Worker argues incident was unintentional amid claims of workplace harassment and bias
The Fair Work Commission (FWC) recently examined an unfair dismissal claim involving a registered nurse who argued her dismissal was unfair following an incident where she accidentally defibrillated a conscious patient.
The case arose when the worker was dismissed after the health service lost "trust and confidence" in her ability following the July 2024 incident, which occurred while she was completing a postgraduate critical care nursing program.
The worker argued the dismissal was unfair because it followed months of alleged bullying, harassment and micromanagement, and that the defibrillation incident was unintentional. She maintained that she had been subjected to differential treatment and discrimination during her training program, with inadequate support provided compared to her colleagues.
The employer contested the worker's claim, arguing the dismissal was justified due to the serious nature of the defibrillation incident combined with ongoing performance concerns and the worker's lack of insight into the severity of her actions. The health service maintained that the worker posed a risk to patient safety and had failed to demonstrate understanding of the clinical standards required for her role.
Graduate program reveals ongoing performance concerns
The employment relationship involved a worker employed as a registered nurse since March 2021 at a large public health service in Melbourne's western suburbs, who began a postgraduate program in Critical Care Nursing in June 2023.
The worker was assigned to the emergency department at one of the network's major hospitals, working towards completing advanced qualifications in critical care.
From the early stages of her postgraduate program, the worker experienced difficulties with assessments and required multiple attempts to pass key competencies.
She required two attempts to pass Advanced Life Support and Non-Invasive Ventilation, and three attempts each to pass Mechanical Ventilation and Rapid Sequence Intubation.
Contemporary staffing notes from as early as July 2023 included comments about her assessment skills, lack of situational awareness, and difficulty prioritising.
In October 2023, the worker made a complaint about not being allocated shifts in the resuscitation area as frequently as her colleagues. She subsequently escalated her complaint to the university in April 2024 and claimed she began experiencing more criticism about her work after that date.
Throughout this period, the health service provided additional support, including extra supervised shifts and meetings to discuss strategies for assessment progression.
Defibrillation incident occurs during routine check
On 5 July 2024, the worker administered an unsynchronised 200-joule defibrillation shock to a conscious patient who did not require it. This was observed by an emergency registrar who was working about a metre away from the patient.
The doctor heard defibrillator sounds, saw the patient 'jump' in bed and heard him yell loudly, then asked the worker if she had shocked the patient, to which she replied that she had.
The worker later explained the incident in detail, stating she had introduced herself to the patient who said they were pain-free and feeling better. She began checking equipment and noticed the defibrillator was turned off in the corner. In her account, she wrote:
"I was performing a default defibrillator check. I turned on the defibrillator and checked it. An accidental and unintentional shock was delivered to the patient. I did not notice that the patient was connected to the defibrillator, which was an oversight rather than a deliberate action."
The worker acknowledged she was experiencing stress at work due to ongoing allegations and wrote: "This has been a challenging time for me and this oversight could also have been influenced by that stress."
She spoke with the nurse unit manager on the day, crying and very stressed, and was sent home. The patient was reviewed, remained conscious and stable, and was unharmed, even joking with the worker when she apologised.
Investigation reveals lack of clinical insight
Following the incident, the health service commenced an investigation and placed the worker on paid leave. On 9 July 2024, the worker was formally advised of allegations, including inadequate clinical assessment resulting in the defibrillation incident and inappropriate documentation following the serious clinical incident.
During the investigation, the worker's responses revealed concerning gaps in clinical understanding.
She repeatedly stated that "everyone has their way of working" when questioned about failing to perform the usual patient assessment, and emphasised that protocols "may not always account for every situational nuance."
She also focused on what she described as the "atypical placement" of the defibrillator rather than acknowledging her failure to properly assess the patient.
The health service became particularly concerned about the worker's lack of insight into the severity of the incident.
In correspondence to the chief executive officer, she described it as "unintentional and unfortunate" and noted that "thankfully, no harm came to the patient."
Medical evidence presented showed that the potential consequences were serious, including that the shock could have caused cardiac arrest and death, along with pain, distress and potential long-term psychological consequences.
Redeployment offer rejected amid ongoing disputes
On 19 July 2024, the health service decided to redeploy the worker to an area outside emergency departments where she would be given "every opportunity to be successful in the role."
The organisation stated this was "not a disciplinary sanction but an opportunity for you to develop in an alternate area of practice," though the redeployment would have prevented her from completing her critical care qualification.
The worker rejected the redeployment, stating it did not align with her "interests/professional goals" and was "retaliatory action." When directed to provide necessary information for the redeployment by 24 July 2024, she failed to comply.
The union representing the worker disputed the redeployment, arguing it was not an option available under the enterprise agreement terms.
On 18 September 2024, the health service met with union representatives and advised that redeployment was no longer an option as they had not been able to engage meaningfully with the worker since July.
The organisation stated: "Western Health believed that [the worker] posed a risk to patient safety, and there was no longer trust and confidence between [the worker] and Western Health."
Show cause process leads to dismissal
On 24 September 2024, the health service initiated a show cause process, informing the worker they were "seriously considering terminating her employment."
The letter stated she had failed to perform her role as a registered nurse, was unable to work within her scope and duties, and failed to comply with relevant legislation, regulations, policies and procedures.
The worker provided a written response reiterating that the defibrillation incident was "a very unfortunate accident" for which she was "sincerely and genuinely remorseful." She stated that stress levels were a contributing factor and welcomed an opportunity to discuss a performance improvement plan.
She expressed confusion about the investigation process that initially resulted in redeployment, but was now stating she had engaged in wilful misconduct, warranting termination.
On 31 October 2024, the health service dismissed the worker for serious misconduct.
The termination letter cited her repeated inability to adhere to policies and professional standards, defibrillating a patient outside of procedure without indication, failure to adhere to legislation and guidelines, being unsafe to patient and staff health and safety, and loss of trust and confidence in her ability.
FWC finds multiple valid dismissal reasons
The FWC found the health service had multiple valid reasons for dismissal. Regarding the defibrillation incident, the Commission stated: "I am satisfied that [the worker's] conduct during the defibrillation incident was a valid reason for dismissal."
The FWC noted that while the worker did not intend to deliver the shock, "her actions were deliberate, and she failed to perform the situational assessments that would have meant that no shock was delivered."
The Commission found the worker's lack of insight particularly concerning, noting: "Western Health submits that this demonstrates that [the worker] fundamentally misunderstands risk-based practice in clinical care. I agree with this submission."
The FWC found she failed to acknowledge that a proper assessment could have prevented the incident and repeatedly emphasised external factors rather than taking responsibility.
The Commission also found ongoing performance concerns constituted valid dismissal reasons, noting: "I am of the view that Western Health's documented ongoing performance concerns with [the worker] are valid reasons for her dismissal."
The FWC rejected arguments about inadequate support, finding the health service provided extensive additional training, time and supervised shifts to help her pass assessments.
Application dismissed despite career impact
The FWC found the worker was provided adequate procedural fairness, being notified of reasons for potential dismissal and given opportunities to respond through meetings and written submissions.
The Commission noted she was represented by her union throughout the process and could have brought support persons to meetings.
The Commission acknowledged the severe impact on the worker, stating: "Not only has she lost her job with Western Health, but she is also unable to graduate or further her studies, and it may be difficult for her to continue working within nursing."
However, the FWC found this harshness was tempered by the initial redeployment offer that she rejected.
The Commission concluded: "I am satisfied that Western Health had valid reasons to dismiss [the worker] that related to her conduct in the defibrillation incident, her lack of insight into the incident, its ongoing performance concerns and her failure to accept its initial decision to redeploy her... I am satisfied that Western Health's dismissal of [the worker] was not harsh, unjust, or unreasonable."
The FWC dismissed the application, finding that the valid reasons outweighed the personal and professional harshness of the dismissal.
