'The dismissal was marked by unnecessary haste,' says Commission
A nurse recently challenged her termination after being fired for forwarding confidential patient records and information to a third-party.
Although the Fair Work Commission (FWC) found the employer had a valid reason to dismiss, it found procedural errors which weighed in favour of the worker.
Carol Sandland served Canberra Health Services (CHS) on behalf of the Australian Capital Territory (ACT) Government, primarily as an Enrolled Nurse at the Dhulwa Secure Mental Health Facility (Dhulwa). She has been employed there for more than six years.
Her role involved engaging with patients, administering medication, providing daily living care, and coordinating with colleagues and health professionals. In addition to her nursing responsibilities,
Sandland held positions as a Health and Safety Representative (HSR) and a delegate of the Australian Nursing and Midwifery Federation (ANMF), where she advocated for workers on industrial and safety matters.
Dhulwa, being a mental health facility for individuals with mental illness entangled in the criminal justice system, presented a challenging environment for everyone involved, including management, employees, and patients.
Deteriorating relationship with management
In February 2022, Sandland experienced an assault at work, leading to a gradual return to work. However, her relationship with local management deteriorated over the following year, with perceived incompetence, anti-union sentiments, policy deviations, and favouritism.
By early 2023, Sandland said she felt excluded and believed she was being unfairly targeted, a sentiment reinforced by an email from Sam Oram of the ANMF, though there was no evidence supporting the claim at that time.
Sandland's strained relationship extended to the Assistant Director of Nursing, Peta Kleinig. Communication breakdowns and alleged dismissive responses fuelled Sandland's concerns about management, prompting her to share these concerns with the ANMF, including forwarding internal communications and confidential patient information.
Nurse breached private patient records
The situation escalated when CHS became aware of potential breaches of patient privacy by Sandland. An audit revealed email disclosures of patient information to the ANMF and her private email accounts.
Consequently, Sandland faced serious allegations of breaching the Health Records Act, the Public Sector Management Act, Enrolled Nurse Standards for Practice, and the CHS Clinical Records Management Policy.
On February 8, 2023, Kalena Smitham, CHS Executive Group Manager, People & Culture, sent Sandland a letter proposing the summary termination of her employment. The grounds for termination included alleged criminal acts, breaches of health records privacy, failure to exercise reasonable care, and actions inconsistent with her role as a registered health professional.
Despite being suspended with pay, Sandland and the ANMF failed to respond to CHS by the extended deadline, leading to the termination of her employment on February 24, 2023. The letter of termination outlined the reasons for dismissal, citing breaches of the Health Records Act, reputational risks, and criminal acts.
Was there a reasonable dismissal?
The FWC found that Sandland breached the employer’s privacy obligations when she “improperly [disclosed] personal health information without authorisation on separate occasions.”
“The information disclosed contained the patient’s first name, details of their treating team, their institutional location and part of their health record,” it said.
Sandland tried to “explain the context in which the disclosure occurred.” She said, “there had been serious incidents involving patients at Dhulwa on the previous week,” and so, she sought the assistance of the ANMF so that they can help in addressing “the safety of staff at Dhulwa.”
“For at least a period of some months, the ANMF and delegates had been compiling data on aggression and violence at Dhulwa,” it said. “Sandland had reasonable grounds for believing that the disclosure would assist with efforts to improve safety for staff at Dhulwa,” the FWC added.
The FWC found that “there was a valid reason for the dismissal of Sandland. Her misconduct was both serious and repeated,” it said.
Dismissal had procedural flaws
However, the FWC also said that “the dismissal was also marked by unnecessary haste.”
“CHS was alleging serious misconduct on the part of Sandland, and that it was not necessary in those circumstances for it to undertake a lengthy procedural inquiry. But at the time of dismissal, Sandland had been employed for more than 6 years in a challenging and high-risk environment,” the FWC said.
“Her relationship with her managers was strained. Many of her disclosures bore a connection to her roles as health and safety representative and union delegate, and it was important for CHS to understand, if possible, the extent to which this may have influenced or explained her decisions.”
“In this context, it is difficult to understand why CHS did not complete its own preliminary inquiry into the facts of the matter before acting to dismiss Sandland in reliance on only a select few emails,” it added.
Thus, the FWC said that there were procedural flaws in the worker’s dismissal which made it unreasonable, despite the presence of a valid reason. It then ordered the employer to pay compensation.
