The implied duties, and dangers, of employment contracts

Take care to fill all the implicit obligations of the employment contract, or termination may well be justified.

All employees, including nurses, have in their contract of employment a number of implied duties that are owed to their employer. Four of these are to obey a lawful and reasonable direction or request, to undertake duties and tasks in a diligent and competent manner, not to act against the interests of the employer, and not to make or arrange secret commissions. An aged-care worker’s recent claim for unfair dismissal, which was denied, is an illustration of these duties and the serious consequences that may result if they are breached.

The employer was a large organisation that provided healthcare in both institutional and private residential settings throughout Australia. The care worker commenced employment in April 2001 on a casual basis, and worked in that role until her dismissal in June 2015. Usually, the courts expect that longstanding employees, particularly those who have given loyal and faithful service, are to be dealt with more leniently than recent hires when matters of performance and dismissal are aired.

The worker’s primary role was to provide personal care and/or home support services in patients’ homes. The level and number of duties were dependent on the needs of the patient and were reflected in the patients’ care plans. The duties may have included:

• Home care or housekeeping, including cleaning, laundry and meal preparation
• Personal care, including hygiene and grooming
• Medication supervision
• Respite home care
• Social support or attendant care.

The care worker was dismissed on the basis of three alleged performance and conduct issues. First, for breaching the policies and procedures of the aged-care employer (hereinafter referred to as ‘the employer’) by performing work for cash payments in a private arrangement. Second, for allegedly failing to report the deteriorating health of a patient of the employer for whom she was responsible. Third, for failing to comply with a number of lawful and reasonable directions to attend meetings to discuss the employer’s concerns in relation to the aforementioned matters.

In relation to the remunerated ‘additional/private’ services for the patient, the care worker asserted as justification that she had to ‘work outside the square’ and felt she owed a duty of care to the patient. This meant that ‘shopping shifts’ were necessary despite being declined by the employer as part of the patient’s suite of required services of care. The Fair Work Commission noted that the worker did approach her employer about having shopping and other services included in the care plan but this was refused. The care worker did not deny undertaking work for cash payments pursuant to collateral private arrangements with the patient.

The arrangement came to the employer’s attention only through one of the patient’s telephone calls, during which the cash rate of $20 an hour for shopping, preparing meals and feeding the patient’s cat, plus an extra $50 a week for helping, was disclosed. The commission found that this arrangement was partly justifiable to dismiss the care worker.

Additionally, the employer received a number of telephone reports from the patient’s physiotherapist concerning the deteriorating condition of the patient, the fact that the patient was couch-ridden and unwell, and that some personal care issues had not been handled. The physiotherapist advised that he had arranged for the patient to be taken by ambulance to the closest hospital, where she was admitted. The issue here is whether the care worker should have reported what appears to have been a significant decline in the patient’s health. The evidence was equivocal and did not permit a finding to be made about when the patient’s health declined and whether it would have been noticeable to the care worker so that a report should have been made.

The employer’s ultimate catalyst for termination of employment was the care worker’s refusal to attend meetings in relation to her conduct and performance. The employer noted that the worker was able to attend its premises at least twice during her suspension, for other purposes to her benefit (employer-funded training), but was unwilling to meet with her manager as directed. The employer submitted that this reinforced the deliberate misconduct of the worker.

In response, the care worker contended that she felt threatened about attending scheduled meetings. That is, she was ‘trying to protect her basic human rights’ and avoid altercations, and did not want any disturbance and/or interruption to studies she was undertaking with the employer at the time. The worker admitted that she made a calculated decision not to respond to any of the employer’s letters concerning arranged meetings, but contended that the employer failed to recognise the importance of her studies.

To legally dismiss an employee requires a valid reason. The absence of one may deem a dismissal unfair, in which case the commission may order the employee reinstated. The reason has to have a level of gravitas, importance or legitimacy that justifies such drastic action. In this case, the care worker’s conduct and behaviour twice breached the duties she owed her employer.

The lesson for employee nurses is that there existed valid reasons for dismissal. First, the care worker failed to comply with the employer’s policies and procedures. She entered into a private arrangement for services and remuneration outside of the primary contract between the patient and employer, and did so without the employer’s knowledge and acquiescence. This was a serious course of misconduct. Second, the care worker failed to follow lawful and reasonable directions. The repeated refusal of the care worker to attend investigative/disciplinary meetings, combined with the seriousness of her conduct, resulted in the termination of the care worker’s employment.

The law expects nurses, like all employees, not to enter into ‘secret commission arrangements’ arising out of their employment and that they will obey any lawful and reasonable direction, no matter how aggrieved they may feel.

Scott Trueman is a lecturer in the School of Nursing, Midwifery and Nutrition at James Cook University.

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