Reinstatement – apply with care

A sloppy, poorly constructed application can doom a deregistered worker’s hopes.

The process of applying for reinstatement to the nurse’s register, having been suspended, is not to be taken in a cavalier fashion. The neatness or sloppiness of the application itself can affect whether reinstatement is granted. A recent tribunal made this abundantly clear when it refused an application.

The tribunal held that a deregistered nurse’s lack of care in the preparation of his application for reinstatement meant he had not proved to be a fit and proper person to be engaged in the profession of nursing.

In March last year, the Nursing and Midwifery tribunal cancelled the nurse’s registration after he failed to successfully complete an English competency course. The conditions followed complaints about his language skills, particularly an incident in which the nurse administered dishwashing detergent to an elderly patient because it was in a bottle labelled ‘cardizem capsules 180mg’. This incident was considered to be “a serious error, either [due to] lack of English skills or because of reckless indifference”.

After 12 months, the nurse made an application for re-registration, stating he had taken steps to eliminate his deficiencies in English by completing an Occupational English Test, and had undertaken other courses involving ethics, communication and medicine administration. The nurse asserted that his “disqualifying imperfections” had been removed. He tendered his CV and two character references.

The tribunal outlined the law concerning reinstatement applications:

• The applicant bears the onus of proving that they are a fit and proper person to be engaged in the profession of nursing.

• The standard of proof to be applied by the tribunal is the civil standard of proof – the balance of probabilities.

• The purpose of the jurisdiction is “not punishment or further punishment”, rather the jurisdiction is exercised for the protection of the public.

• The power to reinstate should be exercised with great caution and only upon solid and substantial grounds.

• There is no public interest in denying forever the chance of redemption and rehabilitation to de-registered nurses and midwives. The public is better served by affording a second chance.

• In making an assessment of the applicant’s worthiness and reliability for the future the tribunal may draw inferences from what has happened in the past and what led to the applicant’s removal from the register.

During cross-examination, it was discovered that much information regarding the nurse’s employment history was erroneous. The tribunal stated that “such an inaccurate CV [described sensitively by (the nurse’s) counsel as a mish mash] gives the tribunal real reason to question the care and attention to detail given by [the nurse] in preparing his application for reinstatement to the register. That concern naturally affects the tribunal’s consideration of the application for reinstatement.” The tribunal noted that, “It would appear that the lack of care exhibited by [the nurse] in 2009 has been repeated in his application … principally his CV, which is full of errors as to his work history and fails to state that conditions had been placed in his registration on four occasions.”

The tribunal dismissed the application and proposed a period of nine months before the nurse could re-apply, stating, “We are unable to conclude, on the basis of the materials before us, and in light of the errors and misstatements in [the nurse’s] CV in relation to his work history, that he discharged the necessary onus for us to order him to be reinstated to the register.”

The lesson from this case is to use great care and attention in preparing and presenting a reinstatement application. If tendering character references, ensure they are relevant and support the application. Sloppiness and tardiness can have fatal consequences for an application.

Social media update

The articles earlier this year concerning social media and nurses’ employment generated much interest. In particular, a number of nurses in management corresponded about what rights they have as an employer when a nurse is not at work. An update is called for due to a recent Fair Work Commission (FWC) decision.

An employer introduced a new company social media policy and an employee refused to sign it. The employee attended group training on the new social media policy but he failed to register his attendance. Consequently, he was then provided with a one-on-one session. At the end of the session he refused to sign an acknowledgement that he had read and understood the policy.

The FWC upheld the employer’s decision of dismissal, as it was not unjust or unreasonable given the employee’s history of failure to follow company policies, including his resistance to signing the company social media policy.

The FWC noted that although an employer cannot generally control employees’ out-of-hours activities, a social media policy that dealt with usage solely in the workplace would be highly unusual. The purposes of a social media policy are to protect all parties concerned; the employer, the business and employees. Policy guidelines to prohibit inappropriate or damaging social media conduct must apply to use both at work and outside of work hours, if they are to be effective.

These policies are commonplace and a well-accepted component of an organisation’s suite of policies. This case clearly recognises the legitimacy and usefulness of such policies in protecting an organisation’s reputation and security, setting expectations of employees and controlling excessive social media use at work. This same organisation, in an earlier case, was criticised by FWC for not having a social media policy when it sought to dismiss another employee, who used social media (out of work hours) to make derogatory remarks about the organisation and management. Accordingly, nurse and midwifery managers can put in place reasonable restrictions concerning social media use both within and outside the workplace.

Scott Trueman is a lecturer in the school of nursing, midwifery and nutrition at James Cook University.

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