22 September 2020
A nurse who suffered a psychiatric injury due to a performance management process has been unable to establish that her employer had breached its duty of care towards her.
In the recent decision of Robertson v State of Queensland QDC 185 (Robertson v State of Queensland), it was found that an employer had no duty to take reasonable care to avoid a psychiatric injury from reasonable steps in “investigating, assessing, educating and, where it considered necessary, admonishing an employee”.
The case illustrates the importance of showing actual bullying, rather than a perception of bullying, in claims of this type, particularly when a performance management process is underway.
Ms Robertson, an endorsed enrolled nurse (EEN), brought a common law damages claim against her employer (State of Queensland and Gold Coast Hospital and Health Service) alleging that, over a period of time during 2011 and 2012, she was badgered, bullied and mobbed by colleagues, which resulted in chronic adjustment disorder with mixed anxiety and depressed mood. She alleged her employer breached its duty of care and that breach caused her injury.
The employer denied it owed a duty of care to take reasonable steps to avoid causing her psychiatric injury in the circumstances and further denied that she was badgered, bullied or mobbed. The employer argued that any psychiatric injury was a consequence of their reasonable and proper actions due to their concerns about Ms Robertson’s competence in her role and patient safety.
During 2011 and 2012, the employer had put in place a number of performance management steps which included performance appraisals, development plans, further education and supervision and notifications to the Australian Health Practitioner Regulation Agency (AHPRA).
Ms Robertson alleged that the employer failed to take reasonable care to prevent her injury whilst undertaking these steps.
Barlow DCJ found that Ms Robertson was not bullied as alleged. In reaching this decision, Barlow DCJ found that the employer did owe a non-delegable duty to take reasonable care to avoid exposing her to unnecessary risks of injury, however it did not owe a duty of care to take reasonable steps to “avoid a psychiatric injury if it were to arise from its reasonable steps in investigating, assessing, educating and, where it considered it necessary, admonishing her where she did not perform her duties properly.”
Further, it was found that even if the employer did owe such a duty, it did not breach that duty as the investigations, consequent support and further education was done safely and were all undertaken in the interests of patient safety and Ms Robertson’s ability to continue to practice as an EEN.
Barlow DCJ stated:
“From December 2011, it raised the complaints with her, in either general or specific terms, and arranged for her to be overseen and assessed in order to help Ms Naylor and Mr McPhee to decide whether she was competent or to improve her confidence. I consider its actions in that respect to have been entirely appropriate and, if it had the duty, it fulfilled it by arranging to have her supervised in order to assess her competence and to give her educational and operational support.”
Further, regarding the employer’s knowledge, Barlow DCJ stated:
“It is material that Ms Robertson did not complain to anyone at the hospital that she was being bullied, badgered or mobbed. Ms Anderson submitted that the defendant’s knew that she felt that she had been bullied, but there is no evidence that she made such a complaint. Had she done so, then the hospital may have been on notice that it should take steps with the other nurses to ensure that any such behaviour did not continue.”
Lessons for employees and employers
Employers are entitled to undertake reasonable action to manage performance with staff where, in particular, issues with regards to competence and safety are relevant.
Employers do not owe a duty of care to take reasonable steps to avoid psychiatric injury if it were to arise from their reasonable steps to manage performance.
An employer does not owe this duty unless and until they are put on notice of an allegation, such as bullying by the employee. It is therefore important for employees to advise their employer as soon as possible should this arise.
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.