We ride into 2021 with lockdowns, face masks, UK strains and “your on mute” consistent buzzwords for Employers and the healthcare industry. Directors, practitioners and office managers may be fielding a lot of questions around legal entitlements and obligations so let’s get an assist from the leader of the Avengers himself, Nick Fury.
Principle 1 – Keep your “eye” open
Nick Fury as we may all know (the picture probably says it as well) has an eye patch due to an injury to one of his eyes. However, this has not stopped him from being an excellent marksman and super spy gathering intel and basically laying out the strategy for the more powerful heroes – the Avengers to save the world.
You might be in dentistry, physician and clinical services, speech pathology, home healthcare, pharmacy, aged care – whether you are in primary, secondary or tertiary care the legal obligations can be overwhelming.
Even if you may have some of the internal processes out of date or poorly managed an area you need to keep your “good eye” on is putting policies and contracts in place.
Here are some examples of situations where we have had to help clients in the healthcare industry overcome problematic legal obstacles:
- The removal of an administrative employee became quite complicated and led to an unfair dismissal claim because her grievances about unpaid overtime and weekend work were not appropriately dealt with. This problem was compounded because there was no written employment contract in place
- An office manager collaborated with other doctors in the practice to set up a new practice close by taking a number of patients with them. This problem was compounded because the restraint and confidentiality clauses were poorly drafted in the contracts
- An assistant made a bullying complaint against one of the directors of the practice – however without a policy to deal with the complaint the practice was ill equipped and unable to handle the complaint. This led to a tough general protections application to defend
- A care worker provided timesheets that later were discovered to be fraudulent – the care worker then filed a workers compensation claim and claimed personal/carers leave. The company erred in terminating her employment on this basis and attempted to defend the claim themselves compounding the problem well into mediation.
More situations have occurred like the above and some practical steps can be taken to ensure these types of issues do not occur or even they do the risk is greatly reduced. Some steps to take include:
- get written employment contracts in place for all employees no matter how long they have worked for you
- contractor agreements should be in place as appropriate and should be drafted accordingly
- undertake reviews of wages – consider the Award or any other industrial instrument that might apply
- policies can really help have them properly drafted and in place
- undertake a review and audit of your legal documents – it will save you in the long run
Principle 2 – Last time I trusted someone I lost an eye
A pinnacle moment in Nick Fury’s discussion with the one and only Captain America led to a discussion around trust. Referencing an experience with a certain feline friend Nick Fury recalls how he trusted someone and then lost an eye for doing so.
The breakdown of trust can be a valid reason for termination of employment.
The recent decision of Daniel Achouth v Hudson Hill Ltd T/A Assured Home Care  FWC 4464 has highlighted the importance of trust and confidence in the employment relationship, particularly within the healthcare sector where errors may have serious consequences.
The Fair Work Commission recently found in favour of an aged care facility after the employee knowingly administered excessive fluids to a resident and attempted to conceal this wrongdoing. Here are some key points from the case:
- The Commission placed significant emphasis on the fact that the Applicant attempted to conceal his wrongdoing. The fact that the Applicant requested other employees wrongly record the amount of fluid administered, and the subsequent denial was a major factor in determining the dismissal was not harsh, unjust or unreasonable.
- Whilst the error in itself was significant (and may have justified termination), the fact that there was an attempt to conceal the error broke the relationship of trust
- In health care, it is vital that a relationship of trust exists, the Commission upheld the termination of an employee, where the employee was responsible for behavior that broke this trust.
This may sound like “common sense” but all to often we hear from clients about poor performance or even misconduct but it is never acted upon in any formal way. We have had clients bring us issues that are 6 – 24 months old – they are way too stale to effectively do anything about. Instead the “final straw” rationale for termination ends up being for a much weaker situation or argument – potentially due to the employer running out of patience or letting their frustrations get the better of them. This can lead to complicated and messy unfair dismissal or general protections applications to defend.
Once there is a breakdown of trust and confidence it is a time for action.
Principle 3 – Avengers Assemble
For all the powers of Thor, Hulk, Captain America and Iron Man the person responsible for bringing them all together was Nick Fury.
Having your team in place is important and the larger it gets the more you and your management and leadership team need to understand the intricacies of employment law in Australia. An area of growing concern is the health and safety of healthcare workers.
Much has been made of certain lockdowns during this pandemic but this is very much out of the control of employers.
Certain precautions must be made and as high risk facilities more must be done to ensure health and safety obligations are discharged this will include:
- A health and safety risk audit for employees
- Providing appropriate PPE for employees
- Upholding and following Government guidelines
- Reminding staff around social distancing
- Dealing with any specific vulnerabilities and concerns in a timely, appropriate and empathetic manner without putting the productivity of the workplace
NB Lawyers – Lawyers for Employers undertake and offer a health and safety risk audit which includes all of the above. Reach out via [email protected] or +61 (07) 3876 5111to book an appointment. Be like Nick Fury and get a strategy in place.
As Nick Fury says “You never know, you hope for the best then make do with what you get”
The lawyers for employers can help with what you “get” and can provide healthcare employers with up to date and practical advice. Should you require any assistance please contact us to arrange an obligation free consultation on +61 (07) 3876 5111to arrange a time to speak with one of our lawyers for an obligation free consultation.
About the Authors
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law at NB Lawyers – Lawyers for Employers who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.
Matthew Guteridge has experience in working in a variety of sectors including Manufacturing and Health and the hospitality sector in both Brisbane and Regional Queensland. Matthew enjoys and has great expertise in providing advice and representation on all matters relating to employment law, including Enterprise Agreements, Dismissal Disputes and Bullying complaints.