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There is an obvious employer expectation and condition of employment that when nurses are at work they are awake and not sleeping. After all, the employer is paying for the time that the nurse is at work. This rule does not apply during unpaid meal breaks. Serious consequences, including employment dismissal, can follow such misconduct, as a recent nurse (Nurse A) found.
The employer’s evidence was tendered through a nurse unit manager (NUM) who was the manager of the facility at the relevant time. Her evidence in relation to the alleged incident of sleeping on 20 June 2017 was that she saw Nurse A in the darkened residents’ lounge, sitting in a chair, head slightly hung, eyes apparently closed, and her body slouched. It was clear to her that Nurse A was asleep. The NUM also observed that the other nurse who was on duty that shift, Nurse C, was sitting in another chair beside Nurse A with her legs raised on the chair and her head lowered onto the chair’s armrest. Her eyes looked to be closed and she also seemed to be asleep.
The NUM stood in the doorway for over a minute during which there was no movement from either nurse. It was obvious to the NUM that, being asleep, they did not see her standing there, did not say anything, and did not acknowledge her presence.
“I was dumbfounded to find that both nurses on duty would be asleep in the residents’ lounge at the same time. I have never seen that happen before,” she said.
The NUM then decided to check on staff in other wards within the facility. She observed two other nursing staff at the nurses’ station. One was attending to some paperwork and the other was about to walk towards the bathroom. In the course of a discussion with one of the nurses, the NUM said: “I have just come in and found the two nurses … asleep. Is that normal?”
While the NUM could not remember the exact reply, it was to the effect that Nurses A and C had been asleep on duty before.
The NUM returned about 15 minutes later to the residents’ lounge. Both nurses were still in the chairs in the same position, not moving, with their eyes closed. The lights in the room were still off and there was still light coming from the TV and a gas heater. She said “good morning” quite loudly to wake them and get their attention. Both appeared to suddenly wake – they sat up and replied “good morning”. The NUM did not say anything else to them at the time.
At the completion of the shift, the NUM asked Nurse C about her and Nurse A being asleep. Nurse C responded with words to the effect that “we must have nodded off”. Nurse A later denied being asleep. Both were immediately issued with warnings pending further investigations of the matter. The applicant (Nurse A) then refused to attend meetings, or to reply to directions to provide a response to the allegation against her. Eventually she was dismissed from her employment for both her conduct (of sleeping while on duty), and her failure to follow reasonable and lawful directions (to respond to the allegation and/or attend meetings).
In response to being dismissed, Nurse A issued proceedings that her dismissal was unlawful, as it was harsh, unfair or unjust. The presiding commissioner hearing the matter rejected the notion that Nurses A and C were not asleep. Importantly, the commissioner stated that “leaving these patients, 10 residents and seven acute care patients, without the care of someone who is awake and alert can be dangerous, or potentially deadly”.
“There were two nurses in charge of 10 residents and seven acute patients during their shifts, and someone needed to be awake and alert,” the commissioner said. “These patients were vulnerable ... It is intrinsic to the duties of a nurse that they look after patients rather than exposing them to such serious danger.”
The commissioner made it clear that if a nurse did want a nap, they should do so on their own allotted break and not pursuant to a break taken by both nurses simultaneously: “There should always be one [nurse] on duty, alert and available.”
Accordingly, the commissioner held that sleeping on the job while responsible for vulnerable patients was sufficient to warrant dismissal. It was further held that the applicant had the opportunity to respond to the allegation, and had been given a “fair go all round”. The failure to attend, having been summoned by the employer (which was reasonable), without a reasonable justification was a breach of Nurse A’s condition of employment. As such, her application was denied. The dismissal was deemed legal and upheld.
Scott Trueman is a senior lecturer in the School of Health at the University of New England.
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Clearly a terrible outcome for both these nurses. In my view naps are a critical activity for people who work around the clock. I’d rather be assisted by a just recovering from a nap nurse that one who is so exhausted she might, might make a mistake.
Seems a serious reality check is needed. Judges – being day time workers – know little of the advantages of a nap or do but still ignore this as what the laws sais is more important but wrong. Quality of service ie an alert nurse is really the issue here.
A broader perspective knows that some, specifically women, where they are in situations that are outside her home space (and even within in it) live lives of ‘one eye shut one eye open’ – very little escapes their attention. Meanwhile un – compassionate NUM’s sneaking around being the disciplinarian type have forgotten this aspect of their own personal life when their personal safety was is in jeopardy. What is lax here is a draconian system that fails human need. (Myself a shift worker of 30+ years experience)