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HR department taken to task

Criticised by the FWC, after a nurse applied for a stop-bullying order.
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HR department taken to task

HR department taken to task

9 June 2020

A large employer had the shortcomings of its HR department and the management style of a senior staff member criticised by the Fair Work Commission, after a nurse applied for a stop-bullying order.

The nurse’s complaint

The nurse was employed by a large medical imaging business. In her allegations of bullying, she described humiliating treatment designed to threaten or belittle her, a failure to assign light duties consistent with medical requirements in relation to a non-work-related finger injury, a lack of consultation about the allocation of duties for her at other work locations, and poor responses when she expressed her concerns at the workplace.

She submitted she was ‘constantly work-shamed’ by a manager – the alleged bully – in front of patients and staff. Among other things, she complained of being humiliated in front of patients for being a smoker.

She also detailed incidents in which she had not been consulted and was allegedly given only 30 minutes’ notice to attend a new workplace to which she had been assigned. Limited training and professional opportunities were also mentioned in her complaint, as well as ‘unreasonable enquiries’ by the alleged bully about her work hours and entitlements.

In the Fair Work Commission

The FWC’s task was to consider the evidence and determine whether the worker had been bullied at work by an individual or group of individuals, and whether there was a risk that she would continue to be bullied.

The Commission heard that the cause of the nurse’s finger injury was unrelated to her work, but required a splint and interfered with her ability to work. For this reason, she had requested light duties, but claimed that the manager refused to provide light duties, commenting that ‘it was nothing that she couldn’t strap up and get on with it’. Though the manager later said she had discussed it with HR and the doctor and it had been agreed she could return on light duties, the nurse claimed no consideration for her injury was shown at work.

The following week, an altercation occurred at a meeting between the manager and the nurse, at which the manager allegedly made comments 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 HR Manager at work had ignored or dismissed her complaint of bullying, she said. She also claimed there were breaches of the Nurses Award in terms lack of notice and consultation regarding the start date of her new position, and was very critical of some of the alleged bully’s work practices, which she said were medically unsafe.

Conflicting evidence

The FWC also heard evidence from the manager alleged by the nurse to have bullied her.

The manager said she had been approached by multiple staff members who had raised concerns about working with the nurse, including poor sterilisation and procedural techniques leading to a concern about patient safety. There had been complaints about her poor work ethic, often disappearing at important times and doing unnecessary things like making tea and coffee for others when required for procedures.

The manager believed she had to raise these issues with the nurse and give some feedback and guidance. To that end she’d arranged a meeting with the nurse, which took place before the finger injury.

Other evidence also cast doubt on the nurse’s perspective. For example, while the nurse alleged she’d been ‘assaulted’ when the manager ‘grabbed her arm’ and ‘marched her down the hallway’, the manager asserted that she’d linked arms with her to guide her out of the room on one occasion. She also denied the ‘work shaming’ allegations including about the nurse being a single parent, her hip injuries, her children, and whether she was a smoker.

Other issues of conflicting evidence were also taken into account by the FWC. It concluded that any failure to offer light duties was a failure of HR to properly support the nurse and could not amount to bullying by manager. Rather, HR did not take adequate steps to ensure light duties and a plan for injury management. Nor had HR properly consulted with the nurse about proposed works relocations or responded to her expressed concerns.

The FWC found that the bullying allegation was not supported by the evidence.

After the application for a stop bullying order was filed, the employer had undertaken an investigation and found some practices required improvement.

The FWC recommended that the nurse return to work at a newly acquired practice in a way that would remove any need for her to have contact with the manager alleged to have bullied her.

It also recommended that the manager be given further training in communicating respectfully and maintaining appropriate boundaries.

Other recommendations were that the nurse be given support and training to ensure she has the skills necessary for her role at a new workplace, and that the employer build on the work already undertaken as part of the investigation to ensure its HR department properly supports employees returning to work after injury.

The bottom line: Managing unsatisfactory performance can be a delicate task and should be undertaken with sensitivity and careful HR involvement, lest management action be experienced or interpreted as bullying.

Read the judgment

Ms Anne Pilbrow [2020] FWC 2458 (26 May 2020)

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