Hospital victimised nurse, but no evidence for damages

Cases

Hospital victimised nurse, but no evidence for damages

In New South Wales, a tribunal full bench affirmed that a hospital had victimised a nurse by repeatedly rostering her in a ward that she found distressing and had ‘begged’ to be excused from. However, the full bench overturned the nurse’s $23,665 damages payout, finding that the hospital’s conduct had not materially contributed to her loss of income.

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In New South Wales, a tribunal full bench affirmed that a hospital had victimised a nurse by repeatedly rostering her in a wardthat she found distressing and had ‘begged’ to be excused from. However, the full bench overturned the nurse’s $23,665 damages payout, finding that the hospital’s conduct had not materially contributed to her loss of income.
 
Planning to return from maternity leave in 2005 following the birth of her third child, a nurse requested that she be allowed to resume her previous position at St Joseph’s Hospital Palliative Care Unit (PCU), but on reduced hours.
 
However, she was told by the director of nursing that this position was no longer available and that she would be reassigned to one of the hospital’s other three wards.
 
The nurse again told the director of nursing that she wished to be re-instated to the PCU and that it would be unsuitable for her to work in any other wards, especially the Aged Care Psychiatric Unit because she had experienced domestic violence and would find it distressing to work in a locked ward.
 
Despite voicing her concerns, the nurse was told that the hospital would not change its position and that she would be rostered to work a majority of her shifts in the Aged Care Psychiatric Unit because there were no permanent positions available to her in the PCU or any other unit.
 
The nurse’s solicitors contacted the director of nursing alleging discrimination in breach of s50 of the Anti-Discrimination Act 1977 and stating that she would be unable to work until she was returned to her pre-maternity leave role or provided with another suitable role.
 
The director of nursing dismissed the allegations; and, when the roster was re-issued, the nurse was still rostered in the Aged Care Psychiatric Unit.
 
The hospital’s executive director warned the nurse that if she did not return in time to start the August roster she would be treated as having abandoned her employment and she would be terminated.
 
When she did not return to work at the start of the roster, she was terminated.
 
The matter proceeded to the NSW Administrative Decisions Tribunal, which found that the hospital had victimised the nurse in breach of s50 of the Anti-Discrimination Act, as it had ‘intended to 'teach [her] a lesson' by forcing her to accept rosters it knew she believed she could not work and from which she had begged to be excused.
 
In addition, because the nurse had not returned to work from maternity leave, the Tribunal also ordered the hospital to pay her $23,665 in damages to remedy her for economic loss pursuant to s108(2)(a) of the Anti-Discrimination Act.
 
The hospital appealed these decisions.
 
Victimisation decision affirmed despite legal error
 
In the current case, the full bench (Justices Hennessy, Grotte and Antonios) determined that the Tribunal had previously made a legal error in finding that the hospital had an evidential onus in relation to the nurse’s complaint of victimisation, which it failed to discharge, and had also erred by incorporating principles applicable in certain negligence cases to complaints under the Anti-Discrimination Act.
 
However, having identified these legal errors and applying the correct principles to the existing evidence, the full bench still found, given the primary facts, that it had been reasonable for the Tribunal to have drawn the inference that the rostering decision was made because the nurse has complained of discrimination rather than for some other undisclosed or unknown reason not connected with her complaints.
 
‘While there was no direct evidence (that is, no admission by the Hospital) that the rostering decision was on the ground of Ms Correy’s [nurses’] complaints, there was evidence from which an inference could be drawn to that effect,’ the full bench said.
 
‘Mr Geoghegan [director of nursing] failed to provide any persuasive reason for the rostering decision. The Tribunal had a choice of finding that the rostering decision was made because of Ms Correy’s complaints or that it was made for some other undisclosed or unknown reason not connected with her complaints. The Tribunal[‘s] reasoning did not involve any error.’
 
In reaffirming the Tribunal’s previous decision, the bench also noted that ‘the nature of victimisation and discrimination complaints is such that there is rarely direct evidence of a breach’ and that the Tribunal is ‘not bound by the rules of evidence but is subject to the rules of natural justice'.
 
While the Hospital submitted hat it could not be vicariously liable for victimisation because the identity of the person who drafted the most recent roster had not been established, the tribunal determined that an employer could be found vicariously liable if it contravenes s50 of the Anti-Discrimination Act. It also noted that the nursing director had been responsible for signing off on roster decisions regardless of any other unidentified employees that may have been involved in the process.
 
Damages overturned
 
Despite affirming that the hospital had victimised the nurse, the full bench overturned the nurse’s damages payout, being of the view that it was not open to the tribunal on the evidence to find that the hospital’s victimising conduct represented a repudiation of her contract of employment, nor did it materially contribute to her loss of income.
 
‘[The nurse] had decided not to work in any ward except the PCU well before 27 July 2005 and … she had not worked any shifts, even those that were not in the Aged Care Psychiatry Unit, that were on her roster. Having made that finding, it was not open for the Tribunal to conclude that the August rostering decision "materially contributed" to her economic loss. That decision cannot have had any causative effect on Ms Correy’s loss as she would not have returned to work regardless of that decision. The Tribunal’s finding that the August rostering decision materially contributed to Ms Correy’s loss was not open to it on the evidence and constitutes an error of law.’
 
The full bench noted that there might have been merit in compensating the nurse for other loss of damage. However, it said the nurse had only sought damages for economic loss and, because parties are bound by the manner in which the case was conducted before the Tribunal, the full bench was not able to make an order for a remedy for other loss of damages.
 
 
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