Employer held genuine concerns about her performance
The Federal Circuit and Family Court has ruled on the case of a registered nurse who alleged she was dismissed after she “exercised a workplace right”, in a decision handed down on 21 January.
Although the FWC commented it was “easy to see” why the employee believed she was “the subject of a concerted campaign designed to injure her”, it found her employer held genuine concerns, about her performance and her dismissal was not unfair.
The employee worked as a registered nurse at a Victorian hospital. In April 2020, the nurse applied to take study leave. Her application was refused when her employer decided she would have time to complete her study while at work.
The nurse responded with a “lengthy and vituperative” text message, in which she criticised her manager’s competence, inappropriately referenced his sexuality, and “inferred that the study leave application was refused with evil intent”. She also submitted a complaint of workplace harassment, discrimination and bullying, to which her employer responded that it was unable to investigate her “broad accusations that lack sufficient detail and evidence.”
Over the next few months, the manager grew concerned by what he perceived to be the nurse’s poor performance. The manager called the nurse to a disciplinary meeting, where she allegedly admitted to the performance allegations put forth but “made a range of excuses including the fear that she did not want to contract COVID-19 again by attending on patients.”
Eventually, the hospital terminated the nurse’s employment. The nurse applied to the Federal Circuit and Family Court, seeking a remedy for the “adverse action”.
The hearing
The nurse’s starting point was that she was discriminated against in being refused study leave. Although the court acknowledged that previous managers had approved study leave requests, it was not satisfied that her employer’s refusal was discriminatory. The court also rejected the nurse’s submission that she was called to the disciplinary meeting in an “aggressive and bullying way”. Finally, it found the nurse’s text message “vituperative and unnecessary and out of all proportion” and deemed the employer’s response “plainly appropriate”.
“There is no doubt that the [employee] was in part the author of her own misfortunes by sending the unpleasant text message… which quite properly gave rise to the first disciplinary action taken against her.”
The court dismissed the nurse’s application.
Key Takeaways
- Employers should investigate and respond to complaints of workplace bullying as and when they arise
- As the case above demonstrates, employers take disciplinary action against an employee making unsubstantiated claims of discrimination and bullying
- However, conduct which constitutes discrimination, harassment and bullying is heavily dependent on the circumstances of the case
