Workcover stress claims and reasonable administrative action

stress-claims

Further to the new proposed anti-bullying laws, which would include clarification as to what bullying is not – that is, reasonable management action carried out in a reasonable manner is not bullying – we dug up a few interesting, recent legal cases to illustrate what Tribunals and Courts currently deem what is reasonable or unreasonable administrative action.

When an injured worker is suffering a psychological condition that arose from a work situation, a common argument against the liability for the psychological injury and payment of workers compensation is that the actions of management were deemed ‘reasonable administrative action’.

Stress claims are one of the most difficult areas for WorkCover claims. Even though the workcover legislation provides that if your stress condition is caused or aggravated by work you should be provided with workers comp, insurers and employers will often misuse certain exceptions within the legislation to reject work related stress claims.

Compensation is basically not payable if the stress is predominantly caused by:

    1. An employer taking reasonable action in a reasonable manner to transfer, demote, discipline, redeploy, retrench or dismiss a worker; or
    2. A decision by the employer based on reasonable grounds not to award or to provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with employment to the worker.

The scope of this exclusion is narrow for the following reasons:

    1. The exception to the above is very narrow and only applies to reasonable action taken in a reasonable manner. Compensation is payable for stress where reasonable action is taken in an unreasonable manner or unreasonable action taken in a reasonable manner; and
    2. Often the action to transfer, demote, discipline, redeploy, retrench or dismiss a worker is the last stage in a chain of events and the evidence will show that the action has been provoked by poor performance, which is an effect of general work stress which predated any action to transfer, demote, discipline, redeploy, retrench or dismiss a worker.

You can read more about stress claims on our WorkSafe Vic FAQ page

Workcover stress claims and reasonable administrative action

Below are summaries of 5 recent legal cases to demonstrate how the argument “reasonable administrative action” is assessed by workcover tribunals.

thumbs-downCase 1:Injured worker’s anxiety (psych condition) was caused by REASONABLE administrative action

Red and Comcare (March 2013)

The matter in dispute

WORKER’S COMPENSATION –Tinnitus — Causation — Whether tinnitus arose out of, or in the course of, employment — Anxiety disorder — Whether a result of reasonable administrative action — Whether reasonable administrative action was executed in a reasonable manner.

  • Mr R (the injured worker) was employed as a contract and procurement officer with the Department of Defence between January 2007 and April 2011. He claims that as a result of that employment he developed an anxiety disorder and tinnitus. He sought review of Comcare’s decision to refuse liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for both conditions.
  • There is no argument that Mr R suffers from an anxiety disorder and that this was contributed to, to a significant degree, by his employment with the Department. It is also agreed that he suffers from tinnitus. The principal issues in dispute are whether, as Comcare contends, Mr Red’s anxiety disorder was a result of “reasonable administrative action” and in respect of his tinnitus, whether it was contributed to a significant degree by Mr Red’s employment with the Department, or arose out of, or in the course of, that employment.

The case in brief

In this complex case, the Administrative Appeals Tribunal of Australia (AATA) found that it was difficult to quantify and assess the extent to which – if any- the various interactions between the injured worker (R) and his managers contributed or caused his anxiety disorder.

The AATA accepted the injured worker’s arguments that certain aspects of his treatment by his managers were “less than ideal”. There was for example a delay in conducting and finalising a work noise assessment and the conduct of the mediation meeting was also pretty fraught. The issue at hand, however, was not whether all aspects of the injured worker’s treatment at work complied with relevant health and safety rules or constituted ‘best practice’ but rather whether his condition was at least in part a result of reasonable administrative action taken in a reasonable manner. The AATA stated they were satisfied – “on the balance of probabilities” that the injured worker’s condition was a “result of operative management actions” and that it therefor did not constitute a psych injury under the Act.

the AATA was satisfied on the balance of probabilities that each interaction was an operative cause of Mr R’s anxiety condition. It followed that his condition was a ‘result of’ these actions and therefore it did not constitute an injury for the purpose of the Act.

Read the full text of the case here>>

thumbs-upCase 2:Injured worker’s psychological condition was caused by UNREASONABLE administrative action

C Wolter and Q-Comp (March 2013)

The matter in dispute

For the purpose of this Appeal, the parties agree that Ms W was a ‘worker’, that she had suffered an ‘injury’ in accordance with the Act and that her injury can be properly categorised as a psychiatric or psychological disorder. The dispute between the parties is whether management action applied to exclude the Appellant’s injury from s. 32 (1) of the Act.

The case in brief

Injured worker, W, lodged an application for workcover for a psychological injury she allegedly sustained during the course of her work. Management had raised a number of complaints against her, however the evidence did not substantiate all of them. In addition, some of the complaints did not amount to misconduct that warranted a serious disciplinary response.

The Queensland IR Commission accepted that the evidence justified the employer forming the view that, on a collective consideration of the incidents, a pattern of behaviour might exist that warranted a discussion with injured worker W. The tribunal, however, considered that the employer’s decision making after this point was flawed because 2 key management representatives had not read the incident reports prior to the disciplinary meetings, and, therefore, had failed to ‘resolve the inconsistency between the content of the incident reports’.

The tribunal stated:

“The flaw arising from the treatment of the incident reports might not have been a barrier to a finding of reasonable management action if the matters associated with the incident reports were, relative to the other incidents, minor or peripheral and if the evidence did not establish that such matters were influential in the decision to convene the 15 June meeting and did not play a significant part in the decision to terminate the employment. The findings on the evidence are, however, that matters arising from the incident reports played a significant role in the decision to hold the meeting and that on the balance of probabilities would have been a significant factor in the final decision to terminate the employment. In these circumstances, given that the management response associated with the incident reports was flawed and that management did not adequately, fairly or reasonably address the issues arising from the incident reports in the decision-making process, my determination is that the Appellant’s injury did not arise out of reasonable management action taken in a reasonable way.”

You can read the full text of the case here: W and Q-COMP (WC/2011/399) (8 March 2013)

thumbs-upCase 3:Injured worker’s psychological condition was caused by UNREASONABLE administrative action in an UNREASONABLE way

United Voice, Industrial Union of Employees, Queensland and Q-Comp (WC/2011/185) (21 January 2013)

The matter in dispute

Matters to be determined
[6] It is accepted that the Claimant is a “worker” for the purposes of the Act.
[7] In order to succeed, the appellant mu st establish one of the following points:

  • At the relevant time, the Claimant did not sustain an injury; or
  • If the Claimant did sustain an injury then that injury either did not arise out of or in the course of her employment or was one to which the employment was not a significant contributing factor; or
  • That any injury alleged (being of a psychiatric or psychological nature) was one which arose out of reasonable management action taken in a reasonable way or, alternatively, occurred as a result of the
  • Claimant’s expectation or perception of reasonable management action taken against her within the meaning of s. 32(5) of the Workers’ Compensation & Rehabilitation Act 2003(‘the Act’)

The case in brief

In this disturbing case, the injured worker  received several text messages from her manager [Ms C] saying words to the effect  ‘Are you really sick? You were all right 10 minutes ago’. ‘Why don’t you answer your phone?’

The injured worker described her reactions understandably as ‘depressed, crying, shaken, nervous, not being able to think properly, feeling sick …’

In her defence, the injured worker’s manager (Ms C) merely argued that she had basically contemplated giving the (injured) worker a warning!

The injured worker’s response to this was that the direction was to complete her work, and which she did that evening.

At the hearing, The Queensland IR Commission concluded that:

‘Ms C’s behaviour around this time does not and could not constitute reasonable management action taken in a reasonable way. There is sufficient evidence before the Commission which establishes that the Claimant was a worker and that she sustained an injury. In my view the evidence more than establishes that this injury arose out of, or in the course of her employment with the Union and that work events and work events only were the significant contributing factor to that injury occurring. The Claimant’s injury does not arise out of or in the course of reasonable management action taken in a reasonable way in connection with the Claimant’s employment … I dismiss the appeal and confirm the decision of Q-Comp of 15 April 2012.’

You can read the full text of the case here: United Voice, Industrial Union of Employees, Queensland and Q-Comp (WC/2011/185) (21 January 2013)

thumbs-downCase 4:Injured worker’s psychological condition was caused by REASONABLE disciplinary action

Stephanoski and Telstra (1 Feb 2013)

The matter in dispute

Depressive disorder – anxiety disorder – panic – attributed to workplace harassment and bullying – back pain – coexisting thyrotoxicosis – disciplinary action – reasonable administrative action undertaken in a reasonable manner – decision affirmed.

The case in brief

In this case the [injured] worker who worked as a Telstra team leader alleged she had been bullied by her manager. The [injured worker] also took 154 days sick leave over two years. The [injured] worker also suffered from back pain and co-existing thyrotoxicosis, a thyroid condition.

At the hearing, the [injured] worker argued that her depressive disorder and anxiety disorder caused panic and that this condition was attributed to workplace harassment and bullying.

The AATA found that the [injured] worker had been the subject of disciplinary action and  found that to be reasonable administrative action undertaken in a reasonable manner. As such ompensation was denied to the [injured] worker.

You can read the full text of the case here: S and Telstra [2013] AATA 50 (1 February 2013)

thumbs-downCase 5:Injured worker’s psychological condition was caused by REASONABLE administrative action

Ferguson and Commonwealth Bank of Australia (17 Oct 2012)

The matter in dispute

Major Depressive Disorder – applicant claimed condition developed as a result of bullying and harassment – respondent accepted employment contributed to condition – whether result of reasonable administrative action taken in a reasonable manner – meaning of administrative action – appraisal – counselling – whether significant contribution by reasonable administrative action required – decision under review affirmed

The case in brief

In this case, the [injured] worker claimed her major depressive disorder developed as a result of bullying and harassment at work.

The employer (Commonwealth Bank) accepted that the injured worker’s employment contributed to her condition, however argued that it was a result of reasonable administrative action taken in a reasonable manner, as an appraisal and counselling had been involved.

At the hearing, The AATA basically agreed with the employer that the counselling provided was reasonable.

You can read the full text of the case here: Ferguson and Commonwealth Bank of Australia [2012] AATA 718 (17 October 2012)

 

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B
Guest

I have been disciplined for not “sharing” the results of a confidential psychological assessment with my team. The reason provided is that it shows I am not a team player and that by not providing those results I am preventing other team members from understanding my personality.

This has been deemed a reasonable administrative action.

Pauline Pope
Guest

Apart from the total shonkiness of personality tests, any testing results are private to the individual tested. Your work is doing the wrong thing in demanding you “share”.

Trinny
Guest
It is reasonable to discipline an employee when the need arises. The problem with this is the ” reasonable manner”. It just slips easily into the scenario in most of these cases. What the judge deems as reasonable is truly reasonable? its very much, he said, she said scenario. The thug with the money and the business wins. Workers need right to claim recorded (word for word) transcripts of any disciplinary action towards them with the opportunity to debate the ” reasonable manner” of the accusations levelled towards them, Workers needs a strong advocate system to be at their defence.… Read more »