Dismissed nurse wins because a key manager did not testify at trial

Ms Palfreyman was the aged care nurse practitioner at Alfred Health, a Victorian public hospital, from 28 September 2015. She worked in an outreach team giving acute care to elderly people at home and in aged care. In late November 2018 she lodged a workers' compensation claim for anxiety she put down to bullying in her team, and on 30 November 2018 she stopped work. In February 2019 she made a written bullying complaint. An external investigator found some of her allegations substantiated.

She never went back. Her doctors certified that she could work as a nurse practitioner, but not in that team, and later that she could work with full duties outside Alfred Health. Her workers' compensation payments stopped on 22 May 2021 after 130 weeks. On 8 September 2021 the hospital dismissed her on the ground of medical incapacity.

She claimed the dismissal was because of her complaint and her rights under workplace safety law. The hospital had to prove its real reasons. The court accepted that the senior managers who approved the dismissal acted for benign reasons. But the process began with a recommendation from the director of nursing, and the hospital had no evidence from her at the trial. Its request to file her evidence on the first day of trial was refused. Without it, the court could only speculate about her reasons, and that was not enough. The court found the hospital breached s 340(1). A separate claim that it broke the enterprise agreement by failing to get her back to work failed.

At a later hearing on remedy, the court found her dismissal for incapacity was inevitable at about the same time, so she lost no wages. She sought $200,000 for hurt and distress. The court awarded $22,000, plus interest, and ordered an $8,000 penalty paid to her. It found the breach was not deliberate and refused to make a declaration.