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Full decision here.
This matter involves a nurse who claims to have been bullied at work by a more senior nurse. To get to this decision by a Commissioner of the Fair Work Commission, the parties have travelled a long, winding track, including two conferences, a hearing and concluding final submissions delivered by telephone.
The Applicant alleged conduct by the Senior Nurse is summarised as:
- Allegations of assault and other conduct designed to threaten or belittle the Applicant;
- Assignment of duties issues, including refusal to assign light duties consistent with medical requirements; lack of consultation about allocation of duties at other work locations; limited or poor responses to the Applicant’s expressed concerns about changes to her work location and duties;
- Unreasonable enquiries by the Senior Nurse about the Applicant’s work hours and entitlements; and
- Limited training and professional opportunities.
The Applicant also alleged that HR staff failed to respond adequately to her complaints including about bullying.
The Applicant suffered an injury, unrelated to her work, to a finger. The injury required a splint and interfered with her ability to work. She requested light duties, but on her evidence the Senior Nurse refused to provide light duties, commenting that “it was nothing that she couldn’t strap up and get on with it”.
Later, the Senior Nurse told the Applicant she had spoken with HR and a doctor and both agreed she could return on light duties. The Applicant submits she was not, however, shown consideration for her injury at work.
In a meeting requested by the Senior Nurse, after the finger injury:
- The Senior Nurse demanded personal medical information of a staff colleague who was on sick leave. The Applicant refused to provide it and the Senior Nurse indicated that she had already enquired from Dr [Name] who refused to provide the information. The Senior Nurse made personal and intimate comments about the colleague’s health issues to which the Applicant replied that the Senior Nurse was disgusting;
- The Senior Nurse responded saying that she had a problem with the Applicant, giving examples about her work including to the effect that “you are nothing but a people pleaser, you’re too patient-focused and take nursing back to the dark ages”. The Applicant was upset following this discussion;
The Applicant submitted there was a refusal by the Senior Nurse to allow her to return until her finger healed and that the Senior Nurse would contact HR and let them know; and asserted that the HR Manager, ignored or dismissed her oral complaint to him of bullying by the Senior Nurse.
Following medical clearance, the Applicant received the following text from the Senior Nurse:
“Hi Anne, Good to hear you are finally better. I have employed more staff and the Mater are short currently so in discussion with [the HR Manager] we think that you can commence working there next week. You have any questions regarding this could you, please contact HR thanks [name]”.
The applicant also complained:
- There were breaches of the Nurses Award in terms lack of notice and consultation regarding the start date of her new position.
- Having been at the Mater she was then asked to go to another practice at Queen Elizabeth II Hospital (QE2) for 8 to 9 weeks, seemingly to backfill a temporary absence. She submits that these instructions were not given to her by the Senior Nurse but by the head nurse at the Mater practice.
- She was subject to repeated unreasonable behaviour about timesheets by the Senior Nurse when working at QE2, and further the Senior Nurse followed up from HR about timesheets.
- The Applicant is very critical of several work practices of the Senior Nurse including describing unsafe medical practices.
- Submitted that following a conversation in front of a patient, the Senior Nurse criticised the Applicant for being a smoker. The Applicant sought out assistance to talk about this matter. The Applicant says this person apologised to her.
Another doctor, responding to the verbal complaints, praised the Applicant including asking whether he could do anything with respect to her position with the Senior Nurse; he said it was unfair for her not to know where she was working on any given day and requested HR to discuss the situation. This led to a discussion with HR and work location were agreed.
However, the next day the Applicant submitted, unexpectedly, clinical performance concerns were raised with her. She said she told HR that she had never had any clinical issues raised whatsoever prior to this.
The Applicant submitted she was constantly work-shamed by the Senior Nurse in front of patients and staff.
The Commissioner’s considerations
Allegations of assault and conduct designed to threaten or belittle
The Applicant alleged that the Senior Nurse both berated her, and physically grabbed her arm. This was in the context of a request by the Senior Nurse for the Applicant to take her scheduled lunch break. As proceedings progressed the grabbing was described as an assault.
Under cross-examination the Senior Nurse admitted to being hurried and under pressure that day, but not to berating her. She was asked to, and did, re-enact the event as she recalled it, admitting she linked arms and guided the Applicant to the lunchroom.
Whatever word is used to describe the incident, it is common ground that the Senior Nurse touched the Applicant.
The Commissioner finding:
“I prefer the Senior Nurse’s version of this event. The Applicant seems to me to overstate what happened, exemplified by the change in language from grabbing to assaulting. I add that an assault does not necessarily constitute bullying for the purposes of the Act and that the Commission does not need to inquire into the lawfulness of allegedly bullying conduct”.
The Applicant asserted she was verbally abused in the meeting in the Angio Room and that one subject of the meeting was an inappropriate enquiry about personal medical information of a colleague. She denied performance issues were discussed at the meeting. The Senior Nurse agreed she requested to meet with the Applicant; submitted the meeting was about performance; admitted the meeting did not go well; and that the colleague was mentioned towards to end of the meeting. She asserted the meeting took place before the Applicant’s finger injury.
The Applicant described this meeting as a turning point in the relationship between her and the Senior Nurse. Up until then the Applicant in the Senior Nurse had a good relationship.
The Commissioner finding:
- Performance issues were raised with the Applicant at the meeting and were not welcomed by the Applicant;
- She was upset at these issues being raised and the wording used by the Senior Nurse, at least towards the end of the meeting, and relayed this concern to [a doctor];
- Issues about the other nurse were raised at the meeting, but the evidence does not establish clearly what was discussed except that enquiries had also been made of [another doctor] by the Senior Nurse; and
- That aspect of the conversation was not mentioned to [the doctor].
“I conclude on balance that the meeting was primarily about performance, raised in an informal setting. In the circumstances, despite the upset, the poorly chosen language, and other content, the discussion was reasonable management action”. [My emphasis].
Was the reasonable management action conducted in a reasonable way?
According to the Commissioner:
“This performance meeting was clearly not best practice. It is impossible on the evidence to know exactly what was said or even when it took place. At the least, and accepting the comments about work focus, providing tea and coffee, and taking the nursing back into the dark ages, what was said could have been better put. It was not a preferable course of action in raising performance and conduct issues.
“The task of this Commission is to objectively assess what happened, and whether it was done reasonably, not whether it could have been done more reasonably or differently. There were valid management concerns motivating the conversation. They appear to have been ventilated in a suboptimal way, but that does not mean the management action was unreasonable”. [My emphasis].
“…while this meeting was not conducted in the best possible way, it raised performance issues that were appropriate to be raised in the circumstances”.
Conduct after the performance meeting
The Senior Nurse admitted that, given the Applicant was upset after the meeting, she did “give her some space”. She denied, however, not acknowledging her.
The smoking allegation
The Applicant complained of being humiliated in front of patients about being a smoker. The humiliation was denied by the Senior Nurse. She called a witness who had no recollection of the conversation.
HR in the firing line (again)
The lack of communication by HR and their role should have been elevated at this point to assist the Applicant as she was required to move to various locations. The Commissioner finding:
“I conclude in this regard that the support given was inadequate”.
And further down the decision, the commissioner notes (in relation to light duties):
“I have concluded by this stage, any failure to offer light duties was a failure of HR to properly support the Applicant and could not amount to bullying by the Senior Nurse who had properly referred management of the Applicant’s injury to HR.
This is because…both the Applicant and the Senior Nurse agree that it was necessary for the matter to go to HR: The Applicant replied to the Senior Nurse suggestion of referral to HR as ‘presumptuous but necessary’.
The referral to HR of an employee whose continuing work required special measures certainly seems appropriate
Unfortunately, HR did not take adequate steps to ensure light duties. There was no evidence of a plan for injury management for this employee or of workplans for the various locations she was required to work in. Unsurprisingly, she declares with hindsight she should have taken time off for her finger to heal properly”. [My emphasis].
The Applicant asserted a refusal to provide light duties consistent with medical requirements; lack of consultation about her relocation to the other workplaces; limited or no response to concerns about the changes to location and potentially different work to be done at the new locations; and complaints of being ignored or dismissed by HR. The Commissioner:
“I conclude [the employer] X-Ray’s HR could have done more to ensure that the Applicant had duties consistent with her medical requirements. HR should have consulted the Applicant about her work locations and responded to her concerns about proposed relocation; and further, reasons for the relocation should have been provided to the Applicant.
Similarly, her likely complaints on bullying to the HR Manager and HR more generally should have been followed up.
It may have been that this significant failure by HR to assist the Applicant potentially reached the required level of unreasonableness in the bullying application. However, no such claim has been brought by the Applicant against any persons from HR.
Relocation was an option open, but the necessary support around that relocation should have been provided by HR and was not.
In these tasks, HR fell well short of what was required. But it is not bullying within the meaning of the Act and this application”. [My emphasis]
Corporations cannot bully
The Commissioner adding:
“…in anti-bullying matters allegations must concern the conduct of a natural persons: the legislation does not suggest for example that bullying at work can be engaged in by a corporation.
“I therefore conclude that the Applicant’s claim that the Senior Nurse bullied her in regard to provision of light duties is not established”.
The outcome: was there bullying?
The Commissioner deciding:
- I am satisfied that the Applicant genuinely believes she has been bullied at work. However, those beliefs must be reasonable in the sense that they are able to be supported or justified on an objective basis by evidence.
- It is difficult to reach firm conclusions about certain aspects of the evidence: the Applicant and Senior Nurse have divergent versions of key events. Perhaps recall was coloured by animus and hurt, and an understandable desire to present their cases well. However, neither the Applicant nor the Senior Nurse was a compelling witness, each with inconsistent testimony or witnesses who disagreed with their propositions.
- Regardless, there is enough before the Commission to draw conclusions about the matters necessary to be determined: the elements of bullying, the statutory pre-requisites to an order, and material to inform exercise of discretion.
- The Applicant must show that there has been repeated unreasonable conduct by the Senior Nurse towards her, where that behaviour creates a risk to health and safety. The evidence does not support the conclusions on an objective basis. The Application therefore must fail.
In finding that there was no breach of the bullying provision of the FW Act, the Commissioner found it necessary to comment further that:
- But even if the evidence had supported a conclusion of bullying, this is a case where I would not exercise my discretion to make an order as requested.
- Once the Application was filed, the Employer undertook an investigation. While the investigation itself was of limited value it did find some practices that require improvement.
- Further, before the hearing, the Employer made an offer of return to employment. This offer can be taken into consideration…for assessing the risk that the worker will continue to be bullied at work.
- It is clear from this offer that the Applicant remains a valued member of the Employer.
- The offer is for the Applicant to return to work at the newly acquired practice in a way that would remove any need for the Applicant to have contact with the Senior Nurse.
The Commissioner made an observation on the Senior Nurses language style:
- The language of the Senior Nurse, at least once in the hearing, was unnecessarily sharp. While I have not made any orders pursuant to this Application, there is evidence of interactions between the two employees that falls short of what should be expected of a supervisor and subordinate.
- Further training in communicating respectfully and maintaining appropriate boundaries would be appropriate for the Senior Nurse, and I recommend accordingly.
Performance management not bullying
The Commissioner advising that:
- The Applicant raised concerns about potential bullying at other workplaces by other persons. As indicated during the hearing, a senior person raising concerns about the Applicant’s performance is not of itself bullying even if it is difficult for the Applicant to accept. It seems objectively she may need guidance and counselling in terms of her performance wherever she returns to work.
- Should the Applicant reasonably form the view that she is experiencing bullying at a different workplace, she is entitled to raise that appropriately whether with a supervisor, HR, senior management or by fresh application to the Commission. For the sake of clarity, on the material before the Commission, nothing suggests the Applicant is likely to be bullied at the proposed workplace.
And on a “contrite” HR
The Commissioner implying that HR had improved its practices:
- Indeed, the careful proposal detailed in the supplementary statement of the HR advisor, and who now has a clear understanding of the challenges facing the Applicant, in my view provides extra protection for her.
- In this regard the Commissioner noted the following final dot point in the proposal:
“I will oversee and monitor the situation to ensure there is no need for [the Applicant] to have contact with the [the Senior Nurse]. This will be made easier because of the fact that the Mater Hospital Brisbane is close to our head office where I am located.”
- Adding an observation. It is clear from the HR Advisor’s evidence that a significant review of HR has occurred. This matter shows the difficulties faced by employees such as the Applicant when HR is not appropriately and actively involved in matters such as return to work and supporting them generally.
- While the Applicant has not established her bullying claim, she has exposed severe limitations in the role that HR provided at this company at the relevant time. It would be expected that going forward HR can properly support its employees whether in return to work or relocation.