Francis Logan v Bendigo Health Care Group. [2016] FWC 6780. (U2016/7692). COMMISSIONER RYAN. 23 SEPTEMBER 2016

The Applicant was employed by the Respondent as an enrolled nurse from 2004 and dismissed on 26 May 2016, for serious misconduct following a complaint that the applicant touching the hand and kissing a patient on the forehead and saying, “Goodnight and God bless.”

The Commission noted that the serious misconduct identified in the letter of termination did not describe the nature of the serious misconduct.

Mr Logan conceded that his conduct crossed the boundary, with the Commissioner noting the differing “boundaries”, noting:

“…there are different boundaries, the evidence, in terms of the relationship that should exist between patients and nursing staff, identifies where clear boundaries are and where fuzzy boundaries are.  Rather than have a debate about whether or not there’s a fuzzy boundary or a clear boundary, it is sufficient, for the purposes of finding a valid reason, to accept Mr Logan’s own admission that his conduct crossed a boundary, and a relevant boundary at that”.

The Commissioner finding:

“I’m supported in finding that there was a valid reason for dismissal, based upon the kissing of a patient on the forehead…that kissing a patient is never appropriate…it’s never appropriate, it’s sufficient, even if I reduce that down to ‘normally not appropriate’…and the admission by Mr Logan that he had crossed a boundary…”

“…within the context of the policies of the Respondent, that the conduct of Mr Logan was unsatisfactory behaviour but not misconduct…[but] unsatisfactory behaviour that justifies the imposition of a sanction.”

The Commissioner ordered reinstatement.

Commentary

The commissioner, in this matter, obviously did not feel that the “punishment” fitted the “crime”. No doubt the respondent will now reflect on their policies to ensure that this behaviour is not repeated.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

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