Union wins reinstatement for nurse who failed physical.
Susan Gillet got the phone call from the hospital telling her she was dismissed just as she was dressing to go to work.
The 58-year-old nurse was stunned to be told she was not fit to work in the NSW public health system – despite 20 years’ experience as an RN, and holding down casual jobs at three different health facilities.
The reason? Susan had failed a physical assessment, ironically for a hospital job she had already been doing for three years without difficulty.
In a further irony, she runs a farm with 150 head of cattle and regularly tackles chores that would exhaust many younger women – and men for that matter. As Susan puts it: ‘Compared to the physical work on a farm, nursing is a holiday.’
Susan lives outside the town of Tullamore near Parkes. For three years she divided her three-to-four day nursing week between Tullamore hospital, Trundle MPS and a private nursing home, Kooringle.
When the health services manager at Tullamore asked Susan to go onto the permanent part-time roster, she filled out an application in which she disclosed minor arthritis affecting her knees and neck. She then travelled to Orange to attend a routine physical with a physiotherapist contracted to the Greater Western Area Health Service.
The 45-minute exam in May this year bore little relevance to the physical requirements of her job.
‘I had to pick up a 10kg box from the floor, lift it to waist height and carry it around the room,’ Susan said. ‘I had to bend over at a 45 degree angle sorting nuts and bolts from one box to another for five minutes without moving.
‘He asked me to kneel on a hard floor for five minutes but I had recently bruised my knee, so instead I had to squat down and sort nails for five minutes. How often do you have to do that for five minutes other than when doing CPR? Even then I use a pillow and I’m usually interchanging with someone anyway.
‘I couldn’t manage that for five minutes because the pressure on my knees was too great. He asked me how I managed to put patients’ shoes and socks on? I said I could do that quite easily because it doesn’t take five minutes and also you can swap from knee to knee. And I can sit on a stool to dress ankles and things like that.
‘The upshot was he wrote down that I wasn’t capable of carrying out my duties.’
Knowing she had failed the physical, Susan resigned herself to missing out on the permanent part-time position. ‘Not in a million years did I think I was also going to lose the casual work I’d been doing for the past three years,’ she said.
‘My HSM called me and she was so upset. She explained the area office had told her not to employ me, even as a casual. That was the biggest shock. I was not permitted to work anywhere in the Greater Western Health Service covering a third of the state. I felt like I was a leper.
‘The people I work with were as shocked as I was. We were so short-staffed I was doing double shifts, afternoon then day, and sleeping over at the hospital in the night so I could get up and take charge when the ENs needed help.
‘When I told my doctor what had happened he just hit the roof. He said, “They are desperately short of nurses and they go and do this”.’
Kooringle private nursing home took a different view, immediately asking Susan to work four-to-five days a week for them.
‘Everyone told me to get on to the union, as well as the Nurses Registration Board who were horrified,’ Susan said.
‘So I faxed the paperwork to the union and they said I had a case for unfair dismissal. The union organiser got on to the health service and they agreed to change it from dismissal to suspension pending another report by a different physio. And this time, at the union’s insistence, I would be assessed in my workplace.
‘The second physio got me to show her how I used the lifters and did CPR.
‘After the exam she recommended I recommence working casual and recommended I was fit for the permanent part-time job I’d applied for.’
The Assistant General Secretary of the Nurses Association, Judith Kiejda, described Susan’s first physical assessment as ‘outrageous and irrelevant to her working environment’.
The area office has officially confirmed Susan’s reinstatement for both permanent part-time and casual work. ‘I got my job back thanks to the Nurses’ Association – a big thank you to all the union people involved,’ she said.
Employers cannot discriminate on minor health grounds
Commenting on Susan Gillet’s case, NSWNA health and safety coordinator Trish Butrej said occupational health and safety law does not give employers cart blanche to discriminate against employees with minor health issues.
‘Nor does it give employers a valid reason to dismiss employees who have clearly demonstrated their capacity to do the job,’ Trish said.
‘The goal should be to ensure that OHS risks are eliminated or adequately controlled so that the workplace presents as little risk as possible to a wide range of employees and patients.
‘The NSW Anti-Discrimination Board has published advice on pre-employment medical assessments. In a nutshell, the assessment has to be relevant to the prospective employee’s current fitness for the actual tasks involved in the job.
‘Susan’s story clearly shows that she was able to compensate for her minor problems without putting herself or patients at risk of injury. Therefore dismissal could not be justified.
‘The story had a positive ending but the stress Susan endured in the meantime was unnecessary, and the errors in judgement must also have resulted in unnecessary costs to the employer as well.’
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