IN THE STATUTORY TRIBUNAL, FIJI ISLANDS
SITTING AS THE EMPLOYMENT RELATIONS TRIBUNAL 
		
Decision  		

Title of Matter:	Merewai Vasu  				              		 (Grievor) 
v
BSP Life (Fiji) Limited t/a  Suva Private Hospital  	(Employer)												
Section:	Section 211(1)(a) Employment Relations Promulgation 
	
Subject:	Adjudication of Employment Grievance (Unjustifiable or Unfair Dismissal)
	
Matter Number(s):	ERT Grievance  187 of 2016	
Appearances: 	Ms S Kunatubu, Law Solutions, for the Grievor 
Ms R Naidu and Ms M Rakai, Sherani Solicitors, for the Employer
	
Dates of Hearing: 	Monday 20 March 2017
Tuesday 21 March 2017	
	
Before:  	Mr Andrew J See, Resident Magistrate  	
Date of Decision: 	6 June 2017. 	

KEYWORDS: Unjustifiably or unfairly dismissed; Responsibilities of nursing supervisor and supervision of employees; risk management, patient care.

CASES CITED:  
Parvinesh Kumar v Nanuku Auberge Resort Fiji [2017] FJET 2
Yanuca Island Limited trading as Shangri La Fiji Resort and Spa v Vani Vatuinaruku    [2017]FJHC92;ERCA 9 of 2014

Background 
1.	This is a referral made to the Tribunal in accordance with Section 194(5) of the Employment Relations Promulgation 2007. The referred matter relates to a grievance lodged by Ms Merewai Vasu, a former Nursing Midwife engaged at the Suva Private Hospital for the past 10 years.  The Grievor was terminated in her employment for reasons set out within a dismissal letter dated 4 July 2016, in which it was stated by the General Manager on behalf of the Employer, inter alia, that she had failed to comply with procedures, was negligent, demonstrated unprofessional behaviour towards (a) patient or patients and failed to provide the required level of care to (a) patient or patients. 

2.	Within the dismissal letter, the Grievor was given the opportunity to appeal against the decision to terminate her employment contract, by providing grounds of appeal and specifying reasons for relying on those grounds within seven days.   This took place and the Executive Director of the Employer, after completing his deliberations, upheld the decision of the General Manager.  In effect the case against the Grievor deals with two incidents, that occurred on two consecutive working days. The first dealt with the patient management of an obstetrics case, in which the Grievor is claimed to have failed to adopt proper procedures and keeping the treating doctor well informed of the patient and foetal progress during the first phase of labour. The second case, involved a patient who it is alleged fell out of bed whilst sleeping and the claim that the Grievor had chastised that person in an uncaring and unwarranted manner.  It is against the decision to terminate the employment of the worker that the referred grievance is brought to this Tribunal for determination. 

The Case of the Grievor   
3.	The case of the Grievor relies on seven witnesses, including herself in support of the contention that the dismissal was not justified. 

Evidence of Ms Merewai Vasu 

4.	The first witness to give evidence was the Grievor Ms Merewai Vasu, whose Evidence in Chief predominantly took the form of an Affidavit filed in the Tribunal on 20 February 2017.  To complement this evidence, the Grievor clarified some of the key issues pertaining to her experience and work history. Ms Vasu told the Tribunal that prior to commencing her employment with the Employer in 2007, she had 15 years nursing experience in midwifery and paediatrics and had been the Sister in Charge of the Neonatal Intensive Care Unit of the Colonial War Memorial Hospital (“the CWM”). 

5.	Ms Vasu told the Tribunal that while working with the Employer, she had been engaged as a Nurse and Ward Supervisor of the Hospital.  The Grievor was working on the relevant date of 14 May 2016, when she came to commence her morning shift at the hospital and was advised at ‘handover’ that she was two nurses short and that there were two inpatients who required ‘one on one’ nursing.  At the time of handover, one of those patients requiring one on one nursing was a maternity patient (referred to as either Patient or Mrs ABS) who had been admitted the previous evening following the onset of labour pains. According to the Grievor, when she arrived at work that day, the Nurse who had been assigned to the inpatient, had not presented to work until 9.00am and on that basis, the Grievor undertook the ward round with Dr Tupou Wata, who was the attending Obstetrician and Gynaecologist. According to Ms Vasu, she recalled the Doctor asking that she be kept informed of the patient’s progress while she was involved in working at a nearby medical clinic. The Grievor told the Tribunal that Nurse Savaira Cakau who was assigned to look after Patient A, ultimately took charge of the patient when she came on duty and thereafter continued to do so, until around 1.15pm when the Grievor came to check foetal monitor readings and administered the patient with a pethidine injection. Because of the foetal readings, the Grievor told the Tribunal that she had asked Nurse Cakau to go and call Dr Wata. As there was no phone in the delivery suite, Nurse Cakau remained at the phone station for approximately 20 minutes while attempting to contact Dr Wata without success.  During that time according to the witness, she attempted to reposition the baby. Ultimately Ms Vasu said that she had instructed Nurse Cakau to remain with the patient while she attended to the ‘hand over’ for the next shift. During this time, the patient was taken off the syntocinon infusion and her temperature was ‘brought back’.  The Nursing Supervisor said that she understood this arrangement as appropriate, whilst waiting for Dr Wata to call,  as “we can hear (the outside) telephone ringing”.  

6.	The witness was taken through some of the Annexures to her Affidavit by Ms Kunatuba, including her Contract of Employment and the email communication that was sent to the Executive Director of the hospital, that gave rise to the disciplinary proceedings being initiated by the Employer against her.  Ms Vasu was also taken to a statement that had been prepared by Nurse Cakau giving her account of events that transpired.  The Grievor clarified for the Tribunal the policy that was in place for the contacting of outside medical staff. Ms Vasu said that she had tried to contact the doctor unsuccessfully and that there was no provision within the employer’s policy for her making contact by any other means, such as catching a taxi to Dr Wata’s clinic and asking that she return urgently to the hospital. Ms Vasu said that at no time, did she tell Nurse Cakau to stop attempting to make contact with Dr Wata. As it transpires, Dr Wata ultimately was in contact with the hospital, she returned to the maternity suite and ordered that the patient submit to a caesarean section.   

7.	The witness was asked to recall the events pertaining to the Second Incident, the further subject of the disciplinary action taken against her. In this regard she recalled that she had been required to return to work that same day and work the Night Shift commencing at 11.30 pm and finishing at around 7.30am.  Ms Vasu indicated that the Patient A, was provided with a nurse to assist her in her room. The witness claimed that she was advised that the patient demanded to “see the supervisor” and on that basis came to see her, where she was asked to massage and scratch her back. Ms Vasu said that around this time, she was also required to give out antibiotics and so she asked the nurse on duty to keep an eye on the patient.  The Grievor told the Tribunal that she went to the other side of the ward and shortly thereafter heard “screaming and yelling” coming from the patient’s room. Ms Vasu stated that when she entered the room she found the patient lying on the floor screaming and yelling. The Grievor stated that there was a carer standing there, as well as a male nurse. Ms Vasu said that she told the parties, that “I will call assistance” and called a security officer as the patient looked to be of a heavy weight.  According to the witness, the patient was returned to bed and the rails on the bed put back up. Ms Vasu said that she asked of the patient, was there any pain? The Grievor recalls that the patient’s mother came into the room and started to “abuse her” and the attending nurse. Ms Vasu said she later went back to see the patient and the mother told her to go out again. According to the witness, she subsequently contacted the Supervisor and told her that the patient had not taken her medication.  The witness was taken to Annexure MV7 of her Affidavit and explained that she was subsequently asked to see the General Manager of the hospital on 19 May, whereupon she was issued with a suspension letter. As was identified by Counsel for the Grievor to the witness, the suspension letter contained two primary allegations, that she:-

(a)	Acted negligently in the performance of (her) duties on 14 May 2016, which could have resulted in a patient mortality; and 
(b)	Acted unprofessionally towards a patient who claimed to have fallen off the bed during the early hours of 15 May 2016.  
	
8.	The witness was asked to give her general view as to these allegations. In the case of the first incident, Ms Vasu said that she was of the view that Nurse Cakau had the responsibility for informing Dr Wata of the progress of the patient. The Grievor said in this instance, Nurse Cakau had only one patient to look after.  In the case of the second patient, Ms Vasu told the Tribunal that she had reassured her, got security to assist with the lift and noted that there was a carer in the room all of the time. 

9.	The Grievor was taken to the Confidential Investigation Report (Annexure MV8 to the Affidavit of Merewai Vasu) that had been prepared by an Investigation Committee consisting of the Hospital General Manager, the Clinical Co-ordinator and the Financial Controller. In response to the report, Ms Vasu told the Tribunal that at the relevant time when acting as the Nursing Supervisor, she would be responsible for the following activities within the hospital, that including Food and Beverages, the Nursing Department, the Medical Centre, Radiology, Customer Admissions and Security.  Ms Vasu explained that the staffing ratio at the hospital worked on a ratio of 1:6 nurses to patients and that on the days the subject of the incidents; she had 15 patients, two of who required one on one care, and the remaining 13 being allocated to two nurses. Ms Vasu said that the nursing allocation was influenced by the caring scale required, with high need patients assessed at Category 4/5 and mobile patients at Categories 1 and 2.   In relation to Incident One, the Grievor was asked various questions pertaining to the findings of the Investigation Committee. In the first place, she was asked by Counsel as to whether or not the Grievor accepted that she had been careless in the course of her duties, her response was that she did not understand where the allegation was coming from. The Grievor denied having failed to relay to Dr Wata, the CTG readings. Ms Vasu was of the belief that this was the role of Nurse Cakau.  In relation to the allegation that the Grievor had failed to follow ante-natal procedure, she again restated that Nurse Cakau was supposed to be looking after the patient. More generally Ms Vasu stated that she had “done (her) best to uplift the values of Suva Private Hospital.

10.	In relation to the second incident, Ms Vasu told the Tribunal that the patient in question had suffered from a brain lesion. The Grievor said that there had been no instructions issued to her that the patient required the bed rails placed up because of fall risk. Ms Vasu said that there had been a carer with the Patient at all times and could not understand if she was wanting to get out of bed, why they didn’t use the buzzer. Ms Vasu said that they were not able to use the hospital ‘lifter’ to return the patient to her bed, because it was out of order.    The Grievor was of the view that her doctor should have given instruction for the patient, if there was any perceived fall risk.   The Grievor was then taken to Annexure MV9 of her Affidavit, in which the findings of the Disciplinary Committee Proceedings hearing dated 14 June 2016, were set out. In relation to Incident One, the Grievor repeated her defense that Nurse Cakau was responsible for the monitoring of the CTG readings and that she was told to continue to monitor the patient and to wait for Dr Tupou’s call. Ms Vasu insisted that “Savaira was assigned to the patient”.  In relation to the finding by the Committee that Ms Vasu had failed to comply with procedures, she responded, that “we immediately called the doctor when we saw abnormal CTG readings” and that “Savaira was trying to repeat the call for quite a while”.  The Grievor reaffirmed that it was the responsibility of Nurse Cakau to follow the normal procedures associated with the monitoring of the labour and the communication with the medical specialist. In relation to the allegation of negligence, the Grievor responded that Dr Tupou should have seen the ‘missed calls’ from the hospital and called back. She said that “we don’t call other managers at that time”.  The witness said that when it had been observed between 2pm and 3pm that there had been two ‘decels’ within that hour, that the obstetrician should have been around or should have been alert to received calls. 

11.	In relation to the Committee’s findings pertaining to the Second Incident, the Grievor restated that she had reassured the patient that she would get assistance and that it was common for security officers to assist with lifting. In relation to the apparent complaint made by Dr Mere Samisoni who it was said was a relative of  Patient 2, the Grievor naturally refuted the suggestion that she had demonstrated an unprofessional behaviour and relied on her experience of 29 years within the nursing profession. Ms Vasu said in response to the finding that she had failed to provide the required level of care to the patient, that in relation to the bed rails, that “we follow instructions” and would need the consent of the patient. She said in this regard there were no instructions given.  The Grievor said that she had not filled out the Adverse Events Book, as her assessment was that the patient had not been injured.  Finally in relation to that incident Ms Vasu further reiterated that there was male nurse with the patient, whilst she sought further assistance from the Security Officer so as to lift the patient back into bed. The witness was shown Annexures MV10 and MV11, that contained copies of the termination letter that she had received along with the notification that her further appeal against the decision was upheld by the Employer.

12.	In response to the Preliminary Submissions of the Employer, the Grievor was taken to Annexure MV5, the email from Dr Wata and asked to look at the Form 1 – Referral of an Employment Grievance to Mediation, that was received by the Mediation Unit on 21 September 2016.  Of particular interest, was the fact that Form 1 had indicated that the Grievor had conceded that in relation to Incident One, that she had been jointly assigned to take care of the patient with a senior midwife. Specifically, the Form 1 stated:

	It so happened on 14th May, 2016 the senior mid wife and I were assigned to a patient who 	was a first time mother to be. 

13.	In her evidence in chief, Ms Vasu told the Tribunal that she did not include the details of the grievance within the Form 1 and that while she admitted signing the form, claims that there were no particulars filled in by her pertaining to the grievance. Further in relation to the Employer’s Submission pertaining to earlier disciplinary issues, the Grievor indicated that in relation to a previous warning letter issued on 8 December 2011, that this issue had been resolved and that at the relevant time, she had not been told that the patient in question had needed a CTG.   In relation to a second incident in August 2015, in response to an email sent by the Grievor to hospital management, again she claimed her representations within the communication were brought about at the request of staff. In any event, as the witness indicated that in accordance with hospital policy, such reprimand was only in place for 12 months.  In relation to Incident One, the witness said that during attendance of Patient One that she had seen no evidence of vaginal bleeding to suggest a disruption of the patient’s placenta. Ms Vasu said that the new born child had good APGAR measures that related to the Appearance,  Pulse, Grimace, Activity and Respiration of the infant.  Ms Vasu was referred to a Preliminary Report undertaken by the Ward Manager, Dr Penuel Immanuel, in which she set out the standard antenatal operating procedure of monitoring first stage labour and the sequence of events that had been narrated to her by Dr Tupou. The Grievor’s position was that Dr Tupou herself could have checked on the patient during the day. Ms Vasu said that the doctor was in a clinic only 3 to 5 minutes by car away. The witness rejected the allegation as relayed to Dr Immanuel by Dr Wata, that the patient had decal tracing ran for two half hour periods and that there was a lethargic response from the nursing staff to the issue. 

14.	In cross examination, Counsel Naidu took the Grievor to her contract of employment. Ms Vasu confirmed that the nursing patient ratio was 1:6/1:7 and that she was responsible to the Team Leader Nursing in her role. In relation to Incident One, the witness reaffirmed that there were 13 patients and 2 nurses on duty that day and that she herself had no patients to look after. The Grievor was referred to the Employee Handbook, copies of the minutes of the Investigating Committee Meeting and the copy of the Investigation Report. The witness confirmed that she had received the suspension letter in a sealed envelope handed to her by the hospital’s General Manager in the presence of a member of the Human Resources Advisor. Ms Vasu indicated that she was escorted off the premises by the Human Resource Advisor. 

15.	The witness was taken to the Notice of Allegations provided to her following the letter of suspension, and was questioned in relation to the reporting relationship that should have existed between Nurse Cakau and herself on the day in question pertaining to Incident One. The witness was taken to Exhibit E11(a) a handwritten note that she had prepared in response to the initial complaint made by Dr Tupou and confirmed to Counsel that this was not an example of an official Incident Report.  In response to the decel readings that had been observed on the foetal monitor, Ms Vasu told the Tribunal in cross examination that Nurse Cakau was still waiting at the station awaiting the call from Dr Tupou. She said, “I told her to continue to call”.  Ms Vasu stated that she had called Dr Tupou after 1.00pm to say that she had conducted a vaginal examination. She said that after 2.00pm, she had asked Nurse Savaira to call the doctor and was advised that the line was busy. She said that in relation to the decel that had been recorded whilst in attendance, that she had managed to reassure the baby and only left the birthing suite after the heart rate had been normalised. The witness said that she had been trained in this technique. 

16.	Counsel for the Employer put to the witness, that in training provided to the Grievor by the hospital that she was aware that it was not her role to reposition the baby and that she was required to contact the attending doctor straight away.  It was put to the witness that there were in fact four nurses at the hospital and that she had responsibility for arranging where they were to be based.  It was put to the Grievor that she had the responsibility to make contact with Dr Tupou and her response, was that “we don’t have pagers”. 

17.	In relation to the second Patient, the Grievor recalled that she had responded to the patient earlier around midnight when she needed her care, she reassured her to go to bed and that there were no medications given to her until 630am that day. Ms Vasu was of the opinion that the patient could have pushed the button if she was wanting to get out of bed. When asked by Counsel why the three persons in the room, could not have returned the patient to her bed after her fall, the Grievor responded that Jonetani had left the room. The witness was taken to various documents pertaining to the investigation in which she had sought additional information prior to attending an Investigation Meeting. The witness also indicated to the Tribunal that at the relevant time, she had worked 7.00am to 3.30pm on 14 May and returned to work at 10.30pm in the evening to work through to the morning shift.   Ms Vasu made clear that she had agreed to work those hours. Counsel took the witness to the mitigation submission that she had provided the Employer as a result of its findings and the termination, appeal and decision of the Executive Director who dealt with the appeal decision.  The witness told the Tribunal that she had not been able to find employment since her termination eight months ago and was presently 54 years of age.  During re-examination, the witness reinforced that on 14 May 2016, that there were two special patients that required ‘one on one’ nursing. The Grievor said that the midwife had been allocated to sit with Patient ABS for the “whole situation” and she gave her those instructions. Ms Vasu reinforced that her role was the supervisor, not to take over the midwife’s role. The witness restated to the Tribunal the chronology of events that were provided as follows:-

•	Patient ABS admitted on 13 May 2016 

•	Events of 14 May 2016
	
	6.55am	Sister Vasu signed on for morning shift. 

	7.00am 	Undertook ward rounds with Dr Tupou  (following which the patient ABS 		was connected to syntocinon drip. 

	9.00am	Nurse Savaira Cakau came on duty 

	10.00am	First CTG undertaken by midwife Cakau. 

	1.00pm 	Vaginal examination conducted by Ms Vasu for approximately 10 minutes.
			[Rang the operator who contacted Dr Tupou. There had been no decel at 		that time. Dr Tupou gave more instructions pertaining to the hydration of 		the patient and to administer pethidine for any pain relief].	

	2.00pm	Ms Vasu came back from getting pethidine and detected an abnormal CTG 		reading. [Had been advised during this time by Nurse Cakau of the decel and 		had asked her to contact Dr Tupou while she attempted to reposition the 		baby.] Ms Vasu said that during the period that she had been absent from 		the birthing suite (approximately 20 minutes), that she had no contact from 		Nurse Cakau. She said that she told Nurse Cakau to listen to the phone so 		that she could speak to Dr Tupou. 

	2.33pm	Ms Vasu left and attending to compiling of reports for the changeover shift. 
	3.55pm 	Ms Vasu forwarded Change over Day Shift Report. 

18.	Ms Vasu said that she did not contact any of the doctors in the outpatient medical centre of the hospital, because at the time, the CTG reading was reassuring.  In response to questioning by the Tribunal, Ms Vasu stated that it took her 5 to 10 minutes to normalise the heartbeat of the child. She said that during this time, the operator would keep trying to contact Dr Tupou. She said that the hospital facility had medical, maternity and surgical capacity with approximately one child per week being born at the location.  The Grievor indicated that in the case of an emergency situation, there was an emergency buzzer in the room, in order to attract other hospital personnel. 

Evidence of Mr Josua Samoa  

19.	Mr Josua Samoa is a former Customer Service Officer at the Suva Private Hospital. Mr Samoa told the Tribunal that his duties at the hospital included reception, serving customers and front office duties. The witness was asked to recall the events of 14 May 2016 and while indicating that he could not remember the exact date, did recall what happened on the day in question. The witness told the Tribunal that he was subsequently asked to attend a meeting with his Manager to give an account of what happened on that day. The witness said that he was asked to call Dr Tupou, as all calls were processed through reception. Mr Samoa said that this was the procedure for after hours and on weekends. The witness recalled being asked to put a call through to Dr Tupou and indicated that he relayed that in the Managers Meeting that he was asked to attend in the Board Room of the hospital following the incident. The witness said that at the time the phone line was busy.  He said that if call doesn’t go through, “we try again ..we keep trying again.”

20.	Ms Rakai asked the witness, was he calling Dr Tupou’s landline or mobile phone. The witness responded that he was calling her mobile phone and did not remember how many times he had attempted to call the number, but that it was more than once. The witness told the Tribunal that he had been instructed “to call Dr Wata and to transfer into ward”. The witness agreed that he had not received any instructions to stop calling the doctor. 

21.	When questioned by the Tribunal the witness said that initially the ward was kept on hold, but that after a short time, they were no longer and he kept trying to contact Dr Tupou. The former employee said that “he knew it urgent”, that he could “hear by the tone of Dr Vasu’s voice”. Ms Naidu of Counsel sought reclarification of the witness who said that the Suva Private external line had been busy, so he couldn’t get through to Dr Wata. The witness was of the view that he thought that Nurse Cakau personally came to see him to make the call.  The witness said that he couldn’t make a call out on the hospital provided mobile at the medical centre, because it had no credit.

Evidence of Mr Jonetani Rokoua 

22.	Mr Rokoua was a Nursing Supervisor at the Suva Private Hospital. The witness told the Tribunal that he was not a registered midwife, but would usually work in the hospital’s general ward. In relation to Patient ABS, the witness said that he was rostered to work in the medical centre on 15 May, when he was on his way to the supervisor to get after hours medications. He said the was walking passed the ward and heard a loud noise in the room. The witness said that the patient had fallen on the floor and was shouting.  He said that the carer was trying to assist the patient in bed. He said that the buzzer was some distance away and that his main concern was to try to comfort the patient. Mr Rokoua said that in less than a minute, Ms Vasu walked in to the room. Mr Rokoua said that Ms Vasu told the patient, “you don’t have to shout other patients (are) sleeping as well”. The witness said that he had to leave the room at the time and go back to the medical centre as he had an asthmatic patient and to make sure that (the patient’s) breathing (was) not compromised.  He said that while the patient was on the floor, “I felt I offered enough reassurance at the time”. “I had a feeling she was being taken care of and I went out of the room”. 

23.	On cross examination, the witness conceded that Ms Vasu had “raised her voice” to the patient and spoken to her in Fijian. The witness said “I was down with the patient at her level. I knew Vasu would walk in…”. The witness said he was told to wait for security to come to assist her back to bed. Ms Rakai took the witness to Exhibit E 12(d) and this document was confirmed as being an email communication provided by Mr Rakoua as a brief summary of the incident. The Tribunal in turn asked the witness could he explain the lifting systems that were used by the hospital in such situations. Mr Rakoua spoke of sliding sheets and a medical lifter, that he indicated was not available at the time.

Evidence of Ms Savaira Cakau  

24.	Ms Cakau was a Nursing Midwife now employed at the MIOT Private Hospital. The witness said that she commenced work at the Suva Private Hospital in July 2015, having earlier worked at the Nadi Maternity Unit. 

25.	In relation to the incident involving Mrs ABS, the witness said that she had been allocated to provided 1:1 care for her that day and she was not assigned any other patients. The witness agreed with the proposition that the CTG monitoring on that day was her responsibility. Ms Cakau confirmed that the initial CTG was done at 10.00am and that there was a “reassuring trace.” The witness confirmed that around 1.00pm, a vaginal examination was conducted by Ms Vasu.  She said that the patient went to bathroom, came back and was reattached. According to Ms Cakau, Dr Wata was going to case review at 3.00pm. According to the witness, the doctor review was normally conducted at 4 hour intervals and this was increased to two hour intervals when there was an active labour. The nursing sister was of the view that Dr Wata should have come and reviewed the patient. Ms Cakau said that there had been a foetal compromise for about 10 minutes and that she decided to call Dr Wata. She said, “I couldn’t leave patient there” and around between 1.15pm and 1.30 pm when Ms Vasu returned that she went to call. Ms Cakau said that the operator told her that the “line was busy”. The witness, said that she could not recall how long she had to wait.  Ms Cakau said that she was still holding on the line when she was advised by Ms Vasu that the tracing was ok, but that it was still a non-reassuring CTG. In cross examination from Ms Rakai, the witness said that when she went to make call, that she had told Ms Vasua that she had to tell Dr Wata that the tracings were abnormal, but that Ms Vasu had wanted to wait and see the effects of rehydration and oxygen. The witness acknowledged there had been a slight improvement. According to Ms Cakau,” I went to call and Ms Vasu said its ok she will come at 3 clock”.  Ms Rakai questioned the witness in relation to the Emergency Procedure Training contacted by the hospital in September 2015. The witness replied that she could not recall the training. It was put to the witness, that with one decel that the nursing staff are supposed to call the doctor, however Ms Cakau responded by saying that “normally we do interventions like hydration”. The witness conceded that she too made no effort to call anyone else that day when she was unable to contact Dr Tupou.  The witness was asked in re-examination as to what time Dr Tupou returned to the hospital that day and the witness said that she could not recall. 

26.	The Tribunal questioned the witness as to how she had made contact with the receptionist Mr Samoa. She said I went to see him personally. She said she asked if he had put the call through, but he had said the line was busy.  The witness said that she was expecting the receptionist to call her back but he did not call back.  Ms Cakau said before 3.00pm, that she had made another call. Ms Cakau said that when Dr Wata was contacted the CTG was non reassuring and that the doctor was furious. She said “why wasn’t I told when Ms Vasu called at 1.00pm”. 

Evidence of Dr Tupou Wata 

27.	Dr Tupou Wata is an Obstetrics and Gynaecology Consultant, working at the Mercy Clinic Limited, Suva. Dr Wata was taken to the initial email communication that she had sent to the Executive Director of the Suva Private Hospital on 25 May, in which she made her complaint of the nursing care on the day in question involving Mrs ABS.  Dr Wata spoke of how the labour was augmented with syntocinon and that there had been a regular plan in place for the patient. The witness said that there had been a check made with her by Ms Vasu after she had undertaken a vaginal examination of the patient. According to Dr Wata she had initially missed the call, but that they called up later. Dr Wata said that she asked about the heart rate and was told that it was normal. According to the witness, she was of the belief that Ms Vasu had been assigned to care for the patient on that day, as there were no other midwifes on duty at that time. Dr Wata said that the child was ultimately born following a caesarean section delivery. Dr Wata said that the placenta had separated in the womb prematurely. 

28.	Ms Rakai of Counsel questioned the doctor in relation to the CTG readings and said that there been more than 2 decels. Dr Wata told the Tribunal that FHR (foetal heart rate readings) between 110 to 160 were regarded as normal and that there had been no drop below 100. According to Dr Wata the patient’s placenta had prematurely ruptured. The witness was referred to an email that she sent to the General Manager and other doctors of the hospital in which it was stated that the tracings had been recorded as abnormal for approximately 1 to 1.5 hours before she was contacted. The witness was unable to explain why these results had not been communicated to her earlier and was referred to the notes on the patients file to seek any clarification. According to Dr Wata she was aware that she had a missed call and followed that call up around 3.30pm. When questioned by the Tribunal, the doctor indicated that she had not received calls to either her mobile phone or landline. She said that at the changeover shift she got to the hospital and the patient required a ‘C  Section’. When questioned by the Tribunal, the doctor stated that there had been a small separation of the placenta and there was no obvious bleeding. Dr Wata said that there were no notes in relation to the foetal heart rate after 3.00pm.  Dr Wata said that she had been working at the Suva Private Hospital since 2012 and that ever since she began working at the hospital, the CTG machine was not recording the correct time. Dr Wata said that she can recall Ms Vasu as a nurse when she had been working at the CWM Hospital. Dr Wata said that she does not have a pager when on call, but that they do have Viber, which is a messaging application, that can be used between users. 

Evidence of Dr Penuel Immanuel (aka Emi Maitioga)   

29.	Dr Immanuel gave evidence in relation to her knowledge of the Patient A (the second) incident. Dr Immanuel told the Tribunal that whether bed railings are left up or down, is not part of the treatment instructions issued by medical staff. According to the witness, she was told of the incident involving Patient A, two days after the event. Dr Immanuel said that she had received a phone call from Ms Vasu to say that the patient had fallen. Under cross examination, Dr Immanuel said that she was aware of an earlier fall of the patient, but that another doctor was on leave.  Dr Immanuel gave evidence that she was contacted by the Executive Director of the Hospital, asking that she get statements from the staff involved. Dr Immanuel prepared an explanation of the protocol that should apply for monitoring first stage labour and provide a sequence of events from the report of Dr Tupou and the two statements provided by Ms Vasu and Nurse Cakau. When questioned by the Tribunal, Dr Immanuel was unaware that there was no telephone in the birthing suite at the time of Incident One. The witness also said that she had been aware of the faulty tracing machine, when it just stopped about three months prior to this incident. The doctor said that the machine was sent for repairs and trialled but that she was not aware that it had a faulty time recorder. Dr Immanuel was asked about the telephone system in place and admitted that calls to mobile phones needed to be made by the operator, although she stated that every supervisor had a code to call mobiles directly.  When advised by the evidence given by the earlier witness, that the hospital mobile phone credit limit prevented the making of any more calls, the witness responded “news to me”.

30.	When asked about the nursing staff member Ms Kelera Luvu, who reported to work at 2.50pm and was involved in the monitoring of the labour along with Nurse Cakau for possibly up to 40 minutes, the witness admitted not having explored that issue. Dr Immanuel explained to the Tribunal what was involved in the shift report that would have been prepared by Ms Vasu on that day. The witness indicated that the charge person in the hospital had a lot of responsibilities and areas to report on, including transport and meals, paramedic services, consumables, stock accounting and replenishment. Dr Immanuel said that the person was in charge of the entire facility, including security. The doctor conceded that it takes a long time to finalise the reports and that it would need more than one hour to prepare. 

31.	Ms Rakai asked the witness could Ms Vasu have dialled Dr Tupou directly using a special phone code and the doctor replied, “if she did have a code, yes”. The doctor restated that the person in charge of the facility on the weekend had responsibilities for the wards, kitchen, staffing and procurement. The witness said “she is the ‘go to person’, has a lot of responsibilities”. When asked would it have been a busy day for the Grievor?, the witness replied, “in terms of work load, if you have category 4/5 (patients) lots of work”.  The witness made clear, “overall it is busy”. 

32.	A further witness who had been subpoenaed by the witness, a Mr Elia Bainivesukula, had been working as a Security Officer at the hospital, but was not the person in attendance at the hospital when Incident Two took place. The witness was therefore excused on that basis. 

The Case of the Employer

Evidence of David Qumivutia   

33.	Mr David Qumivutia was the General Manager of the Suva Private Hospital at the relevant time. He had assumed that role in 2009.  Mr Qumivutia explained the reporting relationships and organisational responsibilities that he had at the hospital and was referred to Exhibit E 27 (Tab 19) of the Employers Bundle of Documents, that set out the 2016 Organisation Chart.  It was noted that the Team Leader role for Nursing, had not been permanently assigned and the evidence of the witness was that this position had been rotated amongst several staff. The General Manager told the Tribunal that in response to the email received from Dr Wata, he had asked Dr Immanuel to review what were the issues and determine what had gone wrong.  The witness told the Tribunal that once Dr Immanuel’s report was received, he put together an Investigation Team, though it did not include a person from a medical background.  Mr Qumivutia said that Ms Vatu attended the Investigation Committee to provide a response to the allegations. The General Manager thereafter spoke of the process that gave rise to the findings of the Disciplinary Committee and the ultimate termination of the Grievor. 

34.	In relation to Incident One, the General Manager said that there would have been other options available to Ms Vasu if she could not have contacted Dr Wata, that included contacting the Ward Manager, the Clinical Co-ordinator or the General Manager directly.  In relation to the second incident, Mr Qumivutia said that Ms Vasu should have shown empathy to what was an emotionally charged situation.  Under cross examination, in relation to the first incident, the General Manager maintained that as Ms Vasu was the Nursing Supervisor on duty on that day in question, that the responsibility still lay with her.  The General Manager said that he had expected a more proactive approach from Ms Vasu and that Nurse Cakau  was a more junior person.  In relation to the second incident, the General Manager said that Ms Vasu’s reaction to the situation that she encountered was not acceptable and that he had received letters of complaint from the carer, a relative of the woman and the patient herself. Mr Qumivutia conceded that Ms Vasu had to return to the hospital to collect her termination letter. The General Manager said that he was satisfied with the Investigation Report provided and that he did not see any reason to interview the authors of the complaint letters that had been sent to the hospital. The witness reaffirmed the manner in which the various steps of the disciplinary took place and confirmed that the Notice of Allegations, the findings of the Disciplinary Committee and the termination letter , were all handed to the Grievor in the privacy of his office.  

35.	The General Manager was questioned by the Tribunal in relation to the number of qualified midwifes working at the hospital and inquired as to the number that were allocated to the Obstetrics Section. The General Manager told the Tribunal that he was not aware that there was no telephone in the birthing suite room and said that there should have been one. The General Manager also told the Tribunal that he did not ask the staff whether they had ‘staff codes’ for accessing direct calls on the hospital phone system. Mr Qumivutia could not recall whether the investigation revealed that Mr Samoa had attempted to contact Dr Wata with no answer, or whether the phone lines had been busy as well. Mr Qumivutia said that he did not discover as part of the investigation, that the Customer Services Officer could not utilise the hospital mobile, nor did he interview Ms Kelera Levu, a staff member who had come to commence her shift in the labour ward at 2.50pm that day and appeared to have been assisting Nurse Cakau up and until the telephone call that was made to Dr Wata at 3.30pm. 

Overall Impression of the Evidence  
36.	In the case before the Tribunal, it is alleged that the dismissal was not justified and that there has been an element of unfairness in the way in which the final stages that gave rise to the termination of contract took place. In relation to the question of what constitutes a ‘justifiable dismissal’, this Tribunal relies on the decision of Parvinesh Kumar v Nanuku Auberge Resort Fiji. In the case of what constitutes an unfair dismissal,  her  Honour Wati J has set this out clearly in the case of Yanuca Island Limited trading as Shangri La Fiji Resort and Spa v Vani Vatuinaruku    

37.	There is no precision in the way in which the Employer undertook its investigation task. The Confidential Investigation Report at Exhibit E7, prepared by the hospital lacks credibility. Consider for example where it states: 

	(The Grievor) contacted Dr Tupou but failed to notify her of the abnormal CTG 	readings. 

38.	And further, 

	Nurse Savaira ..advised that she called Dr Tupou around 2.45 pm on 14th May, 2016 to advise of the abnormal CTG readings, which was immediately after sis Vasu left to do her hand over reports. Dr Tupou came within 15 minutes.

39.	The first statement is misleading and erroneous.  At the time that Dr Wata was contacted at 1.00pm there did not appear to be any abnormal CTG readings. Not that it appears anyone at the hospital turned their mind to the actual tracing reports and considered that information. In fact these reports were required to be produced by the Employer at the request of the Tribunal. What is clear and as was verified by Dr Wata, that tracing reports are defective with incorrect time stamping and the most critical record for the pages 24265 and 24266 are missing. 

40.	Secondly, as the Progressive Patient Notes of the hospital reveal, Dr Wata claims to have been contacted by the hospital staff at 3.30pm and not 2.45pm. Again it appears as if no one saw fit to look at the hospital records as part of the task of inquiry and reconcile those issues. If there was a 40 minute period from when Nurse Kelera Luta arrived and when the telephone contact with Dr Wata took place, what was the explanation as to why those two women had not sought to escalate the issue over that period?  Coupled with the fact that the Investigation Report makes no mention of there being no telephone in the birthing suite when it seems that there should have been one, no capacity for the Customer Services Officer to make calls on the hospital supplied mobile phone, creates a situation that is hardly the making of the Grievor.  It was reasonable for Ms Vasu to assume that the Customer Services Officer would have persisted with the making of an urgent call to contact the doctor. As Mr Samoa himself told the Tribunal, he knew the matter was urgent. The Nursing Supervisor Sister Vasu, had many duties to contend with at the time. She was responsible for the administration of the hospital on that day. Yes, it is true she could have returned again to ensure that the doctor had been contacted, for whatever reason she assumed that the matter was under control. Nurse Cakau could have contacted her again and brought the CGT readings to her attention, for whatever reason she did not. If there was a telephone in the birthing suite, that may have assisted somewhat, but there was not. Dr Wata should have had a mobile pager, though if the hospital could not even execute the making of a telephone call, one wonders how that would have been activated in any event.

41.	The Investigation Report states in relation to Nurse Cakau, 

She was scared to go against Sis. Vasu’s decisions because she usually yells at nurses when they don’t listen to her. 

42.	Interestingly, during the Investigation Committee meeting, Ms Vasu made the same allegations against Dr Wata. There is simply no evidence put forward by the Employer that Ms Vasu had told Nurse Cakau not to contact Dr Wata. The Tribunal does not accept that version of events. The Customer Service Officer should have persisted with the making of the telephone call and he didn’t. Nurse Cakau should have further enquired as to what was going on, but she did not. 

43.	In relation to the second incident, of course it is clear that this was an unfortunate event and that it could have been handled differently. What is clear though, is that Sister Vasu had wanted to ensure the safety of all concerned including the hospital’s employees with the lifting of the patient. After all, the evidence was that the hospital’s lifting machine was broken. Sister Vasu had relied on two Security Officers to assist with the lift. Mr Rokoua, who had been walking through the ward at the time, was already no longer available. Whilst it is accepted that Sister Vasu may have adopted a terse manner when she asked the patient to lower the noise, that may not necessarily have been that out of place, given the fact that there were other patients in the ward who were sleeping at the time. The Tribunal recognises that this conduct gave rise to complaints that were legitimately expressed, albeit that it appears Dr Samisoni’s correspondence was likely to have been only an interpretation of events and not direct evidence as to what had transpired. One issue that is clear, is that the Grievor was required to work from 7.00am Saturday May 2016 to at least 3.55 pm and recommencing at 10.30pm to 7.00am the following day. It is fairly easy to see, with the responsibilities that she had and the lack of an appropriate rest period, that this pressure could only contribute to perhaps a tired and less supportive response to the incident that she confronted on that Sunday morning at the hospital. Interesting even Dr Samisoni in her letter of complaint, acknowledged this fact, when she wrote “I believe Sister Mere Waivasu worked 2 shifts and perhaps explains her unprofessional behaviour”. 

44.	One further issue of concern relates to the request from the Tribunal to the employer to produce the medical records of the hospital pertaining to the ‘Dangerous Drug Book’ that was used  by the Grievor in recording the administration of pethidine to Patient ABS. The reason for this request was to as to ascertain whether Sister Vasu had left the birthing suite for that purpose. In an Affidavit provided by Mr David Qumivutia dated 22 May 2017, an extract of Folios 39 and 40 of that book containing records for the period 11 March 2016 to 8 August 2016, is contained. It is noted that the pages provided contain the handwritten heading, ‘Inj. Pethidine 100mg’, presumably a reference to the size of the ampoule that is being used. Within that Affidavit the deponent General Manager states: 

The records confirm that on 14th May 2016 the Grievor did not administer any dangerous drug which is contrary to her evidence in the Tribunal and her filed submission.
45.	The Tribunal was clearly troubled by this further allegation and has sought to reconcile this issue. This is warranted particularly given the initial letter provided by Nurse Cakau to the hospital on 14 May 2016 that set out her version of events that included: 

		I repositioned the patient to left lateral, hydrated her with Normal Saline, sedated 	her according to Dr Tupou’s order and administer oxygen. 

46.	It was also the case that Ms Vasu had provided an Affidavit in Reply to that of Mr Qumivutia’s pertaining to this issue,  where she alleged that the Employer deliberately omitted the information to the Tribunal, that provided records relating to Inj Pethidine 50mgs as administered that day, in order to further discredit her and her evidence. In response to that issue, on 5 June 2016, whilst the Tribunal was still considering its decision, for the sake of clarification of this point, the Tribunal issued the General Manager Mr Qumivutia, with a Summons to Produce the original Dangerous Drug Book pertaining to the Medical Surgical Ward for the period 11 March 2016 to 8 August 2016.  The purpose of that summons, was only to view the original document that had been the subject of an earlier Direction to produce,  dated 27 March 2017 and so as to reconcile whether the records provided were complete.  Both parties attended before the Tribunal so that it could inspect the original dangerous drug book. As it transpires, the contentions of the Grievor were correct and the Folio 12 of that book that was not included in the material disclosed to the Tribunal  by the Employer.  Within that folio, records the entry of Ms Vasu accessing 50mg of pethidine for injection for Ms ABS at 1300.  Whilst the issue is not that central to the analysis, given the attempt by the Employer to not make available all records pertaining to Ms Vasu for that date, places a shadow over its own honesty of approach in dealing with this issue and the Tribunal.  

47.	Overall, the Tribunal is of the view that the hospital’s own administration has contributed to the issues the subject of this grievance. There appears to have been insufficient experienced staff assisting in the labour ward on the day of the first incident. It is simply hard to otherwise accept that the Nursing Supervisor in charge of all of the hospital administrative issues that day, could have also been responsible for ensuring that a simple telephone call was made. Nurse Cakau should have been responsible for seeing that took place. In relation to the second incident involving the manner in which the Grievor dealt with Patient A, this was an unfortunate event. Interestingly, little attention was placed on the Incident Response filed by Ms Rosie Catherine. Ms Catherine who was in Patient A’s room at the time of the incident stated, that Patient A “had fallen off the bed whilst still asleep”.  One wonders how Ms Catherine can claim to have known this, unless of course she saw the incident take place. If that was the case, there is no discussion whatsoever that appears to have taken place as to why the patient had not been prevented from falling, by Ms Catherine herself. Not that this was her responsibility, of course it wasn’t, but it does question whether in fact the patient had been seeking to get out of the bed by her own means and that Sister Vasu was expressing her frustration rather than being unsympathetic. After all, it was the case that the evidence of Sister Vasu was that she had earlier been asked of the patient to, sit her up, scratch her back and talk to her several hours earlier. That hardly seems to be the conduct of a woman who is not sympathetic and supportive of the needs of the patient. 

48.	While the Tribunal accepts that the issue could have been handled differently, having an operating ‘patient lifting device’ available at the time would have certainly assisted in the process. The fact of the matter was that once the patient was sitting on the floor  and deemed to be not seriously injured, meant that a safe lifting process needed to be ensured so as to not aggravate any possible injury that may have taken place.

49.	That two security officers assisted in the patient lift together with a nurse assistant, may not be that strange, given that there did not appear to be any hospital orderlies working at that time. In any event, it is well known in the safe handling of patients, that the manual lifting of people must be eliminated in all but exceptional circumstances, for example life threatening situations.  If it was a three person lift and Mr Rokoua had already left the room, would have made the situation somewhat difficult for Sister Vasu, a 54 year old woman who at that time had in effect worked by that time some 17 hours in the last 24 hour period. The health and safety implications of working staff in a hospital like that, when they are charged with patient care and needing to respond to all manner of situations is an issue of obvious concern. 

Conclusions 
50.	Overall, the Tribunal finds that the dismissal of the Grievor in the circumstances was not justified. The hospital administrators must take some blame for the compounding of issues and errors that is well demonstrated by faulty and out of order hospital equipment, a lack of effective telephone and pager communication services to ensure the immediate contact with visiting medical staff and the ostensible excessive hours of work and responsibilities imposed on a nursing supervisor, who not only has to respond to all issues of the operation of the hospital while on shift, but be responsible for high need patient care situations during that time.

51.	By any view, the hospital must assume some responsibility for the events that took place. While the Grievor is clearly a person who has maintained an ‘old school’ and no nonsense approach to nursing care, in some senses that situation is understandable given the demands of the role and the lack of appropriate skilled staff and equipment to assist in her role. The Tribunal does not accept that Sister Vasu had told Nurse Cakau to no longer contact Dr Wata, particularly if the decel readings continued. That simply does not make sense and the evidence of Sister Vasu is preferred to that of Nurse Cakau in any event. Of course Sister Vasu attempted to reposition the child. The evidence was that she did, the heart beat normalised and the monitoring continued. If the hospital’s tracing machine accurately recorded time events, that would have assisted the investigators in their inquiry, at least if they were looking at that data. The reason for the failure for Dr Wata to be contacted appears to be that the Customer Services Officer simply got distracted with his own work and forgot to persist with making that contact. What is not clear from any report of the hospital, is why Dr Wata was not contacted until 3.30pm. If Nurse Lutu had arrived at work at 2.50pm and is said to have been influential in the ultimate decision to call Dr Wata, what was happening for that further 40 minutes?   Sister Vasu  would have naturally assumed the situation was in hand. Clearly it was not.  

52.	When Sister Vasu responded to the screaming in the ward in relation to Patient A, of course she also had the interests of the other patients within that ward in mind. It is accepted by the Tribunal that she may have adopted a terse tone with the patient at that time, but it is highly likely that it was borne out as much from frustration with the situation, the fact that a carer had been in the room at the time and that this was not the first occasion in which the patient had fallen out of bed. That Ms Vasu did not see the need to put up the bed rails may have been a poor assessment of the risk, although she was of the view that the medical staff were the ones that would dictate that requirement.  Overall, the Tribunal does not accept the decision to dismiss the Grievor was justified. Yes, she should have been counselled, cautioned and placed on notice, but given the Employer’s own conduct and lack of appropriate systems and procedures, it too should assume responsibility.

53.	The Grievor seeks compensation of 12 month’s salary and an award for humiliation and loss of dignity and professionalism. As mentioned earlier, Sister Vasu is 54 years of age and has 25 years’ experience working in nursing and midwifery. At the time of her dismissal she was earning an annual salary of $28,076.84. While the Grievor indicates that she has applied for three positions since her termination in employment, it is more than likely that she will find re-entry into the workforce a challenging experience, particularly given the circumstances that have given rise to her leaving the employment of one of the largest employers of nursing personnel in Suva. The conduct of the Grievor must also be taken into account when assessing the appropriate compensation amount to be awarded. She should have checked on Patient ABS, at least by making a phone call to the ward and her approach in placating Patient A was clearly far too terse for the situation, if it gave rise to the making of a complaint from the patient and her family.  As a result, the Tribunal is of the view that the compensation in the amount of eight month’s salary equivalence is an appropriate and fair award having regard to all of the circumstances of the case. Despite the Tribunal being highly critical of the investigation methodology and lack of interrogation of the issues, there are no obvious signs that the Employer had acted in an unfair manner within the context that is set out within the decision of Wati J, in Yanuca Island.   

Decision 

54.	It is the decision of this Tribunal that the grievance of Ms Merewai Vasu has been made out, and that compensation in the amount of $18,717.90, for her unjustifiable dismissal, should be awarded. 

55.	The Applicant Grievor is at liberty to make an application for costs within 14 days hereof.

	The Tribunal orders accordingly.
. 

 

Mr Andrew J See 
Resident Magistrate