A nurse's 12 bullying complaints, and why none were bullying in law

What happened

Mrs Prabhjot Kaur started as a part-time registered nurse with Doutta Galla Aged Services on 30 March 2023, working at its aged care residence in Sunshine West, Victoria. Her duties included caring for residents, acting as nurse in charge and supervising other staff on shift.

In around August 2023 she raised concerns about reduced staffing levels and the care available to residents, and made a health and safety complaint. On 30 August 2023, while she was still on probation, a manager emailed her about concerns with her performance and attendance and invited her to a discussion about a performance improvement plan. Mrs Kaur said this was retaliation for her safety complaint.

Two meetings followed in September 2023, held in a windowless hairdresser's room. Over the next 18 months she pointed to more incidents: a text exchange questioning her sick leave, a performance meeting at which she said a manager made a racially discriminatory remark, a co-worker's complaint read out to her without a copy being given, a text about missed injections on her day off (also her birthday), a meeting where she said she was accused of "bitching" about colleagues, and shifts she said went to others because of her race, her pregnancy or her history of complaints. From July 2024 she chose to work only Sundays because of how she felt she was being treated.

The claim

Mrs Kaur applied to the Fair Work Commission under s 789FC of the Fair Work Act 2009 (Cth) for an order to stop bullying, naming the employer and two of her managers. She relied on 12 separate incidents from August 2023 into early 2025.

The employer said she had not been bullied. It accepted that some of the events happened, but argued they were reasonable management action carried out in a reasonable way. It also pointed out that the managers she complained about did not work Sundays, the only day she now worked.

The legal test

Under s 789FF, the Commission can make an order only if it is satisfied that the worker has been bullied at work and that there is a risk the bullying will continue. A stop-bullying order looks forward: it aims to prevent future bullying and cannot order the employer to pay money.

Section 789FD says a worker is bullied at work if a person or group repeatedly behaves unreasonably towards them and that behaviour creates a risk to health and safety. "Repeated" means persistent behaviour, though it can be a range of different behaviours over time. "Unreasonable" is judged objectively: what a reasonable person, looking at all the circumstances, would consider unreasonable.

Section 789FD(2) carves out reasonable management action carried out in a reasonable manner. Commissioner Connolly applied earlier decisions holding that management action does not need to be perfect or ideal to be reasonable, and that any unreasonableness must come from the action itself, rather than the worker's perception of it.

What the Commission decided

Commissioner Connolly went through each of the 12 complaints and found none was bullying. On the first, the Commissioner said there was nothing "implicitly sinister" in an employer raising concerns with a probationary employee. There was no evidence to support the claim of retaliation, and Mrs Kaur accepted in the hearing that her employer's concerns were not unreasonable.

The Commissioner preferred the evidence of her manager and the employer's HR representative about the disputed meetings, finding them credible witnesses, and did not accept that the racially discriminatory remark was made as Mrs Kaur described, noting the manager's evidence that she employed several people of Punjabi background. On the shifts, the manager gave a plausible explanation, and her evidence for these allegations was "circumstantial at best".

The employer was not let off entirely. The Commissioner called it a "clear failing" that nobody told Mrs Kaur her performance process had ended once a new manager was satisfied her work was improving, though on its own it was poor management, not bullying. The manager who texted to check she was really sick accepted that this was not necessarily the most appropriate thing to do, but the Commissioner found the contact reasonable, given her short-notice absence soon after a shift swap had been accommodated.

Looking at the pattern as a whole, the Commissioner found no repeated unreasonable behaviour, no risk to Mrs Kaur's health and safety and no risk of future bullying. The application was dismissed. The decision added that the employer could improve its communication, its guidelines for text messages and its processes for performance management and staff complaints.

What this means for you

If you feel targeted after raising a complaint, it is worth knowing that the Commission will ask whether each action was objectively reasonable, not how it made you feel. Being performance managed, especially during probation, is not bullying in itself, even if you disagree with the criticism.

Keep a record of what was said and done, and consider whether the evidence shows conduct that was actually unreasonable, such as intimidation, humiliation or being singled out. If the real complaint is that you were treated badly because you raised a safety issue, or because of your race or pregnancy, a general protections or discrimination claim may fit better than a stop-bullying application, so consider getting advice early.

For employers, the decision is a reminder that the s 789FD(2) exception can protect performance processes that are honest, measured and properly explained, and that simply telling a worker when a process has ended can prevent a dispute.