In Lyndon Martinz v Simon Blackwood (Workers’ Compensation Regulator)1 the Queensland Industrial Relations Commission in Brisbane considered whether the action taken by an employer against a worker could be defined as ‘reasonable management action’ in circumstances where, the worker sustained a psychiatric injury as a result of being investigated for unusual behaviour.
This action was an appeal by the worker of the Regulator and WorkCover’s decision to reject his claim for compensation on the basis that his psychiatric injury was sustained as a result of reasonable management which under s32(5)(a) of the Workers’ Compensation and Rehabilitation Act 2003 has the effect of withdrawing a psychiatric injury from the definition of ‘injury’ in s32(1) of the Act.
The worker was the branch manager of a Police Citizens Youth Club (PCYC). The worker was a former police sergeant. The worker remained employed by the Queensland Police Service (the QPS) and was required to observe by the standards of sworn police.
The first incident which gave rise to this claim occurred at an awards night. As the Chairman of the PCYC arrived at the awards night, it was alleged that the worker instigated and maintained a ‘slow clap’ towards the Chairman, until it became a ‘normal handclap’.
The Chairman lodged a complaint against the worker for his ‘slow clap’. The worker offered an apology. The Chairman was unsatisfied with the Worker’s ‘flippant’ apology and resigned from this position. The Employer investigated the incident and uncovered further behavioural issues in relation to the worker. In addition to the ‘slow clap’ incident, the Employer had received a number of complaints by staff about the worker’s communication skills.
The Employer had also received information that the worker was using a work vehicle without authorization to collect donated bread from local bakeries to feed his livestock. The Employer conducted surveillance of the worker and found that he had been undertaking this unauthorised activity, and it was alleged the worker went so far as to conceal Employer’s logo on the work vehicle with magnetic strips.
Following the resignation by the Chairman and upon receiving complaints about the worker’s communication skills, the Employer facilitated a meeting between the worker and members of the management committee.
The meeting was not a disciplinary meeting. Instead, the Employer wanted to hear the worker’s version of events in relation to the ‘slow clap’ as well as complaints made about his communication style. The main purpose of the meeting was to discuss with the management committee the future steps the Employer should take to account for their Chairman’s resignation.
The worker alleged that he had been ambushed, intimidated and denied the opportunity to have a support person present during this meeting and lodged a complaint against the Employer. The Employer argued that this meeting was not a disciplinary meeting and that the worker’s behaviour was not the only issue discussed and as such, there was no reason why the worker needed a support person.
In response to the worker’s complaint, the Employer arranged a mediation between the worker and the management committee. The mediation took place a week after the initial meeting.
At the mediation the worker alleges that he was intimidated by the superior numbers of the management committee. In addition to this, the worker repeated the allegation that he was not provided with an opportunity to have a support person of his choosing present (the worker’s superior who was not privy to the issues was provided as a support person).
The Employer argued that the mediator acknowledged the superior numbers of the management committee, and so as to alleviate any discomfort by the worker, chose to hear the parties independently before reaching a resolution. The worker argued that the mediation had miscarried however the Employer contended that all parties were pleased with the result.
In relation to the worker’s unauthorised use of the work vehicle, the worker was surveyed by his superior undertaking this activity shortly after the mediation. The superior then attended the worker’s office with an independent witness to confront the worker about the misuse of the Employer’s vehicle and the potential misconduct with regards to how the worker had acquired the bread.
The worker argued that the Employer had approached him in an intimidating manner and after locking the door, required him to stand as allegations of misconduct were read aloud to him. The Employer submitted a transcript of this meeting with the worker, which began with the superior and witness discussing the shortage of chairs and their need to remedy this before commencing the meeting. The Employer tendered this evidence to argue that all parties were seated and a civil discussion was held about the worker’s misuse of the work vehicle.
Commissioner Fisher found that the Employer had acted reasonably in relation to discussing and meeting with the worker about his behaviour. The Commission placed significant weight upon the Employer’s need to investigate the worker’s issues thoroughly to ensure that the worker was meeting the sworn standards of the QPS.
The Commission found that although the Employer’s behaviour was not perfect, insofar as they felt that the nomination of the worker’s support person at the mediation was unreasonable, the worker had been given ample notice about the various complaints and the evidence against him and the Employer did not act unreasonably during their management of these issues.
As a result of this decision, the Queensland Industrial Relations Commission upheld the Regulator and WorkCover’s decision to reject the worker’s psychiatric injury on the grounds that it was as a result of reasonable management action.