The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A nurse whose firing triggered an “organization-wide review of procedures” by BISX-listed Doctors Hospital has seen the Court of Appeal back the rejection of her wrongful dismissal claim.

The appellate court’s judgment, written by president Anita Allen, detailed how a blazing row between charge nurse, Eloise Shantel Curtis-Rolle, and a colleague so disgusted a Doctors Hospital patient waiting for surgery that he returned to his room barefoot “with his IV bag dragging on the ground”.

Allowing patients to walk around unaccompanied was a fundamental breach of Doctors Hospital procedures, and Ms Curtis-Rolle was summarily dismissed on November 24, 2008, for “gross misconduct and negligence” and acting in a manner “repugnant to the interests” of the company.

Her action against Doctors Hospital for wrongful dismissal was rejected by the Industrial Tribunal, but Ms Curtis-Rolle appealed on the grounds that the decision went against the evidence and that the Tribunal employed the ‘wrong legal test’.

Detailing the circumstances in her judgment, President Allen noted that Ms Curtis-Rolle was first employed as a ‘part-time registered nurse’ in Doctors Hospital’s medical/surgical unit from December 1, 2000, to May 6, 2002. She was then promoted to ‘permanent part-time nurse’, with her salary increased on December 15, 2005, from $400 per week to $12.80 per hour.

At the time of her dismissal, Ms Curtis-Rolle was a ‘charge nurse’, responsible for all other nurses and staff working in her unit on that particular shift.

Her dismissal stemmed from the delay in a doctor arriving to perform surgery on a patient, Owen Burrows. The doctor had asked the nursing staff to inform Mr Burrows of the delay, and see if he wanted to wait in the recovery room or return to his room.

Ms Curtis-Rolle was told a Nurse Beckford had been informed of the doctor’s request, but she was insisting that another nurse come to collect Mr Burrows. Ms Curtis-Rolle was asked to inform Mr Burrows of the situation.

“The appellant [Ms Curtis-Rolle] testified that she went to the recovery room where she met Nurse Beckford; that there was an altercation between them in the presence of the patient, who appeared in a lot of pain,” the Court of Appeal judgment said.

“During the altercation between the nurses, which was apparently quite acrimonious, the patient became disgusted and went up to his room unaccompanied by any member of the nursing staff.”

Two other nurses confirmed that Mr Burrows left the recovery room, and tried to take the elevator from the second to fourth floor, wearing his cap and gown, and with IV bag in his hand. This was later seen ‘dragging on the ground’, and allowing Mr Burrows to walk unaccompanied was described as “a total breach of procedure” at Doctors Hospital.

The Court of Appeal noted that Mr Burrows “complained bitterly at the standard of care he received” at Doctors Hospital, but did not mention the incident between Ms Curtis-Rolle and Nurse Beckford. He later wrote a letter lamenting Ms Curtis-Rolle’s termination, saying she had no impact on his experience.

Mr Burrows denied at the Industrial Tribunal that his view was influenced by Ms Curtis-Rolle’s husband being a cousin of his wife. He admitted, though, that he left the room because of the argument between the two nurses.

The Court of Appeal backed the Industrial Tribunal’s decision, finding that the facts and evidence supported Doctors Hospital’s termination action.

It also noted that conduct justifying a worker’s summary dismissal had to amount to a “fundamental breach of contract” or be “repugnant to the fundamental interests” of an employer. The Employment Act, though, did not provide an exhaustive list of conduct that met these two tests, and also failed to define what amounts to ‘gross misconduct’.

Finding that common law cases had to determine the definition of ‘gross misconduct’, the Court of Appeal ruled: “The employer must show that the alleged conduct has so undermined the trust and confidence which is inherent in the particular contract of employment that the employer should no longer be required to retain the employee within its employ.”

The episode involving Ms Curtis-Rolle met this definition, the Court of Appeal found. “We are further satisfied that it was reasonable for the Tribunal to conclude that {Ms Curtis-Rolle’s] conduct in maintaining a heated and boisterous argument with another employee in the presence of a sick patient awaiting surgery who, as a result of the argument, walked unaccompanied from the recovery room to his room at risk to his health, which exposed [Doctors Hospital] to liability in negligence, was conduct such as to undermine the trust and confidence inherent in a contract of employment,” Justice Allen found.”

However, while backing the dismissal of Ms Curtis-Rolle’s claim, fellow Appeal Justice Neville Adderley agreed that the Industrial Tribunal had used the wrong legal test. Given that the nurse’s claim was for wrongful dismissal under common law, he found that the Tribunal should not have used the statutory test.

Yet Justice Adderley, too, said notwithstanding this, it was reasonable for the Tribunal to find that Ms Curtis-Rolle had “so clearly undermined the trust and confidence which is inherent in the contract of employment of a nurse with a hospital”.