The Case

(2018)

Western District Health Services (WDHS) employed Ms Anson as a nurse. Ms Ansen was alleged to have fallen asleep while on duty. At the time, she was responsible for 10 residents and seven acute care patients.

A meeting was arranged with Ms Anson to discuss the allegation. Ms Anson requested that her union representative attend the meeting. The union representative in question had been banned from WDHS’s premises following complaints of bullying and aggressive conduct towards staff. WDHS therefore requested that Ms Anson use another support person.

Ms Anson and the union representative refused, stating that WDHS could not dictate who Ms Anson used as a support person. WDHS maintained there was a valid health and safety reason for declining the request to have this particular representative present.

Ms Anson and her union representative refused to attend the meeting to respond to the allegation and refused to respond to the allegation in writing.

WDHS terminated Ms Anson’s employment 5 months after the incident in the absence of a response to the allegation for failing to comply with a lawful and reasonable direction to attend the meeting and provide a response.

Ms Anson commenced unfair dismissal proceedings against WDHS.

The Verdict

Ms Anson argued she had not fallen asleep on the job as alleged and that she was not provided with due process having been denied her choice of a support person.

In assessing whether a dismissal is unfair, the Fair Work Commission (FWC) must consider whether the employer unreasonably refused to allow the employee to have a support person present.

The FWC dismissed Ms Anson’s application finding there were valid reasons for the dismissal, being:

• there was evidence Ms Anson had fallen asleep while on duty thereby endangering the lives of patients and residents;
• Ms Anson had not provided a response to the allegations at the time of dismissal; and
• Ms Anson had refused to follow a lawful and reasonable direction of WDHS by failing to respond to the allegation against her either in person or in writing, and had failed to attend the meeting organised by WDHS.

The FWC found there were reasonable health and safety grounds for refusing Ms Anson’s choice of a support person. The union representative and Ms Anson had stymied WDHS’s attempts to implement a fair process by being “obstructive and uncooperative” by refusing to use another support person.

The Lessons

An employer can reject an employee’s choice of a support person where there is a reasonable basis for doing so, such as a valid health and safety reason. The reason for the rejection may be tested so it is important there is evidence to support the reasons relied upon by the employer.

In this case, there was ample evidence from other employees to support the assertion that the union representative had exhibited bullying and aggressive behaviour.

In circumstances where an employer rejects an employee’s choice of a support person, reasons for that rejection should be provided to the employee in writing and the employee should be provided with a reasonable period of time to arrange another support person.

It is also important to outline to the employee in writing what the consequences will be for failing to comply with a lawful and reasonable direction, such as to attend a meeting or respond to allegations.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.