Fair Work Act 2009

s.394 - Unfair dismissal

Heartlab Pty Ltd As Trustee For The Heartlab Trust T/A The Cardiac Centre

Application for an unfair dismissal remedy - valid reason - dismissal not unfair - application dismissed

• [1] Ms Brooke Field (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) stating that she was unfairly dismissed from her employment with Heartlab Pty Ltd As Trustee For The Heartlab Trust T/A The Cardiac Centre (the Respondent).

• [2] A conciliation was held on 23 July 2024 and the matter was not resolved.

• [3] The matter was listed for an in-person hearing on 6 November 2024. The Applicant was represented by Mr Benjamin Wilson of Counsel. The Respondent was represented by Mr Ian Latham of Counsel. Leave was granted for both parties to be represented under s.596 of the Act, as it would not cause unfairness to either party.

• [4] Section 396 of the Act requires satisfaction of four matters before considering the merits. I am satisfied that the Applicant made her application within the 21-day period required by s.394(2) of the Act, earned less than the high-income threshold, is a person protected from unfair dismissal, that her dismissal was not a case of genuine redundancy, and the Small Business Fair Dismissal Code is not applicable the Respondent has more than 15 employees.

• [5] The Applicant commenced work for the Respondent on 8 August 2021 as an in-clinic nurse to a specialist doctor in cardiac surgery.[1] The Applicant's role was as nurse to Cardiologist, Dr John Meulet.[2]

• [6] In this role the Applicant managed correspondence with patients, diary management and the administration of vaccinations.[3] The Applicant also took patients' blood pressure, took medical histories and carried out ECG tests.[4]

• [7] The Applicant knew of Dr Meulet because she had worked with his wife in a private hospital.[5] When Dr Meulet was looking to hire a nurse, he advised the business manager of his cardiac surgery, Mr Andrew Walker, to contact the Applicant.[6] The Applicant submitted her resume and cover letter by email.[7] The resume and cover letter note that the Applicant was an Enrolled Nurse (EN) and anaesthetic technician.[8]

• [8] The Standards of Practice that apply to nursing require an EN to be supervised by a Registered Nurse (RN). The parties both submitted a copy of the Enrolled Nurse Standards for Practice (EN Standards for Practice), published by the Nursing and Midwifery Board of Australia. That document states:

Core practice generally requires the EN to work under the direct or indirect supervision of the RN.

The need for the EN to have a named and accessible RN at all times and in all contexts of care for support and guidance is critical to patient safety.[9]

• [9] Dr Meulet had assumed that the Applicant was an RN and did not need supervision. The discovery of the Applicant's registration as an EN was a surprise to the Respondent. The Applicant contended that Dr Meulet should have known that the Applicant was an EN, given Dr Meulet interviewed the Applicant and the Applicant's resume and cover letter both state in no uncertain terms that she is an EN.[10]

• [10] Ms Vanessa Byron commenced as Practice Manager for the Respondent in March 2023.[11] Ms Byron undertook a review of the practising licences of the practice's staff as part of the process of applying for renewal of medical indemnity insurance.[12] Ms Byron became aware that the Applicant was not an RN but in fact was an EN.

• [11] Ms Byron undertook an inquiry into the status of the Applicant's registration and wrote to the Applicant on 1 May 2024 stating that she was working outside her scope of practice as an EN as she was not being supervised by an RN.[13]

• [12] A meeting was arranged between the parties. The Applicant was accompanied by a representative from the Queensland Nurses & Midwives Union (QNMU), Mr Aaron Vass.[14] The Applicant was informed that she could not continue in her role as an EN as she had no supervision.[15] She was offered an administrative role with the Respondent.[16]

• [13] The Applicant denied that she was working outside the scope of practice. The Applicant stated that she had been told something to the effect that she could continue working at the practice, but only performing non-clinical, administrative duties.[17]

• [14] The Applicant stated that there was a registered nurse next-door in the practice, working for another cardiologist, who could supervise her and that with all her years of nursing experience, she did not need to be supervised all the time.[18] There was no written agreement for the RN next-door to supervise the Applicant.[19]

• [15] Indirect supervision is defined in the EN Standards for Practice to mean:

Indirect supervision is when the supervisor works in the same facility or organisation as the supervised person, but does not constantly observe their activities. The supervisor must be available for reasonable access. What is reasonable will depend on the context, the needs of the person receiving care and the needs of the person who is being supervised.

It is generally expected that in the case of indirect supervision that the registered nurse and enrolled nurse have the same employer. There may be situations where the registered nurse and the enrolled nurse may not have the same employer but work in the same facility or organisation. In these situations, clearly documented arrangements between the employers, supported by the registered nurse(s) and the enrolled nurse(s), must be in place. These documented arrangements should include details of all aspects of the supervision arrangements (including insurance) and describe how the registered nurse will be available for reasonable access to ensure effective timely direction and supervision so that the delegated practice is safe and correct and public safety is ensured.[20]

• [16] The Applicant gave evidence that her background is as a nurse working in a hospital theatre environment. In that environment, she states that she was informed each day of who was the RN in charge. The RN in charge would be her supervisor for the day.[21]

• [17] The Applicant stated that she was unaware that she was working outside her scope of and that in her role that she was not required to be supervised. Mr Vass at the meeting's conclusion stated that he would put an offer of settlement to the Respondent by close of business, 13 May 2024.[22] The Applicant did not attend for work in the non-clinical role and no offer was received by the Respondent.[23]

• [18] The Respondent terminated the Applicant on 17 May 2024.[24]

• [19] The Respondent paid the Applicant 4 weeks' salary in lieu of notice along with her statutory entitlements.[25]

Was the dismissal harsh, unjust or unreasonable?

• [20] Section 387 of the Act provides the criteria and considerations the Commission must take into account when deciding if the dismissal was harsh, unjust or unreasonable. As required by the Act, I consider the following:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees);

• [21] A valid reason for dismissal should be "sound, defensible or well founded" and should not be "capricious, fanciful, spiteful or prejudiced."[26] As summarised by Deputy President Asbury in Smith v Bank of Queensland Ltd a "dismissal must be a justifiable response to the relevant conduct or issue of capacity".[27] The Commission must consider the entire factual matrix in determining whether an employee's termination was for a valid reason.[28]

• [22] It is not contested that the Applicant had the status of an EN which requires direct or indirect supervision by a RN. The EN Standards of Practice submitted by the parties make it clear that there are no circumstances where an EN does not require direct or indirect supervision.[29] The EN is required to work collaboratively with, and under the guidance of, an RN to provide nursing care.[30]

• [23] The Applicant contested that she required supervision, claiming that her role had components which could be performed by a secretary or non-clinical member of staff.[31] The crux of the Applicant's argument is that she was not performing the clinical role associated with being an EN and therefore the requirement to be supervised does not apply.

• [24] The Applicant's position required her to perform the following duties, as stated in her witness Statement:

(a) asking intake questions about the patients' medical history;

(b) providing patients with pre-operation and post-operation information packages;

(c) undertaking general administrative and clerical duties for Dr Meulet, including:

(ii) being the point of contact between patients and Dr Meulet for any queries

(iii) emailing information on behalf of Dr Meulet to patients (including about pre- and post-operation care;

(iv) proof-reading and issuing patient letters on behalf of Dr Meulet (I understand this is role is now being performed by the Practice's Practice Manager)

(f) carrying out (but not reviewing or reading - that was Dr Meulet's role) ECG tests.[32]

• [25] The Applicant also stated that she would sometimes place the wand over the patient's pacemaker during a pacemaker interrogation, but she would always be accompanied by Dr Meulet and a pacemaker technician when doing so.[33]

• [26] In my view, it is appropriate to assess whether the Applicant's role was clinical, and so required supervision, by assessing the whole picture of the duties performed, rather than interrogating whether each discrete task could be performed by a non-clinical employee. That is a question that it would be more appropriate for the Nursing and Midwifery Board to answer.

• [27] While no clear definition of what "clinical" means in this context has been put forward, the parties appear to agree that the clinical is contrasted from the administrative or clerical.

• [28] I find that the Applicant's role cannot be said to be a purely administrative or clerical role. The Applicant worked closely with Dr Meulet to provide care to the patients of the practice in a medical context. The Applicant's duties as part of the provision of care were a blend of administrative duties, such as typing dictation, and medical duties, including observing patients, recording medical history, giving advice, and using medical technology. I find that the Applicant had a clinical role.

• [29] The requirements of the clinical practice for enrolled nurses articulated by AHPRA and the Nursing and Midwifery Board require that an EN has direct or indirect supervision by an RN.[34]

• [30] In this instance, the Applicant claimed she was not acting outside her scope of practice for an EN however she could not identify her supervisor. The EN Standards of Practice submitted by the parties make it clear that where there is an indirect supervision arrangement, that arrangement should be documented.[35]

• [31] Any clinical practitioner should be clear on their scope of practice. In this case, the Applicant was performing clinical activities that required supervision. It is not the specific tasks that create the need for supervision but rather the level of registration which required a registered nurse to provide oversight.

• [32] It is not for the Applicant to determine which tasks needed supervision or not. She was clearly a very experienced EN and may have felt she was very competent at all aspects of her role, however it was not for her to judge whether she required supervision or not.

• [33] I found the Applicant generally to be a truthful witness, although at times her responses demonstrated a lack of understanding of the situation. I acknowledge that she has had decades of service as an Enrolled Nurse in a hospital. That said, it is striking that the Applicant takes little responsibility for failing to inform the Respondent that she requires supervision.

• [34] As the holder of an EN registration, it is the Applicant's responsibility that she is aware of the current standards for practice and that she operates in accordance with those standards. The same could be expected of any employee holding a professional licence or registration. It is not the duty of the Respondent to educate her on those standards, although they must ensure the standards are upheld for patient safety. If the Applicant had any doubt about whether the role she was performing was clinical, she should have sought clarification.

• [35] The Respondent did accept that they did not review the Applicant's registration as they should have. However, the Respondent has taken responsibility for that mistake. Dr Meulet conceded during the hearing that he had made an error by failing to carefully read the Applicant's resume and cover letter before hiring her and that he would not make the same mistake in the future.[36]

• [36] Once the fact was discovered that the Applicant was an EN and not an RN then the Respondent had no choice but to remove her from the role or be in breach of their professional indemnity insurance and risk liability. They then offered her a non-clinical role. These were appropriate steps for the Respondent to take. That the Applicant did not accept the role offered meant that she effectively had no role to perform.

• [37] It is correct that there was a dismissal by the Respondent however the dismissal was for a valid reason. The fact that the Applicant had been performing her role for a period of time prior does not mean that the employer did not have a valid reason. The valid reason crystallised once it became clear that the Applicant required supervision and no supervision arrangements were in place.

• [38] The Applicant argued that she was not informed of the reason for dismissal, as during the meeting on 13 May 2024, the issues discussed were around the scope of practice, whereas the stated reason for dismissal was because the Applicant did not accept the alternative role.[37] However, these are both inextricably linked. The possibility of the Applicant working outside her scope of practice meant her nursing role was no longer available, and declining the alternative role offered by the Respondent meant there was no role at all for the Applicant at the practice.

• [39] The Respondent submitted that the Applicant's conduct in failing to inform the Respondent that she requires supervision constitutes serious misconduct.[38] The Respondent also suggested that the transcript of the proceedings be forwarded to the Nursing and Midwifery Board.[39]

• [40] Although the Applicant appear to be ignorant of how the EN Standards for Practice apply to private clinics, I am not prepared to conclude that her actions amount to deception or serious misconduct. The Respondent appears to be asking the Commission to make a decision on whether the Applicant breached her nursing registration. Such a decision is clearly a matter for the Nursing and Midwifery Board, not the Commission.

a) whether the person was notified of that reason; and (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

• [41] On 22 April 2024, the Applicant had a conversation with Ms Byron in which Ms Byron raised that the Applicant was an EN and Ms Byron noted that AHPRA requirements require an EN to be supervised by an RN.[40] The Applicant asked, "where that requirement was written down". The Applicant told Ms Byron that she was not outside her scope of practice.[41] The conversation ended with the Applicant suggesting that Ms Byron was trying to get rid of her.[42] Ms Byron told the Applicant that she would try and sort something out.[43] Ms Byron did not expressly tell the Applicant that this issue may lead to her termination.

• [42] On 1 May 2024, Ms Byron emailed the Applicant, stating that the Applicant had been working outside her scope of practice as she had not been supervised by an RN.[44] The email ended with "I understand you are on leave so a meeting will be arranged with the appropriate people on your return to discuss your employment contract".[45]

• [43] On 13 May 2024, the Respondent held a meeting with the Applicant and Mr Vass.[46] Ms Byron told the Applicant that by the Applicant's unsupervised practice amounted to a frustration of her employment contract.[47] The Applicant was offered an administrative role.

• [44] The Respondent did not receive an offer from the Applicant's union following the meeting. On 16 May 2024, the Applicant provided the Respondent with a medical certificate.

• [45] Ms Byron did not specifically tell the Applicant that the Applicant would be terminated if she did not accept the administrative role. Ms Byron later stated under cross-examination that it "was made very clear in that meeting that [the Applicant] wouldn't be coming back."[48]

• [46] On 17 May 2024, Ms Byron emailed the Applicant:

Your decision not to accept the non-clinical role offered to you on Monday resulted in

• [47] Although it may have been clear to everyone else in the room during the meeting on 13 May 2024 that failure to accept the administrative role would result in termination, on the evidence before me, this was not expressly conveyed to the Applicant.

• [48] I accept the Applicant's argument that the Respondent should have told the Applicant what the consequences of non-acceptance would be. The Applicant should have been provided with an opportunity to present her case at the start of the meeting, rather than simply being told the contract was "frustrated", suggesting that her employment was already at an end.

• [49] I note that the Respondent subsequently abandoned the contractual frustration argument.[50]

• [50] Ultimately, the defects in the Respondent's process, by failing to provide the Applicant with an opportunity to respond in the 13 May meeting, weigh in favour of finding that the dismissal was harsh, unjust or unreasonable.

b) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and

• [51] The Applicant was not refused a support person and was represented by Mr Vass from the QNMU. This factor weighs neutrally.

1. if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

• [52] The dismissal was not related to performance. This factor is not a relevant consideration.

d) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

• [53] The parties did not submit that the size of the Respondent's enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent's enterprise did not have an impact. This factor is neutral.

e) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

• [54] The Respondent does not have dedicated human resource management specialists or expertise. Neither party submitted that the absence of such expertise impacted on the procedures followed in effecting the dismissal. I find that the absence of such expertise did not impact on the procedures followed in effecting the dismissal.

f) any other matters that the FWC considers relevant.

• [55] The Applicant argues that there were RNs in the practice that could have provided supervision. The Applicant appeared to argue that there was a requirement for the Respondent to redeploy the Applicant to work with another cardiologist.[51] I am not convinced by this argument.

• [56] Another cardiologist in the practice employed RNs.[52] However, those RNs were not employees of the Respondent. They were privately employed by the other cardiologist in the practice.[53]

• [57] There were no RNs working for the Respondent and whilst the practice may have had RNs in the facility they were not under the direction of the Respondent and thus not able to be required to supervise the Applicant.

• [58] The Applicant also argued that the role was non-clinical by pointing to the fact that other doctors in the practice employed cardiac technicians to perform the same role as the Applicant.[54] I am not convinced by this argument either. No evidence was provided by any other doctors at the practice to describe what duties they had the cardiac technicians perform. No evidence was adduced to explain how the practising requirements for a cardiac technician differ from that of an EN, except to say that the former requires a tertiary degree.[55] In fact, in cross-examination it was suggested that the duties of the nurses at the practice differed from that of the cardiac technicians.[56]

• [59] The Respondent argued that the Commission should draw a negative inference from the fact that the QNMU official, Mr Vass, who had initially been representing the Applicant, declined to give evidence in the Commission.[57] I decline to make such an inference as I consider that there are a multitude of reasons why Mr Vass may have declined to give evidence.

• [60] I find that there were errors in the Respondent's process, particularly in how the meeting on 13 May 2024 was conducted. However, I find that those errors do not outweigh the valid reason for dismissal. The Applicant working outside her scope of practice potentially exposed both the Applicant and Respondent to liability. Furthermore, the Respondent took appropriate steps to remedy the situation by offering the Applicant a role performing administrative duties.

• [61] I am sympathetic to the Applicant, who had been working for the Respondent for some time, and by all accounts performed her work to a reasonable standard, before it was realised that she could no longer perform the role for which she was hired.

• [62] However, the requirements of the Nursing Board are not flexible. Clinical practice requirements should not be open to interpretation by either practitioners or their employers. To maintain high standards of medical care the requisite standards of clinical practice must be observed. The Respondent did offer the Applicant an alternative non-clinical role which she chose not to accept.

• [63] The Respondent has now ensured that they will not hire non-RNs and although the Applicant has had to leave the practice, she bears accountability for not being aware of the limits of her clinical practice and not raising the issue.

• [64] Therefore, a remedy for unfair dismissal cannot be awarded and the Application is dismissed. I Order accordingly.

B Wilson of Counsel for the Applicant, instructed by Tusk Lawyers

I Latham of Counsel for the Respondent, instructed by Morris Legal

[2] Applicant Submissions on Unfair Dismissal, [7].

[3] Vanessa Byron Witness Statement [6].

[6] Andrew Walker Witness Statement [5].

[9] Enrolled Nurse Standards for Practice¸ Nursing and Midwifery Board of Australia, 1 January 2016, page 2

[10] See Andrew Walker Witness Statement Annexure ARW-1.

[11] Witness Statement of Vanessa Byron [3].

[13] Vanessa Byron Witness Statement Annexure VB-5.

[14] Applicant Submissions on Unfair Dismissal [11]

[20] Vanessa Byron Witness Statement Annexure VB-5 Page 2.

[22] Vanessa Byron Witness Statement [12].

[26] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.

[27] [2021] FWC 4 at 118.

[28] Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185, [46], citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.

[29] Annexure VB-5 Fact Sheet: Enrolled nurse standards for practice, updated March 2023, page 2: "An EN must work under the direct/indirect supervision of an RN at all times"

[30] Annexure BF-3 Enrolled Nurse Standards for Practice¸ Nursing and Midwifery Board of Australia, 1 January 2016, page 3

[32] Applicant First Witness Statement [30].

[33] Applicant Second Witness Statement [17]-[18].

[34] Annexure VB-3 Fact Sheet: Enrolled nurse standards for practice, updated March 2023, page 2: "An EN must work under the direct/indirect supervision of an RN at all times"; Annexure BF-2, Decision-making framework for nursing and midwifery, effective 3 February 2020, "Enrolled nurses must work under the direct or indirect supervision of a registered nurse or midwife. This supervision cannot be replaced/substituted by another health professional"

[35] Annexure VB-5 Fact Sheet: Enrolled nurse standards for practice, updated March 2023, page 2: "An EN must work under the direct/indirect supervision of an RN at all times"

[37] Applicant Submission on Unfair Dismissal [38]-[40], [55].

[40] Applicant Second Witness Statement [29].

[44] Vanessa Byron Witness Statement Annexure VB-5.

[46] Applicant Witness Statement [52].

[49] Vanessa Byron Witness Statement Annexure VB-6.

[51] Applicant Reply Submission [32].

[53] Applicant Submissions [33]; Transcript PN645-PN646

[55] John Meulet Witness Statement [10].

[57] Transcript PN1070; See Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

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