Nurse disputes serious misconduct findings despite concerns over competency
The Fair Work Commission (FWC) recently examined an unfair dismissal claim involving a graduate nurse who argued his dismissal was unjust despite allegations of serious misconduct relating to patient safety.
The case arose when the worker was dismissed for alleged conduct causing serious and imminent risk to patient health and safety, including numerous instances of professional care falling well short of clinical standards expected of a graduate nurse.
The worker argued his dismissal was unfair, maintaining that the alleged misconduct did not occur as described and that various procedural fairness concerns undermined the validity of his termination.
He contended that witnesses against him were biased and that the employer's decision-making process was flawed by confirmation bias rather than objective evidence.
The employer contested the worker's claim, arguing the dismissal was justified due to the worker's inability to safely and competently perform nursing duties despite extensive support and supervision.
The health service maintained that the worker's conduct demonstrated he was a risk to patient safety if left without direct and continual supervision, constituting serious misconduct warranting dismissal.
Graduate program reveals competency concerns
The employment relationship involved a worker who began as a Registered Undergraduate Student of Nursing in March 2022 at a public health network, initially deployed at one hospital, before starting work in an orthopaedic ward after completing graduate studies in January 2024.
The ward specialised in care of patients recovering from orthopaedic surgery, including elective and trauma procedures, primarily caring for older adults with pre-existing cognitive impairments or recovering from fall-related injuries.
The standard graduate nurse program consisted of orientation days and supernumerary shifts where graduates worked but weren't counted as part of the clinical ratio numbers.
Graduate nurses were required to complete online training modules and be signed off as competent in medication administration within two weeks to enable unsupervised medication administration, following the fundamental "five rights" principle: right drug, patient, dose, date/time, and route of administration.
However, the standard staffing model was not followed for this worker due to concerns from the Transition to Practice team.
Since February 2024, they were concerned the worker had been unable to pass medication competency assessments at the ward level, had not been observed providing nursing care in a timely manner, and appeared not to be grasping basic concepts, resulting in direct supervision at all times with an additional nurse rostered specifically for oversight.
Performance improvement plan implemented amid ongoing issues
Due to ongoing concerns, an Informal Learning Objective plan was proposed on 18 March 2024 to manage perceived performance issues around medication administration, patient care, and professional conduct.
The worker did not engage positively with this voluntary process, displaying what the nurse manager described as distrust, misapprehension about his performance standards, and discourtesy towards colleagues, including inappropriate gestures and interrupting senior staff.
Following the unsuccessful informal process, a Performance Improvement Plan was implemented on 8 May 2024, focusing on improving workplace behaviour and clinical skills.
The plan noted several incidents where the worker had failed to provide appropriate care and assessment to patients, including administering incorrect medication and failing to check and document vital signs.
The first day of the PIP on 14 May 2024 revealed multiple concerning incidents under supervision, including failure to perform required postural blood pressure measurements despite reminders, questioning basic medication administration principles, incorrectly recording patient pain scores without actually asking patients, and selecting the wrong medications before being corrected by supervising staff.
Serious safety incidents escalate concerns
Ongoing supervision revealed continued concerning incidents, including delays in providing immediate pain relief to palliative care patients while attending to personal needs, failure to remove patient signage causing meal delays, medication labelling errors involving potentially lethal dosage mistakes, and incomplete patient documentation despite specific instructions about proper procedures.
The most significant incident occurred on 11 June 2024 when the worker prepared to administer intravenous antibiotics with a large air bubble in the syringe that he failed to notice.
The supervising nurse intervened to prevent administration, noting that the worker should have checked for and seen the air bubble himself.
When asked later, the worker acknowledged an air bubble could be "lethal," though he later disputed the severity.
This air bubble incident was considered a turning point by management, with the Director of Nursing immediately responding that it "could have resulted in significant harm or death and constitute[d] a serious near miss."
Management confirmed the worker was "unsafe to administer any medications unsupervised" and required continued direct supervision for all medication administration activities.
Formal investigation leads to misconduct findings
Following the air bubble incident and continued performance concerns, a formal investigation commenced on 5 July 2024. On 12 July 2024, the worker received an allegation letter containing 26 discrete allegations of workplace performance and conduct issues, with a meeting scheduled for 18 July 2024 to discuss the claims and potential disciplinary action up to and including termination.
The investigation found that all but a few of the 26 allegations were substantiated, with patterns of behaviour including failure to complete patient planners, inadequate patient documentation, failure to follow medication administration procedures, delays in providing required patient care, and inability to demonstrate understanding of basic nursing concepts despite repeated instruction and feedback.
On 6 September 2024, the worker received a show cause letter stating the health service was satisfied the substantiated conduct breached relevant expectations and "may constitute misconduct and/or serious misconduct."
A show cause meeting was held on 10 September 2024, where the worker was told his conduct may constitute serious misconduct and asked to respond, with the worker largely focusing on his graduate status and disputing the seriousness of the allegations.
Commission finds valid reason for dismissal
The FWC examined whether the worker's conduct constituted serious misconduct under the enterprise agreement, which defined it as conduct causing serious and imminent risk to the health or safety of a person. The Commission found: "I am satisfied that [the health service] has overwhelmingly demonstrated that [the worker's] conduct caused a serious and imminent risk to the health and safety of patients."
The Commission noted that while some incidents might not individually constitute serious misconduct, the pattern of behaviour was concerning. The FWC stated:
"I accept the uniform evidence of a number of highly experienced nurses demonstrates that [the worker's] clinical ability fell so far short of the required standards of a nurse at his level, despite extensive efforts to improve them."
The Commission rejected the worker's argument that allowing him to continue working under supervision proved the risk was manageable, finding: "If left unsupervised, there is no doubt in my mind that [the worker] would continue to engage in conduct that (unsupervised) would cause serious and imminent risk to the health or safety of patients."
Application dismissed despite career impact
The FWC found the worker was provided adequate procedural fairness, noting he was given opportunities to respond to allegations through meetings on 18 July and 10 September 2024, with access to evidence and the ability to bring support persons.
The Commission found the show cause process adequately notified the worker of the reasons for potential dismissal and the seriousness of the allegations.
The Commission acknowledged the serious career implications for the worker, stating: "I have taken into account that, as a graduate nurse, dismissal for serious misconduct is likely to be a very serious impediment, if not a permanent impediment, to [the worker] being employed as a nurse in the future." However, this factor was outweighed by patient safety concerns.
The FWC concluded: "In all the circumstances, having regard to all the factors in s387 of the Act, the termination of [the worker's] employment by [the health service] was not harsh, unjust or unreasonable. It follows that [the worker's] application must be dismissed."
The Commission found the health service's perseverance with the worker through extensive support and supervision reflected a generous attitude, but there were clearly limits to what could reasonably be expected.
