Nurse unfairly sacked: FWC lambasts HR failings

Cases

Nurse unfairly sacked: FWC lambasts HR failings

A failure by human resources to undertake "even the most basic of investigations" led to an unfair dismissal and subsequent reinstatement of an employee.

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Intensive care nurse Dorris Maharaj has won an order for reinstatement after being invalidly dismissed for being on sick leave.

Commissioner Michelle Bissett was scathing of the termination process of her employer, Northern Health. 

“It is difficult to conclude that the reasons for dismissing Ms Maharaj were 'sound, defensible or well-founded'. A decision that is sound, defensible or well-founded has some basis in fact… ,” the Commissioner said, going on to describe her “dismay” that an “array of specialist human resources staff” did not follow proper procedure in carrying-out the termination of her employment. 

Facts


Ms Maharaj received a needle-stick injury on the job and was then off work with anxiety for three months (until about February 2015). In mid-May 2015 she was involved in car accident on her way to work in which she suffered a fracture to the fifth bone in the neck (counting down from the base of the skull). She also suffered from anxiety following the car accident.

From the time of her car accident she was in touch with her manager at the hospital. She advised the manager that she was recovering and was looking forward to returning to work. 

By August 2016, Ms Maharaj was of the view that she had largely recovered from her physical and psychiatric injuries. 

Her general practitioner issued two medical certificates in succession – the first, in September 2016, stated that Ms Maharaj had no capacity for work until 10 October 2016 and the second, issued on 18 October 2016, stated Ms Maharaj was “ready to return to work”. 

Dr Donahue later testified that she thought that Ms Maharaj was capable of modified duties. The doctor added that the reason she certified in September in 2016 that Ms Maharaj had no work capacity was because the employer had not identified any suitable roles or hours of work for Ms Maharaj. 

She testified that, in her opinion, Ms Maharaj could return to work “if that was done properly” e.g. a graduated return by initially working on reduced hours alongside someone else and later being “brought up to speed” on any workplace changes. 

In early September 2017, there were various bodies in communication with each other about Ms Maharaj’s ability to return to work. However, the employer, Northern Health advised the return to work co-ordinator of a third party rehabilitation services provider – who wanted to discuss Ms Maharaj’s return to work – that there was no return to work program for Ms Maharaj. This was apparently because Northern Health had a new return to work policy. 

Ms Maharaj then received a letter dated 14 September 2016 from the Northern Health’s director of human resources that her employment had been terminated “effective immediately”. 

Evidence from the director of human resources revealed that there were a series of “executive team” meetings. The executive committee included a lawyer and several human resources and occupational health and safety executives. The purpose of the committee was to manage the employment of long-term absent employees and those who had returned to work on modified duties. 

The team discussed Ms Maharaj’s case for about 10-15 minutes on 6 September 2016 and formed the view her employment should be terminated. 

There were then two discussions between the HR director and unit managers about whether Ms Maharaj could return to work. One of those meetings was about the first certificate issued by Dr Donohue saying that Ms Maharaj could not do work until mid-October. Managers at Northern Health also told the director of human resources that there were no suitable opportunities for Ms Maharaj. 

Arguments


The employer argued that it had a valid reason to dismiss Ms Maharaj on the grounds that she had been absent from the workplace for a “significant” amount of time; that she was now – and would be for the foreseeable future – unfit to return to her pre-injury job. It argued that the incapability of an employee to perform the inherent requirement of a job was a valid reason for dismissal.
 
Ms Maharaj argued that at the time of her dismissal she had some capacity to return to work and that some reasonable accommodations to her duties and hours of work were reasonable adjustments to make.

Held by the Commission


Commissioner Bissett held that Northern Health made no inquiries as to Ms Maharaj’s ability to return to work at the time it decided to terminate her employment. It failed to make any inquiries when it had some indications that Ms Maharaj had the ability to perform work and where it had been contacted by a return to work co-ordinator for the purpose of returning Ms Maharaj to the workforce. 

There was no evidence to support Northern Health’s view that she could only return to a modified role. There was no discussion with Ms Maharaj or her GP that suggested that Ms Maharaj was unable to perform her pre-injury role. 

Commissioner Bissett held that Ms Maharaj could have returned to her pre-injury duties on a graduated return to work plan. However, her employer apparently chose not to explore in any substantive way if she could return to work, when, or under what conditions. 

The Commissioner then held that there was no valid reason for the dismissal and that the dismissal was therefore unreasonable. 

“Northern Health may well have been able to satisfy itself as to the correctness or otherwise of its position had it undertaken even the most basic of investigations with Ms Maharaj. It did not do so,” she said.

Commissioner Bissett ruled that the dismissal was unfair and ordered that Ms Maharaj be reinstated. 

Dorris Maharaj v Northern Health (U2016/12228)
 
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