Bendigo Health has been ordered to reinstate an aged care nurse, sacked for kissing a patient on the forehead, after the state’s fair work authority declared his dismissal “harsh”.
The Fair Work Commission first ruled Francis Logan could return to work in September, four months after a patient first accused him of inappropriate contact.
A Bendigo Health appeal against the decision, in which the hospital claimed its relationship with the employee had become “unworkable”, was thrown out on Tuesday.
The commission was told Mr Logan heard the patient recount an upsetting story from their past when he touched their hand, kissed them on the forehead and said, "Goodnight and God bless".
Mr Logan admitted to the behaviour and acknowledged it was a violation of nurse-patient boundaries.
The patient complained about Mr Logan's behaviour on the day of the incident and the employee was dismissed from his position a fortnight later.
He had been a Bendigo Health employee for 12 years.
Reasons for reinstatement
In finding Mr Logan should be allowed back at work, fair work commissioner John Ryan was critical of how the hospital handled the case, saying correspondence between those investigating the incident and Bendigo Health chief executive officer John Mulder was misleading.
He also found Mr Mulder acted without speaking to the aged care nurse and without reading all available documentation about the incident.
"Rather than be a rubber stamp, Mr Mulder should have been an involved decision maker," Mr Ryan’s finding read.
While a Bendigo Health spokesperson said the organisation accepted the decision of the Fair Work Commission, they believed “rubber stamp” was an inaccurate description of Mr Mulder’s role in the dismissal.
“Under the instrument of delegation, the CEO is required to authorise any decision to terminate an employ at Bendigo Health,” the spokesperson said.
“Prior to reaching the CEO for a final decision, a thorough investigation is undertaken into the matter by an experienced team of professionals who ensure the CEO is regularly briefed.”
The decision to dismiss Mr Logan also contradicted the recommendations of his profession's peak body, the Australian Health Practitioner Regulation Agency.
Rather than fire the man, the AHPRA suggested he be cautioned to "abide by the code of professional conduct for nurses by maintaining professional boundaries".
The AHPRA report into the complaint against Mr Logan found his behaviour was not sexually motivated and was a “relatively minor violation” of the the nurse’s code of conduct, which states: ““Nurses have a responsibility to maintain a professional boundary between themselves and the person being cared for.”
“A caution is considered to be adequate to ensure that you are aware of the board’s expectations and that you do not repeat the behaviour,” the report read.
“The caution is intended to remind you of the importance of abiding by the code of professional conduct with regard to the maintenance of professional boundaries.”
However, the AHPRA recommendation was not made until September, more than three months after the decision to sack Mr Logan was made, so could not be taken into consideration by the hospital when deciding their worker’s fate.
The commissioner also said the recent death of Mr Logan’s aunt and news his mother had been put into care were facts worthy of consideration when judging if the dismissal was unreasonable.
No money for time off
Although the commissioner acknowledged the financial strain unemployment placed on Mr Logan, the nurse would not be awarded wages for the period between his dismissal and the date of reinstatement.
Mr Ryan said it was inappropriate the dismissed worker “suffer nothing” as a result of his behaviour.
“By not making an order for the restoration of lost pay a very clear message is given to [Mr Logan] as to the consequences that flow from his own conduct,” Mr Ryan said.
Mr Logan would, however, be paid for the time between the reinstatement order and this week’s appeal hearing.
He was also made an ex gratia payment upon his dismissal and paid out his outstanding long-service leave.
His service was also to be considered uninterrupted despite the six-month hiatus, Mr Ryan decreed.
In its appeal, the health organisation also accused Mr Logan of not meeting the demands of his nursing registration after he admitted during the September hearing to signing off on 20 hours of professional development without knowing if he had met the requirement.
The Nursing and Midwifery Board of Australia demands all practitioners complete 20 hours of continuing professional development each year, activities that “maintain, improve and broaden their knowledge, expertise and competence, and develop the personal and professional qualities required throughout their professional lives”.
CPD hours are randomly audited and nurses who have not met their obligations can have their application for registration denied, a spokesperson for AHPRA said.
The way forward
Bendigo Health has the right to require Mr Logan to undertake training on his return to work, but it refused to comment on whether any such requirement would be mandated.
Staff training did, however, cover mandatory reporting of incidents, a spokesperson said.
“Any allegations of misconduct are taken very seriously and immediately investigated.
“The organisation takes its values of caring, passionate and trustworthy very seriously and they are embedded in our performance management.
“The safety of our patients is always paramount.”
Asked for comment, Mr Logan said in a written statement he and his family were relieved the “lengthy” process was over.
“I look forward to returning to work in a harmonious relationship with Bendigo Health,” he said.
The Fair Work Commission is Australia's national workplace relations tribunal.
It is an independent body that’s powers include hearing claims of unfair dismissal, regulating industrial action and making enterprise agreements.