Federal Court grants injunction to neonatal nurse against Box Hill Hospital

17 November 2015
The Federal Court has today granted an injunction to stop Eastern Health from sacking the Nurse Unit Manager of the Special Care Nursery at Box Hill Hospital. Melissah Burnett is a highly experienced neonatal nurse who has raised serious concerns about practices surrounding the care of newborn babies at Box Hill Hospital’s Special Care Nursery.

Maurice Blackburn employment law Principal Josh Bornstein welcomed the Court’s decision and described as “cavalier” Eastern Health’s treatment of Ms Burnett, a highly regarded nurse with more than 20 years’ experience, primarily specialising in neonatal intensive and special care.

As part of her job, Ms Burnett was required to notify the Hospital of incidents which might compromise best practice care to newborn babies. However, Mr Bornstein said that on each occasion she did so, the hospital retaliated with a disciplinary investigation. He said after lodging clinical risk incidents through the Victorian Health Incident Management System (VHIMS) in accordance with the Victorian Health Incident Management Policy, Ms Burnett was subjected to a flawed workplace investigation and threatened with the sack.

“Melissah had been trying to implement best practice guidelines at Box Hill Hospital, particularly those set out by bodies including the Department of Health and Human Services in relation to feeding breast milk to premature and unwell newborn babies,” Mr Bornstein said. “It appears that in doing so, Melissah has raised the ire of some doctors at the Hospital.”

“Subsequently, Box Hill Hospital suspended her from work and proceeds to conduct an inept workplace investigation into her conduct.”

Eastern Health has claimed that Ms Burnett was suspended on 24 August 2015 after several allegations were made against her by hospital staff.

“But the allegations made against Melissah were hopelessly vague, making it very difficult for her to provide a meaningful response. The allegations included that she had failed to uphold Eastern Health’s values, and she had regularly lodged clinical risk incidents. The Hospital repeatedly refused to clarify the allegations or provide information to her in order to allow her to properly respond.”

“Melissah recalls lodging four VHIMS and Eastern Health has never questioned the legitimacy of the risks she identified in the incidents she lodged.”

The Federal Court has found that it is strongly arguable that Eastern Health has breached its enterprise agreement by failing to conduct a “fair investigation” that provided Ms Burnett with procedural fairness. The Court has issued orders restraining the hospital from terminating her and preventing any disciplinary action being taken relying on the flawed workplace investigation.

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