TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant employed as Clinical Midwife Specialist and Clinical Support Midwife – over 30 years’ service – summarily dismissed 6 May 2016 for alleged serious misconduct – alleged to have breached hospital procedure, acted outside scope of professional practice and caused serious risk to health or safety of a patient by administering a drug outside scope of practice and without a medical order – applicant submitted it was uncontroversial that administering medication without medical order was outside scope of professional practice and breach of procedure – contended issue was whether administration of the drug caused serious risk of health and safety of patient and whether dismissal was justified and a proportionate response – claimed to not place patient at risk of serious harm and decision to terminate was disproportionate to the gravity of the misconduct – respondent submitted in all the circumstances the applicant engaged in serious misconduct that was wilful and deliberate – whether dismissal was harsh, unjust or unreasonable – applicant conceded actions were serious – accepted to be aware at the time of administering the drug, it required doctor’s order prior to administration – applicant’s claims to be ‘under pressure’ did not stand up to scrutiny – confirmed understanding a side effect of drug could lead to death or injury – Commission satisfied applicant engaged in serious misconduct – satisfied applicant’s actions caused serious risk to the health and safety of a person – found valid, sound and defensible reason for termination – lack of procedural unfairness – s.387 factors did not outweigh factors that constituted valid reason for dismissal – not satisfied termination was disproportionate – termination not harsh, unjust or unreasonable – application dismissed. Born v Mercy Hospitals Victoria Ltd
