A worker alleged her adjustment disorder resulted from her employer’s breach of duty of care stemming from bullying allegations and investigations into the worker’s performance.
What is the duty of care owed by an employer during performance investigations?
The worker (a nurse) brought common law proceedings against her employer alleging that she was badgered, bullied and mobbed by colleagues during 2011 and 2012, which resulted in a chronic adjustment disorder. She alleged her employer (a hospital) breached its duty of care to take reasonable steps to avoid causing her a psychiatric injury.
The employer denied that the plaintiff was bullied and denied a duty of care in the circumstances. The employer contended that any injury was a consequence of its reasonable and proper actions arising from genuine and reasonable concerns as to the worker’s competence to perform tasks related to patient safety. Because of these concerns, between 2011 and 2013 the employer took performance management steps including developing improvement plans, meetings, supervision, further education and ultimately a notification to the Australian Health Practitioner Regulation Agency (AHPRA). The worker alleged that in taking these steps, the employer did not take reasonable care to prevent injury.
The court found that the worker was not bullied as alleged. His Honour went on to making findings with respect to the employer’s duty of care in the circumstances, relevantly finding:
- The employer owed a non-delegable duty to take reasonable care to avoid exposing the worker to unnecessary risks of injury.
- The employer was entitled to review the worker’s practice and decide whether she was able to competently and consistently carry out her employment duties.
- Even if there was a foreseeable risk that those actions might cause the worker psychiatric injury, the employer had no duty to take reasonable steps to avoid such an injury if it were to arise from its reasonable steps in investigating, assessing, educating and, where necessary, reprimanding her where she did not perform her duties properly.
- In any event, even if the employer did owe such a duty, it did not breach that duty given the following support offered to the worker: implementing performance improvement plans, arranging for her to have further education and to work with other nurses as a supernumerary, reminding her of the hospital’s counselling service, providing support and education to attempt to improve her abilities and her confidence. This was all undertaken in the interests of patient safety and the worker’s ability to continue to practise as a nurse.
Implications for you
Managing a worker’s performance can be challenging, particularly where an employer is aware of possible bullying directed towards that worker. This decision sensibly confirms that employers can and should take reasonable action to manage performance issues. It will not mean that workers do not make workers' compensation or common law claims, but keeping good records of the fair system used by employers will help defend such claims.