The relationship between the mother and father had been “volatile,” and whilst the father knew his ex-partner was pregnant, he was unaware of the birth until he received the midwife’s Facebook message.

Upon being re-admitted to hospital, the mother disclosed to staff concerns about her baby’s welfare and safety after information about the child’s birth had been “leaked”. The estranged father had an alleged history of “aggressive behaviour.” The midwife filed a Safety Learning System report citing disclosure of patient information to a member of the public.

Upon completion of an external investigation, the midwife was terminated for serious and wilful misconduct. The hospital argued her conduct was a fundamental breach of her professional obligations, code of ethics and obligations under her employment contract. Whilst it was encouraged for midwives to review the birth register, the hospital argued in disclosing confidential information she had endangered the lives of the mother and baby and created a risk to other patients.

The midwife acknowledged her poor judgement but claimed her actions were not malicious, she claimed her dismissal was a disproportionate response to her misconduct. The midwife also claimed the hospital’s decision-making process was flawed due to the failure to place appropriate weight to a range of mitigating factors including her apology, acknowledgement of wrongdoing and acting out of concern for her friend.

Deputy President Bartel emphasised the “importance of trust and confidentiality in the midwife/patient relationship”. Whilst the investigator "inappropriately minimised" or "discounted" certain mitigating factors, she held they were “not sufficient to overcome the gravity of the misconduct or render the dismissal a disproportionate response.”

Whilst the employer was successful in this case, it highlights the importance of the characterisation of misconduct and any mitigating factors when making a decision. Under current employment legislation, costly consequences await organisations found to be terminating staff incorrectly. Attend our Managing Termination, Unfair Dismissals and Redundancy on 17 March to increase your knowledge of counselling and discipline processes, and how to best manage an unfair dismissal claims.