Tracey Maree Bancroft v Ramsay Healthcare Noosa Hospital
[2010] FWA 7799
•6 OCTOBER 2010
Note: An appeal pursuant to s.604 (C2010/5356) was lodged against this decision - refer to Full Bench decision dated 10 February 2011 [[2011] FWAFB 914] for result of appeal.
[2010] FWA 7799 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tracey Maree Bancroft
v
Ramsay Healthcare Noosa Hospital
(U2009/10705)
DEPUTY PRESIDENT SWAN | BRISBANE, 6 OCTOBER 2010 |
[1] Ms Bancroft [the applicant] has made this application for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 [the Act]. The applicant claims that she was unfairly dismissed from her employment with Ramsay Health Care Australia Pty Ltd trading as Noosa Hospital [the respondent].
Stated reason for dismissal
[2] The respondent says that the dismissal occurred as a consequence of the applicant’s failure to retain her nursing registration thereby acting negligently and placing her employer at serious risk.
Nursing Registration Requirements
Nursing Act 1992
“123 Employment as a nurse
(1) Despite any industrial award or agreement or any other agreement, a registered nurse must not be employed, or continue in employment, as a registered nurse unless the person has a current annual licence certificate.
(2) Despite any industrial award or agreement or any other agreement, an enrolled nurse must not be employed, or continue in employment, as an enrolled nurse unless the person has a current annual licence certificate.
(3) A person (the employer) who employs a person (the employee) as a nurse or a midwife must ensure--
a) that the employee holds a current annual licence certificate at the time the employee is employed; and
b) that the employee continues to hold a current annual licence certificate of so long as the employee is employed by the employer.
(5) If the employer is not, at any time, satisfied that the employee holds a current annual licence certificate, the employer must immediately notify the executive officer.
Maximum penalty-20 penalty units.”
Applicant’s work history
[3] The applicant had been employed by the respondent since August 2001 initially as a level 1 Registered Nurse and later as a Clinical Nurse level 2, Surgical Nurse.
[4] Previous employment was at the John Flynn Private Hospital [part of the Ramsay Healthcare group of companies] from March 1998.
[5] Prior to the applicant’s dismissal on 7 July 2009 she had never been performance managed or counselled regarding her work.
[6] From March 2008, until March 2009, the applicant took maternity leave.
Applicant’s claim
[7] The applicant says that, after her last child was born, she faced some serious stressors.
[8] Consequently, the applicant forgot to renew her nursing registration in the 2008-2009 registration year. During that year the applicant had worked unregistered for three months.
[9] The stressors nominated by the applicant included:
- In April 2009, during her pregnancy, the applicant became unwell.
- After the birth of her child on 21 April 2009, the applicant left hospital early because arrangements she had made for the care of her other children had altered unexpectedly.
- The new child suffered from some ailments and it took some months before the applicant became settled with her immediate family life.
- The applicant had taken annual leave before the birth of her child, but had extended that to taking long service leave due to her child’s extended health problems.
- The applicant and her family were also undergoing financial stress due to a downturn of work in her husband’s business.
[10] The applicant accepts that she would have received, during that period, the renewal documentation from the Queensland Nursing Council [QNC] for her registration for the 2008-2009 registration year.
[11] The applicant returned to work on 3 March 2009.
[12] On 30 June 2009, the applicant’s Nurse Unit Manger, Ms Jill McEvoy-Williams, while noticing that the applicant was not registered for the 2009-2010 year, discovered that she had been unregistered for the 2008-2009 year. Consequently, the applicant had worked from 3 March 2009 until 30 June 2009 unregistered.
[13] The applicant obtained a ‘Restoration of Licence’ form from the QNC and had sent her payment for the 2009-2010 year to the QNC on 1 July 2009. The confirmation of her registration for the 2009-2010 year was received by her on 3 July 2010.
[14] The applicant said that the delay with her 2009-2010 registration was caused by not being able to contact the QNC on the week-end before 30 June 2009 and, on Monday 29 June 2010, the applicant became ill.
[15] The QNC required the applicant to provide a Statutory Declaration explaining why she had worked unregistered during part of the 2008-2009 year.
[16] Ms McEvoy-Williams told the applicant that until the matter of her registration for the 2009-2010 year was resolved, she could not attend work and she should speak to the Director of Clinical Services, Ms Jane Peeters.
[17] Ms McEvoy-Williams told the applicant that Ms Peeters was angry with her for allowing the applicant to return to work after maternity leave in the 2008-2009 year without checking the applicant’s registration.
[18] The applicant discussed the issues around her registration with Ms Peeters sometime between 1 July and 3 July 2009. Ms Peeters advised the applicant that she might be audited by the QNC.
[19] The applicant did not recall either Ms McEvoy-Williams or Ms Peeters mentioning that her job might be in jeopardy.
[20] The applicant was required to attend a meeting with Ms Peeters and Ms McEvoy-Williams on 7 July 2009. The applicant was not given a reason as to the nature of the meeting.
[21] On 3 July 2009, the applicant had been told by the QNC that her registration had been restored and that she would probably not been audited. The applicant advised Ms Peeters and Ms McEvoy-Williams of this at the meeting.
Applicant’s Claim
Meeting on 7 July 2009
[22] Present at the meeting were the applicant, Ms Peeters and Ms McEvoy-Williams.
[23] The applicant was not offered the opportunity to have a support person with her.
[24] The applicant had not asked her Union representative to come to the meeting with her as she thought she would merely receive a “slap on the wrist and maybe a demotion in the worst case scenario”. [Exhibit 1 – point 40]
[25] Ms Peeters told the applicant that “you had spoken with Kylie Wyndel who was the Acting Nurse Unit Manager on 26 June regarding your registration and admitted you hadn’t received your registration papers”.
[26] The applicant’s signature was on a form, supplied by the respondent, which was a ‘reminder to renew registration’ document for the 2009-2010 registration year.
[27] Ms Peeters said that the applicant had not notified the respondent that she was unregistered and it was the respondent who had discovered that the applicant was unregistered on 30 June 2009. Ms Peeters told the applicant that she was unregistered in the 2008-2009 year and the 2009-2010 year. The applicant agreed with that statement.
[28] The applicant says that Ms Peeters did not give her any opportunity to explain her position.
[29] The applicant offered her 2009-2010 registration papers to Ms Peeters, but was told that she would not be needing those forms. Ms Peeters told the applicant that she was not prepared to renew her contract with the respondent.
[30] The applicant asked if she could be put into a lower position at the Hospital, but was told that could not happen.
[31] At the time of the dismissal, the applicant was not paid her four weeks wages in lieu of notice.
[32] In August 2009, the QNC notified the applicant that it would not take action against her for working unregistered in the 2008-2009 year.
[33] The applicant’s husband, Mr Shane Bancroft gave evidence in support of the applicant and confirmed her evidence around issues such as the difficulties surrounding the birth of their youngest child and also the financial difficulties faced by the family and the fact that the applicant had much to contend with at the time when her registration was due.
Applicant’s Claim
Post dismissal employment
[34] Since July 2009, the applicant has been working as a casual registered nurse, level 2.
[35] Also, since September 2009, the applicant has worked at a Nursing Home as a casual registered nurse, level 1.
[36] The applicant did not seek reinstatement to her former position.
[37] Taking into account all work performed post dismissal, the applicant says that she has lost approximately $19,000 in wages since her dismissal.
[38] Evidence of Ms Kym Barry [Professional Officer with the QNU]
[39] MsBarry has worked as a registered nurse and also as a Charge Nurse in a surgical unit.
[40] A registered nurse is responsible for her own registration, however, the practice had been that the Charge Nurse retains a list of all enrolled and registered nurses and checks registration prior to 12 midnight on 30 June of each year.
[41] If a registered nurse fails to re-register, then often the nurse is stood down from duty without pay or would take short term leave (usually less than 5 days) until such time as the licence was renewed.
[42] In circumstances where registration was required to be renewed out of time, Ms Barry did not recall that termination of employment ever followed the event.
[43] Ms Barry advised that, effective from November 2009, a new Policy “Health Professionals Registration – Medical Officers, Nurses and Other Health Professionals” deals with the situation of unregistered health professionals. That Policy at clause 8.3 Unregistered Health Professionals states:
“Failure to maintain registration is a breach of the Queensland Health Code of Conduct and may expose the health professional to disciplinary action. [Exhibit 5 – KB 2]
[44] Evidence of Ms Jill McEvoy-Williams [Nurse Unit Manager]
[45] Ms McEvoy-Williams was at the time of the applicant’s dismissal, the Nurse Unit Manager of the area in which the applicant worked.
[46] On 30 June 2009, Ms McEvoy-Williams conducted her annual check of the QNC website to ensure that all staff members were registered for the 2009-2010 year.
[47] There was no record of the applicant’s registration for either the 2008-2009 or 2009/2010 years.
[48] Ms McEvoy-Williams says she had made an error in not checking on the applicant’s 2008-2009 registration when the applicant returned to work on 3 March 2009.
[49] Ms McEvoy-Williams stated that she had experienced situations where nurses had returned to work after various types of leave and had realised upon their return to work that they were unregistered. In those circumstances, nurses could be given time off work until their registration had been renewed. However, the situation with the applicant was discretely different. This was a case where the nurse had actually worked for a period of time unregistered.
[50] Ms McEvoy-Williams contacted the applicant on 30 June 2009 to enquire about her registration and she says that the applicant’s initial reaction was that she had paid her registration for the 2008-2009 year.
[51] Eventually, after the applicant had said she could not remember whether she had paid her 2008-2009 registration, Ms McEvoy-Williams said “You have not paid it, have you Tracey”. She said the applicant simply replied “No” and then advised Ms McEvoy-Williams that she had not paid her 2008-2009 and 2009-2010 registrations.
[52] Ms McEvoy-Williams advised Ms Peeters of the situation. Ms Peeters later advised Ms McEvoy-Williams that she had contacted the QNC which would be requesting ‘character’ and ‘chain of events’ statements from the Noosa Hospital. A statement would also be requested from the applicant.
[53] The applicant advised Ms McEvoy-Williams that the QNC had said that it would prioritise her request for registration which should be finalised by 4 to 6 July 2009.
[54] The applicant telephoned Ms McEvoy-Williams on 30 June 2009 to say that there would be a problem with her statement as she was unable to complete the time that she returned from maternity leave [during the 2008-2009 registration year] without admitting that she had returned to work whilst unregistered. The applicant stated that she would “write in different dates” so that the QNC was not aware that she had worked whilst unregistered. [Exhibit 6 – point 11]
[55] Ms McEvoy-Williams advised the applicant to be ‘transparent and honest’ with the relevant dates. Ms McEvoy-Williams also advised the applicant that Ms Peeters had already contacted the QNC and she had advised them of the issue and that statements had been requested from the respondent.
[56] The applicant again contacted Ms McEvoy-Williams saying that she had spoken to Ms Peeters and that Ms Peeters had “implied that she could lose her employment over this issue and wished to know if this was correct.’ [Exhibit – point 13]
[57] Ms McEvoy-Williams responded by saying that the matter was serious and she was unsure as to the outcome.
[58] Ms Peeters had advised Ms McEvoy-Williams that the respondent’s statement to the QNC had been completed together with a photocopy of the communications book dated 11 June 2009. That book contained a reminder note regarding registrations and had been signed by the applicant.
[59] At the meeting on 7 July 2009, Ms Peeters outlined the history of the issue thus far – ie the applicant being reminded to register around the time of the birth of her third child; returning to work in March 2009 and working whilst not registered; that by 30 June 2009, the applicant remained unregistered; the applicant being reminded that she had signed the communications book regarding registration on June 11, 2009 and of a conversation that the applicant had held with CN Wydell on 26 June 2009 where the applicant had been advised to contact the QNU regarding her registration.
[60] Ms Peeters advised the applicant that she had breached her contract with the respondent from March 2009 and no new contract would be entered into with her.
[61] Contrary to the applicant’s evidence that she had advised both Ms Peeters and Ms McEvoy-Williams in the meeting of 7 July 2009 that she had received her registration for the 2009-2010 year from the QNC, Ms McEvoy-Williams and Ms Peeters said that this issue had not been raised by the applicant at the meeting.
Evidence of Mrs Jane Peeters [Director of Clinical Services for the respondent at the Noosa Hospital]
[62] QNC sends out renewal notices to all nurses currently enrolled or registered to practice in early April for payment of fees by 30 June for the year commencing July 1.
[63] All staff are required to provide proof of registration to their Nurse Unit Manager and the licenses are kept on individual personnel files.
[64] Reminder notices regarding registration are provided in each work area prior to 30 June through a variety of means.
[65] In the period leading up to 30 June, Ms Peeters checks with her Nurse Unit Managers to ensure that staff are registered. If a nurse does not provide proof of registration, the roster is checked to ensure that the nurse provides proof of registration before returning to work.
[66] Under the relevant legislation, the employer bears the responsibility of ensuring that all staff are registered.
[67] As of 30 June 2009, the applicant had not provided proof of registration. The QNC website was checked and it was found that the applicant was not currently registered for the 2008/2009 year despite having returned to work in March 2009 and was not registered for the 2009-2010 year.
[68] Ms Peeters spoke to the applicant and advised her that the situation was very serious and that she [Ms Peeters] had to notify the QNC, the respondent’s Human Resources State Manger and the legal team. Ms Peeters advised the applicant that she may be audited by the QNC and that she would not be paid for shifts not worked.
[69] At the meeting on 7 July 2009, the applicant confirmed that she had not been registered during the last year although she had been performing duties of a registered nurse for over 3 months.
[70] The applicant did not, at that time, provide any proof of registration for the 2009-2010 year.
[71] The applicant confirmed that she had told Ms McEvoy-Williams that she would advise the QNC that she had not been working during the period when she was required to be registered. The applicant confirmed that Ms McEvoy-Williams had told her to tell the truth as the respondent had already contacted the QNC to advise that she had been working.
[72] The applicant had been asked to explain why she had not renewed her registration before she returned to work in March 2009. The applicant offered no mitigating circumstances other than she had forgot to do so.
[73] The applicant agreed that she had signed a memo in June of 2009 reminding staff to renew their registration and the applicant also confirmed that she had a conversation with Clinical Nurse Wyndell and others about that on 26 June 2009. Again the applicant provided no reasons for failing to act.
[74] The applicant was asked if she had any response which might make Ms Peeters change her mind, but the applicant did not offer anything further.
[75] The applicant was advised that she had placed herself and the respondent at risk by working unregistered. The applicant’s employment was terminated.
Findings
[76] The applicant had worked for three months during the 2008-2009 year unregistered and this created a serious issue for the applicant and the respondent.
[77] It has been difficult to accept that the applicant simply forgot to register for the 2008-2009 year. However, even in the event that forgetfulness caused the applicant to work unregistered for 3 months during 2008-2009, there are a number of other issues which occurred during June 2009 which need to be considered.
[78] I accept that the applicant signed a document in June 2009 reminding her to renew her registration for the 2009-2010 year . I also accept that the applicant had entered into a discussion with other staff about registration issues during this month.
[79] It is difficult to accept that the applicant had forgotten to register in both the 2008-2009 and 2009-2010 years. The evidence strongly suggests that the applicant only addressed her 2009-2010 registration after some degree of enquiry and/or pressure from the respondent.
[80] Registration is such a fundamental part of the working life of a nurse that for the applicant to have forgotten her 2008-2009 registration and to have to be reminded on more than one occasion of her requirement for registration in the 2009-2010 year more than suggests that the applicant simply did not take the issue of her registration as a nurse as seriously as she should have done.
[81] I have found the evidence of Ms McEvoy-Williams and Ms Peeters to be truthful. As such, I have accepted Ms McEvoy-Williams’s evidence that the applicant had raised with her the prospect of falsifying the dates upon which she had worked in 2008-2009 so as to avoid any undue attention from the QNC. I accept both Ms McEvoy-Williams’ and Ms Peeters’ evidence that the applicant acknowledged that Ms McEvoy-Williams had advised her to tell the truth to the QNC.
[82] I have also accepted the evidence from both Ms McEvoy-Williams and Ms Peeters that, at the meeting of 7 July 2009, the applicant did not disclose to them that she was in possession of her 2009-2010 registration as from 3 July 2009.
In forming that view, I have taken into account the applicant’s suggestion that she falsify her records for the 2008-2009 year; the admission that she had a discussion with another employee about registration during June 2009 (before the deadline for the 2009-2010 year) and that she had signed a note to confirm that she had read the respondent’s notice about registration in June 2009.
[83] At the time of making its decision, the respondent’s representatives had those admissions before them.
[84] It is my view, that after having accepted all of those issues during the meeting, it could reasonably be suggested that there may have been little benefit in the applicant saying that she had in fact, by 3 July 2009, registered for the 2009-2010 year.
[85] I have accepted Ms McEvoy-William’s evidence that the applicant was well aware that she was facing a disciplinary hearing before Ms Peeters and Ms McEvoy-Williams when she attended the meeting of 7 July 2009.
The Legislation
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.
Re (a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees).
[86] There was a valid reason for the applicant’s termination of employment. The reason was that the applicant had worked unregistered as a nurse for 3 months during the 2008-2009 year. Further, up until 3 July 2009, the applicant remained unregistered for the 2009-2010 year. The lack of registration on time for the 2009-2010 year occurred notwithstanding reminders given to the applicant to ensure her registration for the coming year.
Re (b) Whether the person was notified of that reason
[87] The applicant was advised of the reason for her dismissal at the meeting of 7 July 2009.
Re (c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[88] The applicant was given the opportunity to respond to the allegations made. The applicant agreed with the allegations made, but offered little to nothing by way of mitigation other than that she had forgotten to register for the 2008-2009 year.
Re (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[89] The evidence shows that the applicant was aware that she was facing a disciplinary meeting and that she believed that she would merely receive a ‘slap on the wrist’ from the respondent for her actions. There is no evidence that at the meeting the applicant had sought to have a support person with her and that such a request was refused by the respondent.
Re (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
[90] There were no specific submissions made around this point.
Re (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
[91] The respondent had sought advice from Human Resources State Manager and its legal team.
Re (h) any other matters that FWA considers relevant
[92] The applicant, in my view, failed to accept the seriousness of her actions. Notwithstanding that she had been told that her actions could cause her dismissal, the applicant believed that she would only be slightly reprimanded by the respondent.
[93] The respondent was rightly concerned that the applicant’s actions not only seriously impacted on her but also had the capacity to impact seriously upon the respondent’s business.
[94] In all, I have found that the termination of the applicant’s employment was not harsh, unjust or unreasonable.
[95] I dismiss the application.
DEPUTY PRESIDENT
Appearances:
V. Semple for the Applicant
G. Muir for the Respondent
Hearing details:
2010
Brisbane
16,17 June
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