What is "reasonable" when dealing with pre-existing psychological injuries?

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:

  • "You look as though you have no energy";
  • "You look as though you have no passion for the work";
  • "I think you don't handle stress"; and
  • "I think you like to be comfortable".

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.

(OHS Alert subscribers can read the full story here, or you can start a trial subscription to gain access.)

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Views: 1314

Comment by Bernard Keith Althofer on October 16, 2015 at 9:28

Whilst some organisations may include some examples of reasonable management in their prevention, detection, reporting and resolution of workplace bullying policy, it seems that communication continues to be a vexed issue.

As the above case illustrates, what person believes is reasonable, another may perceive as unreasonable.  Invariably, it seems that the way the message is structured and delivered will have an impact on how it is received, perceived and even understood.

In my experience when it comes to performance management discussions, a 'minefield' can be created when there is significant gap between what the managers says and what the worker hears or believes is being said, and the reasons why it is being said.  Unfortunately for some organisations, the focus is on the process and not on the hard or fierce conversations that go with performance management.

In the past, I have attended presentations where it was suggested that there is an 'element of risk' in having discussions with workers who have an existing pscyhological injury or who have lodged a claim in relation to such.  It was suggested that sayings such as "harden up" or even "build a bridge and get over it" can have an adverse impact in relation to defending a claim.

Performance management and appraisal discussions can be difficult at the best of times.  When managers and workers have significant differing view points or perceptions about what is and what is not reasonable management, communication has to be carefully considered.  Knowing what questions can and should be asked need to be understood by both parties.  If a coaching and developmental approach is taken, a worker may feel more supported and more willing to respond without a feeling of being targeted.

There are numerous reasons why a manager should engage with workers, and in some cases, some workers may feel they are being singled out, particularly when they have had a 'bad' experience, or they see others being treated differently, or if they perceive that 'management' are really not interested.

There may be times in a working life when a worker does not like a message that a manager delivers.  However, where the message is delivered with respect and dignity, empathy and consideration, it be received in a better light.

In terms of the second report, it does seem that in this day and age that the message is still not getting through in some workplaces.  It also appears that for some managers and workers, the results or decisions made in the various Courts, Commissions and Tribunals are not being communicated.  True, some people may be upset about what has happened in the workplace.  However, as an increasing number of reports indicate, posting comments about work related issues on social media will generally have a negative impact on the individual and the organisation.

Still, even when a person has crossed the line, they still need to be given 'reasonable time' to respond to the allegations as indicated above.

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