An Invercargill nurse deemed fit to practise by the Nursing Council has failed in his bid to lodge a personal grievance eight months after he was dismissed by the Southern District Health Board concerned about his clinical competence.
Employment Relations Authority member James Crichton determined Jim Gorman did not bring his personal grievance within the required 90 days and there were no exceptional circumstances to justify considering granting leave to raise it out of time.
Further, it would not be just to grant leave for him to raise the grievance out of time.
Mr Gorman alleged he was unjustifiably dismissed from his job as a registered nurse in the assessment, treatment and rehabilitation unit.
He had been employed by the board since 2006, but in September 2008 the board referred his professional practice to the Nursing Council because of concerns about his clinical competence.
In May 2009 he was given four weeks notice, with his last day June 26 2009.
At the end of January last year the Nursing Council advised Mr Gorman was competent to practise and on February 26 2010 Mr Gorman raised a personal grievance for unjustified dismissal.
Mr Crichton criticised the length of time the nursing council had taken to deal with the matter, saying it reflected badly on the council and " does them no credit whatever".
The board had taken steps to remove Mr Gorman from clinical practice as soon as it became anxious about his professional competence.
It kept him employed for about nine months working in medical records.
Mr Crichton said he was satisfied the board's dismissal decision was reached because it " effectively lost patience with the interminable process of the Nursing Council and was simply unable to continue Mr Gorman in employment in a role for which he was not recruited".
Mr Gorman argued that by bringing his claim within 90 days of the Nursing Council decision he had complied with the Employment Relations Act, but the board argued that the personal grievance should have been lodged within three months of the termination decision.
Mr Crichton did not accept Mr Gorman's argument saying that the decision of a third party, the nursing council, conveyed eight months after the employment relationship had ended, could not logically found a complaint about the actions of the board.
Mr Gorman's right to challenge the dismissal existed because of the employment relationship between him and the board.
Mr Crichton said Mr Gorman chose not to raise his grievance until it became clear " rather against the run of play it seems" the nursing council concluded he was fit to practise.
All the evidence suggested it was a conscious decision by Mr Gorman and his advisers not to raise a grievance unless and until the council had made a positive determination in his favour.
All that changed when the Nursing Council made its determination was that " somebody else agreed with Mr Gorman's own assessment that he was not in fact incompetent".
The council assessment not only surprised the board and many of its senior clinical staff but also, "and more importantly", changed nothing as far as the board was concerned.
"It was the board's assessment that mattered and it was the board's assessment that Mr Gorman should have challenged at the appropriate time."
The authority also did not accept Mr Gorman's argument about the absence of disciplinary action taken against him by the board.
It was not a disciplinary issue, but one of performance.
There was no suggestion Mr Gorman was behaving badly, but that he was behaving incompetently.
It was the board's responsibility to make decisions about Mr Gorman's fitness and it was that decision which was open to challenge.
The fact the council had taken an " inordinately long " time to make its decision and that it may have been unusual that Mr Gorman remained in the employment while time passed, was not the issue.
Mr Crichton said it was difficult to see how Mr Gorman could claim to have a strong arguable case.
The board had made extensive efforts to address his performance deficits over a significant time.
Outlining the various steps taken by the board, Mr Crichton said none of them seemed to be those of an unreasonable or unjust employer, rather that of a fair and reasonable employer acting in " a reflective and measured fashion when confronted with grave professional deficits" in an environment where patient safety was a " fundamental driver".
If Mr Gorman had any grounds for a personal grievance " they are weak indeed", Mr Crichton said.
