FWC says Summary Dismissal of Practice Manager was Justified
A recent industrial case has shown that serious breaches committed by a medical practice manager can justify summary dismissal.
In the decision of Christina Kelton v Aldinga Day and Night Surgery  FWC 8518, the Fair Work Commission (‘FWC’) decided that a medical practice was justified for summarily dismissing a Practice Manager for a patient record breach and unauthorized changes to her employment conditions.
On 30 May 2016, the Applicant commenced employment at the medical practice as a Practice Manager. The Practice Manager was required to comply with the policy and procedures manual (‘policy manual’) and undertake human resource duties including preparation of employment contracts and offers of employment. The policy manual requires compliance with the Privacy Amendment (Private Sector) Act 2000 (Cth) (‘Privacy Act’), Health Records Act 2001 (Vic) and the National and Health Privacy Principles.
In 2019, the medical practice determined that the Practice Manager did not obtain appropriate consent to release patient information. It also alleged the Practice Manager had without authority, in 2017 varied her employment contract to her benefit and further in 2019 issued and accepted a letter converting her employment from casual to part-time. After conducting a dismissal process, on 17 May 2019, the medical practice advised the Practice Manager’s lawyer that the Practice Manager would be dismissed and then on 22 May 2019 issued a termination letter without notice. The Practice Manager then lodged an unfair dismissal claim with the FWC.
In terms of releasing patient information without appropriate consent, the issue arose when the Practice Manager received a request from a doctor at a Melbourne hospital to provide a copy of a patient’s medical history to allow an organ donation upon the death of the patient. The request was also confirmed by fax. The Practice Manager provided the medical record about 90 minutes later without consulting any other person including the patient’s General Practitioner. The General Practitioner did not become aware of the release until 3 weeks later.
The policy manual requires a signed authority if a patient record request is made by a person other than the patient. If the patient is incapable of providing consent, then access may be granted on compassionate grounds upon receipt of an enduring power of attorney. The Practice Manager only received a written consent from the patient’s husband which was not compliant. The policy manual also requires the Practice Manager to obtain approval from a doctor at the medical practice. The Practice Manager could not adequately explain why she was unable to obtain approval from the patient’s General Practitioner or any other doctor on duty. The FWC concluded this failure constituted a substantial breach of the policy manual.
In terms of the Practice Manager’s employment conditions, it was discovered that in 2017 the Practice Manager had drafted, issued and signed an employment contract containing a number of improvements to her employment conditions that were more beneficial than her previous employment conditions. This was done without the involvement or consent of the medical practice. The Practice Manager contended this was a draft document. However, the FWC did not accept this explanation given she had inserted her name, date and signature in the acceptance section of her employment contract. It was also discovered that in 2019, the Practice Manager had converted her employment from casual to part-time without authorisation. The Practice Manager contended this was in compliance with the casual conversion provisions of the Health Professional and Support Services Award 2010 (‘award’). However, the FWC did not accept this reason as the award did not provide an automatic right to conversion from casual to full or part time employment.
After consideration of all the evidence, the FWC decided the medical practice had a valid reason for dismissal, the dismissal process was satisfactory and the Practice Manager’s conduct justified non-payment of notice. This decision highlights that a patient record breach and in particular an unauthorized variation of employment conditions can be considered a serious breach thereby allowing an employer to dismiss an employee for serious misconduct.