Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Misconduct - Valid reason for dismissal - Dismissal not unfair, harsh, unjust or unreasonable - Application dismissed.

• [1] Ms Manpreet Kaur was employed as a Registered Nurse by Western Health. Western Health is a large public health service in the western suburbs of Melbourne. It operates multiple hospitals, including Sunshine Hospital, and health care services. Ms Kaur worked in the Sunshine Hospital Emergency Department. On 31 October 2024, Western Health dismissed Ms Kaur as it "no longer has trust and confidence in [her] ability" following an incident in July 2024 when Ms Kaur accidentally defibrillated a patient. Ms Kaur says that the dismissal was unfair because it followed months of bullying, harassment and micromanagement, and the defibrillation incident was unintentional.

• [2] Ms Kaur applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth). She did so within the required timeframe of 21 days after the dismissal took effect.

• [3] Having considered the evidence and submissions of the parties, I am satisfied that Western Health's dismissal of Ms Kaur was for a valid reason, it followed a fair procedure and is not otherwise harsh, unjust or unreasonable. I therefore dismiss the application. My reasons follow.

• [4] I am satisfied that Ms Kaur is a person who is protected from unfair dismissal.
  • - Ms Kaur completed the minimum period of employment required by s 383(a). Western Health is not a small business employer, and Ms Kaur had more than 6 months continuous service with Western Health
• - At the time of her dismissal, Ms Kaur was covered by the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020-2024[1] and her annual earnings were less than the high-income threshold.
• - There is no dispute that Western Health dismissed Ms Kaur within the meaning of s 386.
• - Ms Kaur's dismissal was not a case of genuine redundancy within the meaning of s 389.

• [5] I held a hearing on 5 and 6 March 2025.

• [6] The parties filed submissions and a significant amount of documentary materials. I do not detail all the materials, but I have considered all the relevant evidence in reaching my decision.

• [7] Ms Kaur gave evidence on her own behalf.

• [8] Western Health relied on the witness evidence of:

• Ms Nicole Davies, Director Nursing and Midwifery
• Dr Alyza Gossat, Emergency Registrar
• Ms Nicole Cook, Education Coordinator
• Ms Caroline Hassell, Clinical Nurse Educator
• Ms Louise Cooke, Nurse Unit Manager
• Dr Megan Robb, Clinical Service Director

• [9] Western Health also filed witness statements for the following witnesses, but did not call and so did not rely upon the evidence of:

• Mr Chris Poropat, Acting Nurse Unit Manager; and
• Mr Ross Longhurst, Senior Employee Relations Business Partner

• [10] I do not give weight to the material contained in these statements as the witnesses were not called to attest to their evidence or be cross-examined.

• [11] Overall, I found Western Health's witnesses to give truthful, clear and consistent evidence. On the other hand, Ms Kaur was defensive when giving evidence and often refused to directly answer questions. She was also argumentative during the evidence of Western Health's witnesses. I gave her latitude in being so, as she is a self-represented litigant, and this matter is both significant and very distressing for her.

• [12] At the conclusion of the hearing, I provided the parties with the opportunity to make final written submissions. Ms Kaur supplied additional evidence in the form of further documents and responses to the oral evidence of the respondent's witnesses. Despite the respondent not having the opportunity to cross-examine Ms Kaur in relation to that further evidence, I take it into consideration for the following reasons: first, Ms Kaur is self-represented and as a result provided a mix of submissions and evidence in all her material. She did the same in closing submissions. I am of the view that it would be unfair to expect Ms Kaur - a self-represented person - to appreciate the distinction between submissions and evidence. Second, the respondent provided significant oral evidence that was an elaboration of their witness statements. I provided the respondent with latitude in doing so, as Ms Roberts is not legally qualified nor an experienced advocate. This meant that there was evidence provided at the hearing which Ms Kaur may not have had the opportunity to respond to. Third, Ms Kaur's additional materials included documents that Western Health would have already seen. Last, Western Health were also provided the opportunity to respond to Ms Kaur's evidence and submissions.

• [13] In their final written submissions, Western Health referred to several cases in support of the legal principles cited. Most of the referenced cases do not exist. Those that do had incorrect citations and did not support the legal principle relied upon. I do not repeat the incorrect case names nor citations here, as doing so may create a further 'feedback loop,' perpetuating the incorrect and misleading information. It is likely that the cases were fabricated through reliance upon generative artificial intelligence programs to assist in the preparation of those submissions. There is great risk in relying upon such programs without verifying the results. While I do not consider that the respondent intended to mislead me, I treat Western Health's written final submissions with caution.

• [14] Western Health employed Ms Kaur as a registered nurse in March 2021. In June 2023, Ms Kaur began a post graduate program in Critical Care Nursing.

• [15] Ms Kaur says that she was treated unfairly from the beginning of her graduate program. On 24 October 2023, she made a complaint about not being allocated shifts in the resuscitation area as frequently as her colleagues. Ms Kaur says she escalated her complaint to the University of Melbourne in April 2024 and began experiencing more criticism about her work after that date.

• [16] On 19 February 2024, Ms Nicole Cook and Ms Maria Kasambalis, Clinical Nurse Educator, met with Ms Kaur to discuss strategies to assist her to progress in her assessments and offered additional supported triage shifts.

• [17] From 21 March until 31 March 2024, Ms Kaur was on personal leave due to a motor vehicle accident.

• [18] In April 2024, Ms Amelia Smyth, Clinical Nurse Educator, wrote to Ms Cook about options for Ms Kaur to defer her program or practical subjects, or to seek extensions as she had not successfully progressed through her course.

• [19] On 10 May 2024, Ms Kaur sent an email about being treated differently and unfairly during assessments to Morgan Livesay, Clinical Nurse Educator. Ms Kaur said that while she is appreciative of feedback, that it was unfair and discriminatory. The email included Ms Louise Cooke and Ms Nicole Cook, and copied in educators from the University of Melbourne.

• [20] On 23 May 2024, Ms Louise Cooke and Ms Nicole Cook met with Ms Kaur to discuss her email complaint. Western Health asked Ms Kaur to elaborate upon her complaint and informed her of its formal complaint process. Ms Nicole Cook says that Ms Kaur did not want to elaborate or take the matter further.

• [21] On 31 May 2024, Ms Louise Cooke and Ms Davies met with Ms Kaur to discuss her performance and failure to successfully pass triage, RSI and mechanical ventilation huddles. At this meeting, Ms Kaur explained that she had required extended time off due to a car accident, had moved house, managed her study and needed to work shifts according to her husband's roster. Ms Kaur also said that she was being unfairly assessed and disagreed with the assessment outcome. Ms Kaur asked to be assessed by different educators. Ms Davies' notes from the meeting ends with:

Recommendation: Having read all the education file notes, my recommendation is to NOT allocate Manpreet to triage or Resus without CNE support. She has not been informed of this. Manpreet intends to discuss withdrawal from subject with Nicole C and the University of Melbourne.

• [22] In May 2024, the University granted Ms Kaur's special consideration application, which allowed her more time to complete her assessments. Also, Western Health and the University arranged for a University educator to attend as a second assessor for Ms Kaur's assessments. This was at Ms Kaur's request.

• [23] Ms Cooke says she telephoned Ms Kaur on 4 June 2024 to inform her that she would not be working in resus or triage on weekends and nights shifts due to clinical concerns but that she could work in these areas with Clinical Nurse Educator support.

• [24] In June 2024, Ms Kaur passed various assessments on her second or third attempt. However, Ms Kaur was not successful in passing her Clinical Performance Assessment on 27 June 2024. Ms Smyth and Ms Cook met with Ms Kaur to inform her of the unsuccessful outcome. After the meeting, Ms Cook expressed concerns to Ms Davies about Ms Kaur's reaction during the meeting and her ongoing wellbeing.

• [25] On 1 and 2 July 2024, Ms Kaur complained in writing about the unsuccessful outcome to the University, Ms Smyth and Ms Davies. In that complaint, Ms Kaur said,

I am writing to address the allegations made against me and to request further clarification and evidence regarding these matters.

• [26] On 5 July 2024, Ms Kaur administered an unsynchronised 200-joule defibrillation shock to a conscious patient who did not require it. This was observed by Dr Alyza Gossat, Emergency Registrar. Dr Gossat gave evidence that she saw Ms Kaur standing on the patient's left side, facing the defibrillator. Dr Gossat then heard a sound which indicates that the defibrillator is charging. She saw the patient 'jump' in bed and heard him yell loudly. After the shock, the patient was alert, with normal vital signs and the ability to speak.

• [27] Ms Louise Cooke spoke with Ms Kaur on the day of the defibrillator incident. Ms Cooke says Ms Kaur was crying and acknowledged that an error had been made. Ms Cooke sent Ms Kaur home.

• [28] Ms Cooke telephoned Ms Kaur on 8 July 2024 to tell her that Western Health were investigating the matter and that Ms Kaur would be on leave with full pay until the investigation was complete.

• [29] Ms Kaur did not return to work after the incident on 5 July 2024 until her employment ended in October 2024.

• [30] Western Health emailed Ms Kaur on 9 July 2024 and outlined the following allegations:

• Inadequate clinical assessment of patient resulting in defibrillation incident
• Inappropriate documentation following serious clinical incident

• [31] On 12 July 2024, Ms Kaur met with Ms Davies, Ms Louise Cooke, Ms Debra Hill, Director Employee Relations and Mr Poropat. During the meeting, Ms Kaur sent an email to Western Health with her response about the incident.

• [32] In that response, Ms Kaur explained the incident:

In the incident in question, I introduced myself to the patient. The patient stated that They were pain-free and feeling better than before. I reassessed the patient's arterial line in the left radial artery, noting that the dressing needed to be changed. I informed the patient that I would be changing the dressing shortly. I then began to check the equipment. The defibrillator was turned off and placed in the corner where it usually is when not in use. When a patient is on a defibrillator, we typically move the defibrillator close to the bed, but this was not the case this time. There was no clue that patient is attached to the defibrillator and no handover about that was received. I was performing a default defibrillator check. I turned on the defibrillator and checked it. An accidental and unintentional shock was delivered to the patient. I did not notice that the patient was connected to the defibrillator, which was an oversight rather than a deliberate action.

• [33] Ms Kaur said that she was experiencing stress at work due to allegations that were made against her and being unaware of the specifics of the allegation. She wrote:

This has been a challenging time for me and this oversight could also have been influenced by that stress.

• [34] Ms Kaur's response then proceeded to explain who else witnessed the incident (a treating doctor) and to whom the incident was reported (the ED consultant) and that the patient was reviewed, conscious, stable, unharmed and had joked to Ms Kaur in reply to her apology.

• [35] Ms Kaur explained that she intended to complete documentation and speak to the Nurse Unit Manager during her break.

• [36] Ms Kaur said that when she went to report to the Nurse Unit Manager, she could not explain much as she was crying a lot, very stressed and not feeling like herself. Ms Kaur concluded with:

I deeply regret this unfortunate error and am committed to learning from it to improve patient safety.

• [37] At the end of the meeting, Western Health discussed with Ms Kaur placing her in an alternative clinical environment.

• [38] Ms Kaur sent a further email on 15 July 2024 in which she said that Western Health had not listened to her explanation during the fact-finding meeting, that she felt unheard and that the decision was predetermined and unchangeable. On 17 July, Ms Kaur also emailed Mr Russell Harrison, Chief Executive Officer, and Mr Shane Crowe, Executive Director of Nursing and Midwifery. The subject of the email was: "Requests for Fair Investigation and Resolution of Discrimination and Unfair Treatment in the ED." In the email, Ms Kaur wrote,

Last week, an unintentional and unfortunate incident happened, though, thankfully, no harm came to the patient. I was informed that a fact-finding investigation would take place, which I welcomed, believing it would lead to a fair decision based on facts. Despite not feeling prepared for the meeting, I cooperated fully.

To my dismay, the outcome seemed predetermined, echoing the biased meetings of the previous six months. I was told that the issue was solely my fault, and the decision had been made before my interview even took place. When I tried to explain myself, I was dismissed.

Manager do not listen to me and do not believe the facts I present. It seems they have formed an opinion about me and continue to act on that belief. I feel that my managers are trying to get rid of me.

• [39] On 19 July 2024, Ms Davies emailed Ms Kaur Western' Health's response. The response said:

Based on your summary of the incident, review of patient notes and account from staff rostered during the event, Western Health has made the decision to redeploy you to an area outside of the Emergency Departments and Urgent Care Centres after your period of annual leave. Ongoing employment as registered nurse will be facilitated at Dame Phyllis Frost Centre where you will be given every opportunity to be successful in the role. Please note this is not a disciplinary sanction but an opportunity for you to develop in an alternate area of practise.

• [40] Ms Kaur replied to the above letter on 20 July 2024. Ms Kaur urged Western Health to consider her earlier response, including the impact of stress due to "ongoing allegations," and that she felt the outcome was unjust.

• [41] On 22 July 2024, Ms Davies sought information and documents from Ms Kaur to facilitate her redeployment to the Dame Phyllis Frost Centre. The information was her annual leave dates, and the document needed was a copy of her driver's license. On the same date, Mr Harrison replied to Ms Kaur and said that he had been "provided with reassurance and evidence that the investigation has followed all required processes." Mr Harrison encouraged Ms Kaur to take up the redeployment to the Dame Phyllis Frost Centre. Ms Kaur replied again to challenge the redeployment. She said that redeployment did not align with her "interests/professional goals," and that the outcome was retaliatory action.

• [42] On 23 July 2024, Ms Debra Hill, Director Employee Relations, emailed Ms Kaur:

I am aware that you have not responded to Nicole Davies email regarding information required to be provided by you in order to redeploy you to the DPFC. A fair and reasonable decision had been made regarding this redeployment and not responding is not acceptable. I am now issuing you with a lawful reasonable direction to provide the necessary information to ensure clearance to work at the DPFC by no later than close of business Wednesday 24 July 2024. Failing to comply with this direction may place your future employment with Western Health in jeopardy. We are of the firm belief that this redeployment is an opportunity to enhance much needed skills and experience at this time. We sincerely hope that you comply with this direction.

• [43] On the same day, the ANMF, on Ms Kaur's behalf, notified Western Health of a dispute notification about the redeployment, particularly that it was not an option available to Western Health within the terms of the Agreement.

• [44] It appears that little happened in August 2024, as Ms Kaur was on leave.

• [45] Ms Davies gave evidence that on 5 September 2024, she received an email from ANMF that sought to progress the dispute and declined redeployment on Ms Kaur's behalf.

• [46] Western Health (represented by Ms Davies and Mr Longhurst) met with Mr Barry Meginnis of ANMF to discuss Ms Kaur's dispute on 18 September 2024. Ms Kaur did not attend the meeting. Ms Davies said:

Western Health advised Mr Meginnis that redeployment of Ms Kaur was no longer an option as we had not been able to engage meaningfully with our employee on this matter since 12 July 2024.

Western Health would not support Ms Kaur to complete her post graduate studies at Sunshine or another site as at no time following the incident or during the dispute had Ms Kaur demonstrated an understanding of the serious nature of the incident or her actions or possible consequences to the patient. Western Health believed that Ms Kaur posed a risk to patient safety, and there was no longer trust and confidence between Ms Kaur and Western Health.

• [47] On 19 September 2024, Mr Meginnis replied on Ms Kaur's behalf to restate her desire to maintain her existing employment in the Sunshine Emergency Department to complete her Critical Care Certificate or redeployment to another work location where she would be permitted to complete her course work for her Critical Care Certificate.

• [48] On 24 September 2024, Western Health wrote to Ms Kaur to invite her to a show cause meeting. In that letter, Western Health referred to the meeting on 12 July and informed Ms Kaur that they were "seriously considering terminating her employment." Western Health said that Ms Kaur had failed to perform her role as Registered Nurse, failed to work within the confines of her scope and duties, and failed to comply with relevant legislation, regulations, policies and procedures.

• [49] The ANMF, on behalf of Ms Kaur, asked that that she be allowed to provide a written response instead of having to attend a face-to-face meeting. Western Health received Ms Kaur's written response on 26 September 2024. Ms Kaur reiterated that the defibrillator incident was "a very unfortunate accident" for which she was "sincerely and genuinely remorseful," and that she believed the stress levels that she was experiencing was a contributing factor. Ms Kaur said that she would welcome an opportunity to discuss a performance improvement plan. Last, Ms Kaur said that she was confused by the investigation process that had the initial outcome of redeployment, but which was now stating that she had engaged in wilful misconduct that could warrant termination.

• [50] On 31 October 2024, Western Health dismissed Ms Kaur. Western Health sent the termination letter by registered post to Ms Kaur; however, the address was not Ms Kaur's current address. Western Health did not email the termination letter to Ms Kaur nor the ANMF. Ms Kaur did not learn that she had been dismissed until 18 November 2024.

• [51] The termination letter said that the following were Western Health's reasons for dismissal:

• Ms Kaur's repeated inability to adhere to company policies and professional standards, particularly in relation to professional practise standards and failing to work within the confines of her scope of practice;
• Ms Kaur defibrillating a patient outside of procedure, without indication;
• Ms Kaur's failure to adhere to relevant legislation, regulations, policies and procedures;
• Western Health perceived that Ms Kaur's was unsafe to the health and safety of patients and staff; and
• Western Health no longer has trust and confidence in Ms Kaur's ability.

When may the Commission order an unfair dismissal remedy?

• [52] In considering whether a dismissal was harsh, unjust or unreasonable, I must have regard to the criteria in s 387. The full text of s 387 is appended to this decision.

• [53] A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.[2] Where dismissal relates to conduct, the Commission must be satisfied that the conduct occurred and that it justified termination. A Full Bench of the predecessor body to the Commission said:[3]

The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. 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.

• [54] Where there are allegations of misconduct, the standard of proof is the balance of probabilities. However, the Commission should not lightly make a finding that the employee engaged in the misconduct alleged, and the nature of the alleged misconduct affects the reasonable satisfaction that is required.[4]

• [55] Western Health has alleged conduct that is serious, and so Briginshaw is relevant. In their submissions, Western Health relies on the defibrillation incident as serious misconduct and also relies on concerns that it expresses as Ms Kaur's ongoing inability to perform at the required standard of a Registered Nurses undertaking postgraduate critical care training. Western Health also say these are capacity concerns because of Ms Kaur's inability to meet clinical standards. These concerns form the basis of Western Health's loss of trust and confidence in Ms Kaur's ability and perception that she is a risk to the health and safety of patients and staff.

• [56] I find that the conduct in relation to the defibrillation incident occurred. Dr Gossat, Emergency Registrar, was present and provided clear, detailed and convincing evidence of the incident. Dr Gossat was about a metre away from the patient, working on a monitor but facing towards the patient. She heard defibrillator sounds, and saw the patient jump and heard him cry out. Dr Gossat asked Ms Kaur if she had shocked the patient, and Ms Kaur replied that she had. Ms Kaur has acknowledged throughout that she shocked the patient. On behalf of Western Health, Ms Louise Cooke and Ms Hassell gave evidence that they spoke with Ms Kaur on the day of the incident and she informed them that she had shocked a patient. Ms Kaur was visibly upset and crying.

• [57] I prefer the evidence of Dr Gossat to Ms Kaur's evidence about the incident. Dr Gosssat gave evidence that when she entered the room, she "saw the patient connected to all the usual monitoring equipment" (being the ECG, defibrillator, blood pressure saturate probe and pulse oximeter) and "he was sitting up with his eyes open." Dr Gossat also did not attempt to recall details that she did not remember. Ms Kaur insisted that the patient had a gown on, and so she may not have been able to notice the defibrillator pads. Dr Gossat's evidence in relation to this was that she could not recall if the patient was with or without a gown, but that she could see wires leading from him to the machine.

• [58] In administering the shock, Ms Kaur did not perform an initial assessment and did not notice the presence of defibrillator pads attached to the patient. I accept that Ms Kaur did not intend to deliver a shock to the patient, but her actions were deliberate, and she failed to perform the situational assessments that would have meant that no shock was delivered. Relevantly, a Full Bench of the Commission in Urso v QF Cabin Crew Australia Pty Limited[5] said:

Some forms of misconduct clearly involve a positive intention on the part of the employee, such as workplace theft or fraud. However other forms of misconduct, such as breaches of safety policies and procedures, may be the result of recklessness, negligence or misjudgement.

• [59] I am satisfied that Ms Kaur's conduct during the defibrillation incident was a valid reason for dismissal.

Lack of insight into the incident is a valid reason

• [60] In relation to the incident, Western Health was relied on its view that Ms Kaur did not appear to appreciate the seriousness of the incident nor demonstrate insight into her error nor reflect on potential outcomes. For these reasons, Western Health says that Ms Kaur is a risk to the health and safety of patients and staff, and they have lost trust and confidence in Ms Kaur's ability.

• [61] In her correspondence to Mr Harrison on 17 July 2024, Ms Kaur reiterated that the incident was unintentional and unfortunate, and that "thankfully, no harm came to the patient." Western Health submits that this demonstrates that Ms Kaur fundamentally misunderstands risk-based practice in clinical care. I agree with this submission.

• [62] The potential consequences to the patient were serious. Dr Robb gave evidence of the potential consequences to a patient when delivering a shock while the patient is awake. Immediate risks include that the shock may cause the patient to have a cardiac arrest, which could cause death. Other risks include pain and distress, and there are potential long term psychological consequences.

• [63] Ms Kaur's repeatedly did not acknowledge that she failed to perform the usual A-E assessment, instead reiterating that "everyone has their way of working." She repeated this on 2 occasions during the investigation and show cause process. While Ms Kaur now says that it was intended to convey flexibility and that she may have been misunderstood because English is her third language, her written responses clearly explain her own process during the incident and reiterate that "some people check equipment first." She also emphasises in her responses that there may be circumstances where protocols "may not always account for every situational nuance." During oral evidence, Ms Kaur said that educators informed her to perform equipment checks and that Western Health are now saying that equipment checks should be performed after an A-E assessment.

• [64] I also find that Ms Kaur failed to take responsibility for the incident. Ms Kaur did not acknowledge that if she had correctly performed an assessment, the incident may not have occurred. In her responses following the defibrillation incident, Ms Kaur repeatedly emphasised the "atypical placement" of the defibrillator. During oral evidence, Ms Kaur also said that the patient was covered with a blanket so she could not see whether they were attached to the machine, and she was argumentative with Dr Gossat about Dr Gossat's recollections. As explained above, I prefer the evidence of Dr Gossat to Ms Kaur's evidence about what occurred.

• [65] Last, throughout Western Health's investigation process and during these proceedings, Ms Kaur repeatedly referred to her complaints about differential and discriminatory treatment, lack of support in her training and retaliation for having made complaints. Even if Ms Kaur's complaints could be substantiated, they do not account for her own actions in the defibrillation incident.

Ongoing performance concerns are valid reasons

• [66] Western Health further argue that the defibrillation incident did not occur in isolation, but that Ms Kaur had been under observation for months due to ongoing performance concerns. Western Health submitted that Ms Kaur required excessive support, failed to apply feedback and did not demonstrate improvement after feedback. Western Health supplied extensive documentation including staffing notes dating from May 2022 until 25 May 2025. Ms Davies, Ms Nicole Cook, Ms Louise Cooke and Ms Hassell all gave evidence about their interactions with Ms Kaur in relation to her post-graduate training.

• [67] Ms Kaur required multiple attempts to pass many key assessments. She required:

• 2 attempts to pass Advanced Life Support (ALS)
• 2 attempts to pass Non-Invasive Ventilation
• 3 attempts to pass Mechanical Ventilation
• 3 attempts to pass Rapid Sequence Intubation

• [68] In oral evidence, Ms Cook confirmed that there was no maximum number of attempts to pass any one assessment but that after the second attempt, the University became involved.

Ms Kaur submitted that it is not unusual to take multiple attempts to pass assessments and that she was not sufficiently supported in the first 6 months of her postgraduate program. In relation to lack of support, Ms Kaur specifically referred to Western Health not allocating her as many shifts in resuscitation and triage as her colleagues. Ms Kaur also gave evidence that she made internal complaints and later escalated those complaints to the University.

• [69] Based on the documentary evidence provided by Ms Kaur, her earliest written complaint about lack of support is on 24 October 2023. On 9 January 2024, she repeats the complaint and raised that a senior colleague openly criticised her in front of other colleagues and asks to not be assigned with that colleague in future.

• [70] Ms Kaur says that she complained to the University in April 2024. There is no written evidence of this complaint. On 10 May 2024, Ms Kaur writes an email to Morgan Livesay, Clinical Nurse Educator, and Ms Louise Cooke that copied in 2 educators from the University. In that email, Ms Kaur takes issue with aspects of her assessments, and concludes with:

I appreciate the feedback provided and am committed to continuous improvement. However, I believe there may be misunderstandings or discrepancies in the assessment process that warrant further discussion. This experience has left me questioning whether there may be personal factors influencing the assessment process. I respectfully express my concern about feeling treated unfairly and differently, which is hindering my confidence to progress. Given my lack of control over the situation, I'm apprehensive about encountering similar challenges in the future.

• [71] On 27 June 2024, Ms Kaur did not pass her Clinical Performance Assessment.

• [72] On 1 and 2 July 2024, Ms Kaur reiterated her complaints and requested evidence and documentation about "allegations."

• [73] I find that there were clear ongoing and documented performance concerns with Ms Kaur. As early as July 2023, Ms Kaur's staffing notes include comments about her A-E assessment skills. There are also repeated comments about her lack of situational awareness, difficulty prioritising, and that she requires prompting and is not proactive. There are also many positive comments, including that she has a lovely communication style with patients, receives feedback well and is highly intelligent, enthusiastic and inquisitive.

• [74] Ms Kaur's correspondence with Western Health and during these proceedings indicated that she mischaracterised comments and feedback provided to her as a student as allegations against her. She asked for justification and evidence, including CCTV. Her complaints about unfair, different or discriminatory treatment are vague, and were made after she fails an assessment.

• [75] The contemporaneous staffing notes provide clear and detailed information, some of which was provided to Ms Kaur at the time, about why an assessor considered she failed and the areas that Ms Kaur needed to improve upon to pass future assessments. Until the defibrillation incident, Western Health's concerns about Ms Kaur performance are dealt with in the context of her assessments. Western Health never raised the performance concerns as allegations.

• [76] I disagree with Ms Kaur's submissions that Western Health did not support her in her training. Ms Davies, Ms Nicole Cook and Ms Louise Cooke all give compelling evidence about the support that Ms Kaur was provided, which was supported by contemporaneous documentary evidence. During the hearing, Ms Kaur accused each witness of lying or colluding with each other. I do not agree with Ms Kaur that the witnesses lied. All Western Health's witnesses gave consistent, clear and credible evidence that was corroborated by contemporaneous documentary evidence.

• [77] Western Health may have treated Ms Kaur differently to her peers who were also in the post-graduate program. However, if there was different treatment, it appears to relate to the additional support that Ms Kaur required, including that Western Health formed a view that she could not be rostered onto shifts without senior supervisory staff. Some of these constraints were due to Ms Kaur's personal circumstances. There is nothing in the material, other than Ms Kaur's allegations, that the different treatment was due to discriminatory factors.

• [78] I am of the view that Western Health's documented ongoing performance concerns with Ms Kaur are valid reasons for her dismissal.

Failure to accept redeployment was a valid reason

• [79] Shortly after investigating the defibrillation incident, Western Health decided to redeploy Ms Kaur out of the Sunshine Hospital Emergency Department and instead to the Dame Phyllis Frost Centre. By doing so, Ms Kaur would have been unable to complete her post-graduate studies. Ms Kaur did not accept the redeployment and challenged the lawfulness of the redeployment by commencing a dispute.

• [80] The question about whether the redeployment was permissible under the Agreement is a separate matter. I make no determination about it, and nor have I heard arguments on this point.

• [81] Ms Kaur did not want to be redeployed to the Dame Phyllis Frost Centre, as she could not complete her post-graduate qualification in critical care there. She did not respond to Western Health's requests that she provide information to facilitate the redeployment. Instead, she made complaints about the decision being unfair, discriminatory and retaliatory and continued to challenge the findings of Western Health's investigation.

• [82] I am of the view that Western Health had a valid reason to dismiss Ms Kaur due to the defibrillation incident. I am also of the view that its initial decision to take the different approach of redeployment was one that was open to it. That Ms Kaur failed to accept that alternative approach led Western Health to consider termination. I am of the view that this was a valid reason for dismissal.

Section 387(b)& (c) - Did Western Health notify Ms Kaur of the reasons and give her an opportunity to respond to the reasons?

• [83] The requirement here is that an employee is provided with an opportunity to respond to the reason for their dismissal before a decision is taken to dismiss the employee.[6]

I am satisfied that Western Health notified Ms Kaur of its reasons for considering dismissing her. This was set out in a letter to Ms Kaur on 24 September 2024, which said:

We have concluded and you acknowledge that you defibrillated a patient without indication and failed to provide an accepted level of care and assessment to the patient following Defibrillation.

Because of your failure to perform your role as a registered nurse and work within the confines of your scope of duties, the following occurred;

• - You failed to comply with relevant legislation, regulations, policies and procedures

Western Health has considered all of these matters, including your responses. We have also had regard for your employment history.

For all of the aforementioned, our deliberations have led us to conclude that your actions, on the balance of probabilities, represented a significant departure from the standards expected of Western Health employees for serious and wilful misconduct. As such, we have formed the view that this serious and wilful misconduct has caused a breakdown in the trust and confidence of the employment relationship. On this basis you should be aware that Western Health is seriously considering terminating your employment.

• [84] Ms Kaur was invited to a meeting to be held on 1 October 2024 and informed that if she did not wish to attend, she could provide a response in writing. Ms Kaur chose to respond in writing and did so through the ANMF.

• [85] Ms Davies gave evidence that she agreed with a recommendation to terminate Ms Kaur's employment. Western Health then wrote to Ms Kaur on 31 October 2024 and summarily dismissed her for serious misconduct. The dismissal took effect on the date of the letter.

Section 387(d) - Did Western Health unreasonably refuse to allow Ms Kaur to have a support person?

• [86] I am satisfied that there was no unreasonable refusal to allow Ms Kaur to have a support person. Western Health informed Ms Kaur that she could have a support person when it invited her to the fact-finding meeting on 12 July 2024, and again when it wrote to her on 24 September 2024.

• [87] Ms Kaur attended the meeting on 12 July 2024 alone, but she was assisted by the ANMF throughout July to September, and provided her responses in writing either directly or through her union.

Section 387(e) - Did Western Health warn Ms Kaur about unsatisfactory performance before dismissal?

• [88] Ms Kaur was aggrieved that her performance was taken into account in dismissing her as she says that she was not warned about poor performance. Western Health did not rely solely upon Ms Kaur's performance to dismiss her. But I am satisfied that it warned Ms Kaur about her unsatisfactory performance before her dismissal.

• [89] As detailed above, Western Health gave evidence and extensive documentation about its performance concerns with Ms Kaur and the steps it took to make Ms Kaur aware of those concerns as well as providing her with opportunities and time for improvement. Based on the staffing notes, concerns were raised informally with Ms Kaur and more formally following assessments.

• [90] In the show cause letter of 24 September 2024, Western Health clearly informs Ms Kaur that her performance is one of the grounds for Western Health to seriously consider terminating her employment.

Section 387(f) & (g) - What is the degree to which the size of Western Health and absence of dedicated human resources management specialists impacted the procedures that were followed

• [91] It is not controversial that Western Health is a large enterprise with dedicated human resources specialists. These factors do not weigh in favour nor against a finding about whether the dismissal was harsh, unjust or unreasonable.

Section 387(h) - any other matters that the FWC considers relevant

• [92] Ms Kaur made many and various submissions about the unfairness of her dismissal. I have attempted to categorise them and address the relevant submissions below.

• [93] Ms Kaur submits that the dismissal was not justified, as it was based on a single, unintentional error (referring to the defibrillation incident). I am satisfied that the dismissal was not harsh. Western Health clearly did not rely solely on the defibrillation incident in deciding to dismiss Ms Kaur. As detailed above, I am satisfied that Western Health had multiple valid reasons to dismiss Ms Kaur, only one of which was the defibrillation incident.

• [94] I am also satisfied that dismissal was justified in the circumstances. On 31 October 2024, Western Health dismissed Ms Kaur summarily with immediate effect and without giving notice or making a payment in lieu of notice. The defibrillation incident occurred on 5 July 2024. After this time, Ms Kaur did not return to work but remained on paid leave, including pre-arranged annual leave until Western Health dismissed her. Western Health initially decided to redeploy Ms Kaur, but Ms Kaur did not agree to that redeployment. I am of the view that it would have been open to Western Health to summarily dismiss Ms Kaur after the defibrillation incident.

Targeted harassment and a toxic work environment

• [95] Ms Kaur says she was dismissed due to a deliberate, targeted campaign of harassment and false allegations. She also says that there was a toxic environment and pattern of unfair treatment within Western Health's Sunshine Hospital Emergency Department, of which she was another victim. Ms Kaur says that she was excessively micromanaged and provided with unwarranted negative feedback. She also says that Western Health deliberately limited her professional opportunities and made false allegations against her.

• [96] I cannot discern the basis of Ms Kaur's submissions about harassment, unfair treatment or retaliation against her. Ms Kaur's complaints are vague assertions. Based on the chronology discernible from the documentation, Ms Kaur appears to make complaints about unfair treatment after she receives negative feedback or fails an assessment.

• [97] Ms Kaur says that she was not given the same opportunities to develop as her peers. This does not correspond with the evidence. First, Western Health gave evidence that this was due to rostering issues related to Ms Kaur's personal circumstances and Western Health's desire to ensure she was properly supervised. Second, Western Health gave clear and convincing evidence of the additional training, time and supported shifts that it offered to Ms Kaur to help her pass her assessments. In particular, Ms Cook gave evidence that Ms Kaur was provided with 6 supported triage orientation shifts, where the standard practise is 2 and if a learner requires extra support, usually a maximum of 3.

• [98] When Ms Kaur says that she is micromanaged, this appears to be in relation to support she was provided during shifts. The staffing notes do indicate that Ms Kaur was under greater scrutiny, but an objective analysis reveals that this is due to performance concerns. Multiple senior members of the nursing team contributed to the staffing notes. Some document their interactions with Ms Kaur only once; others on multiple occasions. Increased criticism of Ms Kaur after April 2024 correlates to her assessments. There is no compelling evidence that the greater scrutiny is targeted or retaliatory.

• [99] Last, Ms Kaur says that Western Health failed to investigate the complaints she raised about harassment. Ms Kaur complained about treatment by a senior staff member in January 2024, and asked to not be allocated to work with that staff member in future. The complaint was responded to and taken seriously. There is no evidence before me about whether Ms Kaur was allocated to work with the staff member again, but this was also just one issue among many. Ms Kaur says she raised a complaint in April 2024. There is no written evidence of this complaint. In relation to a complaint in May 2024, Ms Louise Cooke's and Ms Nicole Cook's evidence is that Ms Kaur did not wish to pursue the complaint. I believe them. But in relation to other complaints around May and June 2024, Western Health appear to have taken steps. In May 2024, Ms Kaur asked that she be assessed by University educators, and Western Health and the University facilitated this. Ms Kaur's complaints on 1 and 2 July relate to her disagreement with Western Health's assessment that she failed the Clinical Performance Assessment.

• [100] Ms Kaur says she was singled out - she was not the only one who needed 2 attempts to pass an assessment but the only one dismissed. This submission fails to take into account the entirety of the valid reasons for dismissing Ms Kaur. Western Health did not dismiss Ms Kaur for the sole reason that she failed her assessments; as detailed earlier, Western Health had multiple reasons, including her performance.

• [101] Further, Ms Kaur required multiple attempts to pass multiple assessments. It was not the case that there was only one instance when she needed 2 attempts to pass an assessment. As detailed earlier, Ms Kaur required 2 attempts to pass Advanced Life Support (ALS) and Non-Invasive Ventilation and 3 attempts to pass Mechanical Ventilation and Rapid Sequence Intubation.

• [102] Ms Kaur's allegations about procedural unfairness centre around failure by Western Health to provide her with documentation and evidence of the basis for its performance concerns. In relation to fairness of a termination, the Commission's consideration is about the decision-making process. Procedural fairness requires that an allegation is put to a person, and they are given an opportunity to respond to it before a decision is made.[7] It does not require that all the evidence is provided to the person. As detailed above, I am satisfied that Western Health notified Ms Kaur of its reasons for considering dismissing her and provided her with an opportunity to respond to the reasons before it decided to dismiss her.

• [103] Ms Kaur raised that Western Health had breached her privacy by sending the termination letter to a wrong address and shared incorrect details with AHPRA. Even if both instances were breaches of Ms Kaur's privacy (of which I do not make any findings), these cannot be matters that demonstrates unfair, unjust or unreasonable dismissal because they occurred after termination.

• [104] It is a procedural failing for Western Health to have posted the termination letter to Ms Kaur. Western Health should have continued with the same mode of communication it had engaged in with Ms Kaur throughout the investigation and show cause process (which was email). Ms Kaur was also represented by her union. Western Health made no attempt to communicate its decision to terminate Ms Kaur to the ANMF.

• [105] However, this is not a procedural failing that fundamentally affects the fairness of the dismissal.

• [106] Ms Kaur raised that she had not received backpay in accordance with the Agreement and that there were irregularities with her payments on termination of employment. These are not matters that I can deal with in the context of an unfair dismissal matter. However, I urge Western Health to review these matters and ensure that it has paid Ms Kaur correctly in accordance with the Agreement and the Fair Work Act 2009.

• [107] The effects of the dismissal on Ms Kaur are severe. Not only has she lost her job with Western Health, but she is also unable to graduate or further her studies, and it may be difficult for her to continue working within nursing. I consider that the harshness of the dismissal was tempered by Western Health's initial decision to redeploy Ms Kaur, a decision that she did not accept.

The dismissal was not harsh unjust or unreasonable

• [108] Having considered the factors in s 387, I am satisfied that Western Health had valid reasons to dismiss Ms Kaur that related to her conduct in the defibrillation incident, her lack of insight into the incident, its ongoing performance concerns and her failure to accept its initial decision to redeploy her. Ms Kaur's conduct was serious, and there were serious risks that arose from it. I am also satisfied that the valid reasons weigh against a finding of unfairness. I am satisfied that Ms Kaur was notified of the valid reasons and given an opportunity to respond, and this also weighs against a finding of unfairness. None of the other factors weigh for or against unfairness. I acknowledge the harshness of the dismissal to Ms Kaur personally and professionally. The harshness, however, does not outweigh the valid reasons for dismissing Ms Kaur.

• [109] I am satisfied that Western Health's dismissal of Ms Kaur was not harsh, unjust, or unreasonable.

• [110] I order that the application for an unfair dismissal remedy under matter number U2024/13990 filed by Ms Manpreet Kaur on 21 November 2024 be dismissed.

FAIR WORK ACT 2009 - SECT 387

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(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); and

(b) 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

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

(e) if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) 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

(g) 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

(h) any other matters that the FWC considers relevant.

Note: For the purposes of paragraph (a), the following conduct can amount to a valid reason for the dismissal:

(a) the person sexually harasses another person; and

(b) the person does so in connection with the person's employment.

[1] AE514984; PR738410; the Agreement was approved on 16 February 2022 in [2022] FWCA 521. It commenced operation on 23 February 2022, and its nominal expiry date is 30 April 2024.

[2] see Austin v Sandgate Taphouse Pty Ltd T/A Sandgate Post Office Hotel [2024] FWCFB 323 at [52]

[3] King v Freshmore (Vic) Pty Ltd Print (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 at [24]

[4] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 363 / per Dixon J at 362

[5] Urso v QF Cabin Crew Australia Pty Limited [2019] FWCFB 1322 at [30]

[6] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897, [(2000) 98 IR 137] at [70]- [73]

[7] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 602

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