Stern “informal” counselling caused psychiatric injury

The case below heard by the Queensland Industrial Relations Commission highlights the need to ensure that employers thoroughly investigate and give the accused employee an opportunity to provide their version of events before making a conclusion.  Should an employer decide not to follow the correct investigative process in conducting a thorough review of an incident they could see a case filed against them and worker compensation claims could be accepted.

The Queensland Industrial Relations Commission has cautioned employers against doing away with procedurally fair processes when managing incidents deemed less than serious, in finding an employer caused a worker's injuries by not giving her a proper opportunity to respond to a complaint involving a police officer.

The employer, Community Action Inc (CAI), claimed it wasn't liable for the psychiatric condition because its actions were reasonable management actions. It claimed it applied a stern but informal and "supportive" approach to the young women's support worker after the Queensland Police Service (QPS) complained about her.

But the Queensland Industrial Relations Commission rejected CAI's argument, with Industrial Commissioner Jacqueline Power saying, "The importance of an employee being afforded the opportunity to be heard prior to judgement cannot be overstated."

The employer clearly indicated to the worker that it: accepted the QPS's version of the incident; believed her actions breached its code of conduct; and did not intend to allow her to provide her version of events, she found.

The worker claimed workers' compensation for an adjustment disorder with anxiety and depressed mood caused by CAI's response to the QPS complaint to CAI.

The Commission heard she intervened in an interaction between a police officer and an Indigenous man in a public area and questioned whether the officer was "racially profiling" the man. The worker denied being combative or disrespectful, and said the short interaction was triggered by the officer's aggressive actions.

The worker told the Commission that without warning the next day, her manager called her into her office and asked her if she had seen a particular email from CAI's CEO, before reading it to her.

The CEO stated in the email that she had received a formal complaint about the worker from the QPS and the worker's conduct reflected poorly on CAI. The email said her actions might have damaged CAI's relations with police and referred the worker to the code of conduct and the expectation for all staff to act professionally.

The worker agreed it was appropriate for the employer to raise the complaint with her but told the IRC its methods were unreasonable.

Neither her manager nor the CEO took any steps to verify the police officer's account of what occurred before confronting her with veiled allegations that she had brought the reputation of CAI into disrepute, she argued.

She said she felt devastated and abandoned by her employer, and it had failed her through its actions, which caused her injury.

The employer told the Commission the manager decided to deal with the complaint through a supportive rather than disciplinary approach and deliver the worker a "stern" but informal reminder of her obligations under the code of conduct.

CAI did not intend to discipline her or engage in the formal complaints handling process, meaning it wasn't required to follow the procedures from that process, it argued.

The worker could have "logged" her concerns and submitted them to the CEO, CAI contended. If she had done so, it would have initiated an investigation into her version of events, it submitted.

But Industrial Commissioner Power found a "process that is procedurally fair is not one that allows for the [employee]] to be heard after a decision has been made and only if the employee raises concerns about the decision".

"[The manager] did not engage in reasonable management action in that she did not provide the [worker] with the details of the complaint, did not provide [her] with an opportunity to respond to the complaint and made a decision as to the appropriateness of [her] conduct prior to allowing [her] to be heard on the matter," the Industrial Commissioner found.

She also questioned whether the management action could be deemed informal, given the email's tone and the fact that the subject line stated, "formal complaint from police".

CAI's policies contained extensive procedures for investigating misconduct, she found. While the allegations in this case did not involve serious misconduct, this did not mean all the principles of procedural fairness could be ignored, she stressed in awarding the worker workers' compensation.

Source: OHS Alert  https://www.ohsalert.com.au

 
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