Worker alleges she was targeted for filing workplace complaints about safety and bullying
The Fair Work Commission (FWC) recently dealt with a case involving allegations of constructive dismissal and adverse action in the healthcare sector.
The dispute centred around a clinical support nurse specialising in dementia care who resigned after being placed on a performance improvement plan (PIP).
This case highlights the challenges employers face when addressing performance concerns, especially with employees in specialised roles.
Background of the case
The worker was employed as a dementia clinical support nurse at a healthcare organisation, starting on 4 September 2023. Her role was supernumerary and donor-funded, focusing on providing bedside education to other nurses, allied health professionals, and carers on managing patients with dementia and cognitive impairment.
Initially reporting to the Director of Clinical Education, the worker's reporting line changed in February 2024 to the Quality and Safety Curriculum Developer. This change was reportedly due to team growth.
The worker's six-month probation period ended on 4 March 2024. Shortly after, on 13 March, a complaint was escalated regarding the worker's handling of a separate complaint about a Consultant Geriatrician.
The worker had made a note in a patient's history about a complaint from the patient's family regarding the Consultant, but had not informed the Consultant directly. This led to tension when the Consultant discovered the complaint through the patient notes.
Performance concerns and the PIP
In late March and early April, various concerns about the worker's performance were raised by colleagues and managers. These included issues with retention of information, collaboration with stakeholders, ability to act on feedback, and attendance at meetings.
Additionally, there was a reported conflict with a Nurse Unit Manager, and concerns about the worker teaching incorrect material despite reinforcement from colleagues.
On 16 April, the employer initiated a Performance Improvement Plan (PIP) process. The worker was invited to a meeting where she was informed about the PIP and given a letter outlining the process. The letter stated:
"This letter serves as a warning that if your current performance does not improve to an acceptable standard over a reasonable period of time you will be subject to disciplinary action up to and including termination of your employment."
Resignation and consequences
During a meeting on 18 April to discuss the PIP, the worker became upset and verbally resigned, giving two weeks' notice. According to the HR Business Partner's evidence, the worker tore up the PIP letter, stating "No, No, No, No. I will not be performance managed again." The worker then left the meeting room in an agitated state.
The worker later reiterated her resignation via text message and email. The day after the meeting, the HR Business Partner followed up to confirm if the worker still intended to resign, acknowledging the heated nature of the previous day's events:
"I appreciate that it was in the heat of the moment. I am wondering if you still would like to resign?"
The worker confirmed her resignation, stating:
"I resign giving two weeks notice yesterday, on sick leave til next Tuesday then annual leave. Will not work for an organisation that treats staff like animals and doctors like Gods"
Arguments and FWC decision
The worker argued that the PIP was a form of adverse action in response to her exercising workplace rights, specifically her complaints about workplace safety, bullying, and inadequate training.
She contended that her resignation was forced and resulted from this adverse action. The worker also raised concerns about not being given the opportunity to have a support person present during the PIP meetings.
The employer maintained that they did not intend to terminate the worker's employment and that the resignation was voluntary. They argued that the PIP was intended to improve performance, not end employment. The employer also pointed out that they had attempted to check if the worker truly intended to resign, given the heated circumstances.
In its decision, the FWC emphasised the importance of distinguishing between voluntary resignations and constructive dismissals. The Commission noted:
"The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign."
Ultimately, the FWC found that the worker was not dismissed within the meaning of the Fair Work Act. The Commission concluded:
"If clear and unambiguous words are used to convey a resignation and these are understood by the employer, then the proper conclusion to draw is that the employee has resigned."
This case serves as a reminder for HR professionals to carefully manage performance improvement processes and to be mindful of the potential for resignations given in the heat of the moment.
It also highlights the importance of clear documentation and communication in employment matters, as well as the need to consider providing support persons during potentially stressful meetings with employees.
