‘Infected’ decision process sees judge rule in nurse’s favour

An aged-care worker’s general protections claim has been successful after it was determined that numerous complaints about workplace policy and conduct were not unconnected to a dismissal during probationary period.

The claim was determined in the Federal Circuit and Family Court of Australia (FCFCOA), with Judge Leigh Johns ruling in favour of the nurse who made several complaints about the working conditions at a Victorian aged-care facility and was eventually the subject of colleague complaints and eventual termination.

The employee of Willow Wood raised issues with the workplace within weeks of beginning in mid-2024. Emails ranged from September 2024 to January 2025, whereby she was dismissed in a way she described as abrupt, without a substantial reason, and without an opportunity to respond.

During her employment, the worker claimed she was required to carry substantial clinical responsibility, often without adequate supervision or support. During a gastro outbreak, she claimed to be working without a resident wellness coordinator or manager familiar with the premises, which she said left her feeling exhausted.

During this period, the employee raised concerns about staffing, allocation, colleague conduct, and clinical governance with a manager, and also sought a change in working arrangements, including different shifts, a full-time contract, and a review of her classification given her increased responsibilities.

The applicant outlined that her complaints were based on genuine clinical concerns and the exercise of workplace rights.

However, from January 2025, several complaints were allegedly made against the employee, accusing her of limited floor engagement, excessive delegation, poor teamwork and communication, and general misconduct.

This conduct was the basis of the respondent’s argument that the complaints made by the applicant were not connected to her dismissal.

In this way, the central matter to be determined was whether the complaints and inquiries made by the applicant constituted a workplace right, with Judge Johns finding that the applicant did exercise workplace rights by way of the five email complaints.

In consideration of whether the core reason for the dismissal was because of the complaints, the judgment noted that, where an applicant establishes adverse action and that they exercised a workplace right, it is for the respondent to rebut the presumption “that the exercise of workplace rights was not a substantial and operative reason for the employer having taken the adverse action”.

Regarding the applicant’s complaints, the court found that, while the facility’s residential manager understood each email as a complaint that necessitated a response, the employer did not “meaningfully” investigate or address the grievances.

On the other hand, the complaints against the applicant were seemingly dealt with much faster – leading to the termination.

While it was accepted that the facility’s decision-maker, their executive manager, had not seen the worker’s complaints, it was determined that “no independent assessment” was made regarding the worker’s performance, and that the decision was based solely on what she had been told by the residential manager.

It was uncontested that Ms Chakravarty relied “almost exclusively” on the opinion of Jessica Bould.

While the respondent maintained that the dismissal was for an “innocent” reason – the alleged performance issues – it was the residential manager’s knowledge of the complaints when she made the recommendation for dismissal that meant the respondent failed to discharge the statutory reverse onus under s 361 of the Fair Work Act, as she was unable to prove they weren’t unconnected.

As the court found that the respondent couldn’t prove the workplace complaints played no part in the dismissal, it was determined that the respondent contravened s 340 of the act by taking adverse action against an employee exercising workplace rights, with non-declaratory relief to be determined in a later proceeding.

Citation: Kaur v Trustee for the Willow Wood Cranbourne Aged Services Trust (No 2).

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