What is or is not reasonable performance management is not clearly defined

bullying-prompted-teacher-to-commit-suicide

Unfortunately workplace bullying remains a reality in Australia. It is a widespread and complex issue that can have a profound and devastating effect on a worker’s health as well as on their life. Tragically, in a number of cases, workplace bullying has pushed victims to take their own life.

Generally speaking if a worker’s stress condition is caused or aggravated by work, workers’ compensation is available.

However, as we have pointed out on numerous occasions, there is an exception in the WorkCover legislation which is just about always misused by employers and workcover claims agents to reject work related stress claims.

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.

Workers’ compensation is basically not payable if the stress is predominantly caused by:

  • An employer taking reasonable action in a reasonable manner (i.e.) to transfer, demote, discipline, redeploy, retrench or dismiss a worker; or
  • 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 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 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.

What is or is not reasonable performance management is not clearly defined

Although “reasonable performance management” by an employer may not constitute bullying, what is or is not “reasonable” is not clearly defined. As a consequence, the line between reasonable performance management and bullying is often blurred: a difficult difference that is further complicated in circumstances where a “volatile” or “sensitive” worker is involved.

Suicide of a Teacher

The fairly recent  findings of the Queensland Office of the State Coroner in the case of the 2011 suicide of a Queensland teacher, has put a spotlight on these issues.

Coronial inquest into the death of the (bullied) teacher

The deceased was a school teacher employed by the Queensland Department of Education. The teacher was found dead in his car on a rural property on 26 June 2011, along with a suicide note detailing his long struggle with depression, problems at work and relationship difficulties. A subsequent inquest was conducted to determine the circumstances that contributed to the teacher’s death. This included consideration of his mental health and the potential impact of the employment relationship.

The teacher started as a deputy principal at a senior school in Cairns in 2008. During 2009 and 2010, the principal of the school raised performance concerns about the teacher’s adherence to curriculum and line management tasks. The principal was noted by staff as having “strong and definite expectations from teachers and a strong leadership style”.performance-management

Colleagues observed that the teacher subsequently felt uncomfortable at work and felt that he was unable to satisfy the principal’s demands. The teacher also gave the impression he was offended, humiliated and intimidated by the principal’s comments regarding his performance.

In April 2010, the teacher made enquiries about transferring to a school closer to Brisbane. The teacher wanted to be closer to family and to “move on” from the issues he had experienced at work. The teacher was told he was not eligible for a permanent transfer on the basis that he had not held his position for the requisite period detailed in departmental policy.

After this, the teacher was absent from work for long periods of time and lodged a workers’ compensation claim for psychological injuries due to workplace harassment, inconsistent expectations and criticism from the principal. This claim was unsuccessful as the alleged conduct was considered “reasonable management action”.

By the end of 2010, the teacher was granted a temporary transfer on compassionate grounds to a deputy principal position at a school north of Brisbane. The principal at the new school was described as “authoritative, behaviourally intimidating, very direct, brusque and with high expectations”. The principal had previously been the subject of workplace harassment complaints and had been reprimanded for this conduct.

Soon after starting at the new school, the teacher was accused of minor indiscretions and was formally investigated for issues such as alleged excessive internet usage, suspected involvement in stealing chocolate fundraising money and wearing inappropriate attire (football shorts) at a school athletics carnival. The teacher denied any misconduct.

The principal met with the teacher and expressed significant concerns about the teacher’s ability to attain the standards expected of a deputy principal. At this time, the teacher was allegedly also experiencing personal difficulties and was concerned that a permanent appointment may have been in jeopardy. It was in this context, that the teacher committed suicide.

The findings of the coronial inquest

Please take a deep breath before reading this paragraph!

The Coroner found the following:

  • That the teacher suffered from depression and anxiety that predated his employment at both schools
  • that the (school) department lacked policies or procedures for the sharing of workers information between schools. Relevantly, the new school was not made aware of the teacher’s experience at Cairns and did not consider whether the transfer was appropriate in these circumstances
  • that the issues raised against the teacher at the new school were relatively minor and did not warrant formal reporting and investigation, and
  • that the teacher committed suicide due to domestic issues, difficulties in performing to the expected standard at his workplace and accusations of inappropriate conduct that were unsubstantiated or trivial.

The Coroner (only) recommended that the (school) department develop a policy or guideline on sharing information between schools about staff and their employment history, particularly when being considered for transfer or relocation.

WorkCover Queensland

The teacher’s tragic suicide has been the subject of investigation by WorkCover Queensland. In light of the coronial inquest’s findings, we understand a prosecution may be initiated for failing to ensure the health and safety of a worker.

Commentary: the plight and suicide of the teacher is not an isolated event

We are quite appalled that the teacher’s suicide was ultimately blamed on “other things” rather than the —frankly— obvious bullying he endured at his 2 workplaces….! This case really shows that the line between what is reasonable and what is not is extremely blurred indeed.

Sadly, the tragic situation and ultimate suicide of the teacher is not an isolated occurrence.

The NSW State Coroner also fairly recently investigated the suicide of a young engineering apprentice who frequently endured verbal and physical bullying in the workplace. The young apprentice was told he was useless and endured workplace bullying every day before his death, an inquest in Sydney heard.

A teenage apprentice was set alight, feared being raped and had a chart of his mistakes publicly displayed in his workplace, an inquest into his death has heard.

The apprentice  father  said his 17-year-old son was verbally abused from day three. He said he was called “a useless f***ing c***” every day by his supervisor  and other tradesmen. (read more: Inquest into death of bullied apprentice | The New Daily)

These cases illustrate the importance of workplaces adopting a robust approach to work health and safety that appropriately responds to the needs of individual workers (labelled “sensitive” or “volatile”). This could involve implementing policies and procedures that ensure that any issues relating to performance are explored in a sensible and constructive manner.

All workers should be allowed and encouraged to speak to their supervisors if they are not coping with workplace expectations or tasks.

 

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Kim
Guest
Classic, IME’s and their hired guns. In NSW you can stop it if you have the guts or a good lawyer. Go to the WCC and ask for one of their IME’s to asses you. it stops doctor shopping until they get some person their pet to say your fine. It doesn’t stop it, but if you cry loudly enough it stops the run around. As to loosing files or FOI yep been there done that. So too all the rest. Good faith is not a term they like to hear and they just run the case till they have… Read more »
Sharon Hughes
Guest

Kim, I noticed you mentioned the term ‘good faith’. You might be interested to know that under australian contract law (the actual act) any company offering workers compensation insurance is specificily exempted from acting in ‘good faith”. The has been on challenge to this in the NSW District Court which was successful but the full court then decided it would mean establishing a new tort and that australian law wasnt mature enough for that so the matter was dismissed

Kim
Guest
Funny area this one. Even when clear evidence exists of bullying, or even sexual antics, the insurer will deny the claim. The ability of someone with a psychological injury to run their case, be heard or even listened to is NOT possible. For me, to comes down to acting in good faith. The insurer is NOT required at any stage act in good faith. It knows if it denies someone injured and any possibility of going down the “Reasonable Management Action line , they will do so. the reason for this is they are rewarded for denying the claim. If… Read more »
WorkcoverVictim
Admin

@Kim – thank you for a fantastic write up of the sad truth!

Silver
Guest
Couldn’t have put it better myself Kim. How can an injured and unsupported worker win against an institution which is set up to benefit from acting in bad faith? They can’t. I’ve been through a Workcover case myself where (when it finally reached conciliation) my employer’s lawyer entered the room, announced loudly they were there to negotiate in good faith, and then made one offer which they refused to budge from. Why did they do this? Well, when you’re a big company you can afford to enter into conciliation meetings knowing that you already have the upper hand and you… Read more »
Xchangingvictim
Guest

Employers use the “reasonable measures” as a tool to kick out the injured workers, we all know that it’s just an excuse so some of us have tried to record conversations to show in the Court that the Employer was lying but then the Judge rules that it’s illegal recording without consent so here we go, we are tied to the pole and the Employer has the tools to hit hard!

Kim
Guest
Haha, well even that doesn’t matter. An investigation after my partners case was made. It involved outright sexual touching, bullying, threats, intimidation and so on. All was admitted, the idiot actually signed a statement admitting to doing it. Others denied it, but the perpetrator actually didn’t see anything wrong with touching a female numerous times on her private parts. Not just one but several. Despite being in possession of a signed admission, the insurer chose to hide behind reasonable management action as the last case involved not my partner but someone 40 years the junior of the pervert who was… Read more »