Workplace harassment

The doctor denied the particulars of the complaints (including sexual remarks and inappropriate touching of his colleagues) and described himself as friendly and “something of a joker”. Ultimately, the Tribunal accepted the evidence of the three nurses and noted that despite the doctor’s denials, he had so readily identified the complainants in his response and there was ‘significant force in the submission that the [doctor] well knew who the complainants were because of the way he had conducted himself around them’.

Case history

The complaint prosecuted by the Health Care Complaints Commission related to three female nurses who had worked with the doctor at the hospital.

In summary, Nurse A worked with the doctor between April-July 2022 and alleged that the doctor invaded her personal space, poked her in the stomach with his pen, grabbed her pen out of her breast pocket, pulled her surgical mask down, massaged her shoulders, made comments that she looked prettier with her hair down or without her mask, asked if she had a boyfriend, and touched her lip with his thumb. Nurse A had asked the doctor to stop harassing her, but he brushed it off as a joke. She ultimately complained and was referred to her GP and psychologist due to ‘sexual harassment in the workplace’.

Nurse B also alleged that the doctor had grabbed her pen out of her breast pocket, poked her with his pen, massaged her shoulders, and made comments that she was ‘beautiful’ and ‘sexy’; and that she had told him the conduct made her feel uncomfortable, but he would laugh it off and do it again.

Nurse C alleged that the doctor had also made sexual remarks, commented on the size of her bottom and touched it, poked her side to get her attention, and grabbed her pen out of her breast pocket.

The doctor denied the conduct, so the Tribunal needed to assess his credibility and be “comfortably satisfied” of the facts noting that ‘the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove’.² The Tribunal accepted the nurses’ evidence. Nurse A had contemporaneously reported the concerns to a colleague, had wanted to leave her employment due to the doctor’s conduct, and had been referred to a psychologist (whose records were tendered in evidence). The accounts from Nurse B and Nurse C were largely the same which, in the Tribunal’s view, tended against them being fabricated, and it was not suggested they had collaborated in their accounts.

The outcome

In finding that the doctor’s conduct was improper and unethical, amounting to unsatisfactory professional conduct, the Tribunal cited section 5.2.3 and 5.4 of the Code of Conduct that good patient care:

• ‘is enhanced when there is mutual respect and clear communication between all healthcare professionals involved in the care of the patient [and] involved behaving professionally and courteously to colleagues’; and
• ‘involves not discriminating against, bullying or sexually harassing others’.

The Tribunal considered that some of the doctor’s conduct (namely that he had grabbed Nurse A and taken her to the treatment room and touched her lip, and that he had remarked on and slapped Nurse C’s bottom) was sufficiently serious to amount to professional misconduct.

The proceedings are to be listed for hearing to determine the orders necessary to protect the health and safety of the public. (We will update article with any published outcome.)

Medico-legal discussion

Doctors are expected to demonstrate respect towards their colleagues (and patients). Failure to do so creates an unsafe work environment, and can lead to adverse disciplinary and employment action.

Whilst some conduct will clearly cross workplace boundaries, other behaviour (like remarks on a person’s appearance or seemingly ‘innocuous’ touching) may seem less obvious.

Sexual harassment means any unwelcome sexual advances or conduct likely to humiliate, intimidate or offend. The benchmark is whether a ‘reasonable person’ would anticipate that reaction in all the circumstances. Such behaviour can include inappropriate jokes, unwanted touching, and remarks of a sexual nature. The Safe Work Australia Model Code of Practice: Sexual and gender-based harassment³ is a useful resource.

In this case, although the doctor subjectively believed he had friendly relationships with his colleagues and had not behaved in an inappropriate way, his conduct was perceived differently by the three nurses who all reported the doctor’s conduct as upsetting, which made them feel uncomfortable and scared, and was objectively evaluated by the Tribunal as below the standard expected. Importantly, each of the nurses had communicated their discomfort and disapproval of his actions, but the doctor did not take them seriously. Had he listened to the feedback and adjusted his behaviour accordingly, he may have been able to avoid disciplinary action.

Summary

• Re-familiarise yourself with your obligations under the Code of Conduct,⁴ specifically section 5, which refers to maintaining respectful relationships with your colleagues and other healthcare professionals.
• Frequently self-audit your workplace behaviour to ensure you are not becoming over-familiar with your colleagues with your commentary or conduct.
• Evaluate and action any feedback from colleagues about your workplace conduct as required.

Reference

1. https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/nswcatod/2024/134.html

2. briginshaw v briginshaw [1938] hca 34

3. https://www.safeworkaustralia.gov.au/doc/model-code-practice-sexual-and-gender-based-harassment

4. https://www.medicalboard.gov.au/codes-guidelines-policies/code-of-conduct.aspx#

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