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Norman Waterhouse

The Fair Work Commission finds that a health care worker was not unfairly dismissed for failing to properly record a patient’s fluid intake

The recent decision of Commissioner Platt of the Fair Work Commission (the Commission) in the case of Daniel Achouth v Hudson Hill Ltd t/a Assured Home Care [2020] FWC 4464 held that the dismissal of a health care worker whose employment was terminated for the dishonest recording of fluid given to a patient for compassionate reasons was not harsh, unjust or unreasonable.

Facts

The Applicant, Mr Achouth, was employed as a full-time Support Worker by the Respondent, Assured Home Care, between July 2018 and 29 January 2022. Mr Achouth did not hold the requisite qualifications to administer medication to persons in his care. Notwithstanding, Mr Achouth’s duties included the care of a patient who suffered a medical condition which meant an over-supply of fluids could result in potentially fatal medical consequences. On 27 November 2019, Home Assured Care provided Mr Achouth with a written direction which indicated that the patient was to be supplied a maximum of 2000ml of fluids per day (500mls per six hour shift). Further, all fluids provided to the patient were to be recorded to avoid any uncertainty about how much fluid the patient had been supplied. Mr Achouth submitted that the patient was a challenging patient, which was not challenged by Assured Home Care.

On 24 January 2020 at around 7:20am, Mr Achouth supplied the patient with a 350ml cup of iced coffee. Mr Achouth stated that this was for compassionate reasons. It was alleged by a nurse that Mr Achouth advised her to record only 100ml of fluid had been provided to the patient instead of 350ml. That same day, Assured Home Care put the allegations of the incident to Mr Achouth in writing.

On 28 January 2020, Mr Achouth was interviewed about the incident. Mr Achouth denied the allegations against him and his responses were recorded. On 29 January 2020, Assured Home Care summarily terminated Mr Achouth’s employment on the basis that his actions were wilful or deliberate behaviour and was in breach of the direction to honestly and accurately record all fluid provided to the patient.

Mr Achouth made an unfair dismissal application to the Commission. Mr Achouth submitted that the dismissal was disproportionate to his severity of his misconduct and that the impact of the dismissal had severely affected him. Home Assured Care contended that Mr Achouth was dishonest in his actions by requesting the nurse to record a 100ml of fluid compared with 350ml of fluid and there was a complete loss of trust and confidence in Mr Achouth to perform his duties.

Decision

Before determining whether Mr Achouth was unfairly dismissed, Commissioner Platt considered whether Mr Achouth was covered by unfair dismissal jurisdiction. Notwithstanding that Mr Achouth’s employment was characterised as casual, Commissioner Platt held that as Mr Achouth had worked on a regular and systematic basis for more than six (6) months and had completed the minimum employment period, he was covered by the unfair dismissal jurisdiction.

Commissioner Platt then considered the criteria for determining whether a dismissal was harsh, unjust or unreasonable pursuant to section 387 of the Fair Work Act 2009 (Cth). Considering whether there was a ‘valid reason’ for Mr Achouth’s dismissal, Commissioner Platt indicated that the Commission must be satisfied that the conduct occurred and justified termination on the evidence in the proceedings.

From his review of the evidence, Commissioner Platt found that it was usual practice to provide between 100ml – 200ml of fluid to the patient on each occasion. Commissioner Platt held that, regardless of the reasoning behind Mr Achouth’s actions, providing 350ml of fluid to the patient was an unusually large amount which created a material risk of oversupply to the patient. Further, Commissioner Platt accepted Assured Home Care’s submission that while a large supply of fluid does pose a risk to the patient, improperly recording that amount of fluid posed a greater risk given the nature and potential consequences to the patient. As such, Commissioner Platt held that Mr Achouth’s conduct increased the risk to the patient which could have resulted in serious medical consequences.

Commissioner Platt preferred the nurse’s evidence over Mr Achouth’s and held that Mr Achouth did instruct the nurse to record a lower amount on the patient’s fluid chart which Mr Achouth knew was in breach of Assured Home Care’s direction. Commissioner Platt held that Assured Home Care had a reasonable basis to have lost trust and confidence in Mr Achouth’s ability to perform his duties and therefore, there was a valid reason for his dismissal which was not harsh, unjust or unreasonable.

Take Home Messages

At times, employees may engage in misconduct for compassionate reasons. However, despite the underlying reasons, the employee may have knowingly breached their employer’s lawful and reasonable instructions. This case emphasises the need to properly formulate allegations and give appropriate weight to the nature of the misconduct when determining the appropriate disciplinary action. It is best to seek advice in times of doubt.

For more specific information on any of the material contained in this article please contact Virginia Liu on +61 8 8210 1279 or vliu@normans.com.au or Thomas Tagirara on +61 8 8217 1337 or ttagirara@normans.com.au.

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