In an Employment Court case released on Friday (de Bruin v Canterbury District Health Board) the dismissal of a nurse for slapping a patient was found to be unjustified and he was permanently reinstated to his former job.
In this case, in the course of managing a difficult patient, a nurse responded to an attack on him by slapping the patient's face. It was also alleged that he had attempted to restrain the patient by kneeling on her. The employee admitted slapping the patient, but denied kneeling on her, and was dismissed following an investigation by the employer. A number of flaws were identified in the employer's process, including insufficiently investigating the allegations, combining the two allegations (of slapping and kneeling on the patient) into one of assault, not investigating the force of the slap and not investigating the inconsistencies in the accounts given.
The employer's panel of decision makers found the slap was wilful, as opposed to reflexive or instinctive, as the training provided to nurses was "so comprehensive and effective that it precluded the possibility of any reflexive action". However, on appeal, the Employment Court said this conclusion was not fair and reasonable and that nurses "remain human beings subject to the instincts and frailties of the human condition". The Court also took into account a number of strong personal mitigating factors affecting the employee at the time of the incident (it was only a few weeks after the Christchurch earthquake, his wife was terminally ill, a relative had attempted suicide and he had been called on unexpectedly as security for a family member's debt).
Due to his contributory conduct, the employee was not awarded any other remedies (despite having lost wages of $44,000 by the time of the hearing).
This case is a good reminder that, despite no longer being the primary remedy, reinstatement is still a real risk for employers, especially in professional or specialist fields where the employee's livelihood is at stake and reinstatement may be the only meaningful remedy available (particularly where there has been lengthy and generally unblemished service).