workforce
Additionally, the employer received a number of telephone
reports from the patient’s physiotherapist concerning the
deteriorating condition of the patient, the fact that the patient
was couch-ridden and unwell, and that some personal care
issues had not been handled. The physiotherapist advised that
he had arranged for the patient to be taken by ambulance to
the closest hospital, where she was admitted. The issue here is
whether the care worker should have reported what appears
to have been a significant decline in the patient’s health. The
evidence was equivocal and did not permit a finding to be
made about when the patient’s health declined and whether it
would have been noticeable to the care worker so that a report
should have been made.
The employer’s ultimate catalyst for termination of employment
was the care worker’s refusal to attend meetings in relation to
her conduct and performance. The employer noted that the
worker was able to attend its premises at least twice during her
suspension, for other purposes to her benefit (employer-funded
training), but was unwilling to meet with her manager as directed.
The employer submitted that this reinforced the deliberate
misconduct of the worker.
In response, the care worker contended that she felt
threatened about attending scheduled meetings. That is, she was
‘trying to protect her basic human rights’ and avoid altercations,
and did not want any disturbance and/or interruption to studies
she was undertaking with the employer at the time. The worker
admitted that she made a calculated decision not to respond to
any of the employer’s letters concerning arranged meetings, but
contended that the employer failed to recognise the importance
of her studies.
To legally dismiss an employee requires a valid reason. The
absence of one may deem a dismissal unfair, in which case the
commission may order the employee reinstated. The reason has
to have a level of gravitas, importance or legitimacy that justifies
such drastic action. In this case, the care worker’s conduct and
behaviour twice breached the duties she owed her employer.
The lesson for employee nurses is that there existed valid
reasons for dismissal. First, the care worker failed to comply with
the employer’s policies and procedures. She entered into a private
arrangement for services and remuneration outside of the primary
contract between the patient and employer, and did so without
the employer’s knowledge and acquiescence. This was a serious
course of misconduct. Second, the care worker failed to follow
lawful and reasonable directions. The repeated refusal of the care
worker to attend investigative/disciplinary meetings, combined
with the seriousness of her conduct, resulted in the termination of
the care worker’s employment.
The law expects nurses, like all employees, not to enter into
‘secret commission arrangements’ arising out of their employment
and that they will obey any lawful and reasonable direction, no
matter how aggrieved they may feel. ■
Scott Trueman is a lecturer in H