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Employer's duty of care regarding less than competent employees

06 November 2020

A recent Court decision in Australia has confirmed for employers that while they do have a general duty of care to their employees, this should not interfere in educating employees that are not competent in their duties. Read our case review below to find out more.

District Court of Queensland Judge Ken Barlow has affirmed a defence for employers regarding a duty of care for their employee's psychological state, if actions taken were considered reasonable steps and necessary for duties to be undertaken correctly.  

In Robertson v State of Queensland [2020] QDC 185, Maureen Joy Robertson (the Plaintiff) was employed at the Gold Coast Hospital in 2011 as an enrolled nurse (EN). The Plaintiff had gained her qualification in 2006 and had worked night shifts on a permanent basis in the cardiology unit since 2008. The Plaintiff claimed that over a period of time between 2011 and 2012, she was badgered, bullied and mobbed by colleagues at work most of whom were registered nurses (RN), which led to a psychiatric injury and ultimately the loss of her career in 2013. The Plaintiff was seeking damages for breach of contract and negligence.  

The State of Queensland and the Gold Coast Hospital and Health Service (the Defendants) denied that the Plaintiff was badgered, bullied or mobbed. They contended that any psychiatric injury that may have occurred was at most a consequence of their reasonable and proper actions and interventions, which were the result of genuine and reasonable concerns for the Plaintiff's competence to perform an EN's required tasks. In particular, they contended they had genuine concern for patient safety as a result of the Plaintiff's inability to display the necessary degree of competence to administer drugs, and otherwise attend to patient care needs at a reasonable standard.  

Judge Barlow noted in the Plaintiff's nursing entries it was apparent that she was unable to see the efforts which the hospital had put into her further education or re-education were for her potential benefit and to ensure the safety of patients, rather than a form of harassment and bullying. Judge Barlow further noted the global assessments of her work, both at the Robina Hospital and the Gold Coast Hospital, showed she did not work at a competent level.  

The Plaintiff's claim was principally based on a number of incidents that she alleged occurred during the course of her employment, however in his decision Judge Barlow referred to two occasions on which it could be said the Plaintiff was bullied. The two occasions referred to included incidents on 6 April 2011 by Ms Alicia Harvey an RN, and on 17 August 2012 by Ms Michelle Codd also an RN. Behaviour at these times was in some respects inappropriate and no doubt insulting and offensive to the Plaintiff, however Judge Barlow stated that the incidents were isolated and separated by a long period of time. Had the Plaintiff's colleagues engaged in similar conduct repeatedly and persistently it would have amounted to bullying and badgering her. In these circumstances, Judge Barlow stated he was not satisfied that the Defendants' employees or the Defendants themselves, had bullied, badgered or mobbed the Plaintiff.  

Judge Barlow further reviewed whether the hospital owed the Plaintiff the duty of care. He stated the employer was entitled to review the Plaintiff's practice, and to decide whether she was able to competently and consistently carry out her duties.  Even if there was a foreseeable risk that these actions might cause a psychiatric injury, the hospital had no duty of care to take reasonable steps to avoid such an 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. With regard to the Plaintiff's psychological illness, Judge Barlow stated he was not satisfied the illness was caused by the hospital's alleged breaches of its duty, but rather than by the stresses she underwent at work which were not themselves breaches of duty.  

This decision confirmed for employers that while they do have a general duty of care to their employees, this should not interfere in educating and at times admonishing employees that are not competent in their duties.  

You can access a complete copy of this decision here: Robertson v State of Queensland [2020] QDC 185.

If you require further information or have any queries in relation to this legal update, please contact Hamish Broadbent.  

We would like to acknowledge the contribution of Connor Bohan to this article.

Further Reading