08 Dec 2661 Views

 Filing Cabinet

Melissah Burnett, a registered nurse employed by Eastern Health was notified of Eastern Health’s intention to terminate her employment for serious misconduct.

Ms Burnett instituted proceedings seeking an injunction restraining Eastern Health from terminating her employment.  In such a case the court normally looks at 2 issues:

  • whether the applicant has made out a prima facie case (that is, based on the evidence as it is, it is more probable than not that the applicant would eventually succeed)
  • whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the respondent would suffer if an injunction were granted (referred to as “the balance of convenience”)

Ms Burnett claimed that Eastern Health had failed to carry out the investigation into her alleged misconduct in accordance with the Enterprise Agreement (EA). This contravened s.50 of the Fair Work Act 2009 which provides that “a person must not contravene a term of an enterprise agreement.”

She also claimed that Eastern Health had breached s 340 of the Fair Work Act. However this was not considered by the judge, given the strength of her first claim.

The complaints about Ms Burnett included lack of collaboration with medical staff; exclusion of medical staff from the care and treatment decisions of babies; failure to follow medical orders given by medical staff; behaving in ways that did not convey respect for colleagues; publicly criticising staff in front of others; and a bullying leadership style.

The EA required that a “fair investigation” be conducted in relation to Eastern Health’s concern about Ms Burnett’s conduct.  The fair investigation required Eastern Health to have “proper regard to procedural fairness” and factors requiring that “all reasonable steps” be taken by Eastern Health to give Ms Burnett “a reasonable opportunity to answer any concerns or allegations” raised against her.  Eastern Health was also required to provide Ms Burnett with “any material which forms the basis of the concerns and any allegation against … her”.

Justice Bromberg found that it was strongly arguable that, to comply with the EA, Eastern Health needed to provide Ms Burnett with sufficient particulars of each allegation raised against her to enable her to understand the allegation so that she could have “a reasonable opportunity to answer” it. He concluded that it was strongly arguable that this was not done.

The allegations lacked particularisation and were general in nature. This led to some ambiguity in the judge’s view. He noted that the allegations were based on information obtained from a number of doctors and nursing staff, but the employer had not been prepared to identify the majority of the staff whose concerns about Ms Burnett’s conduct had been relied upon.  There was no evidence to support the suggestion that the fear on the part of the staff was the reason. Because no records were directly provided to her, he found there was also a strong serious issue that Ms Burnett was not provided with the materials which formed the basis of allegations made against her.

The balance of convenience was slightly in Ms Burnett’s favour, based on financial considerations and staffing issues. Justice Bromberg did not consider that damage to Ms Burnett’s reputation was an issue as that could be restored if and when she won at trial.
The injunction was granted and also an order that no disciplinary action based on the investigation referred to and the disciplinary correspondence proceed.
Burnett v Eastern Health [2015] FCA 1247 (17 November 2015)

Article written by Christa Ludlow from Working Knowledge  December 2015