Managing workers with pre-existing psychological conditions can be a minefield.
Two recent cases I've written about in my role at OHS Alert provide some clarity for employers on what will - and won't - be considered "reasonable" when determining an employer's liability for exacerbating an existing injury or illness.
Context crucial for "reasonable" appearance comments
In the first case, which was heard in the Federal Court, a worker claimed her mentor's comments about her appearance and the impression it gave others about her work attitude aggravated her pre-existing psychological injuries.
These comments from the mentor included the following remarks:
The Administrative Appeals Tribunal (AAT) had initially found the comments constituted reasonable administrative action taken in a reasonable manner, meaning the employer wasn't liable to compensate the worker for her conditions.
The comments were "precisely the kinds of comments which could be expected by a mentor in response to discussion about barriers to, and improvements which could be made to, the performance of a person being mentored", the Tribunal said.
The worker appealed, arguing such a finding wasn't open to the AAT on the evidence, but the Federal Court found the Tribunal was right to find the mentor's comments were reasonable in the context of discussions about the worker's performance.
It said that while the worker was "aggrieved" by the AAT's findings, the findings were supported by the evidence.
(This article on OHS Alert has been unlocked for non-subscribers. Read it here.)
Even clear-cut misconduct requires a procedurally fair response
An employer that knew a worker hadn't been coping with his job should have given him more than 24 hours to defend serious misconduct allegations, a commission has ruled.
This case involved a library team leader who used his private phone to send text messages to four subordinate employees, saying management was "plotting for my demise", and referring to "someone new to management" being narcissistic and egotistical.
The recipients reported him, and the employer gave him fewer than 24 hours to provide a written response to allegations of serious and wilful misconduct, before sacking him for exposing staff to psychological harm and breaching its policies.
He claimed unfair dismissal, arguing the text messages weren't persistent, wilful or serious, and that he sent them while he was "emotionally ill from stress and anxiety" after "months of frustration and anger at the disrespect shown to the library and library staff by management", such as the general manager mocking staff in meetings.
The employer claimed the worker was fairly dismissed, and that in addition to sending the texts, he had made "depressing or disturbing" Facebook posts that regularly referred to work and colleagues, and described people as "scum", "mole" and "backstabber".
The South Australian Industrial Relations Commission found the worker's comments about the new manager, who the recipients were able to identify, were derogatory and undermined the manager's position.
His text messages were "a deliberate act that amounted to serious and wilful misconduct," the Commission said, adding that the worker's conduct was also serious because he was a leader.
But it found that giving the worker less than a day to provide a written response to the allegations against him was procedurally unfair, and ordered the employer to compensate him to the tune of six weeks' pay.
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