A recent decision of the Fair Work Commission (Commission) Full Bench has emphasised a dismissal must be properly communicated to an employee for it to be effective.
Mr Ayub commenced employment with the predecessor of NSW Trains in 1982. In September 2015, NSW Trains informed the employee he was being investigated for alleged misconduct and might face disciplinary action, including termination of employment. On 23 November 2015 NSW Trains sent Mr Ayub a letter stating he had been dismissed but could seek a review of the decision under the NSW Train Guidelines. The letter advised that if no review was made the date of dismissal would take effect from 7 December 2015 but if a review was requested and the decision to dismiss was confirmed the dismissal would be “effective from 7 December 2015 or from the date of the outcome letter whichever one is of the latter date”.
Mr Ayub’s union, the Rail, Tram and Bus Union (RTBU), sent a submission on his behalf to have the matter determined by the Transport for NSW Disciplinary Panel. The panel upheld the dismissal and wrote to Mr Ayub on 14 January 2016 to confirm its decision (Outcome letter) but the letter did not advise of the date of dismissal. A further letter was sent dated 15 January 2016 confirming Mr Ayub was dismissed and his last day was 14 January 2016 (Dismissal letter). An email attaching both the Outcome letter and Dismissal letter was sent to Mr Ayub’s email contact address on 18 January 2016. However, the email address was that of his wife and he did not open or read the letters until 19 January.
The Fair Work Act 2009 (FW Act) prescribes a 21 day time limit to lodge a claim for unfair dismissal. Mr Ayub lodged an unfair dismissal application on 8 February 2016, 25 days after 14 January 2016 but only 21 days after 18 January 2016. The employee argued his unfair dismissal application was submitted within 21 days because the dismissal only took effect when it was communicated to him, which he argued occurred on 19 January 2016 when opened and read the email.
DECISION AT FIRST INSTANCE
The Commission’s Senior Deputy President Drake held that the dismissal took effect on 14 January 2016 and the application was lodged four days outside the 21-day period.
APPEAL TO THE FULL BENCH
Mr Ayub appealed the decision to the Full Bench of the Commission. The Full Bench considered the proper meaning of the expression “within 21 days after the dismissal took effect” in s.394(2)(a) of the FW Act. In particular, the question of whether a dismissal could be said to have taken effect before it was communicated to the employee.
NSW Trains placed reliance on its letter of 25 November 2015 as constituting notice of dismissal from 14 January 2016. The letter purported to give two conditional dates of dismissal, the first being 7 December 2015 but the second date was not identified. The Full Bench found Mr Ayub was not in a position to know his review had been unsuccessful until 18 January 2016 at the earliest, four days after the purported date of dismissal.
The Full Bench noted that under the National Employment Standards an employer must not terminate an employee’s employment unless the employee is given written notice of the day of termination, which cannot be before the day notice is given. The Full Bench did note that in a situation where the employee is informed by email he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonably opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address.
In this matter Mr Ayub was granted permission to have his unfair dismissal claim allocated for a hearing.
LESSONS FOR EMPLOYERS
There are a number of lessons that arise from the decision:
Ensure you have an employee’s current home and/or postal address and a personal email address;
If terminating an employee, ensure the notice is in writing, is not conditional and is effective no earlier than the date the notice is properly provided to the employee;
Where the notice of termination is not delivered personally to the employee, the notice can be sent by email, however, it is advisable to follow up with a courier or Express Post delivery.
For advice and assistance on any employment law matters please contact Workplace Legal on (03) 9972 4950
The Duckett Report (“the Report”) appears to prefer bureaucratic controls and more streamlined systems of reporting rather than deal with the real causes of failures in the delivery of safe and quality care in health services.
Clinical governance is basically asking the fundamental questions: “Is it safe?” and “Do we have the systems in place to ensure quality and safety at the coalface?”
The Report has placed the failures that occurred at Djerriwarrh at the composite doors of DHHS, Hospital Boards, various monitoring agencies and the fundamental lack of a system that restricts hospital capabilities in terms of their scope of practice.
The major findings to prevent a repeat of the Djerriwarrh debacle relate to:
A more robust system to enable DHHS to monitor quality and safety;
The establishment of 4 external Agencies (QSQI; VHPA; BAAC; and VCC);
The abolition of 4 - 5 Committees
Making the Health Services responsible for quality & safety; and
Restrict a Health Services’ scope of practice in line with their capabilities.
Although the Report addresses the culture of health services, it does so in a rather negative and general manner by relying on a “culture of reporting” and in particular with suggestions to improve protections and incentives for whistleblowers.
We all know that the whistleblower legislation is a two-edged sword. Whistleblowers are far and few between, and they are not sufficiently protected. Whistleblowers are generally more affected by their disclosures than the actual culprits. Further, whistleblower legislation is really a last resort.
We also know that AHPRA is not great at informing health services or the community about problems with health professionals. The system is riddled with delays, and the organisation inefficient at being able to conduct timely investigations. In the Djerriwarrh case, the Report states that there was a delay of 28 months. This is nearly 3 years after the events. AHPRA looks at individual wrong-doing rather than take a systemic approach.
The Report debunks the system, yet offers more bureaucracy and reporting mechanisms as the answer. It provides increased powers to DHHS, in which it has expressed little faith. At the same time it recommends that the Health Services (i.e. the Boards) should be held responsible by law for quality and safety. However, it fails to recognise that the whole system of governance of public health services is essentially schizophrenic.
The Report has failed to deal with the existing problems of health services. Although it argues that a ‘hands off approach’ is partly to blame for the failures, the facts are that Boards of governance are political appointments. Further, they are often, in the rural sector, mainly community members, rather than based on skills. This is inevitable given that Board Members in this setting are not paid, and distance is a problem when recruiting Board Members.
Limiting the tenure of Board Members in rural health services for example will add to the problem of finding appropriate board members.
The Report fails to deal with the issue that the large health services pay their board members. The boards of smaller services are all unpaid volunteers. This must change, if the skill mix needs to change.
The Report states that boards must be highly skilled, independent and effective. Further it recommends that there must be consumers on the Board. It ignores the fact that the major health services, already have community advisory committees whose task it is to feed in their views and experiences into the Board. Djerriwarrh did have such a committee although it is not a requirement for public health services. To establish such committees in rural Victoria is an option, but it would be difficult to find sufficient interested parties.
The facts are that Boards are not ‘independent’ they are appointed by the Minister and the Department. There is an absolute limit on their powers, and for example, they cannot appoint their CEO’s without gaining the approval from bureaucrats. Boards of health services are simply not independent, they are restricted in their decision-making and unlike other Boards are not fully accountable.
The Board at Djerriwarrh was dismissed. Who was sacked at AHPRA? Did any bureaucrats leave the Department? Who will bring to task the various monitoring agencies that failed (i.e. CCOPMM)? Why was the Coroner by-passed with regard to most of the deaths that occurred with the delivery of babies? Where are the recommendations for example on this very important matter? It is suggested that the Coroner with its experience and investigative powers would have identified the problems earlier.
The Report fails to deal with the actual culprits, which are clinical staff, and in particular medical staff who carry out procedures, which should in fact be carried out elsewhere or who are able to make decisions without challenge. Everyone knew in one way or the other, that there were problems in Bacchus Marsh. There were whispers. Various Reports to the Board had highlighted the fact that there were an ever-increasing number of births over a very short period, yet no one raised any concern. Looking at the Annual Reports of the Health Service, we find listed the number of GP’s as well as a large list of Specialists covering most specialties and a part-time Director of Medical Services.
The majority of DMS’s in rural health are very much part-time. Often they are not specialists, and frequently have more than one or two health services as their clients. Some also have significant commitments as employees of larger health services. This matter was not addressed in the Report. That is the total lack of specialist support available to smaller rural health services except by establishing links to the larger health services. This relationship between hospitals already exists, but it is clearly unsatisfactory.
One of the most fundamental recommendations is the one based on hospitals being restricted to their individual capabilities. This should be, implemented immediately. Although there are cases where competence and capacity are an issue, often based on lack of volume or appropriate after care services, the facts indicate that capability is a major issue and has been for a very long time. Everyone in the system is aware of this, but political, community and individual decisions and expectations can dominate at the expense of safety and quality with obstetrics as a major issue in the rural setting.
There are many rural health services that still provide obstetric services, and these should be reviewed as a matter of urgency. The Report has concentrated on the Djerriwarrh health service, whereas it should have examined the system as a whole, particularly obstetric services.
It seems that to make fundamental systemic changes as proposed, prompted in largely by Djerriwarrh, assumes that similar failures have occurred or could occur elsewhere.
To achieve systemic change and ensure a culture of safety, the answer is that staff must be given the power to speak up. This requires a change in the hierarchy of power in hospitals. This requires a fundamental change in the relationships between all staff at the hospitals. It is not simply a matter of ‘Open Disclosure’, as the Report seems to suggest which is more related to the recommendations in the Report on “candour”.
At the end of the day, the power and authority dimensions require to be tackled systematically. It is the fundamental culture of a health service that must be addressed. For example as the Report stated, there is a lot of information available through the “People Matters Survey”. We know that the immediate and most severe issue in health services is the culture of bullying and harassment by senior staff and people in power.
In a sense, one would have projected a contrary scenario. After all, the health services are populated by a large number of women with many in key clinical and management positions. Yet, as is the case with diversity, a subsequent ideological shift has not occurred despite a large female workforce. One would have expected a non-hierarchical culture of collaboration, engagement, fairness, open disclosure and so on.
Instead, hospitals may be modern in their technology, but they are backward and conservative in their ideology which remains based on power hierarchies dominated by men.
We know that the Colleges of Specialists are addressing this negative and destructive culture of chauvinism and sexism. Yet, there is very little in the Duckett Report that addresses this basic problem. We know that poor cultures in health services have a direct impact on quality of care. We also know that the governance system of health services is based on Boards. Yet in a very real sense, the Report strengthens the powerbase of DHHS, rather than make the Health Services more autonomous despite recommendations to make the boards accountable, without however fundamentally changing the power hierarchies.
In a nutshell the Report focuses on monitoring and reporting as well as effective tighter controls by the Department. It fails to realize that the system established by the incorporation of health services, created a system that is neither private nor public. The public health system is based on number of contradictions, and the major tension lies between the Department and Boards of health services.
Public health is a political football. In the case of football for example, the AFL lays down the rules, the clubs are at the table and participate in decision-making. The rules are agreed between the parties. There is a unanimity, commitment and accountability about the outcomes and how to achieve them. There are penalties associated with breaches, and effectively the AFL board owns the decisions and is responsible and accountable for the outcomes. The system also deals with recalcitrant behavior and other breaches in a quick and efficient manner.
In the Health system, although the Boards are accountable, they are not at the table relating to major decisions. In most cases they are not effectively held accountable or held legally liable for failures. Board members are treated as if they are legally accountable, but in fact there is minimum risk associated with being a board member. In the case of Djerriwarrh and others, dismissal and replacement is the ultimate sanction with the appointment of Ministerial representatives as an intermediate response and an administrator as the final resort.
Target Zero is a wake up call for the major players. Nevertheless, it should have placed the main focus on culture as well as the problems associated with the duality of power in the health system. Boards should be held accountable. Boards should also be paid, and ensure that there is a skill mix. Boards should be fully supported. The Coroner should also play his usual role when misadventures leading to death are an issue.
*See: This 1950’s short advertisement is about what to do when an atom bomb hits. Clearly it is not very helpful and fails to address the main issues.