WorkCover decision explores duty of care and psychiatric injury

Crown Law has defended the State in a recent consolidated hearing of four matters brought by four plaintiffs against their mutual employer, the State of Queensland.

Background

In 2008, the plaintiffs were employed at a government-run regional respite centre in managerial or administrative positions.

In late 2008 and early 2009, there was a dispute at the centre whereby a number of residential care officers (RCOs) complained about some of the managers and administrative staff. One of the main complainants was a residential care team leader. An independent investigation was set up which ultimately concluded that the complaints were not substantiated.

Three of the four plaintiffs were transferred from their positions pending the outcome of the investigation.

During the course of the investigation, it was alleged that a manager (in a senior position to the plaintiffs) commented to the plaintiffs: “How can 60 RCOs be wrong,” indicating she accepted the complaints.

During the course of the dispute, the RCOs and others held a picket over two days outside the Centre.

The plaintiffs alleged that they suffered psychiatric injury as a result of negligent treatment by their employer. That the plaintiffs sustained psychiatric injury was not in dispute.

The court’s decision

As to the behaviour of the team leader, it was held that “in an ideal world, she would have been identified as an undesirable employee and dismissed, but we do not live in an ideal world. The major stressor confronting the plaintiffs was simply the hostility generated by the team leader, personally and through the others whose discontent she mobilised”.

However, the employer was not vicariously liable for her actions in this respect or the actions of those she recruited to her cause as her action had no connection, other than contextually, to her work duties.

Judge McGill found that the senior manager, despite her denials, had made comments which suggested she thought the sheer volume of RCOs complaints indicated there was something wrong with the management team. His Honour found that the remark was gratuitous, inappropriate and offensive but did not in itself amount to a breach of duty for which the defendant was liable.

His Honour went on to say: “The manager acted with a lack of sympathy for the plaintiffs and it is easy to see things which she could have and should have done better, but it does not follow that there was a negligent failure to take reasonable care to avoid psychiatric injury in regards to any of her actions”.

As to the allegations about the occurrence of the complaints against the plaintiffs by the RCOs, it was found the individuals were entitled to complain and the fact that the complaints were not substantiated did not mean they were not permitted to make them or that the defendant had, in some way, caused the unjustified complaints to be made. This could not be the foundation of an allegation of negligence against the defendant.

His Honour found that as to the investigation process, there was little in the way of support provided to the plaintiffs by the employer, except for the reference to the employee assistance scheme and some support provided later by a counsellor. However, Judge McGill found there was no duty to provide special or additional support arising from the fact of the investigations of the complaints and the removal of the plaintiffs from their positions. His Honour said that if such a duty did arise, the defendant would have been found to have breached it.

It was reasonable for the government agency that employed the plaintiffs to make a decision to move them out of their positions until the complaints had been investigated properly and the union had been informed. There was no duty on the employer to discuss this decision with the plaintiffs prior to it being made.

The court’s conclusion

Judge McGill found that each of the allegations of negligence was either not made out or did not amount to a breach of duty by the employer.

His Honour found the employer’s apparent policy of trying to appease the RCOs could not be characterised as negligent, nor could the decisions to move the plaintiffs out of their positions. He noted: “Whilst the actions could have been approached with more sensitivity, it would still have been a blow to the plaintiffs because, regardless of how it was handled, it would have looked to the plaintiffs like the team leader and her allies had won”.

On this point, it is significant to note that the fourth plaintiff who was left in her position still developed much the same injury as the others. This gives support to the conclusion that it was the campaign of making complaints against the plaintiffs that was the crucial stressor which led to their injuries, and that was not something for which the defendant was responsible.

Due to the costs provisions in the Workers’ Compensation and Rehabilitation Act 2003, costs are determined via a matrix concerning the amount of offers and the amount of judgment. Consent orders have been entered with orders to be made that the plaintiffs will pay the defendant’s costs of the matters from the date of the compulsory conference to the delivery of judgment.

Keys points for employers

The judgment analyses what actions on the part of employees can be classified as being within the course of employment. Complaints by more junior level employees towards higher level employees will rarely be held to be “within the course of employment”.

The judgment also sets out that if an internal investigation process is followed by the employer, there is no special duty of care owed to minimise the risk of psychiatric injury to employees being investigated, within the context of the investigation. This confirms the law as stated in New South Wales v Paige (2002) 60 NSWLR 371.
The judgment highlights the necessity to request particulars of inadequate pleadings and to require the plaintiff to tie evidence led at trial back to the pleadings or particulars.

^{The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.}