Inderjeet Kaur
[2024] FWC 3096
•15 NOVEMBER 2024
| [2024] FWC 3096 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Inderjeet Kaur
(AB2023/399)
| COMMISSIONER ALLISON | MELBOURNE, 15 NOVEMBER 2024 |
Application for order to stop bullying – whether action is bullying under the FW Act – whether reasonable management action carried out in a reasonable manner
Ms Inderjeet Kaur has made an application for an order to stop bullying[1] against Bupa Aged Care Australia Pty Ltd (Bupa) and the General Manager of Bupa Berwick, Ms Seena Perukamalayil Joy. Ms Kaur, a casual nurse at Bupa Berwick, believes she has been bullied at work by Ms Joy.
In support of her bullying claim Ms Kaur argues that Ms Joy responded in an inappropriate way to concerns raised by Ms Kaur about workload and staff shortages. In addition, Ms Kaur argues Ms Joy treated her unfairly in relation to a workplace investigation that resulted in Ms Kaur being suspended for 4 weeks.
Bupa rejects Ms Kaur’s bullying claim and submits that all of Ms Joy’s actions have been reasonable management action carried out in a reasonable manner.
This decision considers Ms Kaur’s application for a bullying order. In particular the decision considers whether any of Ms Joy’s actions can be considered “bullying” as defined in s 789FD in the Fair Work Act (FW Act).
Legislative Provisions and Case Law Regarding Stop Bullying Orders
When can the Fair Work Commission (FWC) make an order to stop bullying?
Section 789FF(1) of the FW Act provides that the FWC may make orders to stop bullying if:
(a) a worker has made an application under section 789FC; and
(b) the FWC is satisfied that:
(i) the worker has been bullied at work by an individual or a group of individuals; and
(ii) there is a risk that the worker will continue to be bullied at work by the individual or group;
It is not contested that Ms Kaur is a worker who has made an application under s.789FC. The key issues in this case are whether Ms Kaur has been bullied at work and whether there is a risk that Ms Kaur will continue to be bullied at work.
What is bullying for the purpose of the FW Act?
Section 789FD provides as follows:
“When is a worker bullied at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally - covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.”
It is not contested that Bupa is a constitutionally-covered business and that the alleged bullying behaviour occurred at work.
Not all behaviour that causes an individual offense or detriment will be considered bullying for the purpose of the FW Act. For Ms Joy’s behaviour to be considered bullying under s.789FD, it must be repeated and unreasonable and create a risk to health and safety. In addition, the behaviour must not be reasonable management action carried out in a reasonable manner. These requirements have been considered by the FWC before and I provide some further comments about each requirement in line with authorities below.
Repeated and unreasonable behaviour
The requirement for repeated behaviour refers to behaviour of a “persistent nature” and “can refer to a range of behaviours over time.”[2]
Unreasonable behaviour means behaviour that a reasonable person, having regard to all the relevant circumstances at the time, would consider unreasonable. This is an objective test. The sorts of behaviours that may be encompassed within the definition of unreasonable behaviour are very broad, but may include “intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination”.[3]
Create a risk to health and safety
The behaviour must have a causal link to endangering health and safety. It is clear that it is not necessary for an applicant to demonstrate that he or she has actually suffered illness or injury as a result of the behaviour. Evidence of the possibility of danger to health or safety – a real risk – is enough.[4]
Must not be reasonable management action carried out in a reasonable manner
This requirement is not “so much an exclusion” as a “qualification” or clarification on what behaviour may be considered bullying.[5] The “qualification” recognises that management is entitled to give reasonable directions for the running of a business. Given this specific case relates to the behaviour of the General Manager towards Ms Kaur, it is worth further articulating the precedents around this matter.
Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time.[6] In Application by Ms SB [2014] FWC 2104 Commissioner Hampton (as he was at the time) made the following comments in relation to reasonable management action carried out in a reasonable manner:
“[51] The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’.
In general terms this is likely to mean that:· management actions do not need to be perfect or ideal to be considered reasonable;
· a course of action may still be ‘reasonable action’ even if particular steps are not;
· to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;
· any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and
· consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.
[52] For the circumstances in s.789FD(2) of the FW Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one.
[53] Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.”
(citations omitted)
Having described the legislative requirements and some the related authorities regarding bullying, I will now turn to consider whether Ms Kaur has been bullied at work.
Relevant Background and Context
Ms Kaur commenced work as a casual enrolled nurse at Bupa’s aged care home in Berwick on 15 May 2023. Prior to starting at Bupa Berwick, Ms Kaur had worked as a nurse at three other Bupa sites. Ms Kaur is clearly dedicated to her job and takes pride in her work.
After starting at Bupa Berwick, Ms Kaur quickly became concerned about workload issues and what she perceived of as lack of staffing compared to the other Bupa sites she had worked at. Ms Kaur raised matters relating to workload and staffing on at least two occasions with her General Manager, Ms Seena Joy.
The first occasion was a brief interaction between Ms Kaur and Ms Joy, which occurred before an afternoon shift in early to mid-June 2023. Ms Kaur was concerned about staffing arrangements for afternoon shift. Ms Joy told Ms Kaur words to the effect, that Ms Kaur needed to be on the floor to commence work immediately. Ms Kaur believes that Ms Joy treated her in a way that was dismissive and humiliating.
The second occasion involved an email exchange where Ms Joy responded to a proposal from Ms Kaur regarding work allocation on 7 June 2023. Ms Kaur believes Ms Joy’s response was unreasonable, and dismissive of her concerns regarding staffing.
On or around 15 June 2023, Ms Kaur escalated her concerns to Mr Russell Sciberras, the Regional and National Portfolio manager for Bupa who, amongst other things, oversees Bupa Berwick. A meeting occurred between Ms Kaur, Ms Joy and Mr Sciberras. In this meeting the scope of Ms Kaur’s role was discussed as well as Ms Joy’s response to Ms Kaur’s concerns. Ms Joy apologised for making Ms Kaur feel upset.
On 16 June 2023, an incident occurred at Bupa Berwick relating to the monitoring and care of a resident who later passed away. Bupa investigated the incident following concerns raised by the Aged Care Quality and Safety Commission. Ms Joy, in consultation with Human Resources and the Quality Education Manager, determined that the actions of Ms Kaur and four other employees who were assigned to care for the resident in question on 16 June 2023 should be investigated. The four other employees were the afternoon shift Registered Nurse (RN), the night shift RN, and two care workers. The day shift RN was not subject to the investigation.
Ms Kaur, the afternoon Shift RN and the two care workers were suspended on pay while the investigation occurred. These employees were suspended from Friday 30 June 2023 for a period of approximately four weeks, returning to work on 30 July 2023. The night shift RN, who commenced leave on 26 June 2023, was allowed to stay on leave rather than be suspended. The night shift RN returned to work on 16 and 17 July 2023, prior to going on personal leave until 26 July 2023.
The investigation did not result in any findings against Ms Kaur and she was not subject to any disciplinary action.
Ms Kaur has not attended work at Bupa since 4 September 2023.
To return to work Ms Kaur will need to undertake updated mandatory training. Ms Kaur has stated that she is willing to undertake the training but wants the FWC to make an order to stop bullying to ensure a safe workplace before she returns.
The parties have engaged in several online and face to face conciliation conferences trying to reach a resolution to this matter. As part of this process Bupa conducted an internal investigation into Ms Kaur’s bullying allegations in April 2024 (the Investigation Report)[7]. The Investigation Report concluded that no bullying had occurred. Ms Kaur disputes the findings in the investigation.
Ultimately the parties have not been able to reach an agreed resolution and Ms Kaur seeks anti-bullying orders. I held a determinative conference on 5 September 2024. At the conference Ms Kaur gave evidence to support her case. Ms Joy, Mr Sciberras and Mr Lai Nguyen (People Connect Lead) gave evidence on behalf of Bupa.
Has Ms Kaur been bullied at work?
Ms Kaur argues that the following behaviour engaged in by Ms Joy amounts to bullying:
1. Ms Joy’s verbal response to Ms Kaur raising concerns regarding staffing shortages in June 2023 (Bullying Complaint 1);
2. Ms Joy’s email response to Ms Kaur raising a proposal regarding work allocation on 7 June 2023 (Bullying Complaint 2)
3. Ms Joy selecting Ms Kaur for investigation and suspension in relation to the 16 June 2023 workplace incident (Bullying Complaint 3)
4. Ms Kaur’s differential treatment in relation to the investigation and suspension including:
a. The day shift RN not being subject to suspension and investigation (Bullying Complaint 4)
b. The night shift RN not being suspended, and returning to work earlier than Ms Kaur (Bullying Complaint 5).
Bullying Complaint 1
Ms Kaur argues Ms Joy’s verbal response to her concern about staffing was unreasonable and is bullying behaviour. Bupa argues that Ms Joy’s response to Ms Kaur was reasonable management action carried out in a reasonable way.
Ms Kaur’s submissions and evidence
Ms Kaur states that one day in early – mid June 2023, she attended work at approximately 2:30pm, for a shift commencing at 2:45pm. When she arrived, she was concerned there were not enough staff available on site for her to adequately perform her caring duties. Ms Kaur approached Ms Joy to escalate the issue. Ms Jagmeet Samra (the afternoon shift RN in charge) and several other people including staff and visitors, were present at the time.
Ms Kaur recalls that she asked Ms Joy about the lack of staffing and what the plan was for the shift to operate. Ms Joy ignored her question and loudly said words to the effect of:
“You guys are wasting time here. What are you doing here? You should be going on the floor and doing some work”
In an email from Ms Kaur to Mr Sciberras on 15 June 2023, Ms Kaur recorded the interaction as follows:
“Myself and the [RN in Charge] asked [Ms Joy] for extra staff this afternoon and she goes , “you go to your floor and do your work, stop worrying about rostering” in front of group of people…” [8]
Ms Kaur argues that Ms Joy’s response was rude and inappropriate and constituted bullying. The response humiliated and intimidated her in front of other people, and made her feel “stupid” and “silly” for raising the staffing issue. Ms Kaur states that she was left not knowing what to do and had to start her shift with no support.
Bupa / Ms Joy’s evidence
Ms Joy gave evidence regarding this interaction both in her written witness statement, and orally at the determinative conference. In her witness statement, she states that on 15 June 2023, Ms Kaur and the RN in charge (Ms Samra) walked into reception prior to shift handover. Ms Joy then asked Ms Kaur whether she could return to the floor for handover, as the day shift RN was waiting for her. She denies that she humiliated Ms Kaur in any way and claims there were no agency staff or family members at reception at the time.[9]
At the determinative conference, Ms Joy confirmed her belief that the incident occurred on 15 June 2023. Ms Joy stated she was in her office and received a call from the day shift RN raising a concern that the afternoon shift nurses were not there to do handover. She then walked out of her office and saw Ms Kaur and Ms Samra at reception with an administration employee. While Ms Joy could not recall anyone else being present, she conceded that there may have been family visitors signing in in the area.
Ms Joy believed that Ms Kaur and Ms Samra should have been on the floor for handover. She stated that the correct process for raising staffing issues was for Ms Samra, as the RN in charge of afternoon shift, to contact administration via intercom to raise the concern. Nurses on shift were expected to stay on the floor to allow handover to occur between dayshift and afternoon shift and there could be serious consequences for residents if the required nurses were not on the floor.
Ms Joy claimed that Ms Samra, as the RN in charge, raised a staffing concern with her. She then directed both Ms Samra and Ms Kaur to return to the floor, while Ms Joy and the administrative team would resolve the roster issue and any absenteeism for the shift. When asked directly whether she recalled speaking to Ms Kaur, she accepted that she may have said words to the effect of “Why are you here?” and directed both Ms Kaur and Ms Samra to return to the floor. However, Ms Joy claims the direction was given in her “usual tone”. She further stated she is accustomed to giving directions and having firm conversations with employees when required.
While Ms Samra was not called as a witness by either side, the Investigation Report records Ms Samra’s recollection of the incident as follows:
“…[Ms Kaur] was at the reception area as the roster was published there but there was an issue that day where the roster was not issued on time. … [Ms Kaur] had the right to be there as she wanted to find out who was working with her as she needed to complete a handover for the PCA in the next shift…. [Ms Joy came] up to the reception area and said to [Ms Kaur] “Why are you here?” in a rude and loud tone. [Ms Samra] believes this was inappropriate and rude.”[10]
Bully Complaint 1 - Consideration
I find that the incident happened on 15 June 2023, which is consistent with Ms Joy’s evidence and the email Ms Kaur sent Mr Sciberras about the interaction,[11] which is quoted above at [32].
There was dispute between the parties about what time the interaction occurred. I accept Ms Kaur’s evidence that the interaction occurred before shift. Ms Kaur gave evidence that she generally arrives at 2.30pm to ensure she is on the floor for handover at 2.45pm. This is consistent with other evidence that Ms Kaur is diligent and cares about her work. However, in any event, I find that the interaction occurred close to shift handover – sometime between 2.30 to 2.45pm.
I accept Ms Joy’s evidence that she was concerned that Ms Kaur and Ms Samra were at reception and not on the floor for handover. I also accept Ms Joy’s uncontested evidence that the standard practice when there are staffing issues is for the RN to use the intercom to alert administration.
There is contested evidence regarding whether Ms Kaur initially approached Ms Joy and raised a concern regarding staffing, or whether Ms Joy approached Ms Samra and Ms Joy at reception, and Ms Samra raised a staffing concern. Ms Kaur’s email to Mr Sciberras states both Ms Kaur and Ms Samra raised the issue. The Investigation Report records Ms Samra’s recollection of the events as Ms Joy approaching Ms Kaur. On balance I find that Ms Kaur was at reception because she was concerned about rostering and staffing arrangements, and this should have been apparent to Ms Joy.
I find that Ms Joy said to Ms Kaur and Ms Samra, in a loud voice, words to the effect of:
“What are you doing here? You should be on the floor doing work.”
I make this finding based on Ms Kaur’s evidence, Ms Joy’s evidence that she may have said words to that effect, and the notes in Respondent’s Investigation Report into Ms Kaur’s bullying complaint. I also observe that Ms Joy’s usual tone when speaking at the determinative conference was consistently significantly louder than that of Ms Kaur.
I find Ms Joy made this statement to Ms Kaur in front of several other people, at least including Ms Samra and an administrative employee.
I understand why Ms Kaur feels upset about this matter. Ms Kaur was worried about how she was going to adequately perform her important work and was trying to raise a legitimate and serious work concern. It is understandable why Ms Kaur perceived Ms Joy’s response as dismissive and, noting the interaction occurred in front of multiple people, humiliating.
It would have been better if Ms Joy had recognised Ms Kaur’s concern, assured her steps would be taken to make sure she could do her job, and arranged another time to speak with her and explain the process for raising staffing concerns. I note that Bupa’s own Investigation Report recommends that “feedback” be provided to Ms Joy in relation to “appropriate and professional interaction with staff”.
However, management actions do not need to be perfect or ideal to be considered reasonable.[12] In addition, whether management action is reasonable is an objective test, taking into account all the relevant circumstances – that is, management action may still be reasonable, even if an individual perceives the action as unfair.
In this matter, while Ms Joy could have responded to the situation in a better way, ultimately, when I consider the context of the circumstances and knowledge of those involved at the time,[13] I do not find Ms Joy’s response unreasonable. On balance, I find Ms Joy’s response was reasonable management action carried out in a reasonable manner. I make this finding having regard to the following points.
Firstly, the interaction must be seen in the context of the staffing concerns on the floor at the handover time and Bupa Berwick’s established procedures for both shift handover and staffing deficiencies. The established procedure for staffing concerns at Bupa Berwick was for the RN in charge to use the intercom to contact administration. Ms Joy’s uncontested evidence is that she and the administration team dealt with rostering issues, not the nurses. This appears consistent with Ms Kaur’s email to Mr Sciberras where she records that Ms Joy told her and Ms Samra to “stop worrying about rostering”. Additionally, Ms Joy’s instruction to Ms Samra and Ms Kaur to attend the floor for handover was consistent with Bupa’s regular shift handover procedure.
Secondly, while objectively Ms Joy’s response was abrupt and short, it was not abusive or derogatory. I find that while she may have spoken loudly and firmly, she did not yell. I do not find that Ms Joy purposely intended to intimidate or humiliated Ms Kaur.
While considered as a “one off” interaction, I have found Ms Joy’s response to be reasonable in the circumstances. However, if this sort of behaviour occurred repeatedly towards Ms Kaur when she raised a work concern it could well be seen as unreasonable. I consider below at [94] whether this incident in combination with other incidents forms repeated unreasonable behaviour.
Bullying Complaint 2
On 6 June 2023, Ms Kaur emailed the Care Manager, with a proposed plan for how to re-allocate work relating to the administering of medication to residents. Ms Kaur proposed a particular allocation of work whereby nurses would be allocated 17 residents to medicate, and care workers would be allocated the remaining 20. The Care Manager emailed a response to Ms Kaur indicating that it was expected that nurses should be doing more medications than the care workers, and set out a roster which had the nurses medicating 24 residents, and care workers the remaining 13.[14] Ms Kaur sent the Care Manager an email on 7 June stating, in effect, this was unfair for nurses, and nurses were “running around” while the care workers were “sitting and chatting”.[15] The matter was then escalated to Ms Joy. Ms Joy emailed Ms Kaur as follows:
“Hi Inderjeet,
Please note eventually no [care worker] meds and RN/EEN will be covering all medication.
RN/EEN are expected to do 35-40 residents medication.
Happy to have further discussion in this matter any time.
[Care Manager]is responsible for reviewing and updating the medication allocation regularly based on the number of residents and staff on shift.
No RN/EEN allowed to alert this.
Kind regards”
Ms Kaur’s submissions and evidence
Ms Kaur argues that Ms Joy’s email was part of the bullying behaviour against her. Ms Kaur submits that the email was unreasonable because it would be unfair for a single nurse to cover 35-40 residents’ medication and perform all required follow-up tasks in a shift. She claims that she has worked at three other Bupa care homes before coming to Bupa Berwick and had not been expected, at any of those care homes, to manage equivalent workloads.
Separately to the workload concerns, Ms Kaur claims that Ms Joy’s response was unreasonable because it indicated that Ms Joy, and by extension, management at Bupa Berwick, was not willing to address Ms Kaur’s concerns about her work. Ms Kaur contrasted this with her experience at previous Bupa locations where she had raised suggestions with management and received positive responses and feedback.
Bupa/Ms Joy’s submissions and evidence
Bupa argues Ms Joy’s response to Ms Kaur was reasonable management action delivered in a reasonable way.
Ms Joy gave evidence that she only responded to Ms Kaur’s email after the Care Manager had escalated the matter to her.
In relation to Ms Kaur’s workload concerns, Ms Joy submitted that despite the reference to 35-40 residents in the email, the nurses had only been allocated medication for 17 residents on 7 June 2023. Ms Joy also submitted that Bupa Berwick should not be compared to other Bupa sites.
In relation to management practices at Bupa, Ms Joy stated that at Bupa Berwick, organising the medication roster for patients was ordinarily done by the Care Manager, not nursing staff. Ms Joy further stated that while the Care Manager had taken Ms Kaur’s suggestion into account – it was not suitable for that day.
Bullying Complaint 2 – Consideration
I first note that Ms Joy’s claim that the Care Manager only allocated 17 residents’ medication to nurses was incorrect. The roster provided by the Care Manager allocated 24 residents to nurses, not 17.[16] If Ms Kaur’s proposal had been approved, the medication allocations for nurses would have reduced from 24 to 17.
I can understand why Ms Kaur may have felt upset by the email response. In particular, if Ms Kaur was feeling under pressure dealing with 24 allocations, receiving an email from her General Manager saying that nurses are expected to do 35-40 allocations would appear dismissive of her workload concerns.
In certain circumstances, I can envisage that allocating an unacceptably high workload to an employee or a group of employees could be unreasonable, and potentially bullying behaviour. However, in this matter, there was not enough evidence before me to determine whether nurses being allocated 35-40 residents to medicate in a shift was unreasonable or not. In any event, the notion that nurses would need to complete 35-40 medications per shift was a hypothetical scenario raised by Ms Joy. It was not a direction to medicate 35-40 patients on that day – as noted already, medication of 24 residents had actually been allocated. [17]
With the possible exception of the allocation number, Ms Joy’s email does not appear to be objectively unreasonable. Ms Joy clearly articulates that it is the Care Managers’ responsibility to allocate workload around medication, not nurses. This may be a different practice to other Bupa sites which Ms Kaur has worked at, but this does not make the process unreasonable.
I also accept Ms Joy’s evidence that Ms Kaur’s initial suggestion was considered by Bupa before responding and not just dismissed outright. In making this finding, I note that the Care Manager’s first response email begins with the phrase “I have reviewed your thoughts.” In her email, Ms Joy also offers to have further discussions with Ms Kaur regarding this matter “anytime.”
Similarly to my findings in relation to Complaint 1, I note that there is considerable room for improvement in the way Ms Joy responded to Ms Kaur by email. For instance, Ms Joy could have written a more considerate response to Ms Kaur which thanked her for her suggestion and for her initiative. She could also have provided a more detailed explanation why Ms Kaur’s proposal had not been accepted. However, I emphasise again that management actions do not need to be perfect or ideal to be considered reasonable.
While I understand that Ms Kaur was hoping for a different response from the Care Manager and Ms Joy, on balance I find that the email is reasonable management action delivered reasonably. As noted above there may be a situation where repeated dismissive behaviour towards an employee raising concerns could be seen as unreasonable. Accordingly, I consider at [94] if this incident in combination with other incidents forms repeated unreasonable behaviour.
Bullying Complaint 3 and 4 – Selection for Investigation and Suspension/ Different treatment of day shift RN
The background to Compliant 3 is briefly described in paragraphs [21] above.
Certain employees who had been allocated to a particular resident on 16 June 2023, including Ms Kaur, the afternoon shift RN, the night shift RN and two care workers, were subject to an investigation. Ms Kaur, the afternoon shift RN and the two care workers were suspended on pay during the investigation. The day shift RN was not subject to an investigation.
Ms Kaur received a suspension letter which included details of allegations against her that were to be investigated. The letter also contained the following paragraph:
“Please note that these are allegations only and your suspension should not in any way be taken as Bupa assuming that you have acted as alleged. We will only decide what (if any) disciplinary action is taken against you once we have undertaken a full and thorough investigation, including providing you with a full opportunity to respond to the allegations.”
The investigation did not result in any significant findings against Ms Kaur and she was not subject to any disciplinary action.
Ms Kaur’s submissions and evidence
Ms Kaur argued that Ms Joy had purposely targeted Ms Kaur in relation to the investigation. Ms Kaur argued that Ms Joy tried to get her in to “trouble” rather than supporting her. Ms Kaur argued that Ms Joy suspended her without the knowledge of Mr Sciberras (with the implication that if Mr Sciberras had known Ms Kaur would not have been suspended).
In addition, Ms Kaur argued that it was unfair for her to be suspended and investigated while the day shift RN was not. She contended that both herself and the day shift RN had made a similar mistake on the relevant day – namely, that the day shift RN had not performed or recorded the last pain assessment of the relevant resident during her shift, while Ms Kaur had not documented her actions on afternoon shift. Ms Kaur argued that in these circumstances, the day shift RN should also have been subject to suspension, and therefore that it was unreasonable for her to be suspended while the day shift RN was not.
Bupa/Ms Joy submissions and evidence
Bupa argues the suspension and investigation were reasonable management action carried out in a reasonable way.
Following an inquiry from the Aged Care Quality and Safety Commission, Bupa reviewed the actions of all employees allocated to care for a particular resident on 16 June 2023.
Ms Joy gave evidence that this review (and the following investigation) was conducted by herself, the Quality Education Manager and Human Resources.
After reviewing the actions of the day shift RN, Bupa decided that no further investigation was warranted. This was because the day shift RN had performed and documented all her relevant duties (administered the correct medication, contacted the family and handed over to the next shift) with the one exception that she did not perform and/or document the last day shift pain assessment.
In comparison, nurses on afternoon shift (including Ms Kaur) and night shift did not properly document multiple important actions including assessing the site of injury, pain control, contacting the family or contacting the out-of-hours doctor. Ms Joy provided evidence that even if these actions had been performed by Ms Kaur and other nurses – the fact that these actions were not documented, for all intents and purposes, meant they had not been performed.
As a result Ms Joy, in consultation with the Quality Education Manager and Human Resources Team decided to suspend and investigate the actions of the afternoon shift RN, the afternoon shift enrolled nurse (Ms Kaur) and night shift RN. Two care workers who had been allocated to the resident in question on 16 June 2023 were also suspended pending investigation.
Ms Joy gave evidence that the primary purpose of suspension was not for disciplinary purposes, but to “remove the risk” that any or all of the nurses or care workers may not be adequately performing their role while the investigation took place.
Mr Sciberras provided evidence in support of Bupa’s position that Ms Joy did not make any decision relating to Ms Kaur’s suspension alone. Mr Sciberras confirmed that the suspension was approved by him, the head of human resources and the chief operating officer.
Bullying Complaint 3 & 4 - Consideration
Having considered the material before me, I do not find that Ms Kaur was specifically targeted by Ms Joy in the investigation and/or suspension, or that Ms Joy wanted to get Ms Kaur in to “trouble”.
I accept Ms Joy’s evidence that Bupa conducted a review of all the nurses and care workers who were allocated to a particular resident on 16 June 2023. I accept Ms Joy’s evidence that Bupa decided to further investigate Ms Kaur, the afternoon shift RN and the night Shift RN and two care workers and during the investigation, these workers were required to stop performing work to “remove risk”. Ms Kaur was suspended and investigated because she was an afternoon shift nurse allocated to the resident in questions, not because Ms Joy was targeting her or trying to get her into trouble.
I further accept Ms Joy’s evidence that it was not just Ms Joy who decided to investigate and suspend Ms Kaur, but rather a group of people, including the Quality Education Manager and Human Resources. This decision was also approved by Mr Sciberras.
I do not find it unreasonable that the day shift RN was not suspended and investigated while Ms Kaur was. The actions of the afternoon and night shift nurses needed to be investigated, in part, because they had not accurately documented important tasks and therefore it was unclear if these tasks had been performed. The dayshift RN was not subject to further investigation, because with the exception of the last pain assessment on day shift, the day shift RN had documented her actions.
Having made the above comments, I acknowledge that being suspended can be a traumatic experience for an employee, particular an employee like Ms Kaur who cares deeply about her work. It may be that Bupa and Ms Joy could have better communicated with Ms Kaur to alleviate her clear distress at being suspended.
However, ultimately, I find that Bupa’s investigation and suspension of Ms Kaur was reasonable management action delivered in a reasonable way. I find that Bupa had reasonable grounds to investigate the actions of Ms Kaur and other relevant employees. I also find that the suspension was reasonable in the context of “removing risk” during the investigation and noting that Ms Kaur was paid during suspension. I find that the outcome of the investigation was reasonable – i.e. there were no significant findings made against Ms Kaur, and she did not face any disciplinary action.
Bullying Complaint 5 – differential treatment of the night shift RN
Ms Kaur’s submissions and evidence.
The two remaining aspects of the suspension and investigation that require consideration relate to the differential treatment of the night shift RN. Firstly, the night shift RN was allowed to stay on annual leave, rather than being suspended. Secondly, the night shift RN was allowed to return to work earlier than Ms Kaur and the other suspended employees. Ms Kaur argues that this was unreasonable and amounted to bullying behaviour against Ms Kaur.
Bupa/Ms Joy’s submissions and evidence
Ms Joy gave evidence that she had approved leave for the night shift RN well in advance of the suspension, on 1 May 2023. The night shift RN commenced leave on 26 June 2023, and was therefore already on leave when the suspension commenced. It was decided to allow the night shift RN to stay on leave, rather than be suspended. This is because the purpose of the suspension was to remove any potential risk of the employee being at work while the matter was being investigated. Accordingly, the night shift RN being on leave had the same effect as the suspension.
In relation to why the night shift RN was able to return to work before other employees, Ms Joy, at various times during the hearing, made different statements including:
· The night shift RN returned either one day before or the same day as the suspended employees;
· The night shift RN was able to return because by that time Bupa had already decided to remove everyone’s suspension;
· The night shift RN was able to return after Ms Joy had a conversation with Human Resources clearing the night shift RN;
· The night shift RN was cleared earlier than the other suspended employees.
Compliant 5 – Consideration
Firstly, I find that Bupa’s decision to allow the night shift RN to remain on annual leave instead of being suspended was a reasonable decision in the circumstances. I accept the main aim of the suspensions was to remove the relevant employees from work while the investigation took place, and an investigated employee being absent on annual leave has the same effect for this purpose.
In relation to the second matter however, Bupa has not been able to provide a clear explanation of why the night shift RN was able to return earlier than Ms Kaur and the other suspended employees. As noted above, Ms Joy at various times during the hearing made different and inconsistent statements regarding this matter. It is troubling that Bupa has not provided an adequate reason for the different treatment of the night shift RN, despite being on notice that the discrepancy in treatment between the night shift RN and Ms Kaur was a key issue for Ms Kaur. I note that this matter was raised directly with Bupa by Ms Kaur when they conducted their internal investigation into Ms Kaur’s bullying complaint. But the matter was not adequately addressed then, with the investigator relying on Ms Joy’s recollection rather than checking leave records or offering any explanation for the differential treatment.
Suspending an employee from work, albeit on paid leave, is a serious step. It is important that a company can show a transparent and fair approach to all those involved in the investigation. In this instance I can understand why Ms Kaur believed she was being treated unfairly. Without further explanation from Bupa it appears that the night shift RN was being treated favourably.
However, while Bupa somewhat inexplicably appears to have treated the night shift RN more favourably than other suspended employees, it is not clear that this constitutes bullying against Ms Kaur for the purpose of s.789FD(1)(a). If all the suspended employees had been allowed to return to work before Ms Kaur, there would be a strong case that Ms Kaur was being treated unreasonably. But that is not the case in this matter. Rather than Ms Kaur being targeted, it appears the night shift RN was treated preferentially to the other suspended employees. While I acknowledge that there may be circumstances where the ongoing preferential treatment of one group of employees against another amounts to bullying, in this case I do not find that the favourable treatment of the night shift RN renders the actions of management in relation to the other suspended employees unreasonable.
Repeated Unreasonable Behaviour?
For the above reasons, I have found none of the individual bullying complaints alone constitute unreasonable behaviour for the purposes of bullying under the FW Act. I will now consider an overview of Bupa/Ms Joy’s behaviour towards Ms Kaur taking into account all complaints to determine whether an overview reveals any pattern of repeated unreasonable behaviour.
I do not find that that there is evidence to support a finding of repeated unreasonable behaviour. Importantly, after the matters relating to Bullying Complaints 1 & 2, Ms Kaur escalated her concerns about her dealings with Ms Joy to Mr Sciberras in an email dated 15 June 2023. Mr Sciberras organised a meeting with Ms Kaur and Ms Joy shortly after receiving the email. In the meeting Ms Kaur’s concerns were discussed, as well as the scope of Ms Kaur’s role as an enrolled nurse. Ms Joy apologised to Ms Kaur for any inconvenience or distress she had experienced. Ms Kaur gave evidence that the meeting was productive and she left it feeling positive.
While Ms Kaur has claimed that following this apology Ms Joy continued to act in a way that was rude or inappropriate towards her, there was no evidence before me to establish this was the case. On the evidence before me there were no further interactions with Ms Joy regarding staffing issues or workload after 15 June 2023.
Ms Kaur appears to argue that she was targeted by Ms Joy in relation to the investigation and suspension because she had previously raised issues regarding staffing and workload. There was no evidence before me to draw this conclusion. As stated above, I find that Ms Kaur was included in the investigation because she attended to the resident in question on 16 June 2023.
Accordingly, I find that Ms Joy’s actions towards Ms Kaur do not constitute repeated and unreasonable behaviour.
Conclusion
I have determined that Ms Joy’s behaviour towards Ms Kaur was not repeated, unreasonable behaviour and therefore not bullying for the purposes of the FW Act. As I have determined that Ms Joy’s actions do not constitute bullying behaviour, I do not need to consider whether there is a risk that Ms Kaur will continue to be bullied.
This is not to say Bupa has been without fault in this matter. As noted above, it would have been better if Ms Joy had responded in a different way when Ms Kaur raised important concerns regarding staff shortages and workload. In addition, Bupa should ensure employees are treated fairly and with consistency and transparency during a suspension, and it is understandable that Ms Kaur felt unfairly treated in this regard.
However, while there may be room for Bupa to improve certain communication and processes, on the evidence before me, none of the actions of Ms Joy or Bupa meet the threshold for bullying under the FW Act. I therefore must dismiss the application.
COMMISSIONER
Appearances:
I Kaur, the Applicant
C Cook, for the Employer and Ms Joy
Hearing details:
2024
5 September
Melbourne
[1] Under s.789FD of the Fair Work Act 2009 (the FW Act).
[2] Explanatory Memorandum, Fair Work Amendment Bill 2013 (Cth) 109.
[3] Amie Mac v Bank of Queensland Limited & Others (2015) 247 IR 274; [2015] FWC 774, [99] (‘Amie Mac’).
[4] Amie Mac, [94].
[5] Application by Ms SB [2014] FWC 2104, [47] (‘Re SB’).
[6] Re SB, [49].
[7] Bupa’s Investigation Report was submitted as part of evidence. I note that while I have referred to Bupa’s Investigation Report in this decision, I have not accorded its conclusions much weight. The Investigation Report was not particularly thorough and contained some mistakes. I accept that the investigation occurred several months after the alleged bullying incidents, and this would make the collection of evidence difficult. However, if you are going to do an internal investigation, you should ensure that allegations are properly considered. A more thorough investigation may have addressed Ms Kaur’s concerns earlier and would have been of greater assistance to the FWC in the hearing.
[8] Exhibit IK-3, DHB page 71.
[9] Exhibit R-1, paragraph 6(a), DHB page 53.
[10] Exhibit R-4, Annexure 1, DHB pages 48-49.
[11] Exhibit IK-3.
[12] Re SB, [51].
[13] Re SB, [49].
[14] Exhibit R1, attachment SJ-2, DHB page 60-61.
[15] Exhibit IK-4, DHB page 73.
[16] Exhibit R1, attachment SJ-2, DHB page 60-61.
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