Asleep on the job: nurse plays hard ball

Asleep on the job: nurse plays hard ball

By Mike Toten on 12 June 2018 A nurse was validly dismissed for sleeping on the job and failing to cooperate with the ensuing investigation, the Fair Work Commission has ruled.

The nurse had insisted on having a specific union representative as her support person, but the employer objected to that person.

The case also examined the rights of each party in respect of that issue.

Asleep on the job


The employer’s nurse unit manager discovered both the employee (SA) and another nurse asleep while on duty at work. Together, they were responsible for 10 residents and seven acute care patients, and this meant that no-one was available to attend to their needs.

The manager stood in front of both nurses for a while, then went off to check on the welfare of the residents and patients. She returned to the nurses and stood in front of them again to verify that they were asleep, before waking them. She then reported the incident to the HR manager.

The other nurse claimed that both of them had taken a work break together and “must have nodded off”. They were required to take breaks at different times so that at least one of them remained on duty at all times.

SA denied that she had been asleep, but in any case that she was entitled to sleep during a work break.

SA was provided with opportunities to respond to the allegations that she was asleep on the job on four separate occasions. She was directed to attend meetings or respond in writing on four occasions, but never did. Eventually, she was summarily dismissed.

SA wanted a particular union representative (TB) to be her support person at meetings, but the employer refused to allow TB to fill that role. The employer claimed that TB’s past conduct represented a threat to the health and safety of its employees, and evidence supported that claim, including evidence of bullying and other inappropriate conduct.

TB did attend one meeting but terminated it shortly after it started, claiming that she needed to examine an extra document. The employer said it would accept any other union representatives, but neither the union nor TB responded. SA refused to attend any meetings unless TB could represent her.

The enterprise agreement covering SA did not expressly require the employer to allow a support person of the employee’s choice.

Evidence suggested that the two nurses were not entitled to be taking work breaks at the time they were found asleep. To be asleep at the time amounted to a breach of the nurses’ duty to residents and patients and it was not authorised.

The other nurse received a written warning, after it was found there were some mitigating circumstances to explain her falling asleep, and she had cooperated in the investigation process.

Decision


The FWC found that the summary dismissal of SA was not harsh, unjust or unreasonable. The evidence of the employer was more convincing than that of SA. It was not unreasonable for the employer to object to TB being present at the workplace. TB’s involvement in this dispute had obstructed the employer’s attempts to follow due process, for example by cancelling meetings at short notice and for spurious reasons.

Despite many requests to do so, SA failed to provide an account of her conduct on the day she was allegedly found asleep on the job.

She did not reply to the simple question of whether or not she was asleep. This amounted to failure to comply with a lawful and reasonable directive, which provided a valid reason for termination of employment. The employer had warned her that failure to respond could result in termination of employment. An employee cannot avoid termination by refusing to attend meetings, otherwise employees would routinely do it to avoid dismissal.

The bottom line: This case demonstrates that failing to cooperate with an employer’s procedurally fair attempts to investigate allegations of misconduct can on its own provide a valid reason for dismissal, as it can amount to refusal to follow a lawful and reasonable directive.

It also appears that an employee cannot insist on having a particular person as his/her representative or support person if an employer objects to that person, provided that the employer has reasonable grounds for the objection and allows other suitable people to perform the role.

Read the judgment


A v Western District Health Service, [2018] FWC 2132, 14 May 2018

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