Notification to Nursing Council not a breach of settlement
By Hamish Kynaston & Jennifer Howes
Evans-Walsh v Southern District Health Board [2018] NZEmpC 46
The Employment Court recently held that parties in a health context could not contract out of mandatory reporting duties through a settlement agreement, and that notifying the Nursing Council did not breach the confidentiality, non-disparagement or full and final settlement provisions in the agreement.
Ms Evans-Walsh was a registered nurse employed by Southern District Health Board (the DHB). Several nurses made complaints against Ms Evans-Walsh alleging bullying, undermining the practice, confidence and decision-making of colleagues and disparaging others. Following an independent investigation, the investigator concluded that the complaints had been substantiated and that the DHB's Code of Conduct and the Nursing Council's Code of Conduct had been breached. Ms Evans-Walsh rejected the report's conclusions and any suggestion that her behaviour fell short of what was expected. After receiving the report, the DHB informed Ms Evans-Walsh that its preliminary decision was to accept the report's findings. Prior to reaching any conclusion on whether misconduct had occurred (and the resulting disciplinary action), the parties entered into a settlement agreement, which was signed by a mediator. The settlement agreement included the following: • The terms of settlement were confidential to the parties "so far as the law allows" • Both parties would not make disparaging comments about each other to third parties • Ms Evans-Walsh agreed to resign • The settlement agreement was a "full and final settlement of all matters between the employee and the employer arising out of their employment relationship". There was no reference in the settlement agreement to Ms Evans-Walsh's reasons for resigning or about the DHB's reporting obligations under the Health Practitioners Competency Assurance Act 2003 (HPCAA). Notification to the Nursing Council Several months later, the DHB's Executive Director of Nursing and Midwifery notified the Nursing Council pursuant to section 34(3) of the HPCAA. The notification was brief. It stated that Ms Evans-Walsh had resigned prior to the conclusion of an investigation into complaints about her and that, due to the seriousness of the allegations, Ms Evans-Walsh had been on paid leave during the investigation. The DHB attached copies of the complaints, its letter to Ms Evans-Walsh informing her about the complaints and the investigation terms of reference. Ms Evans-Walsh claimed that the DHB's notification had breached the settlement agreement and could not rely on the HPCAA to justify its behaviour. The DHB did not accept this given its statutory obligations under the HPCAA. It also relied on the statutory protection from civil liability in section 34(4) of HPCAA.