In this interesting legal case, The Queensland Industrial Relations Commission (QIRC) overturned Workcover QLD’s (Q-COMP) rejection of an injured worker’s stress claim, finding that the employer’s “meaningless” attempt at mediation after it had decided to dismiss her and its additional requirement for an apology after the injured worker had agreed to its request, were unreasonable management actions.
Meaningless attempt at mediation after termination of injured worker unreasonable
In 2006 an employee of Qualtime Association Inc was involved in an altercation with a colleague, where she apparently became “very angry and had stomped through the premises” and swore at a disabled client “who was very loud and spoke a lot”
After the altercation, the worker’s boss [president] discussed her behaviour with her and provided her with a written warning which stated to “not act in that manner again”.
The worker’s management committee then proceeded to conduct a mediation meeting BUT after it could not unanimously agree that the worker’s employment should be terminated.
After said “mediation” meeting, the worker was certified unfit for work by her treating GP, and made a workers compensation claim for for a stress-related disorder. This claim was rejected, of course, by her employer, and then also by workcover QLD (Q-COMP) after “review”.
The injured worker appealed against Q-COMP’s decision in the Queensalnd Industrial Relations Committee. Commissioner Ingrid Asbury herad that the injured worker stated that the cause of her injury was due to the unlawful actions of individuals allegedly acting on behalf of the management committee. The injured worker said that unlawful actions could not be regarded as reasonable management action.
Commissioner Asbury also heard that the injured worker was asked on several occasions, and after receiving her warning letter to respond to it by explaining her behaviour and to apologise.
The injured worker said she believed that “that was the end of it” after she agreed (as requested) not to repeat her behaviour.
The injured worker told the Commissioner that she was clearly told by the employer that if she did not apologise for her behaviour, she would be dismissed.
After the injured worker refused to do so, the employer’s management committee agreed that it was reasonable to discuss with the worker her termination by mutual consent. The injured worker did not agree with the termination but was stood down with full pay while the committee considered the situation.
The employer then offered the worker a deed of release which she [rightfully] rejected. The injured worker then received a letter notifying her that the employer felt it had no choice but to terminate her employment. They gave her5 weeks’ salary instead of notice and 12 weeks’ wages.
The injured worker said she signed the deed of release which was considered as her resignation.
In their argument, Q-COMP (workcover QLD) told the commission that[popup url=’ http://www.austlii.edu.au/au/legis/qld/consol_act/wcara2003400/s119.html’] s119 of the Workers Compensation and Rehabilitation Act 2003 [/popup] applied when the worker signed the deed of release.
Section 119 states that a compensation entitlement ended when a damages claim was finalised.
Q-COMP also went on to state that the deed clearly provided that the injured worker released and forever discharged the employer, its directors, officers, servants and agents of all actions of any nature.
Thankfully Commissioner Asbury was unable to accept that s119 of the Act was applicable in this case because there was no evidence that the industrial advocates were negotiating damages relating to an injury!
“The recitals set out in the deed indicate that its focus was on resolving matters relating to [the worker’s] employment and the termination of her employment, and not an injury that may arise from the termination,” Commissioner Asbury said.
Asbury found that sum was in return for the [injured worker ] to agree to compromise any claims she may have had with the employer and her termination of employment, and did not extend to damages for an illness or injury.
Reasonable Management Action
Commissioner Asbury did however not find that the incident was a significant contributing factor to the worker’s injury, nor was the provision of the warning letter.
She also said that the worker’s behaviour during the incident was “totally inappropriate”.
Asbury said that it was really unreasonable for the injured worker to be requested to respond to the warning letter considering she had complied with the request contained in it.
The unfairness was compounded when the president sought the mutual termination of the worker’s employment because she refused to apologise and respond to the letter, the commissioner said.
And although the injured worker’s termination did not proceed at that time, the mediation attempt was not meaningful because the majority of the committee had wanted to bring about dismissal regardless of the outcome, she stated.
She also went on to state she had “no doubt that [the injured worker] was difficult, disruptive and prone to engaging in totally inappropriate behaviour in the workplace”, and there was every reason to believe that she would repeat her actions.
Commissioner Asbury allowed the injured worker’s appeal.
You can read the full case here:[popup url=’ http://www.ecruiting.com.au/ohsalert/2007/1002WC1.pdf’] Felicity Maddison and Q-COMP (WC/2007/1) (25 September 2007)[/popup]
[post entered by T on behalf of WCV]