The Federal Court of Australia has awarded a long-serving nurse more than $400,000 after it found her former employer ended her employment in contravention of ss340 and 351 of the Fair Work Act 2009 (Cth) (FW Act).
There are a number of important lessons employers can take from this case, including the importance of addressing workplace grievances early and robustly, having multiple reporting avenues available and ensuring decisions on the termination of employment are made independently with the information relied on tested and documented.
What happened?
Ms Han, a registered nurse, had worked on a permanent part-time basis at St Basil’s Homes (St Basil’s) aged care facility in Lakemba, NSW for over nine years. Ms Han, a Chinese Australian worked in a team of Filipino colleagues, reporting to a Filipino manager.
The complaints
In late 2019, Ms Han raised concerns about the workplace with her manager, including:
- that her colleagues had formed a clique and because of her race, excluded her from key communications, handovers and discussions;
- that she was routinely ignored during shifts;
- that her workload had been increased and she was given unpleasant tasks disproportionately to her Filipino colleagues;
- safety and clinical issues relating to inadequate staff to patient ratios resulting in substandard care;
- witnessing abuse resulting in a patient suffering bruising; and
- witnessing an error in medication being dispensed to a patient,
(Initial Complaints).
When Ms Han’s Initial Complaints were not actioned, she raised further complaints about victimisation and being targeted, including being spoken to disrespectfully, having her complaints minimised or dismissed by her managers and that her performance was being unfairly scrutinised by management and colleagues (Further Complaints).
St Basil’s response
After raising the Further Complaints, St Basil’s suspended Ms Han based on her own complaints regarding patient care, alleging that it was Ms Han who had failed to provide adequate care to a patient, despite Ms Han having raised the concern.
St Basil’s terminated Ms Han’s employment on the basis of this allegation without providing her a genuine opportunity to respond. St Basil’s further reported Ms Han to AHPRA alleging she was unfit to practice, a claim ultimately rejected by AHPRA.
The Court’s findings
Ms Han brought a general protections claim against St Basil’s on the basis that her dismissal had contravened ss340 and 351 of the FW Act, alleging the termination was a result of Ms Han having made the complaints, and her race.
Legal Findings
The Court found in favour of Ms Han, finding that Ms Han’s dismissal was causally connected to her complaints. In reaching this conclusion, the Court pointed to St Basil’s failure to:
- provide any contemporaneous evidence showing a lawful reason for the dismissal;
- document a fair and impartial disciplinary process; and
- distinguish Ms Han’s complaints from its decision to terminate her employment.
In terms of connecting the dismissal to Ms Han’s race, the Court found that St Basil’s:
- failed to investigate Ms Han’s complaints of racial exclusion;
- allowed the dominant Filipino group to influence management’s decision-making; and
- preferred the account of Ms Han’s colleagues, who belonged to the dominant racial group (Filipino) and disregarded Ms Han’s account without a proper basis.
Damages and civil penalties
Having found that St Basil’s engaged in unlawful adverse action against Ms Han, it then turned to the determination of appropriate damages and penalties.
Two factors were notable in this assessment. Firstly, in terms of loss, the Court awarded damages in relation to the period from the termination of employment, through to the date of the decision. This was a period of almost six years, with the employment ending in 2019, and the decision being issued in 2025.
Secondly, the Court had regard to the extreme psychological and emotional distress suffered by Ms Han arising from not only the conduct, but the improper process followed and the unfounded report to AHPRA.
The total award by the Court was $406,559.62, broken down as follows:
- $175,000 for past economic loss which was awarded for Ms Han’s lost earnings following the termination of her employment up until the decision;
- $61,559.62 for future economic loss, estimating that Ms Han would take 18 months to return work;
- $10,000 for future out-of-pocket treatment expense for continuing psychiatric care;
- $75,000 in general damages given the significant psychological harm, hurt and humiliation, suffered by Ms Han, particularly because her dismissal followed legitimate complaints and because the employer escalated its response by making an unfounded report to AHPRA; and
- $60,000 in civil penalties which was to be paid to Ms Han. This was broken down as $45,000 for St Basil’s serious breach of section 351 of the FW Act and $15,000 for St Basil’s breach of s340 of the FW Act.
This represented a total amount nearly 10 times Ms Han’s average annual salary as a part time worker.
Key takeaways
There are multiple learnings employers and HR professionals can take from this matter:
Treat complaints seriously and act early
Too often, workplace issues (spanning conduct, culture, conflict or even communication styles), particularly those which may be poorly articulated or potentially complex, are left to linger until they crystallise as formalised complaints or grievances. This can then result in complex investigations, workers’ compensation claims, or an employment relationship that has been too damaged by inaction to continue. Often, litigation follows.
Employers can stem the spread of unresolved issues in their workplaces (and consequential legal risks of allowing possible unlawful conduct to carry on undetected) by taking proactive and positive steps to address grievances early and directly. This does not always require an investigation, what it does require is some form of intervention to address the issues.
Investigate when required
Where there are serious complaints made, consider utilising an external investigator to ensure that the process is thorough and that decisions are not affected by any pre-existing biases or views about the complainant, or the validity of the complaint.
Appoint independent decision makers to ensure robust decision making
Where an individual is identified as part of a complaint they should not be involved in the decision-making process as this can undermine the independence of the process and contribute to the causal connection between the making of the complaint and the adverse action.
Equally, those persons responsible for making a decision ending employment should ensure that they take this responsibility seriously, interrogate the facts they are presented with and be clear about the reasons they are making the decision. This process ensures that an employer, and individuals, are in a position to respond to claims of adverse action where it is the decision maker who must show a rational and lawful reason for taking action.
Process matters
Employers who adopt a consistent and procedurally fair grievance processes are better placed to respond to general protections claims than those who don’t. Having a consistent process allows an employer to show that the approach taken was not different because of the person involved, and adopting procedural fairness allows the employer to rebut claims of emotional or psychological harm from any alleged unfairness.
The views expressed in this article are general in nature only and do not constitute legal advice. Please contact us if you require specific advice tailored to the needs of your organisation’s circumstances.