Nurse claims she suffered adverse action for filing bullying complaints

The Federal Circuit and Family Court of Australia recently dealt with a case involving a worker who alleged her employer took adverse action against her and breached their enterprise agreement.

The worker, an aged care nurse practitioner, claimed she was dismissed because she made a workplace bullying complaint and exercised her right to a safe workplace.

She also argued that her employer failed to properly manage her return to work after a long-term injury.

The case highlighted the complexities of managing workplace complaints, long-term injuries, and return-to-work processes.

Background of the case

The worker began full-time employment with the employer, a major healthcare provider, in September 2015 in the Mobile Assessment and Treatment Service (MATS) within the Hospital Admission Risk Program (HARP).

In November 2018, the worker submitted a workers' compensation claim alleging workplace bullying and harassment by two nurses and inadequate management of their behaviour by the MATS manager. She ended work on 30 November 2018 and provided regular certificates of capacity until June 2021.

The employer accepted the workers' compensation claim in January 2019, and the worker received 130 weeks of payments until May 2021.

Employer’s alleged adverse action

The worker alleged that her employer contravened the Fair Work Act 2009 by taking adverse action against her because she exercised workplace rights. She claimed she was dismissed because:

1. She made a complaint about workplace bullying.
2. She was entitled to the benefit of the Occupational Health and Safety Act 2004 (Vic).

Additionally, the worker alleged that the employer breached their enterprise agreement by failing to return her to the workplace following her absence due to injury.

The employer argued that they had made efforts to accommodate the worker's return to work but were constrained by medical advice and the specialised nature of her role.

The return to work coordinator stated:

"Because of the highly specialised nature of individual nurse practitioner roles, it was not possible to offer [the worker] another nurse practitioner role. These are very highly specialised roles and not transferable between specialities. The information consistently provided by [the worker's] treating doctor was that she should not return to work in any position other than a nurse practitioner role as this would cause an increase in anxiety due to the different skill set."

The court's findings on adverse action

The court found that the employer failed to rebut the statutory presumption that the adverse action was taken for a prohibited reason. This was largely due to the absence of direct evidence from a key decision-maker in the termination process.

The judge stated:

"There is no direct evidence before the Court as to the reasons that motivated [the manager] to recommend termination of [the worker's] employment. I am invited to infer that it simply reflected the considerations that made their way into the Recommendation and then ultimately the letter of termination, and that there was an inevitability to the decision given the state of the medical evidence and the passage of time, both since the making of [the worker's] complaint and in connection with [the employer's] obligations under workers compensation legislation, which had passed the statutory end-point."

Regarding the alleged breach of the enterprise agreement, the court was not persuaded that the worker had established a violation.

The judge noted:

"While the approach taken by [the employer] might be perceived as myopic in dimension, it needs to be understood against the parameters and restrictions that consistently applied and were communicated through the medical evidence produced by [the worker], as well as the institutional impediments attached to the role of Aged Care Nurse Practitioner."

The court also examined the certificates of capacity provided by the worker's doctor, which changed over time:

"From 30 January 2020 to 22 June 2021 – [The worker] had capacity for suitable employment with the treatment plan recording 'Unable to return to work in previous role due to work environment and breakdown of relationships. [The employer] unable to provide appropriate and comparable alternative role as a Nurse Practitioner. [The worker] has the ability to return to work with full duties in a different environment (outside of [the employer]).'"

Ultimately, the court said:

"While I have considerable sympathy for [the worker] who, at times, must have felt that she was going round in circles in her interactions with [the employer] concerning her return to work, ultimately, I am not persuaded that she has established a breach of the Enterprise Agreement."