AREEA’s principal consultant in Hobart, Bill FitzGerald, reviews a recent case handed down by the Workers Rehabilitation and Compensation Tribunal of Tasmania, in which a former employee of the state’s Community and Public Sector Union (CPSU) attempted to claim compensation over alleged bullying and intimidation.
IT WAS significant news for industrial relations practitioners when the Fair Work Commission was granted jurisdiction to make anti-bullying orders from the start of 2014. However, workers compensation tribunals have for many years been authorised to arbitrate stress claims where they are associated with alleged instances of bullying.
One recent case in the Workers Rehabilitation and Compensation Tribunal of Tasmania, where an employer successfully defended allegations of bullying and intimidation, which were the basis for a mental health-related compensation claim, is a good indicator of how employers should deal with such claims in either state or federal tribunals.
In C. v Community & Public Sector Union (12 May 2015), an employee of the CPSU was seeking a determination by the tribunal of her entitlement to workers’ compensation based on allegations of ‘harsh treatment, intimidation, belittling of bullying’, which led to mental stress.
The facts of this case are lengthy and involved a number of workplace issues and events which the employee alleged caused her to feel belittled or upset and victimized. However, the employer argued the events were either misconstrued by the employee or constituted standard performance management procedures.
After reviewing the evidence and arguments in each listed incident, Chief Commissioner S.R. Carey dismissed the claims that the workplace performance issues caused the stress/injury that compensation was being sought for.
It was further found that the employer’s conduct constituted reasonable administrative action which had been taken by the employer in a reasonable manner.
“Having considered the evidence of the lay witnesses and the worker the Tribunal is not persuaded that there was some form of belittling or bullying process of the worker,” Chief Commissioner Carey said.
“… the overall assessment on many of these matters, especially the historic ones are if they did occur, they did so without any intent to cause hurt to the worker, if in fact they did then this hurt was transient and did not have any ongoing injurious affect.”
Significantly, in considering the defence of reasonable administrative action he said “for Section 25(1A) (c) to apply in relation to administrative action, it is only necessary that the action be reasonable and that it be taken in a reasonable manner. It is not necessary for the action to be worker friendly, or that it be taken with the utmost sensitivity and delicacy.”
Lessons for AREEA members
There are key learnings here for AREEA members on how bullying may be treated in either state or federal tribunals when the claims relate to performance management or mentoring actions of an employer.
Importantly, this decision is very consistent with other tribunal rulings, including some from the Fair Work Commission, in which an employer has been able to refute bully allegations by demonstrating a systematic, fair and transparent process was undertaken.
AREEA Members who embark on the performance management process face inherent risks of claims for bullying, stress, adverse action and even unfair dismissal particularly if the process is inconsistently undertaken or not well documented.
The risks can be significantly mitigated when employers apply a consistent and reasonable performance management policy, and that any assessments are made against specific job requirements and not by way of generalities.
It is also very important to upskill your line managers and supervisors so they can provide constructive feedback and improvement plans and implement them without delay. Further, reviews about performance issues should be undertaken at an agreed date or interval/s with the subject.
For further advice about performance management procedures, protecting your business from potential bullying claims, or in upskilling your supervisors to deal with these often-sensitive issues, contact AREEA Membership on 1800 627 771 or via your local AREEA office.