CHS had 'well-founded reason' to dismiss Dhulwa nurse for privacy breaches, but acted in 'undue haste'

The Fair Work Commission has ruled the dismissal of a Dhuwla Mental Health Unit senior nurse may have had a “well-rounded” reason, but was ultimately “unfair” due to Canberra Health Services’ quick actions.

Carol Sandland, who was also a union delegate, was stood down from her position after it was revealed earlier this year that the private details of 13 patients were shared with the nursing union.

The Australian Nursing and Midwifery Association (ANMF) ACT originally defended the actions of staff, arguing they had acted lawfully.

Ms Sandland took her dismissal to the Commission to argue it was harsh, unjust or unreasonable.

Fair Work Commissioner Sarah McKinnon declared there was a valid reason for her dismissal for serious misconduct due to “repeated unauthorised disclosure and storage” of personal and health information “over many years”.

“Considered in totality, the conduct was a sound, defensible and well-founded reason for dismissal,” she found.

According to court documents, in the lead-up to the privacy breaches Ms Sandland had been assaulted by a patient on 13 February 2022.

She returned to work a month later, but her relationship with management became “increasingly difficult”.

“She thought they were incompetent, anti-union, did not follow their own policies, and played favourites,” the documents noted.

Ms Sandland regularly shared her concerns with the ANMF, including forwarding internal communications and supporting documents.

As a result, the confidential information of Dhulwa patients was sent to the union.

Ms Sandland’s emails were eventually audited, which found three emails disclosing a patient’s name, location and progress notes, along with a similar disclosure by another employee of Dhulwa. A further audit to cover communications over 12 months found even more breaches.

She received a letter on 8 February 2023, informing her that a preliminary assessment process had been initiated due to her alleged “inappropriate behaviour” to consider if she would be fired.

Ms Sandland ended up being suspended with pay and asked to show cause why she shouldn’t be fired. Neither she nor the ANMF (on her behalf) responded to CHS by an extended deadline, so her employment was terminated on 24 February.

Ms Sandland gave the court various reasons why she passed the emails on to the union, including the Health Records Act allowed her to do so if she believed, on reasonable grounds, that the recipient of the health information wouldn’t disclose the personal details, and that one email had been part of a handover about violent incidents which had been occurring at Dhulwa.

She had also sent multiple emails containing patient information to her personal account, claiming it was so she could work at home and to respond to a request from WorkSafe. She had also said it was “common” for nurses to take patient information home and they were authorised to do so.

Commissioner McKinnon rejected all of these claims, finding that while some of her reasons could be valid – such as trying to help with efforts to improve staff safety – they did not satisfy the sharing of personal information.

The Health Records Act does allow for the sharing of personal information in some circumstances, such as preventing or lessening the imminent or serious risk to life.

While Ms Sandland did, in some instances, redact information or try to protect the identities of the people in her emails, they weren’t always successful.

“Her efforts were frequently incomplete because they redacted only some, rather than all, of the references to a patient’s name or other identifying information in single documents and/or email chains,” Commissioner McKinnon said.

However, Commissioner McKinnon accepted her submission that CHS had acted in “undue haste” when it terminated her employment on 24 February, only two days after the extended deadline had passed.

“There was no need for it to act in this way. Ms Sandland had been stood down. She was no longer in the workplace and her email access had been suspended such that the risk of further unauthorised disclosures was contained,” she said.

Commissioner McKinnon found some “procedural deficiencies” could have, for the most part, been easily avoided.

“[These] tip the balance in favour of a finding that the dismissal was unreasonable. It follows that I am satisfied that Ms Sandland has been unfairly dismissed,” she said.

Commissioner McKinnon did not rule that Ms Sandland be reinstated, but she did order CHS to pay her four weeks’ wages ($5418.69) plus superannuation as compensation.

CHS CEO Dave Peffer accepted the service had acted in haste but had confidence in the Commissioner’s conclusion that it had made the right choice in terminating Ms Sandland’s employment.

“Our patients’ confidence in how we handle their health records is paramount,” he said.

“The Commissioner’s decision, which confirms that privacy, dignity and confidentiality of patients when providing care is a fundamental role of health care workers, reinforces the basis from which our decisions will continue to be made.”

The ANMF was also contacted for comment.