28 May 2009

Rostering changes lands hospital with victimisation claim

by Joe Catanzariti

When an employee makes a complaint, employers must be careful in subsequent dealings with the employee to ensure that they are not treated detrimentally as a result of the complaint.

In Correy v St Josephs Hospital Limited [2009] NSWADT 40, the Administrative Decisions Tribunal considered whether a nurse's rostering arrangements constituted victimisation under section 50 of the Anti-Discrimination Act 1997 (NSW). MsCorrey had worked as a nurse in the Palliative Care Unit (PCU) of StJosephs Hospital for nine years before going on maternity leave in 2004.

When Ms Correy was due to return, she requested that she be rostered back in the PCU, but with reduced hours due to her carer's responsibilities. Instead the Hospital rostered her to work nine out of ten shifts in a different unit, the Aged Care Psychiatric Unit (ACPU), a "locked ward" to which Ms Correy raised an objection. Ms Correy had previously told the Hospital that she had been involved in a domestic violence incident, and found working in "locked wards" to be distressing and that it may cause her further psychological injury.

The Hospital argued that it was not obliged to return MsCorrey to any one unit to which she was assigned before going on maternity leave. Things came to a head on 28 July 2005 when legal representatives for Ms Correy wrote to the Hospital stating that its refusal to roster MsCorrey in her original role in the PCU had completely destroyed the relationship of trust and confidence between Ms Correy and the Hospital, and that Ms Correy considered that the Hospital had effectively terminated the employment.

At first instance, the Tribunal found that such action by the Hospital constituted discrimination and victimisation of Ms Correy for the purposes of the Act. However, in the decision of St Josephs Hospital Limited v Correy (EOD) [2008] NSW ADTAP 4, the Appeal Panel overturned the decision with regard to the discrimination finding and found that the Hospital had not engaged in discriminatory conduct. However, the Appeal Panel remitted to the Tribunal the question of whether the Hospital's conduct in the rostering arrangements constituted "victimisation".


Section 50 of the Act prohibits the victimisation of persons who complain that they have been subject to unlawful discrimination. Section 50 also prohibits the alleged discriminator to subject a person to a detriment if he or she knows or suspects that person intends to make such a complaint. A person who complains of victimisation must prove that it is more likely than not that a causal connection exists between a detriment that he or she has suffered and the conduct, such as a complaint, which is said to have triggered the retaliatory or punitive response by the alleged discriminator.

The Appeal Panel affirmed that Ms Correy had been subjected to a detriment by being rostered to work in the ACPU, and also that the "trigger" for the victimisation had been established, namely the allegations of discrimination made by Ms Correy to the Hospital's managers. The issue before the Tribunal was whether the necessary causal connection existed between Ms Correy's allegations of discrimination and the detriment she suffered.


The Tribunal noted that Ms Correy's case against the Hospital consisted mostly of circumstantial evidence. There was no direct evidence led that any of the Hospital's decision-makers rostered Ms Correy in the ACPU because she may have persisted in her allegations of discrimination. The Hospital relied on the evidence of the Director of Nursing who provided no explanation for why Ms Correy was rostered to work in ACPU for nine out of ten shifts in the August 2005 roster.

The Tribunal then asked itself, given the lack of evidence led by the Hospital, whether Ms Correy had advanced a circumstantial case that placed an evidentiary, but not legal, onus of proof on the Hospital. The Tribunal, relying on the High Court case of Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200, stated that where the facts and circumstances led by the plaintiff point strongly in one way, the absence of a reasonable alternative hypothesis or explanation by the defendant makes the conclusion for the plaintiff easier to draw with comfortable satisfaction.

The Tribunal found that the rosters were prepared after Ms Correy had made it "abundantly clear" that she had a strong objection to working in the ACPU, and that absent some plausible explanation, which had not been forthcoming from the Hospital, it was difficult to accept that the increase of shifts in the ACPU was "coincidental".

The Tribunal found that the most plausible explanation for the Hospital's rostering of Ms Correy to the ACPU was to "teach her some sort of lesson by forcing her to accept rosters it knew she believed she could not work and from which she had begged to be excused". It also found that the evidence taken as a whole - namely the circumstantial evidence about the rostering of Ms Correy in the ACPU, the unsatisfactory explanation provided by the Hospital for that decision, coupled with the inference that the evidence of the persons who actually prepared the rosters (who were not called) would not have assisted the Hospital - supported a finding that the Hospital had made those rosters because MsCorrey had made complaints of discrimination. The rostering of Ms Correy in the ACPU therefore constituted victimisation under section 50 of the Act.


In determining whether or not to grant Ms Correy relief under section 108 of the Act, the Tribunal had to consider whether the Hospital's breach of section 50 of the Act "materially contributed" to the loss that MsCorrey had suffered. The loss that Ms Correy had suffered was lost wages because she did not return to work when her maternity leave concluded. The question was, therefore, whether the Hospital's refusal to accede to her request to return to the PCU materially contributed to her not returning to work.

The Tribunal found that by victimising Ms Correy, the Hospital had breached an implied term in her contract of employment, that the employer would comply with the Act insofar as it affected the terms and conditions of employment. The Tribunal found, therefore, that the Hospital had effectively terminated the contract by rostering MsCorrey into a unit which it knew would result in her refusal to work. Accordingly, the Tribunal found that the Hospital's conduct in victimising Ms Correy had materially contributed to her loss, and awarded Ms Correy $23,665 in damages.


Employers should be aware that where an employee makes a complaint, care must be taken in subsequent dealings with the employee to ensure that they are not treated detrimentally as a result of the complaint, regardless of whether the complaint is ultimately substantiated or not.

Furthermore where a decision is made that may impact on an employee, the basis of the decision should be well founded, operationally sound and defensible and of course not causally related to the fact of the complaint. In this case, the employer did not have a reasonable explanation as to the basis of the rostering changes and in the absence of one a negative inference was drawn.

Thanks to Stephen Gavin for his help in writing this article.

This article was written when Joe was a partner at Clayton Utz and does not necessarily reflect his views as Vice-President of the Fair Work Commission.

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