[2015] FWC 2970

FAIR WORK COMMISSION

DECISION

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

Tracey Marr
v
Western Health
(U2015/2196)

SENIOR DEPUTY PRESIDENT ACTON

MELBOURNE, 2 JUNE 2015

Application for relief from unfair dismissal – valid reason – not harsh, unjust or unreasonable.

Introduction

[1] Ms Tracey Marr was dismissed from her employment by Western Health on 24 December 2014. On 8 January 2015, Ms Marr made an application to the Fair Work Commission (FWC) pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) seeking an order providing a remedy for unfair dismissal.

[2] Section 390 of the FW Act provides that the FWC may order a remedy if, amongst other things, it is satisfied the person was protected from unfair dismissal at the time of being dismissed and the person has been unfairly dismissed.

[3] Ms Marr was employed by Western Health as a registered nurse. She worked in the Intensive Care Unit (ICU) of its hospital located at Gordon Street in Footscray, Victoria between 2006 and the date of her dismissal.

[4] Ms Marr’s unfair dismissal remedy application was made within time. 1 Further, I accept that she was dismissed by Western Health and was protected from unfair dismissal at the time of her dismissal.2 There is no contest between the parties on these issues.

[5] The contest is whether Ms Marr was unfairly dismissed. Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that, amongst other things, the dismissal was harsh, unjust or unreasonable. The parties are in contest as to whether Ms Marr’s dismissal was harsh, unjust or unreasonable.

[6] Section 387 of the FW Act sets out criteria for considering harshness, etc. as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[7] I will turn to deal with each of these matters. I point out that Ms Marr submitted I should apply the approach to the standard of proof in Briginshaw v Briginshaw 3in the matter before me. I will do so, notwithstanding some reservations about the relevance of Briginshaw to this matter.

Valid reason (s.387(a))

[8] On 6 March 2013, Ms Marr failed to have the dosage of a drug named “Tirofiban” that she was to administer to a patient checked, as is required, and administered the incorrect dosage of the drug to the patient.

[9] Ms Marr was subsequently counselled by Western Health regarding the error, although such counselling was not recorded in writing.

[10] On 26 September 2013, Ms Marr administered a drug named “Oxynorm” to a patient who was using a patient-controlled analgesia (PCA) pump, when the patient’s medication chart indicated the drug ought not be administered if the patient was using a PCA pump.

[11] In my view, the fact that others were involved in this error does not result in Ms Marr’s administering of the drug on 26 September 2013 not being an error.

[12] On 4 August 2014, Ms Marr administered a drug named “Actrapid”, an insulin drug, to a patient at 3.00am, just two hours after the drug had previously been administered to the patient by Ms Marr.

[13] There is no dispute that Ms Marr administered the drug to the patient at 1.00am and 3.00am on 4 August 2014 and I accept that Ms Marr’s administering of the drug to the patient at 3.00am on 4 August 2014 was an error.

[14] I have concluded that at the time Ms Marr administered the drug to the patient, both at 1.00am and thereafter, the term “QID” was written on the relevant section of the patient’s medication chart (the 4 August 2014 medication chart) as the “hourly frequency” for the administering of the drug.

[15] Dr Patrick Dunne, who prescribed the drug on the 4 August 2014 medication chart, gave evidence as to when he wrote the term “QID” on the relevant section of the 4 August 2014 medication chart as follows:

“10. Certain medications, such as insulin, require intervals between doses. This is because, if a patient is given a number of doses in a short period of time, say two hours apart, there is increased potential for the patient to experience negative side effects such as toxicity. For insulin, peak side effects occur about one hour after the administration.

11. A QID notation for drugs such as insulin, including Actrapid, does not mean that a medication may be administered four times at any intervals in a 24 hour period.…

My shift on 3 to 4 August 2014

12. On 3 August 2014, I was working an 8.00pm to 8.30am shift in the ICU at Footscray Hospital.…

15. At about 12.00am on 4 August 2014, I attended the patient’s bedside. I briefly discussed the patient with Ms Marr and explained why I was not going to order an insulin infusion for the patient, which would be the ordinary way insulin is administered. An infusion was not appropriate in my view given the specific circumstances of the patient.

16. I then wrote an order for Actrapid on the PRN page of the patient’s [4 August 2014] medication chart. I prescribed the Actrapid as a PRN order on a sliding scale and wrote QID in the ‘hourly frequency’ boxes for each of the three parts of the order.…

18. I am not in the practice of writing blank prescriptions. Insulin is not a medication that I would ever leave as an ‘open’ PRN order, i.e. without an interval frequency, due to the potential harm that could be caused to a patient from over treating, for example unconsciousness and hypoglycaemia.

19. If an order for a medication such as Actrapid is prescribed by a doctor as an open order, this would be an incorrect order and it would be incumbent on the relevant nurse, or anyone else who viewed the order, to bring this order to the attention of the prescribing doctor to correct it.…

21. I have since seen the original [4 August 2014] medication chart for the patient… and confirm that the Actrapid orders on the PRN page and the QID notations in the ‘hourly frequency’ boxes are my handwriting.

22. Although I cannot specifically recall my act of writing the QID notations in the ‘hourly frequency’ boxes, I must have done so at the time that I wrote the Actrapid order, i.e. at around midnight, as I never went back and amended that order.

23. Shortly after writing the Actrapid order, I said to Ms Marr words to the following effect:

‘Let’s try to get her BSL below 12 and review it later.’

24. I don’t recall what Ms Marr said to me in response.

25. I then left the area and did not return to that patient’s bedside for the remainder of my shift.…

28. At no time did I go back and alter the Actrapid orders on the PRN page of the patient’s [4 August 2014] medication chart. If a drug order has been written but has not yet been administered to the patient, it may be acceptable for a doctor to amend their order. However, if an order has already been acted upon and the order needs to be corrected or altered, the doctor must cross out the entire order and write up a new order. This is because altering an original order that has already been acted upon changes the clinical interpretation of how much of the medication is required.

29. After prescribing the original Actrapid order for the patient, I was not involved with any further administrations of Actrapid to the patient.”

[16] Ms Lorna Reeves, a registered nurse who was working with Ms Marr on 4 August 2014, gave evidence about the matter as follows:

“13. At approximately 6.00am on 4 August 2014, Ms Marr approached me with her patient’s [4 August 2014 medication] chart in hand and said to me words to the following effect:

‘Lorna, can you please check a dose of Actrapid for my patient?’

14. I said to Ms Marr words to the following effect:

‘What is her BSL?’

15. Ms Marr replied with words to the following effect:

‘Her BSL is high, at 14.6.’

16. I then checked six units of the insulin and ensured that it was the correct drug. Ms Marr then handed me the patient’s [4 August 2014] medication chart.

17. I looked at the Actrapid order on the PRN page of the patient’s [4 August 2014] medication chart and saw ‘QID’ written in the ‘hourly frequency’ box for the sliding scale Actrapid order. I also noted that the last dose was administered to the patient at 3.00am and an earlier dose was administered at 1.00am, with both administrations signed. I knew that the Actrapid order was written up by Dr Dunne as I was familiar with his handwriting.

18. I said to Ms Marr words to the following effect:

‘Tracey, we can’t give the patient this dose as it’s a QID order and so it’s not the right time to give it, and the 3.00am dose probably shouldn’t have been given either. We need a stat order.’

19. … A stat order is an order to give a dose of medication immediately at that time.

20. As Dr Dunne was not available at that time, I went over to Dr Georgia Preece who was at the doctor’s desk, which is centrally located within the ICU.

21. I explained to Dr Preece that the order was QID but that the patient’s BSL was still elevated even though the patient had already had doses of Actrapid at 1.00am and 3.00am.

22. Dr Preece then wrote up a stat order for 4 units of Actrapid on the ‘Once Only’ page of the patient’s [4 August 2014] medication chart.

23. I do not recall whether Ms Marr followed me to speak with Dr Preece, but I noticed that Ms Marr was immediately behind me when I turned around after concluding my brief conversation with Dr Preece.

24. I then handed the [4 August 2014] medication chart to Ms Marr and checked the order for 4 units of Actrapid with Ms Marr.

25. I am unaware who checked the 1.00am and 3.00am doses of Actrapid with Ms Marr.

26. I saw Dr Preece write up the stat order when I approached her at approximately 6.00am. Dr Preece definitely did not alter the sliding scale Actrapid order on the PRN page of the patient’s [4 August 2014] medication chart. I am certain that Dr Preece did not write the QID notations for the Actrapid order on the PRN page of the patient’s [4 August 2014] medication chart because I was watching her when she wrote the stat order and she did not write anything on the PRN page.

27. At no time did I alter the Actrapid order on the PRN page of the patient’s [4 August 2014] medication chart. At no time did I add the ‘QID’ notations on that page.

28. I am certain that the QID notations were definitely written in the ‘hourly frequency’ boxes of the Actrapid order on the patient’s [4 August 2014] medication chart when I initially viewed the chart at approximately 6.00am on 4 August 2014.”

[17] Mr Gregory Millsom, a Clinical Nurse Specialist and Consultant in the ICU at Western Health, gave the following evidence:

“21 Where a doctor decides to omit an hourly frequency for insulin the nurse is left to decide the frequency of dose based on the patient’s blood sugar level (BSL), in consultation with the doctor, and the nurse’s experience.

22 In the case of insulin, doctors will sometimes prescribe on a sliding scale, meaning that the nurse will administer insulin at the dose set by the doctor on the medication chart for a range of BSLs. Where there is no frequency written, the doctor leaves it to the nurse to decide the frequency of administration based on the patient’s measured BSLs, which the nurse compares to the range set by the doctor (that is, the ‘sliding scale’), and the nurse’s own experience.

23 Where there has been no frequency written, an experienced ICU nurse will monitor the BSL closely. If it is found to be elevated or increasing the nurse will generally, but not always, discuss it with another nurse and/or the doctor and take the appropriate course of action, which will be either to give another dose of subcutaneous insulin, commence a continuous insulin infusion, or to continue to monitor the BSL closely.…

26 I am aware from my experience at Western Health ICU that doctors have, on various occasions, added to a prescription on a medication chart after the relevant medication has been administered to the patient.…

28 The practice of doctors adding to a medication chart after a medication has already been given is a known but unwritten practice at Western Health ICU.”

[18] In her evidence, Ms Marr disputed that the term “QID” had been written on the relevant section of the 4 August 2014 medication chart before 1.00am or 3.00am on 4 August 2014. Ms Marr also gave evidence that there is a culture in the ICU at Western Health whereby doctors, on occasion, do not give the hourly frequency with which a drug, including an insulin drug, is to be administered leaving it up to the nurse to decide, based on their experience, when to administer the drug. Ms Marr suggested the term “QID” was written by Dr Dunne on the relevant section of the 4 August 2014 medication chart sometime after 6.00am on 4 August 2014 when she asked Ms Reeves about administering another dose of the drug to the patient in question.

[19] The evidence of Ms Suzanne Brown, a registered nurse who did the checking of Ms Marr’s administering of the drug to the patient at about 3.00am on 4 August 2014, and Dr Georgia Preece, the doctor who wrote a once only order for “Actrapid” on another section of the 4 August 2014 medication chart around 6.00am on 4 August 2014, was equivocal about whether the term “QID” was written on the relevant section of the 4 August 2014 medication chart at the relevant time. As a result, I have not found their evidence useful in that regard.

[20] I prefer the evidence of Dr Dunne and Ms Reeves over that of Ms Marr in respect of whether the term “QID” had been written on the relevant section of the 4 August 2014 medication chart before 1.00am and thereafter on 4 August 2014.

[21] Dr Dunne’s evidence that he did not alter the 4 August 2014 medication chart was not effectively undermined under cross-examination and there was no evidence of Dr Dunne having so altered a medication chart on this or any other occasion. Dr Dunne also gave evidence about when an “hourly frequency” might not be given for a drug on a medication chart. However, he did not suggest that this was appropriate for an insulin drug when it is to be administered subcutaneously. Dr Dunne’s evidence in that regard is consistent with the approach explained in the Western Health letter to Ms Marr of 24 December 2014, which letter is set out later in this decision. In my view, Dr Dunne adequately explained the absence of an “hourly frequency” for the administering of some of the non-insulin drugs on the relevant section of the 4 August 2014 medication chart and the existence of the term “QID” as the “hourly frequency” for the administering of the insulin drug “Actrapid” on the relevant section of the 4 August 2014 medication chart.

[22] Similarly, Ms Reeves’ evidence was not effectively undermined on cross-examination, and no sound reason for her having Dr Dunne alter the 4 August 2014 medication chart, as suggested by Ms Marr, was proffered.

[23] Any failure by Ms Reeves to ask who the “checking” nurse was at the time the drug was administered to the patient at 3.00am on 4 August 2014 is, in my view, insufficient to undermine the truthfulness of her evidence.

[24] Mr Millsom’s evidence indicates that some doctor’s omit listing the “hourly frequency” for the administering of an insulin drug and some doctors add to a medication chart after a drug has been administered. However, Mr Millsom did not give evidence that he has seen Dr Dunne engage in these practices.

[25] The term “QID” is from the Latin “quarter in die” meaning “four times a day”. The medication chart used at Western Health points this out and sets out the recommended administration times for the term “QID” as 6.00am, 12noon, 6.00pm and 10.00pm. These recommended administration times are contained in another section of the medication chart, separate from the relevant section of the 4 August 2014 medication chart that Dr Dunne completed in respect of the insulin drug “Actrapid”. Nonetheless, they provide for considerably more than two hours between the administering of a drug for which the frequency for administering the drug is written as “QID”.

[26] In these circumstances, Ms Marr’s administering of the drug “Actrapid” to the patient at 3.00am on 4 August 2014, just two hours after she had last administered the drug to the patient, was an error. It was an error, notwithstanding it was only the second time the drug had been administered to the patient within a 24 hour period.

[27] Further, Ms Marr’s administering of the drug to the patient at 3.00am constituted an error even if the term “QID” was not written on the relevant section of the 4 August 2014 medication chart as the “hourly frequency” for the administering of the drug and there was nothing written against the “hourly frequency”.

[28] Western Health’s Drug Prescription, Supply, Storage and Administration Procedure Code: OP-PS1.2.6 (Western Health’s Drug Administration Procedure) at section 8.3.1.4 states:

“7. As per the National Inpatient Medication Chart guidelines, prescribers have the responsibility to write drug administration times on the medication chart using the 24-hour clock. In the event that the administration times are accidentally omitted and patient safety may be compromised, nurses and pharmacists are to contact the prescriber to request them to document the times. If the prescriber (or covering doctor after hours) is unable to attend immediately then they may give a phone order for the relevant medications and attend the ward to update the medication chart as soon as practicable.”

[29] Dr Dunne’s evidence pointed out that patient safety may be compromised from over treating a patient with an insulin drug. “Actrapid” is an insulin drug.

[30] On the material before me, I am unable to accept the evidence of Ms Marr and Mr Millsom to the effect that when a doctor does not state the “hourly frequency” for administering an insulin drug on a medication chart they can be taken to be intending to leave it up to the nurse to decide, based on their experience, when to administer the drug. Dr Dunne’s evidence indicates that Ms Marr would have been wrong in assuming that was his intention if he had not stated the “hourly frequency” for the administering of the insulin drug “Actrapid” on the 4 August 2014 medication chart.

[31] Therefore, if at the relevant time the relevant section of the 4 August 2014 medication chart did not have the term “QID” written as the “hourly frequency” with which the insulin drug was to be administered, but rather left the “hourly frequency” blank, then consistent with Western Health’s Drug Administration Procedure, Ms Marr should have contacted Dr Dunne or his covering doctor to request them to document the “hourly frequency” for the administering of the drug. Ms Marr’s administering of the drug without doing so was an error.

[32] Similarly, if the use of the term “QID” as an “hourly frequency” is unclear, as suggested in the alternative by Ms Marr, then Ms Marr should have contacted Dr Dunne or his covering doctor to request them to document the “hourly frequency” for the administering of the drug. Her administering of the drug without doing so was an error.

[33] I am satisfied that cumulatively these drug administration errors by Ms Marr in March and September 2013 and August 2014, each of which was an error without reasonable excuse, constituted a valid reason for Ms Marr’s dismissal related to her capacity or conduct.

[34] The fact that these drug administration errors caused no evident harm to the relevant patients does not alter my satisfaction, having regard to the number of drug administration errors by Ms Marr and the period over which they occurred. Ms Fiona Gray, a registered nurse who was the Nurse Unit Manager in ICU at Footscray Hospital from 2012 to November 2014 and is currently the Intensive Care Services Manager at Western Health, gave uncontradicted evidence that treatment errors in the ICU can have serious consequences because of the critical and unstable status of patients in ICU.

Notified of reason (s.387(b)) and Opportunity to respond (s.387(c))

[35] On 3 December 2014, Western Health wrote a letter to Ms Marr entitled “Findings regarding the allegations about your conduct”. Under the heading “Summary of findings”, the letter stated:

“Gillian Shedden (Employee Relations Manager), Joe Debono (Business Manager People Services) and I [Joy Turner, Director of Nursing and Midwifery] have each reviewed all documents and all correspondence with you in relation to the allegations.

We unanimously decided that there is strong evidence to support the conclusion that on the balance of probabilities:

1. you have acted in a manner outside (below) the standard expected of a Registered Nurse;

2. you have not practiced in a manner that accords with the Drug Prescription, Supply, Storage and Administrative procedure OP-PS1.2.6 (Drug Administration Procedure);

3. your conduct and past breaches of the Drug Administration Procedure pose an unacceptable safety risk to the health and wellbeing of patients under your care;

4. you have knowingly, willingly and deliberately provided false and misleading information as to the content of the medication chart of a patient (…);

5. you have knowingly, willingly and deliberately provided false and misleading information by accusing either a nurse colleague, medical colleague or another member of Western Health of tampering with or falsifying the chart;

6. your conduct referred to in findings 4 and findings 5 above and during the fact finding process has destroyed the necessary relationship of trust with Western Health, given the nature of your job;

7. your conduct referred to in findings 4 and findings 5 above has eroded the necessary relationship of trust and honesty between you and other work colleagues;

8. you acted in an offensive and aggressive manner while at the patient’s bedside within the ICU on 10 October 2014;

9. you approached Ms Lorna Reeves in the ICU Medication Room in an aggressive, confrontational and intimidating manner because she was a witness in the fact finding process on 10 October 2014;

10. you failed to give consideration to the needs of your patient, before leaving the bedside and approaching Ms Reeves on 10 October 2014;

11. you disobeyed a lawful and reasonable direction that you keep matters, the subject of the fact finding process, confidential and that you not discuss these matters with any other person other than your support person on 10 October 2014.

The details and basis for these findings at this stage are set out in the table below. We repeat that each of the matters set out in the table are determination based on the balance of probabilities.”

[36] In the table below in the letter, the letter set out the details and basis of the first three findings as follows:

“1. You have acted in a manner outside (below) the standard expected of a Registered Nurse

(a) We found, based on the evidence given by Dr Patrick Dunne, Dr Georgia Preece, Ms Lorna Reeves, Ms Suzanne Brown and Ms Anna Bayley and the responses from you during the fact finding process, that:

(i) the QID notation was on the medication chart of patient … at the time you administered insulin to the patient at 1:00am, 3:00am and before you approached Ms Lorna Reeves at 6:00am on 4 August 2014;

(ii) the patient medication chart contained a guide which sets out administration times for “QID” as 6-hourly frequency between the first, second and third doses of the medication and a 4 hour frequency between the third and the final dose in a 24 hour period;

(iii) you (and your legal representative, Mr Brendan Caridi) were well aware as to what the QID notation meant given that during the fact finding interview meeting on 16 September 2014, ‘Brendon interjected that QID means 6 hours apart so 4 times a day’.

(iv) the second dose of the insulin you administered should have been administered 6 hours following your administration of the first dose (provided the patient’s blood sugar level was in the range specified on the medication chart);

(v) despite the QID notation being on the medication chart, you administered insulin at 1:00am and at 3:00am (without a stat order) to the patient and potentially at 6:00am had the QID notation not been identified by Ms Reeves;

(vi) neither your administration of two doses of insulin within a 2-hour period nor an administration of three doses in a 5-hour period is in accordance with the QID instruction on the patient’s medication chart;

(vii) there was no evidence of tampering with the medication chart by any staff member before or after you approached Ms Reeves.

(b) Accordingly, we have found that:

(i) you failed to properly check the written order for insulin for patient …;

(ii) you failed to check the frequency for the administration of insulin on 4 August 2014;

(iii) you failed to check the time due for the administration of insulin on 4 August 2014;

(iv) You failed to assume accountability and responsibility for your own practice in the administration of insulin on 4 August 2014;

(v) You failed to accept accountability for your own actions;

(vi) You failed to recognise the incident on 4 August 2014 as an adverse event.

(c) With regard to your alleged failure to seek the assistance of a Registered Nurse, a Registered Midwife or a qualified Enrolled Nurse to witness the administration of insulin at 1:00am on 4 August 2014, we note that this allegation is based on your word against Ms Anna Bayley’s. We have given you the benefit of a doubt and have not made any findings against you regarding this allegation.

2. You have not practiced in a manner that accords with the Drug Prescription, Supply Storage and Administrative procedure OP-PS1.2.6 (Drug Administration Procedure)

We refer to and repeat sub-paragraphs 1(a) and subparagraphs 1(b)(i) to (ii) above.

3. Your conduct and past breaches of the Drug Administration Procedure pose an unacceptable safety risk to health and wellbeing of patients under your care

(a) We have found that this is not the first time you have made an error with regard to the administration of drugs to patients. In a letter dated 1 October 2013 from you to …, you stated the following in respect of you administration of the drug oxynorm to a patient:

‘I have made an error by missing the exclusion and I understand the significance of that, being 7 months since the last drug error. I’ve no doubt that makes you think I haven’t improved my drug checking practices but I can assure you I have and you’re welcome to ask around. However, I have no issue with accepting that I slipped up again and accept the consequence.’

(b) You have made two serious drug errors over a period of less than one year with regard to administration of oxynorm and insulin.

(c) Whilst the drug errors in both instances did not result in any harm to the patients, we are of the view that your conduct poses an unacceptable safety risk to the health of patients under your care given:

(i) the nature of the errors (i.e. failure to properly check the medication order);

(ii) the medication handled by you (i.e. the potency of these medication to cause harm to patients if improperly administered); and

(iii) the type of patients under your care (i.e. patients in intensive care).”

[37] The letter went on to state that “[a]s a result of the findings, consideration is being given to terminating your employment on the basis of serious misconduct.”

[38] Ms Marr wrote to Western Health on 8 December 2014 referring to the 3 December 2014 letter, denying the term “QID” was on the 4 August 2014 medication chart at 3.00am, repeating a request to be allowed to arrange a forensic examination of the 4 August 2014 medication chart, at her expense, so that she could present the results to Western Health, and maintaining that:

“33. Western Health is aware that:

(a) under the National Inpatient Chart guidelines (which are incorporated in Western Health’s Drug Procedure), a doctor must enter an hourly frequency for PRN medicines;

(b) QID is not a permissible hourly frequency for PRN medicines under the guidelines; and

(c) under the guidelines and Western Health’s Drug Procedure, a doctor is not to enter QID as an hourly frequency for PRN medicines.

34. Western Health is aware that:

(a) The Australian Commission on Safety and Quality in Healthcare publishes the National Indicators for Quality Use of Medicines in Australian Hospitals 2014 which, at page 14, which states in relation to PRN medicines:

‘Frequency refers to the completion of the hourly frequency box of the medication chart, specifying the minimum amount of time permitted in hours between each administration of the PRN medicine. Frequency descriptions such as bd, tds or qid are not acceptable.’ [emphasis added]

(b) The Australian Commission on Safety and Quality in Healthcare publishes the ‘Guide to Auditing the NIMC’, which states in relation to PRN medicines:

‘Abbreviations such as BD, TDS or QID are considered unclear for PRN orders as hourly frequency is required.’ [emphasis added]

(c) The Victorian Department of Health publishes ‘Safe Medication Administration’ which, at both pages 9 and 12, which states in relation to PRN medicines:

‘Abbreviations such as BD, TDS or QID are unclear for PRN orders.’

35. The documents provided to me by Ms Turner show that at no stage did Western Health raise any concern about the use of QID as an hourly frequency for a PRN medicine by its doctors or in relation to Ms Reeves’ failing to raise the issue with those doctors after she allegedly discovered the notation.

36. On another occasion I have corrected a doctor who has improperly used a QID notation for a PRN medicine prescription, with that doctor immediately amending the order to comply with the National Inpatient Chart requirements. I will produce evidence of this if necessary.

37. The improper use of QID as an hourly frequency in breach of Western Health’s Drug Procedure (with such notation not on the medication chart when I administered insulin to the patient at 1.00 a.m. and 3.00 a.m. on 4 August 2014) has been entirely ignored by Western Health.

38. Western Health’s ambivalence to the improper use of a QID notation for a PRN medicine and, instead, its pursuit of me represents a clear case of adverse action. Western Health has pursued me because of the application I made to the Fair Work Commission in May 2014 and not because of any concern it had in relation to my professional conduct.

39. In the circumstances, any decision to discipline me will represent a contravention of section 340(1) of the Fair Work Act 2009 and I draw your attention to the consequences of you being involved in such a contravention.”

[39] Ms Marr’s 8 December 2014 letter concluded as follows:

“57. I have serious concerns that any submission I now make will be used by Western Health to begin coaching witnesses. Accordingly, I will provide evidence about the above matters in due course to an independent trier of fact following the Disciplinary Committee rubber stamping the recommendation presented to it by Ms Turner.”

[40] On 17 December 2014, Western Health wrote to Ms Marr repeating the findings in the letter of 3 December 2014 and the reasons for them.

[41] The 17 December 2014 letter of Western Health went on to state:

“With regard to the matters raised in your letter dated 8 December 2014, we find that:

● from the number of witnesses who gave evidence during the fact finding process, there is substantial evidence that indicates that QID was present on the patient medication chart at the time you administered insulin on 4 August 2014;

● from the numerous correspondences between you and Ms Turner in the lead up to the Disciplinary Committee makings its findings, we are satisfied that you were provided with ample opportunity to arrange for forensic examination of the medication chart and you did not avail yourself of this opportunity. In any event, as noted above, there is substantial evidence that indicates that the QID notation was on the medication chart at all relevant times;

● the original of the medication chart has not been destroyed nor will be destroyed by Western Health in the foreseeable future;

● the investigation into the allegations were based on genuine concerns about your conduct and performance and was not motivated by proceedings brought by you in the Fair Work Commission; …

● There was no concealment of evidence with regard to the allegations against you. You were provided with a substantial amount of material upon which the allegations against you were based.

We also observe that despite numerous correspondence from you regarding the allegations and findings, you have not provided any substantive responses to the allegation that you victimised and intimidated Ms Lorna Reeves (in respect of findings 8, 9 and 11)

Given the serious nature of the findings made against you, it is our preliminary view that your employment should be terminated for serious and wilful misconduct.

In reaching this preliminary view, we have proceeded on the assumption that there is no formal written warning on record against you. We have taken into account that you do not have an unblemished work record in that on 1 October 2013 you have admitted that you made a drug error since your last drug error 7 months prior (for which you received counselling). You have never denied those admissions.

Next steps

The date and time for you to meet with us is on Tuesday 23 December 2014 at 9.30am in the Footscray Boardroom. Can you please confirm your attendance via email to me … by no later than 4.00pm on Friday, 19 December 2014. If you want to also put any further written response to the Disciplinary Committee in writing, you can do so before the meeting by emailing me at the above address.

The decision of the Disciplinary Committee will be made and communicated to you via email by Wednesday, 24 December 2014.”

[42] Ms Marr responded on 18 December 2014 repeating the request to be given the opportunity to arrange a forensic document examination of the 4 August 2014 medication chart, advising that the examination could be conducted and a report on it provided before 23 December 2014 or shortly thereafter, and asking for confirmation that the arranging of the examination would be allowed so that the report could be provided prior to any final disciplinary decision by Western Health. The 18 December 2014 letter of Ms Marr also provided a response in respect of “findings 8, 9 and 11” in Western Health’s previous correspondence.

[43] On 19 December 2014, Western Health responded as follows:

“On Wednesday, 17 December 2014, we sent a letter to you providing you with an opportunity to respond to our proposal to terminate your employment. Thank you for your response of 18 December 2014. We will of course take all of those matters into account. …

We wanted to address the issue of the forensic examination immediately. We attach previous correspondence to you permitting you to bring a forensic examiner to inspect the document. Despite these numerous opportunities, you have declined to bring such forensic examiner.

There has been repeated correspondence regarding your right to bring a forensic examiner. You said back in early November that you were going to spend up to $2,500 dollars to do so. When each opportunity was provided to you, you did not attend with any forensic examiner and the documents attached are merely examples.

One interpretation is that you are raising this issue to try to create some kind of ground for a later allegation of unfairness. Your letter claims you were refused the opportunity to have the patient medication chart forensically examined. You know that to be untrue.

The law requires us to give you a reasonable opportunity to respond to the grounds on which termination is proposed. We are confident that Western Health has done so already. This procedural and investigative stage has spanned over three months.

However, we are giving you yet again a further and final opportunity to bring your forensic examiner to examine the document. But we want to be absolutely clear – we will not be extending the timeframe for inspection beyond 5.00pm on Monday, 22 December 2014. It appears from your letter that you can arrange that examiner on short notice. We would need his or her report not later than 9.30am on Tuesday, 23 December 2014.

Please do not attempt to use this further opportunity we are giving you, to try to extend the process beyond this timeline. We will not be extending the timeline either for the inspection or for the production of the report.

Confirmation of your attendance at the meeting scheduled for 9.30am Tuesday 23 December 2014 in the Footscray Boardroom is required by 4pm today via email to me …”

[44] On 19 December 2014, Mr Trevor Joyce, a Forensic Document Examiner, advised Ms Marr that he should be able to attend at Footscray Hospital for the purpose of a preliminary examination on 22 December 2014, with a report forthcoming from him by 23 December 2014. Ms Marr immediately sought advice from Western Health that they would make the 4 August 2014 medication chart available on 22 December 2014. Western Health quickly responded by advising that the 4 August 2014 medication chart would be made available on 22 December 2014 at the hospital.

[45] On 23 December 2014, Ms Marr wrote to Western Health enclosing a copy of Mr Joyce’s preliminary forensic report on his examination of the 4 August 2014 medication chart. Ms Marr’s letter went on to state the following in respect of the 4 August 2014 medication chart:

“Medication chart

4. You are aware that I have informed Western Health that the relevant medication chart did not contain the QID notation as a frequency at the time I administered Actrapid to the patient. You are also aware that I have informed Western Health that the QID notation was added after the Actrapid was administered by me at 1 am and 3 am on 4 August 2014.

5. I repeat the information I have given to Western Health in relation to the medication chart. As I have written previously, I am more than happy to give that evidence under oath and be tested on it.

6. To the extent that this matter proceeds to litigation, I expect that Western Health will present the relevant witnesses so that their evidence can also be tested on oath. If the matter proceeds to litigation, I will seek that inferences be drawn from a failure by Western Health to present any of the witnesses.

7. Yesterday I viewed the original medication chart at Western Health’s premises (while the expert undertook a preliminary examination) for the first time since 19 September 2014. It was also the only time I have seen the medication chart following my receipt (through Ms Turner’s email dated 28 October 2014) of typed file notes relating to the evidence of Dr Dunne.

8. I note that I requested a colour copy of the medication chart on 31 October 2014 and 28 November 2014, although Western Health refused to provide it to me on those occasions or any time thereafter until yesterday.

9. I now draw your attention to the enclosed colour copy of the PRN section of the medication chart.

10. You will observe that on 4 August 2014 Dr Dunne completed six sequential medication orders on the PRN section of the medication chart. You will observe – in vertical sequence from top to bottom – that Dr Dunne wrote the following prescriptions and associated frequencies:

Medication	Frequency
Actrapid	QID
Actrapid	QID
Actrapid	QID
Magnesium Sulphate	No frequency written
Potassium Chloride	No frequency written
Sodium/Potassium Dihydrogen Phosphate	No frequency written

11. In relation to Dr Dunne’s medication orders, you will observe that the chart shows a QID frequency written for the first three medication orders but no frequency written by Dr Dunne for the next three sequential orders.

12. A doctor who writes six sequential medication orders would either write each of the six orders with a frequency included or write none of them with a frequency. A doctor would not suddenly change his approach by writing a frequency for the first three of his orders and then decide not to write a frequency for the next three orders.

13. If you are to accept that the QID frequency appeared on the chart at the time I administered the Actrapid to the patient, then you have to find that – contrary to all logic and common sense – Dr Dunne chose to write a frequency for his first three Actrapid medication orders and then immediately decided not to write a frequency when writing his next three medication orders.

14. Quite tellingly, the only medication orders authored by Dr Dunne and which include a frequency are those in relation to Actrapid, being the medication order which is in dispute and over which you have threatened the termination of my employment.

15. The medication chart logically supports the truthful information I have given Western Health. There was no frequency included for any of the six PRN prescriptions when they were initially written by Dr Dunne, with the QID notation added as a frequency at a later time – to only the Actrapid orders – after I had administered the medication to the patient.

16. If the information I have given Western Health was wrong, then you and Dr Garwood would expect to see that the final three sequential medication orders written by Dr Dunne would have also included a frequency entered by him. However, you will see that they do not include a frequency, being consistent with the information I have given to Western Health that the QID notation was added to the three preceding Actrapid orders.

17. I now draw your attention to the enclosed copy of the file note prepared by Ms Gray arising from her telephone discussion with Dr Dunne on 6 August 2014.

18. You will observe that Ms Gray recorded in her file note the following:

‘Patrick reiterated that he was fairly certain that he wrote the “QID” at the time, that insulin was not something that he would leave as an open order.’

19. Inconsistent with Dr Dunne’s evidence as recorded in Ms Gray’s file note, you will observe from the medication chart that Dr Dunne was/is quite prepared to write an open order in relation to each of Potassium Chloride, Magnesium Sulphate and Sodium/Potassium Dihydrogen Phosphate.

20. Dr Dunne’s evidence that he would not leave insulin as an open order cannot be accepted by you and Dr Garwood given Dr Dunne’s open orders in relation to the other medications he has written which you can observe on the medication chart.

21. Western Health has not tested Dr Dunne’s evidence at all in relation to the matters presented above and has accepted it without any query. No questions were presented to Dr Dunne about the above matters and, indeed, Ms Gray recorded in her file that she said to Dr Dunne:

‘… this was not [about] reviewing [your] practice…’

22. The matters above represent new issues under clause 11.(c)(iv) of the Enterprise Agreement. Western Health must, to avoid breaching that clause, investigate the new issues further by:

(a) retaining trained investigators to conduct a further comprehensive interview with (at least) Dr Dunne; and

(b) permitting me to conduct the further enquiries below at my own expense so that I can provide the evidence to Western Health.

23. If you and Dr Garwood are free from bias in this matter, the above matters alone ought to cause you to hold concerns about the correctness of your preliminary view in relation to the QID notation and lead you to promptly attend to the further enquiries as required under clause 11.11(c)(iv) of the Enterprise Agreement.”

[46] Ms Marr’s letter went on to request that Mr Joyce be permitted to conduct further examination of the 4 August 2014 medication chart.

[47] Western Health responded to Ms Marr on 23 December 2014 by acknowledging receipt of Mr Joyce’s report on his preliminary examination of the 4 August 2014 medication chart and confirming that Western Health’s meeting with Ms Marr scheduled for later on 23 December 2014 would proceed.

[48] Ms Marr responded on 23 December 2014 indicating she would be happy to attend the meeting following completion of the further examination of the 4 August 2014 medication chart requested by her.

[49] Western Health responded on 23 December 2014 as follows:

“We believe that the meeting arranged for 3:30pm today will proceed and if you chose not to attend then that is a matter for you and your advisor.

Your refusal to attend until further forensic examination occurs is not a reasonable basis for you to refuse attending today. No doubt you will disagree with this. It is our legal obligation to give you an opportunity to respond and we believe that we are meeting this obligation.

You have continued to have the benefit of legal advice. We note that during the fact finding stage, you refused to attend the final meeting with the investigation Committee and you provided a letter explaining why. You appear to be doing the same thing today.

You are of course free to form your own view as to how you want to deal with the opportunities to respond which we present to you.

We have not formed a final view as to whether we would extend the process arising from your communications today and the expert report. However, if you decline to attend today, we will make a decision including based on the information provided by you to date.

For avoidance of doubt, it may be that we decide to not extend the process beyond the existing timeframe. Accordingly, if you chose not to attend today at 3:30pm, you would be losing your last opportunity to meet with us. We encourage you to attend. We will assume that the meeting is proceeding unless of course you don’t attend at the time.

Regardless of the decisions we make, we will communicate with you by email not later than noon tomorrow.”

[50] Ms Marr responded to Western Health on 23 December 2014 noting that they “refuse to permit me to obtain forensic evidence (as recommended by the expert), at no expense to Western Health so that I can present it to you” and stating that “[i]n the circumstances, any opportunity that you… suggest I am being given to respond to matters at a meeting at 3.30pm today is entirely illusory.”

[51] On 24 December 2014, Western Health wrote to Ms Marr terminating her employment as follows:

“Termination of employment

We have taken into account your feedback following our letter dated 17 December 2014, including your letters of 18, 21 and 23 December 2014.

You were provided with the opportunity to meet with Dr Mark Garwood and myself at 3:30pm yesterday to provide any further responses but you did not attend.

We first wish to refer to your letter of 23 December 2014 which deals with two issues. One is the expert’s forensic examination of the patient’s medication chart. The second relates to the insertion of frequency notations for three of the entries for Actrapid, but no such entry of frequencies for three other medications.

Forensic expert report

We have looked at the report prepared by the forensic expert. It seems to us that he has looked at three areas to try to determine if the letters ‘QID’ were written at a different time from the rest of the handwriting in the three entries for Actrapid on the medication chart.

● First, whether the same ink was used

● Secondly, by looking at the back of the page to see how much indentation had pressed through from the writing; and

● Thirdly, by looking at page 2 to see the impressions that appear on page 2 from handwriting on page 4.

The expert examined the document yesterday using a microscope, laser equipment and infrared equipment.

It does not appear to us from the report that the expert found any evidence that the letters ‘QID’ on that page were written at a different time from the rest of the wording.

It seems that the only difference identified was the amount of pressure applied to the initials of the signature of Dr Dunne. But there was no difference for the rest of the words in each of those four sections where Actrapid was prescribed.

The expert has said that to take his examination further, he would need to examine it with even greater levels of microscopic examination and electrostatic indentation.

Nevertheless, nothing in his report:

(a) supports your assertion that the ‘QID’ notation was added later to the patient medication chart; or

(b) contradicts the evidence of Dr Patrick Dunne or the other three witnesses as to the existence and timing of the ‘QID’ notation.

Frequency issue

We refer to paragraphs 4-23 of your letter of 23 December 2014.

In short, there is a simple explanation for why frequencies are not written when a doctor prescribes those three medications. Mark Garwood is a doctor as you know. As an experienced nurse, he thought you would be aware that there are various medications, such as the three in question here, where frequency is not written on the patient medication chart.

That is because at the time of writing the chart, the frequency is unknown. There are notations in the box headed ‘indication’, which indicate to the nurse whether a dose may be required. The administration of the medication is based on biochemical levels in the blood. Depending on the blood level, there may or may not be a frequency. In other words, there may not be any requirement for a dose to be administered.

For example, have a look at the second bottom reference to medication on ‘page 4’, being potassium chloride. If you look at the indication box, it refers to levels at less than four (‘K<4’). It is only if the blood analysis shows that the level has dropped below 4 that this medication would be administered.

So there is absolutely nothing unusual about a doctor completing a chart and leaving it blank in terms of frequency for magnesium sulphate, potassium chloride or sodium/potassium dihydrogen phosphate.

This is not new information and it does not in any way indicate or infer that the notations ‘QID’ were written in later than the rest of the information. It is normal for a chart to be filled in with insulin having a frequency but not those other three potential medications.

Victimisation and Intimidation

Putting aside the QID issue, it is our view that your conduct towards Ms Lorna Reeves on 13 October 2014 alone amounts to victimisation and intimidation. It is also, simply, unacceptable misconduct (which would justify summary dismissal).

Payment in lieu of notice

We are of the view that in all of the circumstances set out in our letter of 17 December 2014, each of the two sets of allegations relating to the QID issue and to the Lorna Reeves issue would separately have justified summary dismissal.

However, we have decided not to dismiss you summarily.

The key reason is that while your conduct is in our view entirely unacceptable, we have given particular weight to your eight years of service to Western Health.

We are of the view that, it is more likely than not, that each of the 11 allegations are established in all of the circumstances. We have decided to proceed with termination of your employment by payment in lieu of notice. Your employment ends effective immediately.

Payment of your entitlements will be made, less applicable tax, to your usual bank account.

Return of Western Health property

You are required to return all items in your possession, such as Staff Identification and keys, that are the property of Western Health to… immediately.

If you wish to collect any personal belongings from the workplace, you are required to contact… on… so that appropriate arrangements can be made.

Your correspondence suggests that you might decide to challenge this decision. If you do, and you want your forensic expert to conduct further examination of the patient medication chart after the termination, could you please ask him to call… on the above telephone number to arrange a time and date for the further examination.”

[52] Having regard to the correspondence set out above I am satisfied Ms Marr was notified of the valid reason for her dismissal and given an opportunity to respond consistent with the provisions of ss.387(b) and (c) of the FW Act.

[53] The Western Health letter to Ms Marr of 17 December 2014 which refers to the Western Health letter to Ms Marr of 3 December 2014 clearly notified her of the valid reason.

[54] Further, as Western Health submitted, prior to August 2014 Ms Marr should have been under no misapprehension that future drug administration errors by her may lead to Western Health taking disciplinary action against her, including terminating her employment. She should have been under no such misapprehension given the counselling of Ms Marr by Western Health regarding her drug administration error on 6 March 2013 and the first and final written warning issued to her by Western Health regarding her drug administration error on 26 September 2013, even though she disputes the giving of that warning.

[55] The invitation in the 17 December 2014 letter from Western Health to Ms Marr for Ms Marr to put a written response in writing and to attend a meeting with Western Health on 23 December 2014 afforded Ms Marr the necessary opportunity to respond.

[56] While Ms Marr submits that in letters to her, Western Health misstated the position of the nurse who checked her administering of the drug at about 3.00am on 4 August 2014, it is not evident that any such misstatement resulted in the procedural fairness inherent in ss.387(b) and (c) not being met. Accordingly, I am not persuaded any such misstatement meant Ms Marr was not notified of the valid reason for her dismissal and not given an opportunity to respond in accordance with ss.387(b) and (c) of the FW Act.

[57] Ms Marr also submits she was denied the requisite procedural fairness because she made numerous requests to Western Health for them to provide written particulars in respect of three questions she had, but Western Health failed to provide those particulars. The three questions were:

“(a) Was the Respondent alleging that QID represented an ‘hourly frequency’ for a PRN order in accordance with National Inpatient Chart Guidelines?

(b) If the Respondent was alleging that QID represented an hourly frequency for a PRN order in accordance with National Inpatient Chart Guidelines, on what supporting basis did the Respondent do so?

(c) If the Respondent was alleging that QID represented an hourly frequency for a PRN order in accordance with National Inpatient Chart Guidelines, at what times did the Respondent find or allege that the Actrapid ought to have been administered to the patient and on what supporting basis?”

[58] Again it is not evident that any failure by Western Health to provide written particulars in respect of these three questions resulted in the procedural fairness inherent in ss.387(b) and (c) of the FW Act not being met. Western Health afforded Ms Marr sufficient particulars. For the reasons I have given, I am satisfied Ms Marr was notified of the valid reason for her dismissal and given an opportunity to respond in accordance with ss.387(b) and (c).

Support person (s.387(d))

[59] There was no evidence that Western Health refused to allow Ms Marr to have a support person present to assist at any discussions relating to dismissal. Ms Marr’s submissions suggest Western Health refused to allow her a support person at the 5 August 2014 meeting she had with them. However, her evidence does not support that submission. Accordingly, I am satisfied there was no unreasonable refusal by Western Health to allow Ms Marr to have a support person present to assist at any discussions relating to dismissal.

Warning about unsatisfactory performance (s.387(e))

[60] To the extent Ms Marr’s dismissal related to unsatisfactory performance because of her drug administration errors, I am satisfied she had been warned about that unsatisfactory performance before her dismissal. I am so satisfied having regard to the “First and Final Disciplinary Warning” given to Ms Marr by Western Health on 12 November 2013 in respect of her drug administration error on 26 September 2013. That warning was as follows:

“Re: First and Final Disciplinary Warning

I acknowledge receipt of your letter dated 6 November 2013 and your decision to not attend the disciplinary interview on 7 November 2013.

As a consequence of the investigation into matters discussed with you at the Fact Finding Interview held on 24 October 2013 relating to the administration of Oxynorm to a patient on 26 September 2013 despite the order including the instruction not with PCA, I have decided to issue you with this first and final warning in relation to a breach of the Drug Prescription, Supply, Storage and Administration procedure OP-PS1.2.6.

You are warned that any further breach of the Drug Prescription, Supply, Storage and Administration procedure may result in further disciplinary action against you and may include the termination of your employment. A copy of this warning will be placed on your personnel file for a period of 18 months.

If you wish to discuss any aspect of this matter please don’t hesitate to contact me on….”.

Size of employer’s enterprise and dedicated human resource management specialists or expertise (ss.387(f) and (g))

[61] Western Health is a large enterprise with dedicated human resource management specialists or expertise. It was not submitted to me that the procedures Western Health followed in effecting Ms Marr’s dismissal were detrimentally impacted by its size or an absence of dedicated human resource management specialists or expertise.

Other relevant matters (s.387(h))

[62] I accept that Ms Marr is 54 years of age, has been a registered nurse for a lengthy period and has been employed as a registered nurse by Western Health for a considerable period of time. There is no evidence of Ms Marr making drug administration errors prior to March 2013. In fact, she had previously received very positive performance reviews.

[63] Ms Marr has been unable to find employment since her dismissal by Western Health, despite making serious attempts to do so.

[64] Moreover, I accept that given the factors constituting the valid reason for Ms Marr’s dismissal by Western Health, a failure by me to be satisfied her dismissal was harsh, unjust or unreasonable is likely to have serious detrimental consequences for Ms Marr in respect of her future employment prospects, particularly in the health industry, and otherwise.

[65] I also recognise that Ms Marr accepted responsibility for her involvement in the first two drug administration errors.

[66] Ms Marr submitted Western Health breached the Discipline clause of the Nurses and Midwives (Victorian Public Health Sector) (Single Interest Employers) Enterprise Agreement 2012-2016 4(the Nurses Agreement) in giving her a first and final warning for her drug administration error on 26 September 2013. I am prepared to assume that Western Health did breach the Discipline clause of the Nurses Agreement in giving her that first and final warning.

[67] I am not satisfied the disciplinary action taken by Western Health against others involved in each of the drug administration errors is a relevant matter, there being no evidence before me that their circumstances were comparable to those of Ms Marr.

[68] Nor am I persuaded that Ms Marr’s dismissal was a disproportionate response by Western Health to her cumulative drug administration errors.

[69] The suggestion in the submissions of Ms Marr that the actions of Western Health in respect of Ms Marr were unlawful, were not sufficiently made out to be regarded as another relevant matter.

[70] I do not accept the fact that Ms Marr’s erroneous administering of the drugs on the three occasions caused no evident harm to any of the patients concerned is another relevant factor, given the nature of the errors.

[71] Ms Marr made submissions on a number of other matters. I have considered them but in my view they are based on insufficient evidence and/or are not sufficiently relevant to warrant further mention.

Conclusion

[72] The other relevant matters that I have set out going to Ms Marr’s age, period of time as a registered nurse and employment at Western Health, previous performance reviews, unemployment, the consequences for her of me not being satisfied her dismissal was harsh, unjust or unreasonable, her acceptance of responsibility for some of the drug administration errors and Western Health’s breach of the Nurses Agreement all weigh in favour of me being satisfied her dismissal was harsh, unjust or unreasonable. However, strongly weighing against me being satisfied her dismissal was harsh, unjust or unreasonable are the factors constituting my finding there was a valid reason for her dismissal related to her capacity or conduct. Also weighing against me being so satisfied are my findings about her having been notified of the valid reason, her having been given an opportunity to respond and her having been warned about the unsatisfactory performance. In light of my findings on the matters in ss.387(d), (f) and (g) of the FW Act, I regard those matters as neutral factors in respect of whether I am satisfied Ms Marr’s dismissal by Western Health was harsh, unjust or unreasonable.

[73] I am satisfied the matters weighing against me being satisfied Ms Marr’s dismissal was harsh, unjust or unreasonable outweigh those weighing in favour of me being so satisfied. Accordingly, I am not satisfied that Ms Marr’s dismissal by Western Health was harsh, unjust or unreasonable.

[74] I add that even if I am wrong about Ms Marr having been notified of the valid reason for her dismissal in accordance with s.387(b) of the FW Act and having been given an opportunity to respond in accordance with s.387(c) of the FW Act, and I am also wrong in respect of my finding on s.387(e) of the FW Act, I am still not satisfied her dismissal was harsh, unjust or unreasonable.

[75] I am still not satisfied her dismissal was harsh, unjust or unreasonable because in this case my finding that there was a valid reason for Ms Marr’s dismissal, being her three drug administration errors between March 2013 and August 2014, outweighs all of the other matters favouring me being satisfied her dismissal was harsh, unjust or unreasonable, including any failures by Western Health in respect of the matters in ss.387(b), (c) and (e) of the FW Act.

[76] Since under s.385 of the FW Act the FWC’s satisfaction that Ms Marr’s dismissal was harsh, unjust or unreasonable is required for her to have been unfairly dismissed, I conclude Ms Marr was not unfairly dismissed by Western Health. I therefore dismiss her application in matter U2015/2196 for an order providing a remedy for unfair dismissal. An order 5 to that effect is being issued at the same time as this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

B Caridi, solicitor,appearingfor Tracey Marr.

J Tracey, counsel, with D Catonese, solicitor, appearing for Western Health.

Hearing details:

2015.

Melbourne.

April 22, 23, 24.

May 5, 6.

1 Fair Work Act 2009 (Cth), s.394(2).

2 Fair Work Act 2009 (Cth), s.382.

3 (1938) 60 CLR 336.

4 AE895073.

5 Tracey Marr v Western Health, PR567671.

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