thursday, 21 March 2024, which relevantly states:
“Susan also informed me that she had dispensed the patients antibiotics from the pharmacy. She informed me it was doxycycline. I asked Susan whether the antibiotic being dispensed by her was appropriate to which she replied yes. I asked her whether it was labelled appropriately to which she said yes.
…I called pharmacy to question what antibiotic had been dispensed to [Patient X]. I was informed Augmentin DF [Duo Forte] had been dispensed to the patients name. I asked for the patient’s chart to be sent to the ward as I wanted to confirm which antibiotic had been charted for the patient on discharge. I can confirm on medication chart review that the patient was to be discharged with augmentin DF…”
Ms Hanlon does not agree with Ms Boslem’s account of their conversation on the morning of 18 March 2024. Ms Hanlon says that they did not discuss the medication that Patient X had been discharged with. Ms Hanlon also denies stating to Ms Boslem that she obtained doxycycline from the pharmacy for Patient X, and says that she would not have said this because Patient X was not prescribed or given doxycycline and doxycycline would not have been an appropriate medication for Patient X and the surgery from which she was recovering. Ms Boslem agrees that doxycycline would not have been an appropriate medication for Patient X. Ms Hanlon further denies that Ms Boslem asked her whether she labelled the medication given to Patient X, and says that such a question would have caused her to realise her error in failing to have the Augmentin Duo labelled.
A Riskman report was prepared by Ramsay following the incident involving Ms Hanlon and Patient X on the morning of 17 March 2024. The report rated the actual severity of the incident as 4 and the potential severity as 3. A rating of 1 is the most serious. A rating of 4 refers to a clinical incident that has caused no injury or harm, and includes a near miss. A rating of 3 refers to a clinical incident that has caused minor, moderate or harm resulting in no loss of function, and the patient is expected to recover in the short term. There is no evidence that Patient X was harmed as a result of taking Augmentin Duo following her discharge from the Hospital.
On 20 March 2024, Ms Atkins says that Ms Boslem told her that Ms Hanlon had informed her that she gave Patient X doxycycline and Ms Boslem asked Ms Hanlon whether the medication had been appropriately labelled, to which Ms Hanlon said yes.
On 20 March 2024, Ms Hanlon received a call from Ms Atkins, who informed her that she was being stood down on full pay pending an investigation in relation to Patient X.
On 22 March 2024, Ms Hanlon received a letter from Ms Atkins setting out allegations against her and instructing her to attend a meeting on 27 March 2024. On reading the letter, Ms Hanlon says that she realised her error in failing to have the Augmentin Duo medication which she gave to Patient X labelled and signed by a doctor. Ms Hanlon says that she could not believe that she had made such a mistake and “forgotten to have completed the most important step in the entire process”.[1]
On 27 March 2024, Ms Hanlon attended a meeting with Ms Atkins and Ms Michelle Hamilton, Ramsay Human Resources Business Partner. Ms Crimmins and Mr Kokowski attended the meeting in their capacity as Ms Hanlon’s support persons. The allegations communicated to Ms Hanlon in writing on 22 March 2024 were discussed. In response to a suggestion from Ms Hamilton that Augmentin Duo was not available for discharge, Ms Hanlon referred to the Access Policy. Ms Hanlon also repeatedly said that she had done nothing wrong per the Access Policy, except for not gaining a label for the medication she had provided to Patient X. Ms Atkins believes that Ms Hanlon was “short and snappy” in her responses to the questions asked of her in the meeting on 27 March 2024. Ms Hanlon denies that she was “short and snappy”. Mr Kokowski and Ms Crimmins also refute the allegation that Ms Hanlon was “snappy”. I am satisfied on the weight of evidence that Ms Hanlon was short in her answers to questions put to her in the meeting on 27 March 2024, but she was not “snappy”.
Ms Atkins contends that during the meeting on 27 March 2024 words to the following effect were spoken:
Ms Hamilton: “Why was the medication not labelled?”
Ms Hanlon:“I had intended to get one of the ED doctors to label the medication but I forgot.”
Ms Hamilton: “Without a label, how is the patient to know how much of the medication to take or for how long?”
Ms Hanlon:“She suffered no adverse consequences from taking it.”
…
Ms Hamilton: “Why did you not get a discharge script from the CMO?”
Ms Hanlon:“That would have taken too long. It could have taken another hour and I wanted to get home.”
Ms Hanlon says that in response to the question from Ms Hamilton as to how Patient X would know how much of the medication to take, Ms Hanlon said, “She is a registered nurse and the doctor had told her how much to take.” Ms Hanlon said this was true because Patient X had informed her that she had been instructed by her doctor as to how much of the medication to take and for how long.
Ms Hanlon says that in response to the question from Ms Hamilton as to why she did not get a script from the CMO, she said, “They wouldn’t have been able to get it filled until the following day.” Ms Hanlon said this was true because Patient X had told her that her adult children were away and would not be back until the following day.
Neither Mr Kokowski nor Ms Crimmins took issue with Ms Atkins’ account of the conversation set out in paragraph [26] above. As a result, I prefer the evidence of Ms Atkins over the evidence of Ms Hanlon in relation to what was said in the conversation set out in paragraph [26] above.
I accept Mr Kokowski’s evidence, supported by his brief contemporaneous notes, that in the meeting on 27 March 2024 Ms Hanlon conveyed that she understood the seriousness of her actions and gave undertakings that it would not happen again. Mr Kokowski also accepted that the error committed by Ms Hanlon on the morning of 17 March 2024 was serious, albeit he thought it could have been addressed by a first and final warning, together with removing Ms Hanlon’s access to the pharmacy in the Hospital while she was on a performance improvement plan.
I accept Ms Crimmins’ evidence that Ms Hanlon admitted in the meeting on 27 March 2024 that she made a mistake and that she was sorry.
There is no dispute that during the meeting on 27 March 2024 Ms Hamilton told Ms Hanlon that the matter was serious because Ms Hanlon’s actions were outside her scope of practice and her authority, to which Ms Hanlon said, “Everyone works outside their scope of practice”. Ms Hanlon regrets saying these words. She says it was a stupid thing to say and she did not mean it. Ms Hanlon says that she was extremely stressed at the time and it was a heat of the moment response to what Ms Hamilton said.
Also during the meeting on 27 March 2024, Ms Hamilton put to Ms Hanlon that she showed little remorse for her conduct, to which Ms Hanlon said, “What do you want me to do, cry?” Ms Hanlon says that she responded in this way because she had repeatedly apologised and was unsure of what else she could have done to show her remorse.
At the end of the meeting on 27 March 2024, Ms Atkins stated that it was not mandatory for Ms Hanlon to report the incident to AHPRA, but Ms Atkins recommended that Ms Hanlon self-report the incident to AHPRA. Ms Hanlon took time to consult with the Australian Nursing and Midwifery Federation and then determined that she was not required to self-report the incident to AHPRA.
On 28 March 2024, Ms Hanlon received a letter from Ms Atkins instructing her to attend a meeting on 2 April 2024 to outline the outcomes of investigation into the allegations against Ms Hanlon.
On 2 April 2024, Ms Hanlon attended a meeting with Ms Atkins and Ms Hamilton. Ms Crimmins and Mr Jeffrey Crebert, Nurse/Midwife Advocate of the New South Wales Nurses and Midwives’ Association, attended the meeting in their capacity as Ms Hanlon’s support persons. Ms Hamilton asked Ms Hanlon again what happened. Ms Hanlon said that she forgot to have the Augmentin Duo labelled and signed before it was given to Patient X. Ms Hamilton asked whether Ms Hanlon forgot or just did not bother to have the medication labelled and signed. Ms Hanlon said that she forgot, she was sorry for her mistake, she had never done it before, and would never do it again. Ms Hamilton explained the findings that had been made during Ramsay’s investigation into the incident. Ms Hamilton also informed Ms Hanlon that her employment was terminated effective immediately and handed her a letter of termination. The letter of termination states:
“This letter is to confirm the termination of your employment with Ramsay Health Care Pty Ltd.
As discussed in the presence of your support team, Melanie Crimmins and Jeff Crebert from the NSWNMA, Ramsay Health is of the view that your conduct constitutes Serious Misconduct.
Following careful consideration of all the evidence and your responses, the investigation has found your conduct to be wilful and deliberate and inconsistent with the continuation of your contract of employment. Conduct which included,
• acting outside the scope of your practice in dispensing medication.
• acting outside APHRA’s Code of Conduct (practice legally/unprofessional conduct),
• acting with intent with lack of insight into and/or lack of ownership into the consequences of such actions, and
• serious breaches of several Ramsay policies namely, Ramsay’s Medication Safety-Management Policy, Ramsay’s Pharmacy After Hours Cupboard and Urgent Medication Supply Policy, Lake Macquarie’s After-hours Dispensary Access Policy and Ramsay’s Code of Conduct.Due to the nature, number and gravity of your conduct your employment is terminated without notice as of today, Tuesday 2nd April 2024. This decision has not been made lightly and has been a considered decision with all the relevant information available.
In recognition of your years of service with the Company and to minimise the impact of your termination of employment Ramsay has approved an ex-gratia payment of five (5) weeks pay. This payment will be made together with any outstanding wages and leave entitlements directly into your bank nominated account.”
Initial matters to be considered
Section 396 of the Fair Work Act2009 (Cth) (Act) sets out four matters which I am required to decide before I consider the merits of Ms Hanlon’s unfair dismissal application.
There is no dispute between the parties and I am satisfied on the evidence that:
(a)Ms Hanlon’s application for unfair dismissal was made within the period required in s 394(2) of the Act;
(b)Ms Hanlon was a person protected from unfair dismissal;
(c)the Small Business Fair Dismissal Code did not apply to Ms Hanlon’s dismissal; and
(d)Ms Hanlon’s dismissal was not a genuine redundancy.
Was the dismissal harsh, unjust or unreasonable?
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 Ms Hanlon’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.
Valid reason (s 387(a))
General principles
It is necessary to consider whether the employer had 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.[2] In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”[3] and should not be “capricious, fanciful, spiteful or prejudiced.”[4]
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.[5] 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).[6]
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.[7] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.[8]
The employer bears the evidentiary onus of proving that the conduct on which it relies took place.[9] In cases such as the present where allegations of serious misconduct are made, the Briginshaw standard applies so that findings that an employee engaged in the misconduct alleged are not made lightly.[10]
In Patrick Stevedores Holdings Pty Ltd v CFMMEU,[11] Justice Lee made the following useful observations about the Briginshaw standard and its impact on fact finding and the state of satisfaction required [references omitted]:
“Fact Finding and the State of Satisfaction Required
14.It is trite that both Patricks and Qube are required to prove their case on this liability hearing to the civil standard having regard to the degree of satisfaction required by s 140 of the EA. This section requires the court, in a civil proceeding, to find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. In deciding, in a civil case, whether it is satisfied that the case has been proved, the court is to take into account: (a) the nature of the cause of action or defence; (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. Although the standard of proof remains the balance of probabilities, the degree of satisfaction varies according to the seriousness of the allegations made and the gravity of the consequences (if the allegations are found to be correct): see EA s 140.
15.Importantly, the factual allegations made by both Patricks and Qube are not only foundations for the nature of the relief dealt with at this liability hearing (that is, declarations of contraventions of the FW Act), but are also the foundations for the deferred relief, that is, the imposition of pecuniary penalties.
16.It is well-established that s 140 reflects the common law as explained seminally by Dixon J in Briginshaw v Briginshaw. As the Full Court noted in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission:
The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion.
Even though she spoke of the common law position, Dixon J’s classic discussion in Briginshaw...at 361-363 of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the [EA] now requires a court to take into account. Dixon J emphasised that when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. she pointed out that a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of a fact. But she recognised that (Briginshaw 60 CLR at 361-262):
‘No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences...
Dixon J also pointed out that the standard of persuasion, whether one is applying the relevant standard of proof on the balance of probabilities or beyond reasonable doubt, is always whether the affirmative of the allegation has been made out to the reasonable satisfaction of the tribunal. He said that the nature of the issue necessarily affected the process by which reasonable satisfaction was attained. And, so, she concluded that in a civil proceeding, when a question arose whether a crime had been committed, the standard of persuasion was the same as upon other civil issues. But she added, weight must be given to the presumption of innocence and exactness of proof must be expected (Briginshaw 60 CLR at 362-363).
17.It is also clear that so-called “Briginshaw principles” apply to civil penalty proceedings (which is a particular example of the application of s 140(1) of the EA)…”
It follows that for Ramsay to succeed in relation to its allegations of misconduct against Ms Hanlon I am required to reach a state of satisfaction or an actual persuasion that Ramsay has proved its allegations of misconduct, while taking into account the seriousness of the allegations and the gravity of the consequences that could follow if the allegations were to be accepted.[12]
Ramsay contends that the reasons for dismissal as described in the termination letter, being Ms Hanlon’s conduct in breaching Ramsay’s policies and her contract of employment, were sound, defensible and well founded. Ramsay also contends that Ms Hanlon was dishonest in informing Ms Boslem that she had labelled the medication and this was a further valid reason for Ms Hanlon’s dismissal even though it was not relied on by Ramsay in its termination letter.
As to the policies which Ramsay contends were breached by Ms Hanlon, Ramsay relies on the Access Policy, the Medication Management policy, Ramsay’s Code of Conduct, and the Nursing and Midwifery Board AHPRA Code of Conduct (AHPRA Code).
There is no dispute that Ms Hanlon failed to comply with the Access Policy because she did not arrange for the Augmentin Duo which she obtained from the pharmacy within the Hospital to be dispensed and labelled by a doctor or pharmacist before it was given to Patient X. There is a difference between a medication being supplied and dispensed. A supply of medication takes place where the medication is issued from the pharmacy in the Hospital to a ward for a nurse to administer to a patient. Where medication is supplied by a Coordinator to a ward or a nurse on a ward, the nurse is responsible for checking the medication before it is administered to a patient on the ward. To dispense medication means to give medication to a patient for them to take at a later date, without being administered by a nurse. When dispensing medication, a pharmacist or doctor includes a label on the medication which includes the patient’s details and instructions on when and how to take the medication, as well as potentially providing counselling to the patient about the medication. A Coordinator does not have the authority to dispense medication to a patient; only a pharmacist or doctor has the authority to dispense medication to a patient at the Hospital.
Ms Hanlon also breached the Access Policy, in a less serious way, because when she completed the order form in the pharmacy she did not (a) affix a patient identification label to the top of the form (albeit she wrote Patient X’s name on the form), (b) specify the quantity of the medication supplied to Patient X, (c) tick the box indicating that the medication was for discharge (albeit Ms Hanlon did write “d/c script” which was readily understood as a script for discharge), or (d) print her name on the form (albeit Ms Hanlon signed the form). These administrative errors showed a lack of care by Ms Hanlon in completing the task she was undertaking in obtaining medication from the pharmacy to provide to Patient X on discharge.
In closing oral submissions Ramsay contended that the Access Policy had been contravened in two further respects by Ms Hanlon. First, it was contended that the Access Policy required Ms Hanlon to have received a request for medication before she could attend the pharmacy within the Hospital to obtain any medication for a patient. There is no dispute that Ms Hanlon did not receive a request from any staff within the Hospital to obtain medication for Patient X. Ms Hanlon volunteered to obtain Augmentin Duo from the pharmacy for Patient X when Patient X informed Ms Hanlon that she wanted to go home and Dr Shah had charted Augmentin Duo for her to take after she was discharged. Secondly, it is contended that the Augmentin Duo medication was not “urgent” within the meaning of the Access Policy because Patient X could have been given one tablet of Augmentin Duo at about 8am on 17 March 2024 before her discharge, with the result that she would not have required her next tablet of Augmentin Duo until 8pm on 17 March 2024. Because the medication was not “urgent”, Ramsay contends that Ms Hanlon did not have the authority to obtain the Augmentin Duo from the pharmacy within the Hospital for Patient X. Neither of these alleged breaches of the Access Policy were put to Ms Hanlon in the letter of allegations sent to her on 22 March 2024, the meeting on 27 March 2024, the letter of termination, the detailed submissions filed by Ramsay on 25 July 2024, or the witness statements filed by Ramsay. I do not consider it to be procedurally fair to Ms Hanlon for Ramsay to make submissions about these alleged breaches of the Access Policy, for the first time, in closing oral submissions. Directions were made in this case requiring each party to file and serve witness statements, documents and submissions prior to the hearing of the matter. The purpose of such directions is to ensure that each party knows the case being advanced against them and the potential for a trial by ambush is thereby avoided. Having regard to all the circumstances, I am satisfied that it would not accord Ms Hanlon a fair go all around to permit Ramsay to rely on these alleged further breaches of the Access Policy in this matter. Further, and in any event, I do not agree that, on the proper construction of the Access Policy, it required a request to be made to Ms Hanlon by other staff in the Hospital before she had authority under the Access Policy to obtain medication from the pharmacy after hours. First, the Access Policy does not, in terms, state that such a request must be made before a Coordinator can obtain medication from the pharmacy. Secondly, the Access Policy refers to “any requests for medication”, which leaves open the possibility that a request may not be made in particular circumstances. Thirdly, construing the Access Policy to require that a request be made to the Coordinator before they could access medication from the pharmacy after hours would give rise to absurd outcomes. For example, a Coordinator may be required to provide care for one or more patients if the nurses ordinarily providing such care are dealing with an emergency or other matter that requires their attention. In these circumstances, a Coordinator may form the view that medication is required on an urgent basis for a particular patient. It would be absurd to suggest that the Coordinator would not have authority under the Access Policy to obtain such medication from the pharmacy after hours unless and until a request had been made by other staff to the Coordinator to obtain the medication.
Ramsay expressly disavowed any contention that Ms Hanlon breached the Ramsay After Hours Cupboard and Urgent Medication Supply (RPG-229-15-14P) policy, because it is only applicable to “RPS dispensaries within Australia”.
Ramsay contends that Ms Hanlon breached the following parts of its Medication Management policy:
“7. Supply of medicines information to patients
Patients must receive verbal and/or written information from a qualified health care professional about their medicines and how to manage them before they transfer to the next episode of care.
…4. Discharge Planning:
Facilities must ensure:
·Patients, at time of discharge, receive information regarding the management of their medications which should be documented/communicated to their general practitioner or to their ongoing clinical care provider via the discharge summary.”
Ms Hanlon was not aware of this policy, but she had access to it through the Ramsay intranet and was obliged by her contract of employment, as well as the applicable enterprise agreement, to comply with applicable policies.
I am satisfied that Ms Hanlon breached the parts of the Medication Management policy relied on by Ramsay. However, the conduct that gave rise to the breach is the same conduct that gave rise to the breach of the Access Policy. If Ms Hanlon had complied with the requirement in the Access Policy for the medication to be dispensed and labelled by a doctor, this would have satisfied the relevant requirements of the Medication Management policy.
The same reasoning applies in relation to the contention that Ms Hanlon acted outside the scope of her practice in dispensing medication. As a Coordinator (or Registered Nurse) Ms Hanlon did not have authority to supply medication to a patient on discharge unless the medication had been labelled and signed by a doctor or a pharmacist. Because the Augmentin Duo was not labelled and signed by a doctor or a pharmacist, Ms Hanlon acted outside the scope of her practice in providing the medication to Patient X on her discharge. Clause 2.2(e) of the AHPRA Code requires nurses to “recognise and work within their scope of practice”.
Ramsay’s Code of Conduct requires that its employees comply with the requirements of its “policies, standards and procedures”. By failing to comply with the Access Policy, Ms Hanlon breached the Code of Conduct.
Ms Hanlon agreed that she was bound to comply with the AHPRA Code for Nurses during her employment with Ramsay. Clause 4.1 of the AHPRA Code provides:
“Professional boundaries allow nurses, the person and the person’s nominated partners, family and friends, to engage safely and effectively in professional relationships, including where care involves personal and/or intimate contact. In order to maintain professional boundaries, there is a start and end point to the professional relationship, and it is integral to the nurse-person professional relationship. Adhering to professional boundaries promotes person-centred practice and protects both parties. To maintain professional boundaries, nurses must:
…b.actively manage the person’s expectations, and be clear about professional boundaries that must exist in professional relationships for objectivity in care and prepare the person for when the episode of care ends
c.avoid potential conflicts, risk and complexities of providing care to those with whom they have a pre-existing non-professional relationship and ensure that such relationships do not impair their judgement. This is especially relevant for those living and working in small, regional or cultural communities and/or where there is a long-term professional, social and/or family engagement
…
f.reflect on the circumstances surrounding any occurrence of over-involvement, document and report it, and engage in management to rectify or manage the situation…”
Ramsay submits that Ms Hanlon breached these obligations by putting the interests of Patient X to go home, as well as her interest to go home at the end of her shift, ahead of the process she should have followed to provide medication to a patient on discharge. Contextually, Ramsay also points to the fact that Patient X contacted Ms Hanlon directly at about 8am on 17 March 2024 and informed her that she had been cleared by a doctor to go home. Ms Hanlon accepted that it was not normal procedure for a patient to contact a Coordinator to inform them that they had been cleared by a doctor to go home. Further, Ramsay submits that Ms Hanlon should have checked with other staff at the hospital to check whether a doctor had cleared Patient X to go home. Ramsay also submits that, given it was the first time that Ms Hanlon had obtained medication from the pharmacy after hours to provide to a patient on discharge, the correct thing for Ms Hanlon to do was to stop, re-read the Access Policy, and ensure that she complied with each step in it. It is submitted that this was demonstrable of the lack of judgment by Ms Hanlon in the moment.
I am satisfied that Ms Hanlon did allow her friendship with Patient X to impair her professional judgment on the morning of 17 March 2024. Ms Hanlon knew that Patient X wanted to go home and did not know how she would get home given that her spouse was himself recovering from surgery and her adult children would not be around until the following day. Ms Hanlon wanted to help out her friend. She was also tired and wanted to go home at the end of her night shift. I am satisfied that Ms Hanlon allowed these interests to impair her professional judgment, which should have resulted in her pausing and checking the Access Policy to ensure that she complied with it. It follows, in my opinion, that Ms Hanlon breached her obligations under clause 4.1 of the AHPRA Code.
I do not accept Ramsay’s contention that it had a further valid reason for Ms Hanlon’s dismissal on account of her dishonesty in telling Ms Boslem that she had labelled the medication. Having regard to all the evidence, I do not feel a state of satisfaction or an actual persuasion that Ms Hanlon lied to Ms Boslem about the labelling of the medication during their discussion on 18 March 2024. Although Ms Boslem’s recollection that Ms Hanlon told her that the medication had been appropriately labelled is supported by her relatively contemporaneous email to Ms Atkins sent on 21 March 2024 and Ms Atkins’ account of her conversation with Ms Boslem on 20 March 2024, there are factual errors contained in Ms Boslem’s 21 March 2024 email and her witness statement in relation to these matters. First, Ms Boslem says in her email that she was informed by somebody within the pharmacy at the Hospital that Augmentin DF [Duo Forte] had been dispensed to Patient X on discharge. Secondly, Ms Boslem says in her email that she checked the medication chart for Patient X and it stated that Patient X was to be discharged with Augmentin DF. Thirdly, Ms Boslem’s witness statement, at [23], makes multiple references to Augmentin DF being charted for Patient X. However, Patient X’s medication chart was tendered into evidence in this matter[13] and it clearly states that Augmentin Duo, not Augmentin DF, was charted for Patient X. Augmentin DF is the stronger version of Augmentin Duo. Ramsay accepts that Augmentin Duo, not Augmentin DF, was supplied by Ms Hanlon to Patient X. It follows that Ms Boslem made multiple errors in her email and her witness statement in relation to the medication which she says was charted for Patient X. This calls into doubt whether Ms Boslem made an error in relation to her recollection as to whether Ms Hanlon told her that the medication provided to Patient X had been labelled correctly. In addition, Ms Boslem’s contention that Ms Hanlon told her that she provided doxycycline to Patient X is very odd. Both Ms Boslem and Ms Hanlon agree, and clearly knew at the time, that doxycycline would not have been an appropriate medication to give to Patient X following surgery related to her gallbladder. This evidence has also caused me to doubt whether Ms Boslem may have been mistaken in her recollection that Ms Hanlon told her that the medication had been labelled appropriately before it was given to Patient X.
For the reasons explained above, I am satisfied that Ramsay had a sound, defensible and well-founded reason to terminate Ms Hanlon’s employment. The existence of a valid reason for dismissal weighs against Ms Hanlon’s contention that her dismissal was harsh, unjust and unreasonable.
Notification of reason (s 387(b))
Ms Hanlon was notified of the reasons for her dismissal, both orally and in writing, during the investigation process and in the letter of termination.
Opportunity to respond (s 387(c))
Ms Hanlon contends that she was given an opportunity to respond that was surface level only. I disagree. At the meeting on 27 March 2024 Ms Hanlon was given a real opportunity to respond to the allegations communicated to her in writing on 22 March 2024. Questions were asked of Ms Hanlon during the meeting on 27 March 2024 in relation to the allegations. Ms Hanlon responded to those questions. After hearing those responses, Ms Atkins and Ms Hamilton adjourned the meeting on 27 March 2024 to consider Ms Hanlon’s responses and Ramsay’s policies, including the Access Policy to which Ms Hanlon had made reference during the meeting. During the break, Ms Atkins and Ms Hamilton determined that they needed a further period of time to deliberate on the matter before making a decision. They returned to the meeting and informed Ms Hanlon that they would consider the matter and reconvene on 2 April 2024 to advise Ms Hanlon of the outcome of their investigation.
Ms Atkins and Ms Hamilton prepared an investigation report dated 28 March 2024. It contains a detailed summary of the meeting with Ms Hanlon on 27 March 2024, together with other relevant information and reasons as to why termination of employment was the recommended outcome.
Having regard to all the circumstances, I am satisfied that Ms Hanlon was given a real opportunity to respond to the valid reason for her dismissal.
Unreasonable refusal to allow a support person (s 387(d))
Ms Hanlon had support persons with her at the meetings on 27 March 2024 and 2 April 2024.
I am satisfied that there was not any unreasonable refusal by Ramsay to allow Ms Hanlon to have a support person present to assist in any discussions relating to her dismissal.
Warnings of unsatisfactory performance (s 387(e))
Ms Hanlon was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.
Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))
Ramsay is a substantial enterprise. It has human resource management specialists and expertise. In all the circumstances, I am satisfied that neither the size of Ramsay’s enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting Ms Hanlon’s dismissal.
Other relevant matters
Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post in the following terms:[14]
“[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button[2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited[2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.
[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:
(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.
(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]
(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and hers or her dependents.]
[43] The determination of whether there was a “valid reason” proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”.
...
[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):
“Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”
[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with hers or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13].”
The first relevant matter is the seriousness of Ms Hanlon’s conduct. In considering whether Ms Hanlon’s dismissal was disproportionate to the conduct which led to her immediate dismissal (but with an ex gratia payment equivalent to her notice period) I need to consider the gravity of her conduct. This must be assessed in light of the complex and onerous legal and ethical framework that applies to Ramsay in the conduct of the Hospital to ensure the health, safety and wellbeing of patients in the Hospital’s care. I have already found that Ms Hanlon breached a number of policies by failing to have the Augmentin Duo which she obtained from the pharmacy dispensed and labelled by a doctor. Regardless of whether Ms Hanlon accidentally, as she contends, or deliberately, as Ramsay contends, failed to comply with the requirement to have the medication dispensed and labelled by a doctor, it was a serious failing on Ms Hanlon’s part. Ms Hanlon was the most senior staff member at the Hospital at the time of the incident. She is a very experienced Registered Nurse and, more recently, Coordinator. Her responsibilities in the role of Coordinator included ensuring that the after-hours Hospital team conformed and adhered to Ramsay’s policies and procedures, as well as nursing standards of practice set by statutory authorities and regulatory bodies. The requirement for a doctor or pharmacist to dispense and label medication before it is given to a patient on discharge is important. This process ensures that an adequately qualified heath care professional communicates to a patient how much medication they need to take, when it should be taken, and how it should be taken. Errors in this process could obviously lead to disastrous consequences. The potential consequences of Ms Hanlon’s failings on the morning of 17 March 2024 were somewhat ameliorated by reason of Patient X being a Registered Nurse, Patient X telling Ms Hanlon that she had been instructed by her doctor as to how much of the medication to take and for how long, the fact that Augmentin Duo was the correctly prescribed antibiotic for Patient X, and the fact that Augmentin Duo is not an addictive or particularly dangerous drug. However, as Ms Page explained in her evidence, pharmacists and most doctors, but not most Registered Nurses, who work at the Hospital would know that Augmentin Duo is best taken with the first mouthful of food, because this results in the optimal absorption of the medication and minimises the risk of an upset stomach. This is the type of information which could have been provided to Patient X if the Access Policy had been complied with and the medication was dispensed and labelled by a doctor or a pharmacist. It is also concerning that Ms Hanlon said during her meeting with Ms Atkins and Ms Hamilton on 27 March 2024 that “everyone works outside their scope of practice”. Ms Hanlon acknowledged that this was a stupid thing to say. I agree. But it also shows, in my view, that Ms Hanlon did not really appreciate the seriousness of her conduct in failing to comply with the Access Policy.
As to whether Ms Hanlon mistakenly or deliberately failed to comply with her requirement under the Access Policy to have the medication dispensed and labelled by a doctor or a pharmacist, I am satisfied and feel an actual persuasion that Ms Hanlon deliberately skipped this step in the process. The starting point in making this finding is Ms Hanlon’s knowledge that the Access Policy required medication provided to a patient on discharge to be dispensed and labelled by a doctor or a pharmacist and Ms Hanlon’s acceptance that she failed to complete the “most important step in the entire process”.[15] Even though (a) Ms Hanlon was tired and exhausted at the end of her night shift, (b) she had not previously obtained medication from the pharmacy after hours for dispensing to a patient on discharge, and (c) a pharmacist labels medication the next day when it is obtained from the pharmacy after hours and provided for use on the ward, it is difficult to accept that a person such as Ms Hanlon who has worked as a nurse since 9 February 1978 could forget to take the “most important step in the entire process” and provide medication to a patient to take home on discharge without any label on the medication informing the patient as to when, how often and how to take medication. Coupled with this is the strong incentive that Ms Hanlon had to skip this step in the process. Both Ms Hanlon and Patient X wanted to leave the Hospital. Ms Hanlon was tired and wanted to get home after a night shift at the Hospital. As Ms Hanlon said, “Patient X was determined to discharge as soon as she was cleared to do so by Dr Shah” and Patient X told Ms Hanlon, “I’m going home”.[16] For the reasons given above, I have accepted that Ms Hanlon said to Ms Hamilton in the meeting on 27 March 2024 that she did not take the alternative option of obtaining a discharge prescription from the CSO because “that would have taken too long. It could have taken another hour and I wanted to get home”. It can be inferred from this evidence that it would also have taken time, and delayed the departure of Ms Hanlon and Patient X from the Hospital, for them to wait for the CSO on duty at the Hospital to dispense and label the Augmentin Duo for Patient X.
That Ms Hanlon’s failure to comply with the Access Policy was intentional enhances the objective seriousness of her conduct. But even if I had concluded that Ms Hanlon had accidentally failed to comply with the Access Policy, I would still have reached an evaluative assessment that the decision to terminate her employment was not disproportionate to her conduct.
The next relevant matter is the personal and economic consequences for Ms Hanlon of the dismissal. Ms Hanlon is 64 years old. She has considerable experience as a Registered Nurse. The five week ex gratia payment made to Ms Hanlon on termination meant that she was effectively paid up until 7 May 2024. On 8 May 2024, Ms Hanlon obtained alternative employment as a nurse. The remuneration Ms Hanlon receives in her new role is not as high as she received as a Coordinator employed by Ramsay, with the result that Ms Hanlon will not be able to retire in the same timeframe as she had planned while she was employed by Ramsay. Ms Hanlon considers it unlikely that she will be able to obtain another role at the same level and pay as she earned with Ramsay. The nature of the work in Ms Hanlon’s new role is also more physical, including very heavy work at times, which is difficult for Ms Hanlon. Further, Ms Hanlon loved her job at the Hospital and misses working there a great deal. These matters provide some weight to support Ms Hanlon’s argument that her dismissal has been harsh in its consequences for her personal and economic situation.
Another relevant matter is the length and quality of Ms Hanlon’s employment record with Ramsay. Ms Hanlon was employed by Ramsay for about 5.5 years, with about 4.5 of those years in the position of Coordinator. Ms Hanlon was counselled in relation to two matters during her employment with Ramsay. On 20 March 2023, Ms Hanlon received a letter from Ms Rebecca Harvey, Assistant Director of Clinical Services, entitled “Record of Discussion from 13th March 2023 and Performance Expectations moving forward”. The letter referred to an incident in the emergency department on 4 March 2023 which Ms Hanlon did not escalate to the “on call executive as is the normal process”. The letter informed Ms Hanlon of Ramsay’s expectations in the future and stated that “failure to satisfactorily address the above and implement the above expectations could lead to future disciplinary action”. As Ms Hanlon accepted in her oral evidence, this was a warning given to her in connection with her conduct at work with Ramsay. In April 2020, Ms Atkins sent an email to Ms Hanlon in relation to a Riskman report which identified that Ms Hanlon had obtained medication from the pharmacy in the Hospital after hours but had labelled it with the incorrect patient name and not left a copy of the patient’s medication chart in the pharmacy. Ms Hanlon denies the contention by Ms Atkins that she was provided with education following this incident. I do not need to determine this contest on the evidence about education after the incident. It is enough that Ms Hanlon was notified by Ms Atkins’s email sent on 21 April 2020 that she was to ensure that she was aware of “the correct procedure for removing medication from pharmacy including leaving a copy of the patient’s chart”. Having regard to all the circumstances, the length and quality of Ms Hanlon’s employment record with Ramsay weighs slightly in favour of her argument that her dismissal was harsh.
The final relevant matter is my assessment that Ms Hanlon is, and was during the meetings on 27 March 2024 and 2 April 2024, genuinely contrite for her conduct. Although Ms Hanlon was brief in some of her answers to questions put to her by Ms Hamilton and Ms Atkins, I accept that she was sorry for what she had done and apologised to the Ramsay representatives at the meetings. This weighs in support of Ms Hanlon’s contention that her dismissal was harsh and unreasonable.
Conclusion
After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that Ramsay’s dismissal of Ms Hanlon was not harsh, unjust or unreasonable. The dismissal was not unjust because Ms Hanlon engaged in the conduct which led to her dismissal. In my assessment, Ms Hanlon’s dismissal was not “harsh” in either of the senses discussed in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd.[17] That is, the dismissal was not “harsh in its consequences for the personal and economic situation of the employee” or “because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” I have reached that conclusion by having regard to all the evidence in this case, including the seriousness of Ms Hanlon’s conduct, and for the reasons set out above. Nor was the dismissal unreasonable in all the circumstances. There was a rational, proven and valid reason for the dismissal. After giving careful consideration to the evidence, I am satisfied that Ms Hanlon deliberately skipped the requirement in the Access Policy to have the medication dispensed and labelled by a doctor or pharmacist. Ms Hanlon was also afforded procedural fairness before the decision was taken to terminate her employment.
Ms Hanlon’s application for relief from unfair dismissal is dismissed.
DEPUTY PRESIDENT
Appearances:
G. Miller, Industrial Officer of the NSW Nurses and Midwives’ Association, for the Applicant
B. Gee, solicitor, for the Respondent
Hearing details:
2024.
Newcastle:
12 and 13 August.
[1] Ex A2 at [74]
[2] Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8
[3] Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
[4] Ibid
[5] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
[6] Ibid
[7] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]
[8] Ibid
[9] Ibid
[10] Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J
[11] [2019] FCA 451
[12] Ibid at [18]
[13] Ex A4
[14] [2013] FWCFB 6191
[15] Ex A2 at [74]
[16] Ex A3 at [34]
[17] (1995) 185 CLR 410 at 465
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