| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 295/10 |
| Hearing date | 11 May 2010 - 12 May 2010 (2 days) |
| Determination date | 23 June 2010 |
| Member | G J Wood |
| Representation | M Lawlor, A Weal ; D Traylor |
| Location | Auckland |
| Parties | Faapito v Chief Executive of the Department of Corrections |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed suspension and subsequent dismissal for allegedly breaching duty of care to prisoner (“A”) by temporarily withholding medication was unjustified – Respondent also argued applicant failed to inform medical practitioner of decision – Respondent refuted all applicant’s claims and argued even if medical practitioner contacted dismissal justified – Co-worker complained to respondent’s manager that applicant may have discontinued A’s medicine without consultation – Medical administration sheets showed medication withheld for several days – Subsequently respondent instructed adviser to conduct fact finding review – Subsequently applicant placed on special leave pending suspension decision – Applicant claimed informed psychiatrist (“P”) of decision to discontinue A’s medication but unclear when did so – P acknowledged contact by applicant but could not remember day contact made – Respondent accepted applicant’s account supported by P, and suspension not warranted but investigation still required – However, after receiving further evidence of P’s alleged statements to investigators, respondent concluded suspension appropriate because concerns whether applicant met appropriate standard of informing health professional – Investigators report concluded applicant failed to undertake basic and fundamental nursing conventions – Argued failures amounted to breach of Health Services Manual – Applicant strongly recommended co-worker be interviewed to provide relevant information – Subsequently, applicant dismissed – Authority found given previous acceptance of respondent’s suspension policy no disadvantage to applicant although suspension for long period – Found given seriousness of allegation respondent should have done more to interview other nurses on duty – Found in any event evidence given to respondent to support applicant’s claims that called P – Found fair and reasonable employer would have given applicant benefit of doubt on failing to inform medical professional allegation – However found, applicant decided to temporarily withhold A’s medication without visit and full clinical assessment – Found applicant’s actions not acceptable nursing practice – Found by not involving A in decision to withhold medication and without checking file, applicant made important decision about A’s treatment without sufficient information – Found serious failings by applicant – Authority rejected evidence provided by senior lecturer at school of nursing that documentation adequate for professional purposes – Found applicant’s failings went beyond mere negligence or performance concerns – Found no procedural flaws in respondent’s investigation – Found fair and reasonable employer would have concluded serious misconduct – Found respondent considered mitigating factors – Found dismissal justified – Team Leader Health |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;Medicines Act 1981;Medicines Regulations 1984;Practitioners Competence Assurance Act 2003 |
| Cases Cited | Air New Zealand v V unreported, Colgan CJ, Couch J, Shaw J, Travis J, 3 June 2009, AC 15/09;Chief Executive of the Department of Corrections v Tawhiwhirangi [2007] ERNZ 610;Chief Executive of the Department of Inland Revenue v Buchanan & Symes [2005] 1;ERNZ 767 ; (2005) 2 NZELR 693 ; (2006) 7 NZELC 98,153;Health Waikato Ltd v Tebbutt [2003] 2 ERNZ 398;Honda NZ Ltd v NZ etc Shipwrights etc IUOW (1990) ERNZ Sel Cas 855; [1990] 3;NZILR 23, also reported as Honda NZ Ltd v NZ Boilermakers etc Union [1991] 1;NZLR 392; (1990) 4 PRNZ 330 (CA);Lewis v Howick College Board of Trustees [2010] NZEmpC 4;Orix New Zealand Ltd v Gurney [2005] ERNZ 165;Zendel Consumer Products Ltd v Henderson [1992] 2 ERNZ 377 |
| Number of Pages | 22 |
| PDF File Link: | aa 295_10.pdf [pdf 69 KB] |