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Dismissal for sleeping on the job and refusing to engage in subsequent investigation upheld

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The Fair Work Commission has uphold a dismissal where an employee repeatedly refused to respond to serious allegations despite being reasonably directed to do so.

Key impacts

  • Employers should always ensure procedural fairness is afforded to an employee including providing reasonable opportunities for an employee to respond to allegations before terminating employment, whether or not the employee is acting reasonably
  • Employers should ensure the steps in a disciplinary process meet the requirements of any applicable enterprise agreement, to avoid procedural flaws in subsequent disciplinary action taken, including advising an employee of any right to representation
  • An employer's legal requirement to protect its employees may reasonably extend to refusing the attendance of a particular chosen employee representative.

Facts

Susan Anson (Anson), a nurse, was allegedly discovered asleep while on duty by her nurse unit manager. At the time, Anson was responsible for 10 residents of the Western District Health Service (WDHS) facility and 7 acute care patients.

WDHS investigated the incident and invited, then directed, Anson to provide her account of the alleged incident on multiple occasions over several months. She was also repeatedly advised of her right to a representative.  Anson did not respond, and refused to attend meetings for various reasons, including insisting on the attendance of a particular Health Services Union (Union) representative, Tracey Brown (Brown). 

Over a period of 2 months, WDHS initially attempted to engage with Brown, who failed to respond to multiple requests about proposed meeting dates, and abruptly cancelled arranged meetings. WDHS later refused to allow Brown to represent Anson on the basis that Brown's involvement posed an occupational health and safety risk given her alleged history of aggressive and bullying behaviour towards its employees.

Three weeks later, WDHS advised Anson that refusing to attend a disciplinary meeting could amount to serious misconduct under the relevant enterprise agreement (EA), resulting in disciplinary action which could include summary dismissal.  Anson failed to comply and was dismissed a week later for being asleep on duty and refusing to respond to the allegations against her, breaching lawful and reasonable directions to do so.

Outcome

The Commission found that Anson breached her duties as a nurse by being asleep while on duty, amounting to a valid reason for termination of employment.

Anson alleged that she was both entitled to and denied her choice of representative. In finding WDHS did not fail to allow or unreasonably refuse Anson a representative in a disciplinary meeting, the Commission noted the relevant EA did not expressly require WDHS to provide an employee with the union representative of their choice. The Commission agreed that it was reasonable for WDHS to refuse to allow Brown to represent Anson given her behaviour posed a risk to staff welfare and other union representatives were available.

The Commission concluded that Anson was provided a "fair go all round" and upheld the dismissal.

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