s.394 - Unfair dismissal

Application for an unfair dismissal remedy - serious misconduct - conduct causing serious and imminent risk to the health or safety of a person - dismissal not harsh, unjust or unreasonable - application dismissed.

• [1] Mr Hang Li was a graduate nurse for the respondent, Eastern Health, which is part of the public health and hospital network in Victoria. His assigned location of work was Eastern Health Maroondah.

• [2] Mr Li was dismissed for alleged serious misconduct. The conduct relied upon by Eastern Health included conduct said to cause a serious and imminent risk to the health or safety of a person. Primarily, that conduct was alleged to comprise numerous instances of professional care falling well short of the clinical standards expected of a graduate nurse to such a degree that Mr Li was a risk to patient safety if left to in the absence of direct and continual supervision.

• [3] Mr Li subsequently made an application for relief against unfair dismissal under s 394 of the Fair Work Act 2009 (Cth) (Act). For the reasons that follow, I am readily satisfied that Mr Li's dismissal was fair. The evidence before me overwhelming establishes the conduct concerns held by Eastern Health about Mr Li's ability to safely and competently perform as a nurse were borne out. There was no procedural fairness or other matters that would render the dismissal unfair.

• [4] Mr Li began his employment with Eastern Health in around March 2022, as a Registered Undergraduate Student of Nursing or RUSON. He was initially deployed at Box Hill Hospital, which is a part of Eastern Health. Upon completing his graduate studies, Mr Li started working in 'Ward 1 North', with Eastern Health, pursuant to an employment contract dated 23 January 2024. That appointment was part of Eastern Health's 'Graduate Nurse Program'. The appointment was located at Maroondah Hospital, which is in the eastern suburbs of Melbourne.

• [5] Throughout Mr Li's employment and at the time of his dismissal, his employment was subject to the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020-2024 (the enterprise agreement).

• [6] Mr Tejeshkumar Rajanbabu, Nurse Manager, gave evidence for Eastern Health. He became a registered nurse in 2007 and has been employed by Eastern Health since August 2019. In his role as Nurse Manager, he was responsible for leading the clinical team of Eastern Health's Ward 1 North in Maroondah Hospital. Mr Rajanbabu's evidence, which I accept, is that Ward 1 North specialises in the care of patients recovering from orthopaedic surgery, including both elective and trauma procedures. The ward primarily cares for older adults, many of whom have pre-existing cognitive impairments such as dementia or are recovering from injuries related to falls.

• [7] Ms Kathryn Murchie, Transition to Practice Coordinator, gave evidence for Eastern Health. She is a highly experienced nursing professional. Her evidence, which I accept, is that when graduate nurses begin their graduate training, they are initially rostered on orientation with a program which consists of two orientation days and a minimum of three 'supernumerary' days. Supernumerary means that the graduate is rostered to work, but they are not counted as part of the clinical ratio numbers.

• [8] Ms Murchie also explained that graduate nurses are required to undertake various online training modules (which Mr Li successfully completed). In addition to this online training, graduates must also be signed off as competent in medication administration at a ward level within two weeks of commencing the graduate program in order to enable them to administer medication unsupervised.

• [9] The staffing model just described has, as a key feature, a senior nurse being paired with a less experienced nurse. Here, two nurses working a shift will typically cover about 8 patients between them. There is, in addition, supernumerary Assistant Nurse Unit Manager (or 'ANUM') or Nurse in Charge, who provides additional support by overseeing the unit and operations.

• [10] Ms Katie White is a Clinical Support Nurse with Eastern Health in the 'Transition to Practice' team. She has been employed by Eastern Health for about two and a half years and a nurse for nine years. She gave evidence for Eastern Health. Ms White's role requires her to work closely with graduate nurses, assisting them as they transition from university into nursing practice. She works in all areas of nursing across all Eastern Health locations, which includes Maroondah Hospital.

• [11] Ms White's evidence, which I accept, is that graduate nurses at Eastern Health participate in a graduate program, which is designed to consolidate knowledge from their studies. She says that a graduate nurse is a nurse for all intents and purposes on the ward, in that they will have their own patient load to look after and are otherwise required to practice in accordance with the safety and standards requirements of all other nurses. Graduate nurses are required to do all of the duties any other nurse is required to do - including administering medication that has been prescribed by medical staff, providing tailored and appropriate care to their patients (including observations and assessments and providing required assessments) - and to be able to do such tasks largely autonomously. Ms White estimates, and I again accept her evidence, that over 90% of graduates don't require much specific support and guidance and largely work autonomously as expected within a fairly short time period.

• [12] One principle for medication administration was described in lay terms as the 'five rights'. The 'five rights' means that, every time there is medication administration, the nurse must check: the right drug; the right patient; the right dose; the right date and time; and the right route of administration. To describe these principles as axiomatic would not be an understatement. Ms White's evidence was that the 'five rights' was not a complex process but is one of "the most basic and important requirements of nursing".

• [13] In Mr Li's case, the standard model for staffing ratios described above was not followed. Mr Rajanbabu explained it was not followed because, at least since February 2024, the Transition to Practice team was concerned Mr Li had been unable to pass his medication competency assessments at a ward level, that he not been observed providing nursing care in a timely way and overall, appeared not to be grasping basic concepts.

• [14] As a consequence, Mr Li was directly supervised at all times. That is, instead of the usual practice where graduate nurses become part of the rostered team, an additional nurse was rostered such that any work undertaken by Mr Li as part of his duties was directly supervised with Mr Li effectively a supernumerary. This was an arrangement that remained on foot until the termination of his employment.

• [15] A further consequence of the concerns held by the Transition to Practice team was that it was considered desirable to implement an 'Informal Learning Objective' plan or 'ILO' to try and manage the issues that had been perceived with Mr Li's performance. The plan developed for Mr Li was mostly based around medication administration, patient care and professional conduct and communication.

• [16] On 18 March 2024, Mr Rajanbabu and a Clinical Nurse Educator met with Mr Li to discuss the proposed ILO. The ILO, and the outcome of that meeting is not a matter that Eastern Health relies upon as conduct to support the termination of Mr Li's employment, so it is unnecessary to set out much for that meeting. Suffice to say, the meeting did not go well. Mr Rajanbabu's account, which I accept, is that Mr Li did not want to engage with the ILO process. Further, Mr Li's attitude to the process was a mix of distrust for the process, misapprehension as to his own performance standards, and discourtesy towards his colleagues. Aspects of this were no doubt due in part to the stress Mr Li felt but aspects reflected particularly poorly upon him. Mr Rajanbabu's evidence, which I broadly accept, includes observing Mr Li moving his hand quite close the Clinical Nurse Educator's face (presumably as a gesture to stop her talking), further interrupting her by speaking over her and telling her to "shhh", and stating that he "wanted it to be known that he was awesome."

• [17] The ILO process was essentially voluntary in nature and Mr Li did not agree to it. As Mr Rajanbabu's concerns were not allayed, he sought advice on how to best manage those concerns. That advice led to an initial investigation of aspects of Mr Li's clinical performance (in particular) and then to the initiation of a Performance Improvement Plan or 'PIP'. Mr Rajanbabu did not himself undertake that initial investigation nor make the decision to begin the PIP, although he became involved with its implementation.

• [18] On 8 May 2024, Mr Rajanbabu attended a meeting with Mr Li and another clinical nurse educator in which they discussed the implementation of a PIP that had been prepared in advance of that meeting. The PIP focused on improving Mr Li's workplace behaviour and his clinical skills. For the aspect concerning clinical skills, the PIP noted there were a number of incidents where Mr Li had failed to provide appropriate care and assessment to patients, including administering incorrect medication and failing to check and document vital signs.

• [19] The PIP was scheduled to commence on 14 May 2024 and contained a number of scheduled weekly meetings. The first scheduled meeting was for 20 March 2024.

• [20] On 14 May 2024, Mr Li was rostered to work. This was the first day of his PIP period. One of the nurses supervising Mr Li that day was the Clinical Support Nurse, Ms White. Ms White gave evidence about the events of that day and her observations of Mr Li. There were four instances of conduct or performance Ms White observed that, in her view, fell short of required practice levels by Mr Li that day. They were:

• • A patient needed a postural blood pressure measurement taken. A postural blood pressure measurement involves taking a patient's blood pressure when lying down, and then again when they are standing. There are various clinical reasons for taking such a test, which are not necessary to record. Ms White observed that Mr Li's shift planner had not included such a test for that patient. Ms White recommended that he add the task to the shift planner as a matter to be completed. Despite this, Mr Li did not add the task to the shift planner nor perform the test. There is no apparent controversy about the fact of these events. They are reflected in Ms White's shift notes.[1] Ms White gave feedback about the matters during or at the end of the shift.[2] Mr Li accepted those matters at a later meeting with Eastern Health on 18 July 2024 (albeit he said he had not been taught the importance postural blood pressure at school)[3] and acknowledged the same in cross-examination.[4] I am satisfied they occurred as Ms White's evidence reflects. It is convenient to record as part of the narrative that the events became allegation '1A' in a letter titled 'Investigation & Showcause' dated 6 September 2024 ('the show cause letter').[5] The show cause letter contained each of the allegations set out in table form- that table of allegations is extracted (with some redactions) at Annexure 1 to these reasons.

• • Mr Li asked, in relation to a patient, words to the effect "do I need to check the details again before administering medication?" The effect of that question indicated Mr Li did not have a grasp of the basic 'five rights' mantra I described above. These matters are reflected in Ms White's shift notes.[6] Ms White gave feedback about the matters during or at the end of the shift. Mr Li could not recall at a later meeting with Eastern Health on 18 July 2024[7] and that position was unchanged in cross-examination.[8] I am satisfied they occurred as Ms White's evidence reflects. These events are recorded as allegation '1B' in the show cause letter.

• • Ms White checked a patient being looked after by Mr Li. The patient appeared to be in discomfort and Ms White asked the patient to give a 'pain level score' out of ten, the answer to which was seven. Mr Li had only shortly earlier in that shift recorded in the patient's notes a score of zero. Upon inquiries by Ms White of Mr Li, he had recorded that value based solely on his visual observation that the patient didn't look in pain, not in response to any answer from the patient (because he did not ask the patient the pain level). Mr Li was also unable to explain to Ms White why it was important to ask patients their pain score. These matters are reflected in Ms White's shift notes.[9] Ms White gave feedback about the matters during or at the end of the shift. Mr Li denied failing to properly take a pain score (i.e. by the process described by Ms White) in both the meeting with Eastern Health on 18 July 2024 and during cross-examination, although by the latter he acknowledged he could not recall that specific incident.[10] I am satisfied they occurred as Ms White's evidence reflects. These events are recorded as allegation '3A' in the show cause letter.

• • Ms White directed Mr Li to set up an intravenous antibiotic infusion for a patient. The medicine that had been ordered by medical staff for this procedure was 'Cefepime'. The medicine selected by Mr Li was 'Cefazolin', a different product. As Ms White was supervising Mr Li, she identified the error before it reached the patient, although she described it as a 'near miss'. Mr Li disputed at the time it being a 'near miss' because the medication hadn't been double-checked yet. Ms White sought to instruct Mr Li about the importance of selecting the right drug (i.e. one of the 'five rights'). These matters are reflected in Ms White's shift notes.[11] In the meeting with Eastern Health on 18 July 2024, Mr Li denied selecting the wrong medication.[12] In cross-examination, it appears he could no longer recall the incident. I am satisfied they occurred as Ms White's evidence reflects. These events are recorded as allegation '2A' in the show cause letter.

• [21] While the issue is not entirely clear, it appears that Mr Li contended that Ms White's evidence should not be accepted. In a reply witness statement prepared by Mr Li[13], he raised various complaints about Ms White's account of a later incident on 12 September 2024. Mr Li also relied on the fact that a different matter, which was initially in an allegation letter provided to Mr Li concerning an incident on 27 June 2024 was found by Eastern Health to be unsubstantiated in the show cause letter. Mr Li's Form F2 application describes her (and others) as "biased".

• [22] It is convenient to deal with issues of witness credibility more generally at this point. Mr Li's criticism of Eastern Health witnesses was not limited to his complaints about Ms White. For example, Mr Li contended Ms Murchie was subject to "bias". Mr Li contended the "character" of Ms Rebecca Walker (a Clinical Support Nurse called as a witness by Eastern Health) should be doubted and that her allegations "lack credibility". Mr Li contends another witness, Ms Jeanne Dusabe, was unreliable and queried "what the witness might be hiding". Mr Li contends that Mr Rajanbabu was "attempting to deceive the court by presenting false information". Mr Li's closing written submissions advanced a general theory of "confirmation bias", which was explained as assumptions (rather than evidence) influencing decisions made by Eastern Health staff about Mr Li and, presumably, infecting the evidence relevant witnesses provided to the Commission.

• [23] Little needs to be said on the issue of the credibility of the Eastern Health witnesses. I have no hesitation in accepting their evidence as reliable and honest. Each presented as witnesses doing their best to give honest and unexaggerated evidence of their observations. Moreover, nearly all of the substantive allegations that informed Eastern Health's decision to dismiss Mr Li were reflected in contemporaneous notes that reflected each witnesses' evidence, as relevant. Further, as correctly summarised in Eastern Health's closing submissions, many of those matters were admitted by Mr Li or he could not recall them. There were two matters he specifically denied (which I have set out my findings about above).

• [24] So far as Eastern Health's witnesses gave evidence about the clinical significance of Mr Li's performance, I accept that evidence. Each witness has, in differing capacities, significant clinical and professional nursing experience. There was no reason to doubt their assessments concerning Mr Li's clinical or professional performance and his expected level of performance, particularly as each witness independently made similar observations to the other witnesses.

• [25] Returning to Mr Li's performance, he was rostered on to work on 15 May 2024. Ms Jeanne Dusabe, Clinical Support Nurse, was also rostered on to work. While Ms Dusabe was a Clinical Support Nurse in the Transition to Practice program, she also worked as Clinical Nurse Consultant in the Breast Cancer Service at Eastern Health. Ms Dusabe gave evidence about her supervision and observations of Mr Li on 15 May 2024. There were two particular matters of concern about Mr Li's performance or conduct that day. They were:

• • Ms Dusabe directed Mr Li to administer immediate pain relief to a patient, in compliance with an order from the Palliative Care Team. After she directed Mr Li to do this, she saw that he did not take any steps to action the direction. When Ms Dusabe asked Mr Li what he was doing, he said he wanted to go to the bathroom and wanted to get a drink of water. The direction for "immediate" pain relief was given for a reason - the patient needed it. There was no credible evidence that Mr Li's need to attend the bathroom or get a drink of water were so urgent that they warranted delaying the pain relief medication for a patient in palliative care. Ms Dusabe gave feedback about Mr Li's shortcomings at the end of the shift. In cross-examination, Mr Li substantively acknowledged the incident occurred as just described.[14] I am satisfied it occurred as Ms Dusabe's evidence reflects. These events are recorded as allegation '3B' in the show cause letter.

• • There was a patient under Mr Li's care who had a "Nil by Mouth" sign above the patient's bed. Ms Dusabe explained this sign is ordinarily placed where the patient is due to have surgery, or if the patient may have difficulties swallowing. It signifies the patient is not to be provided food or water. The sign was no longer necessary and Ms Dusabe directed Mr Li to remove it. He failed to do so on a timely basis and, later in the shift, the Palliative Care Team brought it to Ms Dusabe's attention that the sign had not been removed. As a result of the delay, the patient's breakfast was delayed by around 1.5 hours. In cross-examination, Mr Li substantively acknowledged the incident occurred as just described.[15] I am satisfied it occurred as Ms Dusabe's evidence reflects and that there was no credible explanation to explain the delay beyond Mr Li's perception he was overwhelmed on that shift. These events are recorded as allegation '3C' in the show cause letter.

• [26] On 16 May 2024, Mr Li was rostered to work. Ms Wendy Trodd, a Clinical Support Nurse, was rostered on to work that shift. Ms Trodd gave evidence for Eastern Health. Ms Trodd's role was based within the Transition to Practice program.

• [27] Ms Trodd's gave evidence about an event that day concerning a patient who required a new Ketamine infusion. Mr Li was tasked to write up the drug label. Ms Trodd checked the label and noted that Mr Li had written 1 gram (i.e. 1000 milligrams), not 100 milligrams, which was the actual dose. Ms Trodd says she asked Mr Li to consider whether the label was correct, but he was not able to identify the error. Ms Trodd says she pointed to the dosage on the medication order, and then Mr Li crossed out where he had written 1 gram and wrote 100 milligrams. There is no dispute that the correct dosage ought to have been 100 milligrams and I note that Ms Trodd's contemporaneous notes in her 'Clinical Progress Report' record that Mr Li eventually drew up the correct dosage. Ms Trodd says further that the label (now crossed through) was not legible, so she asked Mr Li whether he thought the label may cause confusion and whether it is safe documentation. He then wrote a new label.

• [28] At the end of the shift, Ms Trodd conducted a debrief with Mr Li and noted that the issues regarding the ketamine label would be considered a medication error. Mr Li disagreed at the time, stating it would not be a medication error, because it would have been picked up through the double-checking process - i.e. by another nurse.

• [29] Ms Trodd's evidence is that correct labelling of medication is a "critical element of undertaking medication administration". I accept her evidence, noting her experience and that her evidence is consistent with the 'five rights' mantra explained by other witnesses, although the proposition that correct labelling of medication is a critical element of medication administration is one I would consider self-evidently correct.

• [30] Mr Li submitted that because Ms Trodd spent about 10 minutes herself reviewing the guidelines for this medication "showed that the necessary training and resources were not adequately provided to Hang Li". Ms Trodd acknowledged in answers to questions during cross-examination that she reviewed the guidelines in question, although she explained it was about managing the Ketamine pump, and not about how to draw up the medication and write a label. Ms Trodd's concern about Mr Li's performance was not simply because he made an error of labelling but was because he was specifically given further time and prompting to reconsider the label but he was unable to identify the error until Ms Trodd pointed to the dosage on the medication order. I do not consider Mr Li's assertion that he had not received adequate training about the matter persuasive.

• [31] A part of Ms Trodd's role on 16 May 2024 was to perform a medication assessment of Mr Li's performance that day (which was itself a part of Mr Li's ongoing performance improvement plan). At the end of the shift, she spoke with Mr Li about her assessment and informed him that he had not passed it. While the incident with the Ketamine labelling was sufficient for Mr Li to have failed that assessment, Ms Trodd's Clinical Progress Report also records that Mr Li's performance was deficient because he took too long to administer various medications required by patients that morning. Ms Trodd's report notes all medications for four patients were not administered until 11.20am, for a shift that started at 8.30am. For the fourth patient, Ms Trodd administered the medication in question due to time constraints impacting care. Mr Li declined to sign the medication assessment report.

• [32] Ms Walker was a Clinical Support Nurse employed by Eastern Health. She has been a nurse since 2016 and has been employed by Eastern Health since 2023. Ms Walker gave evidence in the proceeding. Ms Walker works within the Transition to Practice team supporting new graduates. A part of her role is being assigned to work directly with employees whose performance is under review and need extra educational support. This included Mr Li.

• [33] On 20 May 2024, Mr Li was on shift and was supervised by Ms Walker. Ms Walker gave evidence of four specific matters from that shift regarding Mr Li's performance. They were:
  • • A medical emergency call had been initiated for a patient. The call was ultimately stood down but patient progress notes were required to be prepared. Mr Li was responsible for preparing those notes. Ms Walker asked Mr Li to hold off preparing those notes so that they could collaborate. She did this because she thought it was important for her to demonstrate to Mr Li the information that was required to be included in the patient notes, both due to the complexity of what had occurred and due to her assessment that Mr Li had thus far been unable to manage the acuity of the patient, which required her to step in. When Ms Walker returned to complete the written documentation with Mr Li, he had already finished it. When she reviewed his notes, she considered they were "completely deficient". For example, Mr Li had not made notes of the medical emergency call, any notes regarding assessments undertaken, medications given, or general details about the patient's overall condition and their ongoing plan. These matters are reflected in Ms Walker's shift notes.[16] In the meeting with Eastern Health on 18 July 2024, Mr Li acknowledged the matters alleged had occurred, which he confirmed in cross-examination.[17] I am satisfied they occurred as Ms Walker's evidence reflects. These events are recorded as allegation '1D' in the show cause letter.

• • Metoprolol is a type of drug used for blood pressure, angina and other conditions. Ms Walker had previously advised Mr Li that he should spend some time researching Metoprolol, as it is a frequently prescribed medicine. On 20 May 2024, Ms Walker asked Mr Li about the medication and he was repeatedly unable to identify what type of drug Metoprolol was. When Ms Walker asked Mr Li, he said it was an 'ACE inhibitor', however, it is a beta blocker. I accept Ms Walker's evidence on the distinction and her explanation of the differences (which are not necessary to record here). Ms Walker was concerned that despite the fact she had previously advised Mr Li that he should spend some time researching Metoprolol as it is a frequently prescribed drug, he had clearly not taken that feedback on board and was unable to answer questions about a frequently prescribed medicine. These matters are reflected in Ms Walker's shift notes.[18] In the meeting with Eastern Health on 18 July 2024, Mr Li could not recall the matters alleged had occurred[19], which he confirmed in cross-examination.[20] I am satisfied they occurred as Ms Walker's evidence reflects. These events are recorded as allegation '1C' in the show cause letter.

• • Ms Walker gave evidence that patients have medicine or drug charts and it is important that nurses sign drug charts. She says it is an everyday requirement of the role that should be done almost automatically. Ms Walker explained the drug charts ensure that other clinicians caring for the patient can see what medication has been administered and ensures duplicate administration does not occur. Essentially, she says, it is a critical part of ensuring proper continuity of care. I have no doubt about those matters. On 20 May 2024, Ms Walker said Mr Li failed to sign medication charts as he dispensed medication to patients under his care. She says Mr Li was also unable to explain the reasons for administering a particular medicine to a patient. In the meeting with Eastern Health on 18 July 2024, Mr Li accepted the matters alleged had occurred[21], although under cross-examination Mr Li no longer appeared to accept those matters.[22] I am satisfied they occurred as Ms Walker's evidence reflects, given the contemporaneous record about those matters in Ms Walker's shift notes and as matters she gave feedback about out the time. These events are recorded as allegation '2D' in the show cause letter.

• [34] Also on 20 May 2024, the 'week 1' meeting took place as part of Mr Li's PIP. It was attended by Ms Murchie and Mr Rajanbabu for Eastern Health and went for approximately 1 hour. Mr Rajanbabu described it as a "challenging" meeting. Various matters were canvassed, including the instance of the mislabelling of the Ketamine infusion with Ms Trodd, described above, and the matters with Ms Walker on that day. As might be expected, the notes of that meeting were not all critical of Mr Li's performance. The notes also record attempts to focus on positive achievements made with general encouragement of Mr Li to meet his performance expectations in the coming weeks.

• [35] The next meeting for the PIP was scheduled for 28 May 2024, although it was deferred until 5 June 2024, as Mr Li had only worked a single shift in the intervening period. That meeting itself did not go ahead due to further leave taken by Mr Li.

• [36] On 11 June 2024, Mr Li was on shift and was supervised by Ms Walker. During the course of that shift, Ms Walker was supervising Mr Li's administration of intravenous antibiotics to a patient. Part of that process involved a syringe and cannula (i.e. the tube through which the fluids would flow to the patient's vein). Ms Walker's evidence is that when Mr Li went to flush the cannula before connecting the IV line, she noticed there was a large air bubble in the syringe. Ms Walker says Mr Li should have checked for this and noticed it himself but did not. Ms Walker intervened, asked him to stop and to flush the cannula to expel the air before continuing. Later on, when Mr Li returned to flush the IV cannula following the administration of the antibiotics, he said "no air bubble this time" in front of the patient. Ms Walker considered this to be unprofessional.

• [37] Mr Li admits there was an air bubble in the cannula although disputes it was "large". Mr Li did not proffer an estimate of its size. Ms Walker, who observed the bubble herself, did not include an estimate in her contemporaneous clinical notes. An email dated 19 June 2024 makes refers to the bubble size being 3mL. The best evidence before me is that it was around this size but, in any event, I accept the evidence of Ms Walker where she says she spoke to Mr Li on the day to ask Mr Li why the air bubble posed an issue. According to Ms Walker, whose evidence I accept, he was able to inform her that an air bubble could be "lethal". In cross-examination, Mr Li appeared to retreat from this position, and insisted the bubble would only be lethal in "extreme" cases.

• [38] Mr Li filed an academic paper, apparently for the purpose of indicating that air bubbles in the blood stream were not necessarily harmful. None of that evidence was persuasive. It need only be noted that the paper, titled "Theoretical and experimental intravascular gas embolism absorption dynamics", was directed at testing theoretical models of absorption against experimental data from rats. It was not directed at safety or efficacy. Further, the bubble volumes considered in that paper appeared to be between 50 to 500 nanolitres. There are one million nanolitres in a millilitre. The bubble volume that Mr Li could have injected into the patient was orders of magnitude above the conditions in his paper.

• [39] In his closing submissions, Mr Li sought to attribute fault to Eastern Health "regarding an air bubble in an IV line that were not adequately covered in my training". This contention is less persuasive than Mr Li's other unmeritorious excuse. There was no basis for me to consider that Mr Li was inadequately trained about the danger of large air bubbles potentially being injected into patients. I accept the largely uniform evidence of all of Eastern Health's witnesses that such conduct is a serious concern. Indeed, I would consider the injection of a noticeably large air bubble into the bloodstream would be notoriously recognised by lay persons as an inherently dangerous activity. The proposition that Mr Li was not, by that stage of his nursing career, aware of such matters due to a lack of "formal instruction" reflects very poorly on his insight and reliability.

• [40] Whatever the actual size of the bubble, it was readily noticeable by Ms Walker. The best view it was at least around 3mL in size and quite possibly, as Mr Li said to her, "lethal". The incident with the bubble is recorded as allegation '3D' in the show cause letter. I am satisfied the allegation is established.

• [41] It is fair to say that the incident with the air bubble was a turning point concerning Eastern Health's attitude toward Mr Li.

• [42] The next meeting for Mr Li's performance improvement plan was now scheduled for 19 June 2024. That meeting did not go ahead, as Mr Li took personal leave that day. Ms Murchie had been informed about the incident with the air bubble. Ms Murchie was intending to raise it with Mr Li but, in his absence, she wrote an email to the Director of Nursing, Ms Jessica Counsel, and others, Her email concluded with her observation this was a "serious safety concern" and she sought guidance as to whether a formal investigation was required or it could continue to be managed in the PIP process.

• [43] Ms Counsel responded immediately. It was her view that the incident with the air bubble in the syringe "could have resulted in significant harm or death and constitute[d] a serious near miss". She stated that a formal meeting will need to be held. Ms Counsel also sought specific confirmation that Mr Li was being supervised for "all medication administration" as she considered he was "unsafe to administer any medications unsupervised".

• [44] Mr Li continued to work under direct supervision. The nurses supervising him continued to make assessments for the purposes of the performance review and prepared Clinical Progress Reports for those small number of shifts.

• [45] From Eastern Health's perspective, issues about performance continued to arise. I will deal with these further items in a summary fashion. They were:

• • On 20 May 2024, Mr Li failed to complete a planner (e.g. there were missing medications) despite previous feedback about this issue. Evidence was given by Ms Walker about this issue and the matters were substantively conceded by Mr Li during the investigation and in oral evidence.[23] These events are recorded as allegation '1E' in the show cause letter and I am satisfied from the evidence that Eastern Health has established them.
• • On 11 June 2024, Mr Li placed his patient on a bedpan and then left the room without providing any explanation as to where he was going or when he would return. Ms Walker intervened to tell the patient some privacy would be given to use the bedpan and then Ms Walker would return in a few minutes. Mr Li could not recall these matters during the investigation with Eastern Health, a position confirmed by Mr Li in oral evidence.[24] Ms Walker gave evidence about those matters and I accept her evidence. These events are recorded as allegation '3E' in the show cause letter and I am satisfied from the evidence that Eastern Health has established them.
• • On 17 June 2024, Mr Li provided towels to two patients with shoulder injuries to wash themselves. One of the patients stated he could not perform that task himself due to the injuries. Mr Li could not recall these matters during the investigation with Eastern Health, a position confirmed by Mr Li in oral evidence.[25] Ms Walker gave evidence about those matters and I accept her evidence. These events are recorded as allegation '3F' in the show cause letter and I am satisfied from the evidence that Eastern Health has established them.
• • On 17 June 2024, one of Mr Li's patients had a medical emergency call. Ms Walker's evidence, which I accept, is that the Eastern Health Medical Emergency Team guidelines require patient observations are made 30 minutes following a medical emergency call. Approximately an hour after the medical emergency call, Ms Walker noticed that Mr Li had not completed the observations, and she had to prompt him to complete them at the hour mark and explain that a set was missed. Ms Walker's evidence, which I also accept, is that these observations are very important as they capture any risk of the patient deteriorating further, and therefore the need for any additional medical intervention. Mr Li could not apparently recall these matters during the investigation with Eastern Health, a position confirmed by Mr Li in oral evidence.[26] Mr Li contends Eastern Health failed to provide any documentation, records, or corroborating evidence that substantiates these claims. However, Ms Walker gave evidence about those matters, the evidence was corroborated by her shift notes, and I accept her evidence. These events are recorded as allegation '3G' in the show cause letter and I am satisfied from the evidence that Eastern Health has established them.

• [46] The next set of events forming the basis of Eastern Health's allegations occurred on 27 June 2024 while Mr Li was working under Ms White's supervision on that shift. They were:

• • Mr Li needed prompting approximately six times throughout his shift to complete his patients' medical charts after administering medication to them. Mr Li could not particularly recall these matters during the investigation with Eastern Health, a position confirmed by Mr Li in oral evidence.[27] Ms White gave evidence about those matters and I accept her evidence. These events are recorded as allegation '2F' in the show cause letter and I am satisfied from the evidence that Eastern Health has established them.
• • Mr Li was required to prepare an Integrated Risk Assessment Tool or 'IRAT' for a patient. Ms White's evidence, which I accept, is the IRAT is essentially an assessment that is undertaken on admission and then once a week thereafter to get an understanding of the patient's condition. Mr Li completed the IRAT for the patient, but Ms White observed multiple deficiencies. Mr Li substantially admitted those deficiencies during the Eastern Health investigation, a position confirmed by Mr Li in oral evidence.[28] Ms White gave evidence about those matters and I accept her evidence. These events are recorded as allegation '3I' in the show cause letter and I am satisfied from the evidence that Eastern Health has established them.
• • Mr Li prepared patient notes for the same patient above. Upon review by Ms White, the notes were materially deficient in a number of respects: incorrect recording of 'vitals'; other pertinent information omitted. Mr Li substantially admitted those deficiencies during the Eastern Health investigation, a position confirmed by Mr Li in oral evidence,[29] although he explained he was still learning. Ms White gave evidence about those matters and I accept her evidence. These events are recorded as allegation '3I' in the show cause letter and I am satisfied from the evidence that Eastern Health has established them.

• [47] On 5 July 2024, Mr Rajanbabu, Ms Murchie, Ms Counsel and another employee met to discuss their concerns about Mr Li. It was determined at that meeting that a formal performance investigation would occur. That investigation included a more careful review of a number of Clinical Progress Reports or 'shift notes', a number of which have been referred to above.

• [48] On 12 July 2024, Mr Rajanbabu issued Mr Li a letter titled "Allegations of workplace performance and conduct". The letter contained each of the allegations extracted at Annexure 1. The letter required Mr Li to attend a meeting on 18 July 2024 to discuss the allegations. The letter further indicated that the evidence relating to each allegation would be available at the meeting to be discussed and offered Mr Li an opportunity to view that evidence beforehand if requested. The letter also clearly stated "we are now ceasing the PIP [i.e. Performance Improvement Plan] and commencing a formal investigation."

• [49] The allegations letter also stated "It is important you understand that any substantiated breaches of Eastern Health Policies and procedures may result in disciplinary action up to and including termination of employment with Eastern Health." I note this because Mr Li contends that he was not informed which allegations were considered serious misconduct. When asked about this letter and a later letter with a similar statement, Mr Li said the document was (in his view) a "standard document".

• [50] On 18 July 2024, a meeting with Mr Li about the allegations letter took place. In attendance for Eastern Health were Mr Rajanbabu, Ms Murchie and another individual from People & Culture. According to the meeting notes and Mr Rajanbabu's evidence, which I accept on this matter, Mr Li largely read out preprepared answers to each of the allegations and made statements to the effect that he "now understood" the issues or that he had "improved" since the date of the incident. Notwithstanding, Mr Rajanbabu says that Mr Li's answers about various issues left Mr Rajanbabu of the view that Mr Li was unsafe to practice without continual direct supervision.

• [51] Mr Li was not stood down, a point he makes in submission about the seriousness of his conduct. He was, however, only working under direct and continual supervision of experienced nursing staff, as I have described earlier.

• [52] Following the meeting, Ms Murchie, Mr Rajanbabu and the People & Culture representative met and considered the material before them. They formed the view that, of the 26 discrete allegations set out in the letter of 12 July 2024, all but a few were substantiated.

• [53] On 6 September 2024, Ms Murchie issued Mr Li with a letter titled "Investigation Finding & Showcause - Requirement to attend meeting". Among other matters, the letter stated that Eastern Health was satisfied about the substantiated conduct, satisfied that it breached the relevant expectations they held, and "may constitute misconduct and/or serious misconduct". The letter did not articulate which allegation(s) or combinations might constitute misconduct or serious misconduct nor say that dismissal was still being considered. The letter required Mr Li to attend a meeting to "show cause as to why Eastern Health should not continue with disciplinary action". Mr Li was invited to bring a support person or representative of his choice to the meeting.

• [54] On 10 September 2024, Mr Li attended a show cause meeting. Ms Murchie was not in attendance due to illness. The meeting was attended by Ms Kate Hollow, from People & Culture, and Ms Emma Davis, Associate Director, Learning and Teaching in the Transition to Practice program. Ms Davis gave evidence for Eastern Health. Ms Davis has been employed by Eastern Health since 2007, working education roles since 2012 including as a clinical nurse educator and the coordinator of the Transition to Practice program.

• [55] Ms Davis took notes at the meeting. At that meeting, Ms Davis' evidence, which I accept, was Mr Li was told that Eastern Health considered Mr Li's conduct may constitute serious misconduct and he was asked to respond. Ms Davis' recollection is that Mr Li's response largely focused on the fact that he was a "graduate" and that "despite the allegation of air in the syringe which was admitted by me" he did not think the issues were "serious serious serious misconduct". Mr Li disputes that he said "serious serious serious" (i.e. the repetition) and points out (correctly) that Ms Davis' notes did not record that iteration. I do not consider it matters ultimately.

• [56] Ms Davis' witness statement says that Mr Li was informed about "the potential disciplinary actions". It is not clear to me he was explicitly told again that "termination" of or "dismissal" from employment was being considered, I consider it most likely was, given it was clearly part of the potential disciplinary actions in contemplation. Having regard to the earlier correspondence where termination of employment was expressly raised and that Mr Li was given a hardcopy extract of the "serious misconduct" definition from the enterprise agreement, I consider it tolerably clear that it was on the cards.

• [57] In the two weeks following the showcause meeting, various members of the Eastern Health staff met to discuss the matter, including email exchanges. I record earlier that Mr Li advanced a general theory of "confirmation bias" (which I reject) and other similar criticisms of Eastern Health witnesses and decision-makers (which I also reject). Notwithstanding Mr Li's complaints that all correspondence during this period was not produced, I do not consider it was necessary to do so. Ultimately, the question of whether Mr Li's dismissal was fair is a matter for the Commission to assess against the requirements of s 387 of the Act.

• [58] On 30 September 2024, Ms Davis and Ms Murchie met with Mr Li. He was informed at that meeting that he was being summarily dismissed, based upon allegations Eastern Health found to be substantiated. He was provided with a letter to that effect. On the same day, Mr Li made an application for an unfair dismissal remedy with the Commission.

• [59] Mr Li was an employee protected from unfair dismissal: s 382. For the purposes of s 385, Mr Li was "dismissed", with the dismissal being at the initiative of the employer. The Small Business Fair Dismissal Code was not applicable and there was no contention the dismissal was a case of genuine redundancy. Mr Li's application was made within the 21-day period under s 394(2)(a).

• [60] The issue in dispute was whether Mr Li's dismissal was harsh, unjust or unreasonable and, if so, what if any remedy ought follow from that finding. Section 387 of the Act sets out a number of factors I must take into account in assessing whether Mr Li's dismissal was harsh, unjust or unreasonable.

• [61] I do not consider there was any material dispute as to the principles involved but, rather, the dispute concerned the application of those principles.

• [62] Mr Li was dismissed for alleged serious misconduct. Despite the cross-examination of the respondent's witnesses about their characterisation of various factual matters and perceived procedural grievances, I am required to determine for myself whether the alleged misconduct occurred. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[30]

• [63] The alleged misconduct had two elements: first, there were some disputes about what occurred; and, second, there were disputes about the characterisation of that conduct with reference to Eastern Health's contention that Mr Li engaged in serious misconduct, as defined in the enterprise agreement.

• [64] The enterprise agreement largely reflects the definition of serious misconduct contained in regulation 1.07 of the Fair Work Regulations 2009 (Cth), although there is one ambiguity. Clause 15.2(d) of the enterprise agreement states that "Serious Misconduct is as defined under the [Fair Work] Act and is both wilful and deliberate.". The definition then states "Currently the Act defines serious misconduct, in part, as:

(i) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(ii) conduct that causes serious and imminent risk to:

(B) the reputation, viability or profitability of the employer's business."

• [65] The ambiguity is that the opening words to the definition of Serious Misconduct under the enterprise agreement suggest that it is not simply the conduct defined under the Act but it is that conduct "and" it must be both wilful and deliberate. Notwithstanding the infelicity in drafting, I consider it tolerably clear that the definition of Serious Misconduct under the enterprise agreement is intended to reflect the definition contained in regulation 1.07 of the Fair Work Regulations 2009 (Cth). Specifically, so far as the conduct pertains to conduct causing a serious and imminent risk to the health and safety of a person or the reputation, viability or profitability of the employer's business, it is not necessary that an employee was wilfully or deliberately seeking that outcome.

• [66] Clause 15.5 of the enterprise agreement contemplates that an employee ought not be dismissed for any misconduct falling short of serious misconduct. Rather, where the performance or conduct is not serious misconduct, the enterprise agreement contemplates that other disciplinary steps ought be taken, such as counselling, warnings (first, second and final warnings), albeit termination of employment may occur where an employee "repeats a course of Conduct" for which a final warning was issued in the preceding 18 months.

• [67] It is well-established that a valid reason must be sound, defensible and well-founded and a reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason.[31] There is no credible basis to conclude that Eastern Health's actions were capricious, fanciful, spiteful or prejudiced. I note that Mr Li appears to argue the contrary, at least as he criticised various witnesses for alleged bias and his wider argument concerning confirmation bias.

• [68] Other than a small number of the allegations against Mr Li, I consider there was little factual dispute about those events, albeit there were a larger number of matters Mr Li could not recall. I have set out my factual findings earlier. While I have not gone into the same detail for every 'substantiated' allegation referred to in the show cause letter, I accept that they occur as alleged.

• [69] As to the characterisation of the events relied upon by Eastern Health, the employer acknowledges that not all of the substantiated allegations constituted serious misconduct. That acknowledgement was correctly made.

• [70] Eastern Health's contentions concerning "wilful or deliberate" behaviour requires some elaboration. In Eastern Health's written submissions, it states Mr Li's "conduct constituted a failure to follow lawful and reasonable directions (and was therefore wilful and deliberate)". There are aspects of Mr Li's conduct which would satisfy a knowing failure to comply with a reasonable request - for example, where Ms Walker asked Mr Li to hold off preparing patient notes so that they could collaborate about them. Although I would not consider this incident, of itself, constitutes serious misconduct worthy of dismissal (and I did not understand Eastern Health made that contention).

• [71] Other examples are more ambiguous. For example, the repeated failures to complete patient planners, failure to sign medication charts (despite repeated reminders), failure to deliver immediate pain relief to a patient but instead intending to get himself a glass of water first. I do not consider that Mr Li's disregard of lawful and reasonable directions of this nature was wilful in the sense he was simply choosing not to comply with them. Rather, and perhaps more concerning, I consider Mr Li's failures for these matters reflected an inability to understand basic nursing concepts and procedures and an inability to reliably prioritise clinical and patient needs, including where the steps for prioritisation were clearly and repeatedly explained to him.

• [72] Unfortunately for Mr Li, I am satisfied that Eastern Health has overwhelmingly demonstrated that Mr Li's conduct caused a serious and imminent risk to the health and safety of patients. In Eastern Health's written closing submissions, it states (original emphasis) the "number of allegations - and frequency of identified issues - all despite being regularly counselling in respect of expected nursing standards, demonstrates that the Applicant's failings were not attributable to honest mistake but instead due to lack of care and diligence in the performance of his duties." Subject to my observations above concerning the distinction between Mr Li's willingness to perform and competency to perform, I consider Eastern Health's contention valid.

• [73] Against this, Mr Li submits that if his conduct truly constituted a risk to health and safety, the show cause process should have been conducted sooner. He also asks, rhetorically, that if Eastern Health believed he was a danger to patient safety, why did it allow him to continue working under Clinical Support Nurse supervision? By not suspending him, Mr Li contends that Eastern Health effectively admitted that the risk was manageable.

• [74] I do not accept Mr Li's submissions. Firstly, all graduate nurses with Eastern Health begin under direct supervision. However, the vast majority become a regular member of a nursing team (albeit, paired with more senior nurses) quite quickly. Mr Li did not and that was due to immediate and ongoing concerns of the nurses tasked with his supervision. Second, I indicated earlier that the incident with the air bubble in the syringe was a tipping point. While Mr Li was already under direct supervision at that point, the instruction from management at that point was very clear about that direct supervision continuing.

• [75] Eastern Health's perseverance with Mr Li reflects a generous attitude on Eastern Health's behalf and a commitment to graduate development. However, there are clearly limits. The arrangement for supernumerary direct supervision was an intensive exercise and it was not reasonable to expect Eastern Health to continue it. If left unsupervised, there is no doubt in my mind that Mr Li would continue to engage in conduct that (unsupervised) would cause serious and imminent risk to the health or safety of patients.

• [76] I make these findings taking into account that Mr Li was a graduate nurse. In that context, it is expected that his experience and judgment may not be at a high level. So much can be accommodated and Eastern Health did so - it had a dedicated program, involving experienced nurses, whose very purpose was to transition graduate nurses into practice. But I accept the uniform evidence of a number of highly experienced nurses demonstrates that Mr Li's clinical ability fell so far short of the required standards of a nurse at his level, despite extensive efforts to improve them. I am satisfied there was a valid reason for dismissal.

Procedural fairness and procedural matters - sections 387(b) - (g)

• [77] Mr Li's submissions focus very heavily on a number of perceived procedural fairness concerns. Some of those complaints have nothing to do with his dismissal but are grievances about the conduct of the ligation (e.g. filing evidence one hour late, and a supposed failure to produce documents).

• [78] Proper consideration of s 387(b) requires a finding to be made as to whether the applicant "was notified of that reason". Contextually, the reference to "that reason" is the valid reason found to exist under s 387(a).[32]

• [79] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[33] and in explicit[34] and plain and clear terms.[35]

• [80] I am satisfied that the 'show cause' letter to Mr Li dated 6 September 2024 informed Mr Li in plain and clear terms of the findings Eastern Health had made and its conclusion those findings could constitute misconduct or serious misconduct. I consider that the letter could have expressly restated the possibility of termination of employment (as the initial allegations letter on 12 July 2024 did). Given the definition of "Serious Misconduct" under the enterprise agreement had different elements, I also consider that the letter might have more clearly articulated Eastern Health's general position on those matters. With those observations, I do not consider any disadvantage to Mr Li arose, as he was clearly on notice that his employment was at risk and he was afforded further opportunity to challenge or clarify various matters.

• [81] For the purposes of section 387(c), an employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.

• [82] I am satisfied that Mr Li was given such an opportunity. Specifically, the meeting on 10 September 2024 satisfies me about those matters. That meeting also followed on from an earlier meeting on 18 July 2024 to discuss the allegations, where the evidence relating to each allegation was available at the meeting and Mr Li was given the opportunity to view that evidence beforehand if requested.

• [83] For the purposes of section 387(d), there was no evidence before me that would lead me to conclude that Mr Li made a request for a support person to be present or was refused any request. Eastern Health did not unreasonably refuse to allow Mr Li to have a support person present at discussions relating to the dismissal. The issue of refusal did not arise.

• [84] For the purposes of section 387(e), many of the matters that formed the basis of Mr Li's dismissal related to performance issues, a matter acknowledged by Eastern Health. Indeed, a number of those matters commenced during the period of a performance improvement plan. However, Eastern Health rested its dismissal on its contention that the performance-related issues had elevated to issues of conduct and, in fact, serious misconduct. I have accepted that Mr Li's conduct amounted to serious misconduct. With that said, the placement of Mr Li on the performance improvement plan ought to have sensitised him to the prospect of disciplinary action in the event that performance did not improve and the plan expressly stated this. Overall, I consider that the factor in section 387(e) is a neutral consideration.

• [85] For the purposes of sections 387(f) & (g), Eastern Health is a large employer with dedicated human resources management expertise. Sections 387(f) and (g) are neutral factors.

• [86] For the purpose of section 387(h), the Commission is required to consider any other matter relevant to the dismissal. Mr Li has raised a number of matters. Some of those I have addressed above or they were factual matters advanced by Mr Li that I have rejected. In the latter category, I include general and specific allegations of bias, cognitive bias, Mr Li being permitted to work while under investigation, and allegations of procedural unfairness with Eastern Health's investigation. It is not necessary to address those matters again and others raise no issue of significance, such as general complaints about how Eastern Health ran its case, including the timing of evidence.

• [87] One specific additional matter raised by Mr Li concerned a flowchart[36] that, according to Mr Li, demonstrated that Eastern Health did not follow its own processes leading to his dismissal. That flowchart is titled 'Performance Management of the Learner 2020'. A fair reading of the chart makes it clear that it is concerned with the 'Informal Learning Objective' process (which Mr Li did not agree to) or the Performance Improvement Plan process (which was terminated following the commencement of the formal conduct investigation into Mr Li). The flowchart is not relevant.

• [88] I have taken into account that, as a graduate nurse, dismissal for serious misconduct is likely to be a very serious impediment, if not a permanent impediment, to Mr Li being employed as a nurse in the future. Mr Li's personal circumstances in this respect are a factor in his favour of an overall finding of harshness.

• [89] I am required to consider each of the criteria in s 387, to the extent they are relevant to the factual circumstances before me. Having regard to my lengthier factual findings and conclusions regarding the constituent elements of s 387 above, my overall conclusion can be stated more shortly.

• [90] In all the circumstances, having regard to all the factors in s 387 of the Act, the termination of Mr Li's employment by Eastern Health was not harsh, unjust or unreasonable. It follows that Mr Li's application must be dismissed. An order[37] to that effect will be separately issued.

S. Cheligoy of Counsel, instructed by B. Silverman of Kingston Reid, for the Respondent.

[1] Court Book (CB) p.477 and Transcript PN583 - 587 regarding the contemporaneity.

[2] CB p.472 at [10] and Transcript PN586.

[30] Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092 at [111].

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

[32] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[33] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

[34] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[37] PR784163.

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