Strikes on the grounds of health and safety are rare and litigation to declare them unlawful is even rarer.
On 9 May 2023 the New Zealand Nurses Organisation gave notice of a one hour strike at Gisborne hospital on safety and health grounds. The strike notice named 24 nurses and care assistants that all work on ward 5 at the hospital. The employer, Te Whatu Ora, unsuccessfully applied for an interim injunction to stop the strike and the strike went ahead.
The starting point is that participation in a strike is lawful if the employees who strike have reasonable grounds for believing that the strike is justified on the grounds of safety or health.
At first blush, the legal principles for the employer applying for an interim injunction to stop the strike do not appear to be burdensome. Te Whatu Ora needed to establish three things. Firstly, that there was a serious question to be tried (or put another way, that their claim was not vexatious or frivolous). Next, Te Whatu Ora needed to persuade the Court that the “balance of convenience” favoured it; this requires the Court to consider the impact on the parties of granting or refusing to grant an interim injunction. Finally, the Court makes an assessment of the “overall justice” of the case.
The Employment Court decision of Judge Smith declining to issue an interim injunction makes dismal reading on the state of our health system; or at least in ward 5 at Gisborne Hospital.
That evidence described staff shortages, staff being required to work extra shifts, 12-hour shifts causing stress and fatigue, care rationing due to heavy workloads, inappropriate admissions and overflow work from other wards.
In August last year attention was drawn to an inability to provide time critical care and assessments, care rationing was occurring, care assessments were unduly delayed, the employees skill mix was unsuitable, patient dignity was being compromised, meal breaks were not taken, and there was a deteriorating patient requiring an urgent transfer.
In September last year there was a clinical emergency not manageable with existing employees and support, there was an inability to provide timely care assessments, an inability to monitor a patient requiring close constant supervision, care rationing, care and assessments being unduly delayed and insufficient essential equipment and supplies.
One nurse described her emotional and mental stress about coming to work anxious over how short staffed the hospital is, her concerns that the pressure of work means she may make a mistake in patient care because she was “beyond exhausted, both physically and mentally”. She has not been sleeping properly often waking at night going over the previous shift attempting to recall whether all medication and treatment had been given as needed.
Another nurse described that everyday ward 5 is short between two and three nurses but is full to capacity with high acuity, complex medical patients/palliative care patients and COVID patients. She referred to trying not to make mistakes but always feeling unsafe about that. She said she no longer considers the acuity of a patient when delegating workload because there is no point. She described each shift being actively care-rationed, fearing making a pressure-related mistakes, and not being supported.
Judge Smith said that what is noticeable about the evidence is that Te Whatu Ora did not deny the staffing problems of ward 5 (and the hospital more widely), and did not seriously question the nurses concerns for themselves or patients beyond pointing to their management systems which were said to be designed to try to respond to staff shortages and the obvious pressures that it creates.
When it came to applying the principles for an interim injunction and whether there was a serious question that the nurses proposed strike on health and safety grounds was unlawful, the Judge said that Te Whatu Ora’s argument was at best “weak”.
Every health dollar could be spent ten times over. The costs of litigating the strike will be huge, not only in lawyers fees, but in terms of management time diverted from improving our health system and patient care. Big picture: The success of the union in successfully defending the justification for the strike will give heart to the many others hugely overworked in our hospitals. This judgment exposes the front line of our health system, which could grind to a halt because of the health and safety concerns for the patients and those who care for them. Te Whatu Ora has opened the door to the likelihood of similar, probably justified, strikes on health and safety grounds. We are indeed lucky that our health professionals are so responsible. Read more....