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.

 

tipMore articles about stress claims and reasonable action in a reasonable manner



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7 Responses to “What is or is not reasonable performance management is not clearly defined”

  1. 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!

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    Xchangingvictim June 13, 2014 at 11:59 am
    • 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 managed by my partner, they decided to try and get rid of her the manager before she found out and sent her a fictitious letter of reprimand, no the letter was real, the allegations were not.

      All this even didn’t matter, even when proved. Of course not at the WCC yet and they will take one look and RUN. But until then, the insurer acting on behalf of the government can act with impunity.

      This case, as opposed to many if not MOST is not he said, she said. It involves a signed admission of the actions. Amazingly the pervert saw nothing wrong with it and still does not.

      So even with evidence and one in a form actually accepted at the WCC, its still delayed.

      I am not sure what one needs to get a claim like this accepted, well I do know, NOTHING will matter.

      It will be denied out of course for the very reason of the nature of the case. The insurer KNOWS what are the most expensive class of claim and its a psychological injury, so they will deny deny deny until … they cant and then try and give you LESS than your entitled to.

      If you actually manage to last the distance via family or partners … DO not settle for anything less than everything your entitled to because the Arbitrator or Judge will award it to you if your lucky enough to have very good evidence.

      That is the key. Evidence. Funny thing as the statements were collected more claims came out against my injured partner, some if not a lot were physically impossible. Not possible according to the laws of physics. Again despite a total of 12 allegations being made, some turning out to be FACTUALLY proven to beyond a reasonable doubt standard to the insurer , still they deny till it appears before the WCC.

      Evidence does NOT even come into the equation until you go before the WCC. You I think could have a video of something going on and still it would be denied even if it was taken with the bullies knowledge.

      Sadly its that Bad

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  2. 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 you appeal they get paid for listening to the internal appeal. If you eventually have the stamina or support to go to the WCC, which in NSW they just stopped paying for lawyers even if you win, when you get the support and help desperately needed, its too late.

    Every step of the way the insurance company managing the scheme for the government gets rewarded. Deny the claim a bonus. Meeting Key Management indicators, a bonus from the government. If you lodge a dispute internally the insurance company gets paid for it. got to the WCC they get paid again.

    At the bottom of this, there is NO penalty whatsoever for the insurance agent acting in BAD faith. With reasonable management action its made even more difficult because its hard to see where it starts and ends. A person can suffer from depression all their life and this does NOT justify highly critical abusive management. In the case I have been involved in it involved women being touched, sexual misconduct that’s beyond belief, AND ADMITTED yet the case for now is denied.

    The VICTIM, saw the denial of liability as a slap in the face, that its ok for a man to call a woman a LAZY B. Or to touch her on numerous occasions and when she objected, the man told her even worse things.

    All of it admitted, not he said she said but admitted in a signed statement. All of that does not matter. Hopefully it will at the end of 18 months waiting and its heard before the WCC, but it is to the insurer managing the claim on behalf of the government a NO LOOSE SITUATION.

    They get paid no matter what, even if its overturned. They know that the mental injuries totally lack the ability to wait it out. People end up with lives and fiannces ruined being supported by centrlink in the end. What the numbers are in reality is even more shocking. Its likely that in these cases the DENIAL of liability is close to 100% even when its NOT a he said she said, but one with CLEAR admisssion of a sexual pervert nd bully doing his thing.

    The Insurance company and lawyers justify their denial behind the fact it may have been cased by the worker being reprimanded stressed out of their head, or even a formal letter of reprimand. This is even done when the case will last 5 minutes in the WCC, but they know the 18 month delay will do wonders for their bottom lines.

    Of the 100% who get injured this ways, being honest, and as someone who has spent a long time on this topic. Some are NOT justified in getting injured. YES. Being demoted or pulled up for justified actions IS not something one can get compensated FOR. If your handed a letter of reprimand or demoted for GOOD cause, and then get depressed because you were demoted for turning up 2 hours late each day and abusing co workers, then OF COURSE it is quite a difference to someone verbally or sexually abused in an unjust way. For most, this is what happened to them, but they are treated like the person given a demotion with a good case.

    Of the 100 cases that ARE NOT justified in any way and even ones with massive amounts of evidence even admissions to awful behavior the insurers likely deny 98-100% of them. Here is where the game starts, of the 100 cases and likely 1,000 each year in Australia, few if any are accepted.

    Most think when eventually they get the evidence supplied to them there has been some mistake as the pervert or bully admits his actions. They then lodge an internal appeal to the insurer. these are denied 100% of the time.

    Then eventually many months latter the injured or people looking after their affairs get legal advice, too late, and the cost is beyond many now impoverished.

    Of the 1,000 claims a lot and I mean a lot eventually get on with life. Despite the injustice, they get help and support and instead of it being paid for, they eventually go back to work after 6 months. I suppose 25% do this.

    Some it takes a few years and they end on centrelink and dust themselves off eventually and instead of with support ending back in the workforce within 12 months its 2 years and I suppose another 25% are there.

    Of the rest, some end up on Centrelink and NEVER get off it. NEVER.. Lives destroyed and fiancees and relationships ended, they spend 15 years or 20 years into retirement and the federal government picks up the bills.

    I strongly suspect the act of extreme bad faith by the INSURER actually gets rid of 75% of people with injuries that are REAL and caused by actual wrongdoing and nothing to do with reasonable management action, 75% of the cases evaporate.

    Of the 25% left I believe the massive hurdles and stamina needed for someone with a brain injury to see it through is NOT possible. MAYBE only 15% make it there and of them most have a deal hammered out BEFORE the judge or ARBITRATOR actually rules on it. Basically the claim is paid and medical/ psychological treatment is paid for.

    I am missing 10% here, but basically the insurance company managing the claim is rewarded for DOING the right thing despite the fact that 90% of the claims who make the distance are settled in the injured persons favor.
    There is NO penalty to the insurer for loosing 90% of the claims that make the distance, NONE. The opposite, they are rewarded every step of the way for ACTING IN BAD FAITH.

    Strange to work this out after so long.

    What happens to the 10% ? Well sadly some suicide, some end up in institutions, some on the street unable to deal with the injustice.

    This is what they call WORK COVER or workers compensation insurance.

    This section of it, mental injury is the worst of all. If there is any way to deny a claim, they will. With impunity.

    Sad but true.
    I found this out the hard way of course.

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

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    • 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 don’t need to enter in good faith.

      Now, I am acting as a representative and support person for another injured worker (and family member) and have had the misfortune of spending almost a whole year dealing with an insurer who consistently acts in bad faith. Here’s a list of some of the tactics they have used:

      – Deny liability on the basis of an IME report which was full of inaccuracies, lies and misrepresentations. (what’s new?)
      – Internal review found (invariably) in favour of their decision to deny liability.
      – Liability re-accepted (this floored me) when it became clear that the insurer had acted improperly, creatively interpreting medical information and relying on the IME report (which was also pretty creative). This was under threat of legal action.
      – Repeatedly “losing” case files (apparently they can do that with a digitised system).
      – Repeatedly failing to release information under FOI within the 28 day legislated time limit (either they lost the requested information, or they lost the FOI request. FOI requests can be made both verbally or in writing in Victoria)
      – Arranging IME appointments with inappropriate professionals (hired guns all, some even up for malpractice in other states)
      – Attempting to cease entitlements for the injured worker on the basis of non-attendance at an IME appointment that the insurer themselves cancelled. (That one was a doozy for sure)

      Despite all the complaints I have made about the incompetence, poor decision making and bad faith decisions made by the insurer and it’s employees (case managers, FOI handling team, and more), I am sure that there has not been a single instance of performance management or attempts to fix the problems. In fact, it wouldn’t surprise me if the people involved have been rewarded for everything except having to re-accept liability.

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  3. 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 extracted all the profit out of it, accept your claim, then a month or two latter deny it again or refuse reasonable treatment and your back at the WCC again disputing something else.

    For all the noise about protecting women from sexual predators and things like villifaction and victimization being supposedly illegal and covered in the sex discrimination act, the actions of the AGENT insurers for work-cover schemes act with NO recourse and vilify and persecute those who already have had it done to them, and quite often have broken down as a result.

    In the end, I still dont know where my partners case will end with 100% factual evidence of the acts, admissions in writing and despite this, the insurer claims because she objected to being sexually touched and having it happen to her staff, the claim still remains denied toll this day. The insurer claims she got upset about when they tried to sack her to cover up the latest sexual assault.

    Apparently being threatened, touched, her staff being subjected to the same had nothing at all to do with her injury.

    I after over 18 months have lost faith in many things, not in her case, but in humanity and a lot of decent things I once believed were true.

    Sad for this discovery, for those who are involved, stay strong, stay tough and for those working the other side ? I have to believe in Karma for them.

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    • 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

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      Sharon Hughes June 17, 2014 at 6:09 pm