A v Local Health District

Procedural Matters

1. The application was filed within the time then required in s 85 of the Act. A is a person protected from dismissal as defined in s 83(1) of the Act and at the time of her dismissal, she was not a casual employee or an employee engaged for a specified period of time or specific task so as to be exempt by regulation.
2. Both parties were legally represented. A was represented by Mr T Owers of counsel and the Local Health District was represented by Mr Y Shariff of counsel.

The Incident

1. On 12 May 2016, a patient was found deceased in the bathroom of Ward X. A was the registered nurse in charge of Ward X on the night shift that commenced on 11 May 2016. The incident was subject to an investigation undertaken by the Local Health District.
2. A notification was subsequently made to the Nursing and Midwifery Council concerning a finding that A had on 11 and 12 May 2016 exhibited unsatisfactory professional conduct with respect to respect to judgement, professionalism and communication.
3. A was also placed on the Service Check register in accordance with NSW Health Policy Directive PD2013_38. On 15 June 2016, the Local Health District notified the Australian Health Practitioner Regulation Agency regarding its concerns with A's professional conduct.
4. At or about 5.30pm on 11 May, the patient on Ward X went missing. The senior registered nurse in charge of the ward at the time of the patient's disappearance was G. A contends that during the shift changeover at 9.30pm, she was told the patient had been missing from Ward X since 5.30pm. She was also told that the after-hours manager had been notified and security were "out looking for the patient".
5. The after-hours manager at the commencement of the night shift was B. The after-hours manager on duty after 9.30pm was C. The patient was subsequently found deceased at or around 12.30am by A and D, an enrolled nurse also rostered on night shift with A that evening.

The Allegations

1. The Local Health District broadly framed the allegations against A in correspondence dated 16 May 2016. It was alleged that A, the senior registered nurse in charge of the night shift on 11 May 2016: 1. Delayed following the local guideline and protocol for the management of missing/absconded patients - Local Health District policy "Absconding Patient Management" until approximately 23.30 hours on Wednesday, 11 May 2016 even though she had been advised t during the change of shift handover that the patient had been missing from the ward since approximately 17.30 hours; 2. Delayed in carrying out her duties as a registered nurse diligently and efficiently as she had failed to escalate this matter to the after-hours manager until 23.30 hours on Wednesday, 11 May 2016; 3. Documentation in the Patient Care Essentials Rounding Plan did not accurately reflect her clinical interaction with the patient; and 4. Failed in her duty of care as a registered nurse to provide safe, appropriate and responsive quality nursing practice.
2. A fact finding interview with A was conducted on 20 May 2016. A Legal Officer from the NSW Nurses and Midwives Association was present.

Show Cause Response

1. A's show cause response prepared by her solicitors was conveyed to the Local Health District in correspondence dated 10 June 2016. Shortly stated, that response pleaded:

• A is a nurse of some extensive experience with an unblemished record. Her error did not justify summary dismissal. She has been traumatised and shocked by the incident. It was unfair and harsh to lay blame on A for the missing patient;
• A signed some patient chart forms in the heat of the moment. A is prepared to undertake training to remedy her error and work under supervision until able to satisfy the relevant parties that she is capable of working independently;
• A had not been trained in the absconding patient protocol and nothing is contained therein that required her to contact the after-hours manager "when same had already occurred and a search was under way";
• There was no need for A to check the work of other professionals "who bear the same duty of care as herself";
• There is no positive obligation under the protocol that required A to repeat the steps that had already been undertaken by nursing staff during the evening shift;
• A was entitled to rely upon her colleagues to be professional. She had a reasonable expectation that they "had complied with the relevant protocol or procedures given that the patient had gone missing on their watch";
• A was informed by the evening shift nursing staff that the patient was not on the ward and missing. Had A not been informed that A was not on the ward "she would have conducted a search there and then of the ward and discovered the patient at that time; and
• The allegations in their totality are largely an attempt to blame A for "the missing patient".

The Investigation

1. An investigation team comprising E, a service manager and F, a senior human resources consultant established on or around 26 May 2016 subsequently determined that A: 1. had exhibited unsatisfactory professional conduct in terms of her judgement, professionalism and communication; 2. failed to carry out her duty of care as a senior registered nurse to provide safe, appropriate and responsive nursing care to her patients; 3. did not maintain accurate documentation as she falsely documented in the Patient Care Essentials Rounding Care Plan that she had sighted and had spoken to the patient at 10.00pm and 11.00pm when the patient remained missing from Ward X at those times; and 4. failed to recognise the seriousness of the situation and did not escalate to the after-hours manager within a reasonable period of time that the patient remained missing from Ward X in accordance with the 'Absconding Patient Management Guideline.
2. The findings of the investigation team were set out in correspondence sent to A dated 27 May 2016. The proposed disciplinary action was termination of employment on the grounds that A had engaged in misconduct by seriously breaching the Registered Nurse Standards of Practice (competency standards) and the NSW Health Code of Conduct PD2015_049, Acting professionally and ethically.
3. A notification was subsequently made to the Nursing and Midwifery Council concerning a finding that A's conduct had breached the Registered Nurse Standards of Practice and that she had engaged in unsatisfactory professional conduct with respect to respect to her judgement, professionalism and communication.
4. A was also placed on the Service Check register in accordance with NSW Health Policy Directive PD2013_38. On 15 June 2016, the Local Health District notified the Australian Health Practitioner Regulation Agency regarding A's professional conduct.
5. A recommendation was subsequently made that A's employment be terminated. A 'show cause' letter was sent to A on 27 May 2016. Her show cause response prepared by her solicitors and dated 10 June was subsequently sent to the hospital general manager. On or around 14 June 2016, the Local Health District's Chief Executive approved A's dismissal.
6. Further recommendations arising from the investigation were that:

• G, the senior registered nurse in charge of the evening shift on 11 May 2016 be terminated;
• J, a registered nurse on the evening shift on 11 May 2016 be terminated;
• H, a registered nurse on the evening shift on 11 May 2016 receive a first and final warning; and
• I, an enrolled nurse on the evening shift on 11 May 2016 receive a formal warning. In addition, D, an enrolled nurse who worked with A on the night shift on 11 May 2016 was given a first and final warning on or around 20 May related to unsatisfactory professional conduct with respect to care provided to the patient on 11 May 2016 following a fact finding interview with management.

Applicant

• A, the applicant; and
• D, an enrolled nurse who worked with A on the night of the incident.

Local Health District

• E, a Service Manager;
• K, Human Resources Manager;
• L, a Director of Nursing and Midwifery; and
• M, an Executive Director. K was not required for cross examination.

Witness A

1. A deposed that she qualified as a registered nurse in or around June 1980. She had been employed by the Local Health District since 2002, initially as a casual and from 2008 as a permanent part-time employee. There was no suggestion that during that period any complaints had been raised concerning her work performance or conduct.
2. On May 2016, A was rostered to work a night shift with an enrolled nurse, D. A stated it was her third night shift in a row and while she felt tired at the commencement of her shift she did feel "OK" to commence and complete her duties.
3. During shift handover occurred at or around 9.30pm, a graduate nurse, said to her words the effect: The patient left the ward at around 5.30. She hasn't returned yet. We've spoken to the family members and we have notified the evening after-hours manager. Security has also been notified.
4. A recalled the graduate nurse had attempted to ring the patient's mobile phone. The patient's partner had answered and advised her that he had the phone in his possession. Accordingly, A assumed at that time that this was the means by which the patient's family had been notified.
5. It was A's evidence that four nurses had worked on evening shift, including G, a team leader. The other nurses comprised an experienced enrolled nurse and two new graduate nurses. At the time of handover A stated that G said to D and herself words the following effect: She is not on ward and she hasn't come back. Security knows and they're out looking for her. We've called the night manager and told her.
6. A subsequently formed the opinion that on the advice of the graduate nurse and D, the patient had now been missing for approximately four hours at the time of handover and she expected that the nurses on the evening shift would have already undertaken a search of the ward. A based her opinion upon her own experience dealing with dementia and absconded patients: In particular, I have previously worked with dementia patients who have gone missing and the first step I undertook at that time was to search the ward before ringing security. In those cases the patient was located very quickly - within half an hour.
7. There were four patients in the ward that night, including the patient that particular concerned her. There was also a patient in another ward who was booked in for coronary bypass surgery at 7.00am the following day. Shortly after commencing the night shift, a nurse from that ward contacted her and was concerned that the patient had not been assessed regarding peritoneal dialysis. At around 10.30pm A stated that she searched the hospital's intranet for a peritoneal dialysis prescription as that particular patient was quite ill.
8. Between 10.30pm and 11.00pm, A received a telephone call from the patient's partner. She told him that security was looking for the patient and he wanted her to let him know if "anything changes". The partner told her that he had the patient's mobile telephone and wallet.
9. It was the applicant's evidence that she was of the understanding that at all times security and management knew that the patient was missing and attempts were being made to locate her.
10. At or around 11.30pm A contacted the after-hours manager and said to her words the effect: I've got two issues, the patient from bed 17 is still missing and there is a patient on ward Y whom I might have leave the ward to attend to, so do you think you can come up to the ward? The after-hours manager subsequently said to her words the effect: I don't know anything about a missing patient. A replied to her words to the effect: The evening shift said she was missing and security has been informed. They told me that evening after-hours (manager) had been notified. She responded with words to the effect: Okay, I'll print off the protocol and come down. The next step I think is to call the police.
11. Following that phone call A attempted to complete her paperwork regarding the 16 patients in the ward prior to the after-hours night manager coming to the ward.
12. At about that time, the nurse from ward Y contacted her again to establish whether a decision had been made concerning her ill patient. A told her that the after-hours night manager was coming to ward X and she would be able to see the patient in ward Y shortly thereafter. A contends that it was during this period that she accidentally initialled the boxes contained in the hourly rounding chart that she had seen the patient.
13. The applicant accepts that her conduct concerning the rounding chart was was careless. However, at the time it was common knowledge that the patient was missing and she had not sought to deliberately deceive anyone. She was anxious to attend the sick patient in ward Y.
14. A also contends that while she was initialling the boxes in the rounding charts, the patient's partner phoned her once more and said words the effect: Have you found her yet? A replied in words to the effect: No, not yet, but we have escalated things and we are going to call the police.
15. The after-hours night manager subsequently brought a copy of the absconding or missing patient's protocol to the ward. After reviewing the steps contained in the protocol, it was agreed that the next step according to the protocol was to call the police. Meanwhile, A went to ward Y to attend to the ill patient and when she returned about a half an hour later, the after-hours manager said to her words the effect: I've tried calling the police were can't get through; no one is answering the phone at Waratah.
16. A subsequently heard the after-hours night manager ring local police station to report the situation concerning the missing patient. Shortly thereafter, A undertook a further search of the ward to determine whether the patient "had slipped back in" unannounced. It was during that search that she found the patient deceased in the toilet.
17. A stated that she was interviewed by the police shortly after they arrived at the hospital but she could not recall what she had said to them at that time. She was in shock and upset about the incident. Further, she was interviewed by E in the presence of her NUM at about 7.30am. However, she could not recall "exactly what was said" other than a request to prepare a chronology.
18. A also contended that she only met the Association's legal officer 10 minutes before the investigation interview on 20 May 2016 and she was not told that she could have responded to the allegations in writing in lieu of the interview.
19. At the time of her dismissal, A was undertaking a Master's degree in advanced nursing practice specialising in primary health care. Following her dismissal she has had feelings of anxiety and depression and has consulted a psychiatrist with respect to these issues.
20. In cross-examination, A stated she was the most senior nurse on the 11 May 2016 evening shift in ward X and was designate of the nurse unit manager.
21. A acknowledged that her letter of appointment dated 26 February 2014 to the position of registered nurse in nephrology stated that she was required to comply with the NSW Health Code of Conduct and all applicable hospital and New South Wales health policies. A also acknowledged that as part of her role she was required to demonstrate professional behaviour towards patients.
22. A stated she was familiar with the code of conduct and was aware of the requirement to act professionally and ethically at all times. A acknowledged that some of the objectives were in fact "common sense". She agreed that it was her responsibility to report to senior management in the event she felt tired, unwell or was unable to attend her duties.
23. A agreed that she was required to physically interact with each patient every hour to check their P's (position, patient environment) and D's (discomfort or pain, devices) documentation and subsequently complete the rounding chart so as to accurately record the relevant care afforded to patients. A agreed with the proposition that other health professionals rely upon documentation of this type to administer care to patients.
24. It was A's evidence that she did not complete the rounding chart for the 10.00pm ward round until approximately 11.30 pm when at the same time she also completed the 11.00pm round.
25. A confirmed that she had read the evidence of L which addressed matters related to the governance of registered nurses within clinical settings in public hospitals and broadly, the professional obligations of nurses.
26. A stated that she had previous experience with absconding patients and in such circumstances the hierarchy of responses for the nurse in charge would be check the ward, inform the after-hours manager, call security and liaise with the patient's family. They were common sense responses that did not require a "written policy": Q. In the past you had done that where patients had gone missing or absconded, and I think you say, on those occasions, you've been able to locate the patient within half an hour; correct? A. Yes. Fairly quickly, yes. Q. You would agree with me that in a circumstance where a patient wasn't found quickly, within half an hour, that might lead to a greater degree of stress and anxiety on the part of the patient's family? A. Yes. You appreciate now, don't you, that that's the kind of thing that a senior nurse manager on shift is required to manage? A. Yes. Q. All of the propositions I've just put to you about circumstances in which a patient goes missing or has absconded are just basic common sense, aren't they? A. Yes, but ‑ I mean, that's why we have the protocols and things, I suppose ‑ I'm not sure. Q. Really, they're the natural responses that any person discharging a duty of care to a patient would do. Would you agree? A. Well, you would think, I suppose, yes. Q. If a patient still hadn't been found after a number of hours and you did know nothing about it you might think, , "This is now over my head. I need to call security" or "call the police" or "escalate the matter"; correct? A. Yes. Q. Again, these are the natural things a registered nurse with your experience and in your position would do? A. Yes. Q. You really don't need to be told that in a written policy, do you? A. Well, I never have been, no. Q. My question is, you don't need to be told that in a written policy, do you? A. No. No.
27. A subsequently agreed that the steps set out in the absconding patients management policy were straightforward and something that you would naturally do in response.
28. With respect to her investigation interview, A agreed that she had signed that document confirming its accuracy. A also agreed that during the investigation, she was aware of the allegations made against her and that there was "a potential disciplinary matter on foot".
29. A agreed that during the investigation interview, she referred to the handover and had said: The handover was that she had left the ward at around 5.30 and that was ‑ yeah, and that was ‑ she hadn't yet returned and that ‑ they had spoken to the family members and that ‑ I also notified evening after-hours manager and they also notified security. The following exchange ensued: Q. After you commenced your shift, sometime after the handover, you took no step to check the ward, the patient; correct? A. Correct. Q. You took no step to call the after-hour's manager; correct? A. Well, I did, eventually, yes. Q. At 11.30? A. Possibly earlier, yes. Q. I'll come to that. You took no step prior to that time to call the afterhours manager? A. Yes. Okay. Q. You took no step to call the security staff; correct? A. No. Not at the very start of my shift, no. Q. You took no step to call the family; correct? A. Well, the family actually telephoned the ward. Q. At 10.30 but as at when you commenced your shift you took no step to call‑‑ A. Not at 10 o'clock, no, or 9.30. Q. You took, during that evening, no step to contact the family at all; correct? A. Only because the family had called first. I mean, if ‑ yes. Q. I'll come to that. By now, when you commenced your shift proper, at 10pm, as you understood it, the patient had been missing since 5.30pm; correct? A. Yes. Q. That was a period of four and a half hours; correct? A. Yes. At 9.30, yes, around then. Q. This was a far different scenario to previous experiences where patients, in your experience, had absconded and been found within 30 minutes; correct? A. Yes. Correct. Q. Yet it didn't occur to you on that evening to make a single call to afterhours, security or to the family; correct? A. For the whole evening or‑‑ Q. At that time, when you - A. At that time, no.
30. A confirmed that during the interview and in response to a series of questions by L, she was aware that the commencement of her shift:

• the patient had been missing for four and a half hours;
• no information was given to her at handover to suggest that the ward had been checked or whether security had been advised;;
• whether patient A's family had been contacted; and
• what time the previous shift had called after-hours "emergency".

1. Notwithstanding her professional responsibilities and the various NSW Health and hospital policies concerning the clinical care of patients, A agreed with the proposition that at the commencement of her shift, she did not contact the after-hours manager to report that she was now on shift and could she be updated on the missing patient situation. Nor did occur to her that it would have been prudent to contact the patient's family let them know that she was now the registered nurse in charge of ward X.
2. A disagreed with the proposition that she had only commenced a search of the ward after 12.30pm after the police had been called. Although perhaps a slim possibility, A stated she was concerned that the patient may have returned to the ward unannounced. The following exchange ensued: Q. Your position is that, even though you're the nurse in charge on the shift and you have a duty of care to this patient, you would have done nothing to search for this patient on the ward unless you were specifically directed to do so; correct? A. Only because there was not the slightest of doubt that she was there, so it's just - Q. You say that you're entitled to rely upon the outgoing shift and everything they had done; correct? A. Well, I always believed so. … Q … On that view that you hold about relying upon everything that a previous shift has done, when would this patient have been found? A. I don't know. Maybe another patient may have found her or if I'd taken, escorted, a patient to the toilet or ‑ who knows ‑ the cleaner, in the morning. Q. You think that's a faithful discharge of your duties as a registered nurse, do you? A. I think that ‑ I think it was fair of me to have felt that way. I don't feel like I had been careless or such ‑ I feel that if I had even the slightest doubt, the slightest doubt‑‑ Q. Do you think, as at May 2016, that's the appropriate level of care, in your view, that a public hospital owes to a patient? A. No. I think what occurred was dreadful … Q. But, even now, after all the evidence that's been put on and we're in these proceedings can I suggest to you that the only thing for which you're accepting responsibility is for what you describe as an administrative error in completing the bounding charts? A. Yes, that was an inadvertent thing. I have a responsibility and I'm not sure but ‑ yes. Q. Your position is, I want to be fair to you that you don't accept any other responsibility in relation to this patient, other than in relation to the administrative error, you put it, in relation to the bounding charts? A. In not having looked for the patient earlier, you mean? Q. Yes. A. At the time I really felt that the appropriate measures had been put in place and I was acting appropriately. That's how I really, seriously, felt at the time, yes. Q. Is the answer to my question that you don't accept any responsibility for anything other than the error in relation to the bounding chart? A. Yes.
3. A agreed that despite receiving call from the missing patient's partner and discerning that he was quite unhappy with the situation, she took no steps to call anyone within the hospital about the missing patient.

Witness D

1. D was the enrolled nurse who worked on the night shift with A on 11 May 2016. His evidence dealt with the shift handover and a subsequent search of the patient's bed space area for personal effects such as a phone or wallet.
2. D recalled that at approximately 12.30am, A returned to the ward after attending a patient in ward Y and noticed "the engaged lock" was on in a toilet located opposite one of ward's four bedded rooms. He and A subsequently found the patient deceased in the toilet cubicle.
3. D stated he had attended a fact finding interview with hospital management on 20 May 2016 and was subsequently found guilty of: … having exhibited unsatisfactory professional with conduct respect to my judgement, professionalism and communication in regard to the care I provided to (the) patient … on 11 May 2016.
4. D stated he was issued with a first and final warning, removed from night duty for a period of one month and was required to undertake further education and training. It was also his evidence that following the death of the patient, the local guideline and protocol for the management of absconded patients had been significantly revised and amended.
5. In cross-examination, D confirmed that he and A had undertaken their usual round of the ward at approximately 10.00pm and at that time they had checked on all patients including the bed of the missing patient, where they had searched for her personal effects.
6. D disagreed with the proposition that the patient's partner had first contacted A rather than the reverse. He later acknowledged that he may have been mistaken.
7. By midnight on the shift, D asserted that he had tried to contact the police unsuccessfully on at least one occasion. He agreed that fact was not included in his statement nor was it included in statement prepared for the coronial enquiry. He denied it was a false statement.

Witness K

1. K is the Local Health District's human resources manager. He was not required for cross examination.
2. K's evidence dealt with the chronological history concerning the incident, the subsequent investigation and the show cause letter and response provided by A's solicitors.

Witness L

1. L is the director of nursing and midwifery and is responsible for a range of compliance, standards of care, education and research initiatives within the Local Health District. She is also responsible for managing the disciplinary process for nursing and midwifery staff accused of misconduct.
2. Much of L's evidence also dealt with the chronological history concerning the incident, the subsequent investigation, the investigation report, the show cause letter and response provided by A's solicitors.
3. L also set out the matters that were considered prior to her recommendation that A should be dismissed. That consideration included A's employment history, the investigation findings and recommendations, her show cause response, the potential impact of dismissal on A, the seriousness of the incident, compliance with the various codes of conduct, Local Health District and NSW Health policies and procedures together with the expected standards of professional practice.
4. L considered A had failed to ensure that she received the relevant information during shift handover which was important for the safety of the patient, in particular, where a patient was missing. The process or clinical handover is outlined in a Policy Directive, Clinical Handover - Shift Handover PD 2009_060: PCP2.
5. A had stated that she was informed by H that security services and the after-hours manager on duty at the time had been informed that the patient was missing. However, A did not record in her statement that she conducted any further enquiries of H or G, the senior registered nurse in charge of the evening shift, such as whether a search of the ward had been conducted or what steps if any she could initiate to assist with locating the patient.
6. L contended that when a registered nurse commences a shift as the senior nurse in charge, that registered nurse becomes responsible for all patients in that particular ward. Accordingly, he or she owes a duty of care those patients on that ward and is expected to ensure patients are safe and receive the standard of medical care consistent with expectations of the Local Health District.
7. It was L's evidence that at no time did A seek to determine whether the ward had been searched or what could be done by her to assist in locating the missing patient. In her view, A should have taken steps to ensure that she was aware of the processes in place to locate the missing patient and subsequently monitored those processes to determine what else could be done. Instead, A simply lays blame with the evening shift.
8. Despite the hospital being locked down at approximately 9.00pm, A had failed to escalate the matter in accordance with the absconding patient guideline. The fact that the hospital had been locked down should have created a heightened sense of concern with respect to the patient's well-being.
9. A contends that she was unaware of the absconding patient guideline and had received no training concerning its application. L considered a nurse of A's experience should, when confronted with an unfamiliar situation, have sought advice from a senior staff member or referred to the policy and procedures directory.
10. Despite claims that she was unaware of the absconding patient guideline at the time of the incident, L contended that as a senior registered nurse and the nurse in charge of the night shift, A should as a minimum, have conducted a search or at least have ensured the search had been conducted., thereby discharging her duty of care and her professional obligations irrespective of whether or not she was appraised of the guideline.
11. A failed to take responsibility for the care of all patients on ward X upon commencing her shift. In that regard, L contended that A had breached the Nursing and Midwifery Board of Australia National Competency Standards for registered nurses on the grounds that she had failed to take the necessary steps so as to ensure the safety and well-being of patients in her care.
12. L contended that A had shown a distinct lack of care and concern for the patient's well-being in circumstances where the competency standards dictate that a patient's care and safety is paramount.
13. Further, the NSW Health code of conduct mandates that employees at all times must act in a way which is consistent with NSW Health's duty of care to patients and clients and its obligation to provide a safe and supportive environment on its premises for patients and their family members.
14. Accordingly, A's failure to conduct a search and escalate the matter was inconsistent with the code of conduct and the competency standards.
15. A had signed off on the rounding plan that at 10.00pm and 11.00pm she had called on the missing patient and had "assessed all the P's and D's" and, had also asked the missing the patient, "Is there anything I can do for you?", even though the patient had remained missing from the ward. Rather, the rounding plan should have been marked with the letter "A", to show that the patient was absent.
16. L noted that the letter "A" for absent had been marked on the rounding plan by previous registered nurse on the evening shift who was responsible for the missing patient until 9.30pm when A commenced her night shift.
17. L contended the evidence of D, the enrolled nurse on the night shift confirms that A did not escalate any concerns regarding the missing patient "at the time, including after she spoke with the patient's partner".
18. It was L's evidence that she had lost confidence that A was competent to perform the role of a registered nurse at the hospital or any other hospital at the standard expected within the Local Health District.
19. A sought to blame the stress of the shift and her tiredness for her poor decision making and judgement despite her history as a long-term shift worker and as such, she should be used to the shift arrangements at the hospital.
20. L considered A's failure to acknowledge her wrongdoing and the excuses she had raised to defend her poor judgement and decision making suggest that she would be unable to rectify her behaviour and be compliant with mandatory policies and procedures in the future should she was put in a similar situation. Accordingly, she opposed reinstatement.
21. In cross examination, L confirmed that she had considered statements of G and J the time she prepared affidavit.
22. L contended that A should not have relied upon the advice that she received during the handover of shift. She was not entitled to assume that a search had been carried out. The patient was still missing. Accordingly, A should have taken undertaken a search when she came on duty and took over care for all patients in the ward.
23. A search is a continuous process and does not end until someone says "stand down" or you find the missing patient. In this particular case, the patient was not missing from the ward. She agreed that the guideline states the unit manager or delegate must initiate the ward search. However it does not state that the search needs to be repeated.
24. L was adamant that A should not have relied upon any steps initiated by G with respect to the missing patient. Rather, A should have undertaken a comprehensive assessment of the patient when she commenced the shift and initiated a search. In that regard, her conduct was unacceptable. By that stage, the patient had also been missing for more than four hours.
25. L was unaware that the Nursing and Midwifery Council had recently considered the complaint referred to it by the Health Care Complaints Commission and determined the only issue it wished to address was the complaint concerning A signing off the rounding sheet.
26. L explained that the rounding sheet was used as part of the documentation to inform clinicians about the care of a patient. A's conduct had the potential to mislead any clinician who proposed to review the rounding of sheet chart. The sheet should have been marked absent. The following exchange ensued: Q. You would agree with me, would you not, that it is regular practice for the patient's rounding sheets to be completed at the nursing desk, is that right? A. The rounding sheets are at the bedside for every shift. There is a practice of moving them to the central nurses' station on night duty. Q. That's where they get completed, usually, on night duty; is that right? A. They're completed every hour. Q. I understand that but, in terms of completing the documents, they are collected by the nurse on duty and deposited at the nursing desk and then they are signed off; correct? A. Correct. Q. That's the usual practice, is it not? A. That's the usual practice, provided they still are signing the correct patient‑‑ Q. I understand that, yes. A. Yes. Q. It's understood. It's just where it's done. A. Yes, that's usual practice. Q. As a common practice, it's done at the nurses' desk; correct? A. Correct. Q. You would accept that sometimes mistakes happen? A. In health, yes, mistakes happen. Q. And, indeed, filling out a rounding sheet ‑ can sometimes be ticked incorrectly. A. Correct. Q. Is that a reason why you would say, when it's done as a genuine mistake, that that person should, really, lose their livelihood as a nurse? A. It was done twice. Q. I understand that. You must accept it's a genuine mistake, surely. A. The mistake happened on a serious ‑ by signing it in the way that it's been signed, the staff member either has not ‑ has signed it incorrect for another patient, I'm not sure why. I don't understand why they would sign it incorrectly. Q. If you accept Ms Bussell's reason, she was simply inadvertent, didn't mean to do it, just did it. That can happen, can't it? A. I think the implications of signing that you asked a patient are they okay and that you've done a series of assessment is reasonably significant.

Witness E

1. E is a service manager for a particular aspect of the hospital. Her evidence generally contained the historical and chronological detail set out in earlier evidence led by the Local Health District and set out in the affidavits of L and K. She was also part of the investigation interview panel.
2. Prior to interviewing A on 20 May 2016, E reviewed the deceased patient's medical file and in particular the notes made by A and her entries in the rounding plan.
3. Under the Local Health District's Patient Care Essentials initiative introduced in 2013, nurses are required to observe their patients once per hour, ensure the patient is comfortable and safe and ask them questions so as to determine their well-being. This "care process" assists with monitoring patient's well-being ensuring nurses provide them with consistent and appropriate clinical care. It also applies following shift handover.
4. After reviewing the rounding plan, E recalled that she became concerned about A's conduct and the fact that she had not maintained proper documentation. The rounding plan stated she had recorded herself observing and speaking with the patient at both 10.00pm and 11.00pm when the patient was in fact missing at both these times.
5. E stated A's defence concerning the rounding plan errors during the investigation interview were words to the effect: I was in a hurry and I had a few things to think about, I just automatically went through and just signed without thinking about it
6. E considered A's response was inappropriate. The documentation policy clearly states health care records must provide an accurate description of both the care provided and the contact with health care personnel. The rounding plan should act as a surveillance record of the patient.
7. In E's opinion, A's conduct could have undermined the search for the patient. The rounding chart not only reminds staff to check on the patient every hour, it is "also a record that that has happened". The hourly observation validates what condition the patient was in at that particular time. It was a medical record.
8. Upon assuming charge of ward X at the shift handover, E contended that A assumed responsibility at that time for the patients on the ward including the missing patient. However, during the investigation interview with A, she gave no indication that she made any further enquiries about the search for the missing patient or whether any other steps had been taken or could have been taken to locate the patient such as a search of the ward.
9. E considered the failure of A to escalate a further search was inconsistent with the absconding patient guideline and her own expectations of a senior nurse in charge of a shift. That search should have been undertaken well prior to 12.30am. E explained that by her conduct, A had breached her obligations under the code of conduct and the competency standards to exercise her duty of care to the missing patient and respond appropriately when patient safety was at risk.
10. Despite a claiming that she was unaware of the existence of the absconding patient guideline, she should have acted consistent with her duty of care to the patient and professional obligations as registered nurse and escalated the matter to the after-hours manager or ensure that a ward search had been completed.
11. It was E's evidence that in her experience working as a registered nurse and nurse unit manager in a (medical speciality named) ward such as ward X would not have been stressful or a particularly busy ward environment on the night of the incident as there were only 15 or 16 patients present. All were in a stable condition and none required urgent medical attention or suffered serious medical complications.
12. E considered reinstatement or reemployment was inappropriate in the circumstances of A's conduct and in her opinion, additional training would not address the deficiencies displayed by her failure to show an acceptable level of care for her patients.
13. In cross-examination, E confirmed that in addition to A, two other nurses had been dismissed as a result of the incident.
14. It was unreasonable for A to assume that given the patient had been missing since 5.30pm that a search had been carried out. In her opinion, it was not safe for A to assume that a search had been conducted. It was, however, safe for her to assume that the after-hours manager and security had been contacted.
15. E contended that there was expectation that post shift handover, a senior registered nurse such as A would have ensured that the absconding patient guideline had been followed. Despite A's claim that she was unaware of the guideline, she contended that it was the responsibility of a registered nurse, consistent with the relevant professional standards, to ensure that they are up-to-date with all policies and procedures. At the very least, she could have consulted the policy and procedures directory which was readily accessible.
16. E confirmed that there was no formal training concerning the guideline as it adopted a set of common sense checklist steps to be implemented in the event of a missing patient.

Witness M

1. M is an executive director responsible for overseeing a number of hospitals within the Local Health District.
2. On balance, much of her evidence was canvassed in the affidavits of other witnesses called in support of the Local Health District's case. As noted above, I do not propose to restate that evidence here. I have, of course, considered her evidence in the course of deciding this matter.
3. In cross examination, M confirmed that in determining the appropriate penalty for A, a hierarchy of disciplinary options ranging from a warning to dismissal has been considered.
4. M agreed with the proposition that G, a senior registered nurse on the evening shift, should have triggered the absconding patient guideline. However, it was inappropriate for A to rely upon that action being taken by G because every registered nurse in charge of a shift is responsible for assessing the environment that they are taking responsibility for. This involves making sure that the patients are in the right place, they have been accounted for and the ward self is in order, including an observational audit of what's been happening immediately prior to them assuming responsibility at handover.
5. In relation to the rounding chart errors, M stated that rounding chart medical documentation was very important and it becomes a legal document.
6. During the course of the investigation interview, A had failed to acknowledge her wrongdoing and simply made excuses. She had no insight to the impact of her conduct.
7. The rounding chart information is critical to the outcome of patients and to reference what has happened with a patient whilst under the hospital's care. To sign the chart two hours after the ward round and state that you saw a patient who wasn't even present is unprofessional.
8. M disagreed with the proposition that it was currently common practice for nurses to complete the rounding sheet at the nurse's station. She acknowledged that it was L's evidence that it had been a common practice in the past but it was now undertaken at the bedside.
9. M considered A's conduct in respect of the incident was as serious as the conducted exhibited on the evening shift by G and B. Given A's experience, M contended her expectation was that "she would have known what to do".

Applicant

1. A sought reinstatement as a registered nurse on the basis that her dismissal was harsh, unreasonable and unjust. She had been employed by the Local Health District since early 2002 as a casual and later from 2008 as a permanent part-time employee from 2008.
2. There is no suggestion by the Local Health District that prior to the incident 11 May 2016, there were any complaints about her work performance. Indeed, it was submitted that her work performance was unblemished.
3. A was entitled to rely upon the advice given to her at the shift change over that a patient had been missing since 5.30pm and the after-hours manager had been notified. Moreover, security "(was) out looking for the patient".
4. The evidence of E was that the evening shift after-hours manager did not inform the night shift after hours manager that a patient was missing from ward X.
5. The Local Health District's case was that A should have escalated the search for the missing patient at an earlier time and accordingly, it was held against her that her conduct amounted to a breach of the duty of care owed as a registered nurse in charge the shift. It was also put against her that she had breached the Local Health District's absconding patient guideline.
6. The Local Health District's witness evidence was mixed concerning whether the guideline was silent with respect to the requirement to repeat the procedures following a change of shift. It was subsequently amended following the incident.
7. A had attended a multitude of training courses during her employment with the Local Health District and none of those courses had dealt specifically with the guideline. Accordingly, the decision to dismiss A on the basis of the "failure to escalate" grounds either via the guideline or generally, was harsh, unreasonable and unjust given the information that had been conveyed to her at the shift change over.
8. The mistakes A made in completing the rounding sheet for the missing patient, while erroneous and in that sense false, cannot be relied upon to support the proposition that she deliberately "falsified" documents with an intention to deceive. The interview record suggests that she had made a full and frank disclosure of her error.
9. A agrees her error was serious because proper records need to be kept in a hospital. However, the practical effect of her error concerning the rounding sheet was minimal.
10. It was put that E was clearly of the view that A's conduct represented a serious error for which there was no reasonable excuse. Accordingly, when viewed in totality, E determined that her overall conduct warranted dismissal. A considered the penalty of dismissal was exceedingly harsh in the light of her explanation and admissions particularly that her rounding sheet errors were not intentional and, during the investigation interview, she was not attempting to conceal that error.
11. The Nursing and Midwifery Council had assessed the allegations put against the applicant and determined they were unworthy of any further investigation save for the "falsely documented" rounding sheet which may warrant disciplinary action by the employer, but certainly not dismissal.

Local Health District

1. A was terminated after it was found, on the balance of probabilities, that on 11 and 12 May 2016 she had engaged in unsatisfactory professional conduct with respect to her judgement, professionalism and communication and, she had also exhibited behaviour inconsistent with the values of the Local Health District. Accordingly, the dismissal was not harsh, unreasonable or unjust.
2. A was not informed during the shift handover that a search of ward X had been undertaken or that the after-hours manager for the night shift, as opposed to the afternoon shift, had been informed of the patient's absence. She subsequently made no enquiries whether a search of the ward had been undertaken or whether the after-hours manager for the night shift had been informed.
3. At approximately 10.00pm and 11.00pm, A falsely documented in the patient's health care record by noting on the rounding chart that she had had a clinical interaction with the missing patient. A had recorded in the rounding chart that she had "visualised" the patient. She had also signed off that she had "assessed all the P's & D's" and had asked the patient "is there anything I can do for you", despite the fact that the patient's location was unknown at these times.
4. Two hours after commencing her shift, A contacted the after-hours manager on night shift at approximately 11.30pm to report that the patient was still missing from ward X. For approximately 2 hours after commencing her shift at 9.30pm, A took no action to escalate the situation, advise the after-hours manager on night shift or make enquiries concerning the status of the search for the missing patient.
5. It was the after-hours manager on night shift that subsequently contacted the police.
6. A took no action to conduct a search of ward X until approximately 12.30 am, three hours after commencing her shift. It was then that the patient was found deceased in a toilet. It was also determined that the patient had been deceased for some time.
7. The Local Health District argued that A's misconduct was of a serious nature and "went to the heart of the employer relationship". In that regard, A, as an employee of the Local Health District, was required comply with a number of policy directives and guidelines of both NSW Health and the Local Health District as enumerated in the evidence before the Commission.
8. It was also a term of A's employment with the Local Health District that she comply with the various professional standards set down by the Nursing and Midwifery Board including the national competency standards, the code of ethics and the code of professional conduct. Moreover, compliance with the competency standards and the code of ethics was also a requirement of the code of conduct.
9. A was the relevant professional in charge of ward X on the night in question. It is undisputed that she failed to take proactive steps to contact the after-hours manager on night shift or security until approximately 11.30pm. It is also undisputed that she failed to conduct a search of ward X prior to 12.30 am on 12 May 2016.
10. In her defence, A contends:

• she was unaware of any policy or procedure in existence with respect to absconding patient management nor had she received any training with respect to such matters;
• she was informed at shift handover by the evening shift nursing staff that the patient was missing and the after-hours manager for afternoon shift and security had been notified. It was for these reasons that A stated that she did not undertake a search or contact after-hours management or security; and
• she assumed that a search of ward X had been conducted by nursing staff during the evening shift.

1. It was the Local Health District's case that none of these contentions provided a satisfactory or a proper excuse for her failures. Rather, irrespective of what had occurred during the evening shift, A had obligations to discharge and despite being in charge of ward X, she failed to undertake any positive steps to escalate the search or initiate further enquiries until much later in the evening.
2. In the interim, A made a series of assumptions and failed to exercise her duty of care so as to ensure the patients under her care were safe and received a standard of medical care consistent with the expectations of NSW Health and the Local Health District.
3. The Local Health District sought to rely on the decision of the High Court in Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at 33: … The hospital undertakes the care, supervision and control of patients who are in special need of care… In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.
4. The Local Health District contended that in the event A had no knowledge of the absconding patient guideline as she claimed, it was a matter of common sense and professionalism that she escalate and investigate the missing patient. That course of action was consistent with her obligations under the code of conduct which required her to act in a way that was consistent with NSW Health's duty of care to patients and clients and its obligations to provide a safe and supportive environment on its premises for patients.
5. Moreover, consistent with the competency standards, A was required to fulfil her duty of care by clarifying her responsibility for aspects of care with other members of the patient's health care team. Further, A was also required to recognise and respond appropriately to unsafe or unprofessional practice by identifying appropriate action to be taken in the particular circumstances of the incident.
6. The competency standards required A to seek clarification when questions, directions and decisions are either unclear or not understood. She was also required to demonstrate accountability and responsibility for her own actions within nursing practice and consult relevant team members of the patient's health care team when required.
7. Shortly stated, irrespective of her knowledge concerning the guideline, the Local Health District expected A to act consistently with her obligations as an employee and a registered nurse and take steps to ascertain whether a search had been conducted and if not, conduct a search and escalate the matter to the after-hours night shift manager.
8. Given her experience, it was reasonable to expect that A would take such steps in discharging her duty of care to the missing patient given the obligations imposed on her as an employee of the Local Health District and being a registered nurse. In essence, A failed to prioritise patient care.

Statutory Context

1. In deciding whether a dismissal is harsh, unjust or unreasonable, the Commission must take into account procedural and substantive matters set out in s 88 of the Act as follows: 88 In determining the applicant's claim, the Commission may, if appropriate, take into account: a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and c) whether a warning of unsatisfactory performance was given before the dismissal, and d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and e) whether or not the applicant requested reinstatement or re-employment with the employer, and f) such other matters as the Commission considers relevant.

Tripartite Test

1. In determining whether a particular dismissal is harsh, unreasonable or unjust, the Commission is required to deal expressly and specifically with the tripartite statutory test. As the Full Bench observed in Outboard Marine Pty Ltd T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183, in order to avoid the possibility of misunderstanding or error, the Commission should state explicitly the basis upon which it is considered that a dismissal was unfair or not unfair. That is to say, whether the dismissal was or was not harsh, unreasonable or unjust. There is no doubt that the conduct as alleged did occur.
2. In Corrective Services NSW v Danwer [2013] NSWIRComm 61, the Full Bench observed at [21]: The Industrial Relations Act 1996 (IR Act) provides for certain remedies where the Commission finds that the dismissal of an employee from employment was "harsh, unreasonable or unjust": see s 89. It has been said those words constitute a "tautological trinity" (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24;(1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a "tautological trinity". As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. (See also NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; (2005) 146 IR 441 at [64] and Department of Health v Perihan Kaplan [2010] NSWIRComm 65 at [25] - [32]).
3. The words "harsh, unreasonable or unjust" set out in s 84(1) are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. The High Court in Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 determined that a particular dismissal may be: Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct; Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer.
4. The Local Health District contends the dismissal was not harsh, unjust or unreasonable. However, the reason for the dismissal must also be justifiable on an objective analysis of all relevant facts. The standard of proof to be applied in deciding whether an employee has engaged in misconduct is proof on the balance of probabilities. That is the case notwithstanding that the strength of the evidence necessary to establish proof to the required standard may vary because of the seriousness of the allegations.
5. Any findings in relation to the allegations put against A must be based on clear and cogent proof: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others [1992] HCA 66; (1992) 110 ALR 449 at 449-450.
6. When determining whether a particular dismissal is harsh, unjust or unreasonable, the Commission does not stand in the shoes of the employer and determine what action they would take in the circumstances. It is only in circumstances where the Commission considers the dismissal was a disproportionate and unreasonable response to the employee's conduct should a finding that the dismissal was unjust or unreasonable be made.
7. In Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681.at 685, Moore J stated: In my opinion, the evidence does establish that the employer had a valid reason for terminating the employment of Mr Walton. I should, however, make plain - and this has been made plain in many cases decided by this court - that it is not the court's function to stand in the shoes the employer and determine whether or not the decision made by the employer was a decision that would be made by the court but rather it is for the court to assess whether the employer had a valid reason connected with the employee's capacity or conduct, and in these proceedings I have concluded it did.
8. Rather, the Commission must make a finding based on an assessment of the evidence before it, whether, on the balance of probabilities, the conduct alleged actually occurred.
9. A serious breach of a workplace policy or an incident where an employee places say, health and safety at risk, will generally constitute a valid reason for dismissal. It is also recognised that any breach of a workplace policy and procedure can have potentially disastrous consequences for the employer, the employee who triggers the breach, employees in the workplace generally and third parties who may be adversely impacted.
10. The requirement to observe workplace policies concerning workplace safety was considered by a Full Bench of the Fair Work Commission in Parmalat Food Products Pty Ltd v Walilo: FWAFB [2011] 1166 at [18] - [19]: [18] In our view this case raises important questions about the respective rights and obligations of employees and employers in relation to safety requirements at the workplace. Employers have important statutory obligations to maintain a safe place of work. Those obligations have a high profile in NSW. Establishing and enforcing safety rules are an important obligation, a breach of which can lead to serious consequences. [19] In this case the employer considered, and established to the satisfaction of the Commissioner, that Mr Wililo had breached its safety rules and his conduct amounted to serious misconduct. Clearly disciplinary action was necessary and appropriate because a failure to do so sends a message to the workforce that safety breaches can occur with impunity. The application of the unfair dismissal provisions to this case is a matter of general importance and in our view clearly attracts the public interest. We therefore grant permission to appeal.
11. The Full Bench at [24] also considered that where findings had been made that an applicant had been afforded procedural fairness and there was valid reason for termination, it would only be in circumstances where significant mitigating factors were present that a particular dismissal could be determined "harsh": [24] … The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open …
12. I consider the principles enunciated in Parmalat Food Products Pty Ltd v Walilo are broadly relevant to these proceedings.

Was the dismissal unreasonable or unjust?

1. Employers face potential liability arising from their common law duty of care to their employees and to members of the public. Employees may also be subject to obligations that require them to conduct themselves in the workplace in a particular way or to meet particular standards or observe particular constraints. For these reasons it is entirely reasonable, and often necessary, for employers to put in place policies, requiring mandatory compliance at all times. However, policies need to be clearly articulated to staff.
2. I consider the absconding patient guideline essentially contains a set of common sense steps to be implemented in the case of a missing or absconded patient. In any event, it was A's evidence that she had dealt with missing patients before the incident. Her experience was with dementia patients.
3. In cross examination, A explained the escalation procedures that she had previously implemented. Those procedures were broadly consistent of what the Local Health District sought of her with respect to the missing patient. There is no complaint that A was unaware of the terms of the other policies and procedures relied upon by the Local Health District, including the code of conduct and the nursing competency standards.
4. For their part, employees need to be squarely on notice that non-compliance with the employer's policies may lead to dismissal. On the material before the Commission, that was the case as far as the Local Health District was concerned particularly in relation to the NSW Health Code of Conduct PD2015_049, Acting professionally and ethically.
5. The Local Health District's contended that A engaged in unsatisfactory professional conduct in that she:

• did not initiate and follow the absconding patient guideline, which it argued contained a set of escalating common sense steps;
• failed to carry out her duties as a registered nurse diligently and efficiently;
• failed to exercise her duty of care as a nurse and provide safe appropriate and responsive quality practice; and
• failed to properly document the rounding chart to accurately reflect her clinical interaction with the patient. That conduct provided it with a valid and defensible reason to terminate her and not render the dismissal unreasonable or unjust.

1. I have also formed the view having regard to all the material before the Commission that the A's dismissal was neither unreasonable nor unjust in all the circumstances the case.
2. A's dismissal was not unjust because I consider the conduct against her as alleged proven to the requisite civil standard of proof. That is a necessary but regrettable finding given her experience as a registered nurse in both Australia and overseas. Moreover, I do not consider the dismissal was unreasonable. It was not decided on inferences that could not reasonably have been drawn from the material before the Local Health District.

Was the dismissal of A harsh?

1. On the material before the Commission, there is no argument that A was not afforded an adequate opportunity to respond to the allegations against her. Indeed, her show cause response to the allegations was prepared by her solicitors. A was also accompanied by her Association's legal officer at the initial fact finding interview conducted on 20 May 2016.
2. A signed a letter of employment with Local Health District agreeing that she would observe the policies and procedures referenced in it which formed part of her terms and conditions of employment and her employment contract.
3. I note that A suggests in her evidence that she only met the Association's legal officer about 10 minutes prior to her interview. That is also regrettable. However, in the Commission's experience, such officers of the Association are highly experienced in these matters and vigorously defend the interests of members at every opportunity. In any event, the show cause response prepared by her solicitors provided A with the opportunity to vent and respond to the allegations put against her. There was no argument that she had not been afforded procedural fairness.
4. The service and disciplinary record of A is not, in my view, a significant mitigating factor. A was an experienced clinician. In my view, that high level of experience gives the Local Health District the right to expect a high level of conformance with its policies.
5. The propensity for error must, on balance, diminish with clinical experience. The fact that A was a long term and experienced registered nurse supports the proposition that Patient Care Essentials Rounding Care Plan should have been completed correctly. It really matters not that it was a common practice to complete the rounding charts at the nurse's station. That was not the policy at that time.
6. The nature of the misconduct allegations against A was serious. Characterisation of the rounding chart allegation as being "careless" does not derogate from the seriousness of her action or the possible consequences to patient safety. The innocent bystander would be appalled by such conduct.
7. I have given consideration to the mitigating factors concerning A's ability to find similar work in the private sector and note that she is working in the private hospital earning broadly similar remuneration.
8. I have also considered whether or not A's dismissal was too severe a penalty. I think not having regard to the nature of that conduct and the penalties meted out to the other clinicians involved in the incident in some way or other.

Finding

1. The nursing profession, by its very nature, is highly governed by professional standards and codes of conduct. It must follow that as a general proposition, the level of personal culpability for the consequences of one's error making are properly assessable in an occupational context. The standards for personal responsibility are high in the case of an occupation such as nursing. Consequently, the substantive reason for A's dismissal, on the material before the Commission, is a valid one.
2. I have considered the tripartite test. I have determined that upon consideration of all the evidence and material before the Commission, the allegations against A are proven. It matters not what the Nursing and Midwifery Board ultimately decides. What is more relevant here is the mandatory nature of policies and procedures that apply to protect patients.
3. Even if the Commission was to determine that it was manifestly unfair to penalise A concerning her lack of awareness of the absconding patient guideline, her other professional failures are significant enough to warrant the action taken by the Local Health District.
4. As put above, it is not a role of the Commission to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by a court. In the particular circumstances of this case, the Local Health District was entitled to enforce its various workplace policies and policy directives established to underpin both employee and patient safety. In those circumstances, I cannot determine that A's dismissal was harsh, unreasonable or unjust.
5. I consider that A has been afforded a "fair go all round" having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99.

Disposal of the matter

1. The Order that I make in Matter No 2016/203362 is that the application before the Commission pursuant to s.84 of the Act is dismissed.

Amendments 08 January 2018 - Name removed. 12 January 2018 - Text amended. 12 January 2018 - Place name removed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 January 2018