What does it mean for my employer to give procedural fairness?
Procedural fairness broadly relates to the decision-making process followed or
You are protected by the law if you enforce proper nurse/patient ratios and do it in the correct manner. While patient care is a motivator for correct staffing levels, it is also essential for you in your capacity as a nurse.
Where staffing is too low you may be required to skip procedures or neglect duties. Your performance may be seen to be substandard and you will be held accountable for your make mistakes. These mistakes could see you disciplined by the Nurses Board.
Poor performance or serious error could result in disciplinary proceedings and you may be sacked or dismissed for misconduct. You may claim you were forced into error due to overwork from short staffing ratios, but that excuse may not be acceptable if you have not earlier complained.
If you are not keeping up or you are making mistakes because you are short staffed, patients or their relatives might complain about you to management. That can result in management sacking you to appease the patients or their family members. Generally speaking, nurses especially in aged care facilities, are seen as dispensable but the payments from the residents are a vital source of income for the business and will be protected by the company.
In the health industry remaining silent can be a fatal mistake.
You may not receive much help from the Health Services Union, because over recent years that Union has been caught up in its own internal issues as everyone knows, and many health sector workers have been disappointed by the level of support that their Union has provided. If you choose to rely upon the Union, make sure that it is not in a cosy relationship with management, as often happens.
Nurses are usually protected by an Enterprise Bargaining Agreement (EBA). Check your EBA available at the Fair Work Australia site. You should find that you will have rights to make complaints. A typical EBA has requirements of staffing levels.
The easiest way for a nurse to gain protection is by making a complaint listing breaches of the EBA and invoking the grievance procedures of the EBA. This should result in improved working conditions as references to EBAs indicate to employers that employees are aware of their rights.
If performance issues are raised with you after you have made a complaint, it is likely that your employer is setting you up for dismissal. If you are in this position you must make a complaint to Fair Work Australia alleging you have suffered detriment by reason of your attempts to enforce workplace rights. That will bring the issue into the open and will give you further protection.
Fair Work Australia is very familiar with the health sector and should be used. You will need to be very careful not to make admissions about performance issues which are not valid and if there are any performance issues which directly relate from the treatment of staff you should be quick to point this out and rely heavily upon it. Again do not underestimate the force with which the employer could attack you. Aged care facilities in particular have become very profitable and some companies have made a lot of money out of this industry but are often heavily in debt and will go to great lengths to protect a lucrative business. You need to be very protective of your job because if you lose that job by reason of poor performance you may find it difficult to find another, notwithstanding the shortage of health care professionals.
If dismissed, you will be well positioned to make a further claim to Fair Work Australia and go to the Federal Court of Australia. A judge of the Federal Court will take very seriously your allegation that you were dismissed because you exercised your workplace rights. Do not claim unfair dismissal if you have a protected action claim. Compensation from decisions in this tribunal is not large but reinstatement could be more effective.
At a personal level, the judge may have a friend or relative in an aged care facility and may want to see that proper standards are upheld in that facility. If you work in a hospital the hospital should also be properly managed and one way to ensure that is through the legal process. Sometimes managers at senior level attempt to cut corners at the service delivery area because they have never worked in that area and have little or no respect for people that do, even though they are meant to be managing the hospital. Their care of patients should be a prime concern.
It is important to note that any finding of misconduct against you will cause your final compensation award to be reduced accordingly. You must remember that any misconduct will have an impact on your ability to find suitable employment in the future.
Victimisation following the lodging of a complaint gives rise to further protection under the Equal Opportunity Act (2010).
NOTE: Workplace rights are not vague and general. They need to be sourced from an EBA, Award or from government laws. Your Union or an employment lawyer will be able to provide more information.