Webinar: Workplace bullying and harassment claims and reasonable management action

Summary

The webinar, hosted by Tim Los and presented by DWF lawyers, addresses the rise in bullying and harassment claims and their impact on workers' mental health. It delves into the legal aspects of primary psychological injuries, the importance of reasonable management actions, and how they relate to compensation claims. The discussion covers the legal definitions, case law, and practical advice for employers on preventing and managing such claims, emphasizing the need for clear policies, training, and a supportive workplace culture.

Takeaways

• 📚 The webinar focuses on bullying and harassment claims, and the concept of reasonable management action in the context of workers' compensation.
• 🙋‍♂️ Tim Los, a senior lawyer at WorkCover, hosts the webinar, acknowledging the traditional custodians of the land and introducing the guest presenters from DWF Lawyers.
• 🔍 The session covers primary mental injuries, which are psychological injuries not resulting from physical harm, and their increasing prevalence in the workplace.
• 📈 Psychological injury claims are on the rise, costing more due to longer recovery times and the potential for a breakdown in the employment relationship.
• 🚫 The concept of 'reasonable management action' is crucial in determining compensability of claims, aiming to balance access to justice with preventing excessive claims.
• 📉 The increase in psychological injury claims is attributed to factors such as bullying, harassment, overwork, and occupational violence.
• 🏢 Employers have a duty of care to protect employees from foreseeable psychiatric injuries, which includes managing the risk of bullying and harassment.
• 📚 Policies and procedures for addressing bullying and harassment are essential, and employers must ensure they are followed and updated regularly.
• 👥 Training and education on acceptable workplace behavior are important for fostering an inclusive culture and preventing bullying and harassment.
• 🔎 Investigations into complaints of bullying and harassment must be thorough and unbiased, with appropriate actions taken based on the findings.

Q & A

What is the main focus of the webinar presented by Tim Los and DWF lawyers?

The main focus of the webinar is on bullying and harassment claims, and the concept of reasonable management action in the context of workplace injury claims, particularly psychological injuries.

Why is there an increase in psychological injury claims according to the webinar?

The increase in psychological injury claims is attributed to growing awareness and destigmatization of psychological injuries in the community, leading to more reports and claims being filed.

What is the 'reasonable management action' exclusion in statutory compensation?

The 'reasonable management action' exclusion is a provision that states if a claim arises from reasonable management action, it is non-compensable. This provision aims to protect employers from being held liable for work cover disputation when they manage their employees in a reasonable manner.

What are some examples of management actions that could be considered reasonable under the Workers Compensation Act?

Examples of reasonable management actions include transferring, demoting, disciplining, redeploying, retrenching, or dismissing a worker. These actions must be carried out in a reasonable way and have an evident and intelligible justification.

How can an employer prevent bullying and harassment claims in the common law context?

Employers can prevent bullying and harassment claims by establishing clear policies and procedures, providing training and education, leading by example, promoting an inclusive culture, and ensuring proper investigation and resolution of complaints.

What is the significance of the 'floodgates' argument in relation to psychological injury claims?

The 'floodgates' argument refers to the concern that if psychological injury claims are too easily compensable, there could be an overwhelming influx of such claims, which is why the reasonable management action exclusion is in place to maintain a balance.

What are some practical steps employers can take to manage and prevent bullying and harassment in the workplace?

Employers can establish clear anti-bullying and anti-harassment policies, provide ongoing training and education, lead by example, promote an inclusive culture, support systems, maintain a reporting culture, and ensure thorough investigation and appropriate consequences for violations.

How does the concept of 'vicarious liability' apply to bullying and harassment claims in the workplace?

Vicarious liability holds an employer liable for the wrongful acts of its employees if those acts were done in the course of employment. This means an employer can be held responsible for the bullying or harassment committed by a manager or supervisor during their duties.

What is the difference between primary and secondary psychological injuries in the context of workplace injuries?

Primary psychological injuries are those where the dominant nature of the injury is psychological, often arising from bullying, harassment, or overwork. Secondary psychological injuries, in contrast, are claims that arise secondary to a physical injury.

What are some common scenarios that give rise to psychological injuries in the workplace?

Common scenarios include bullying and harassment, overwork, occupational violence, health disability, investigation of complaints, performance management, and decision-making processes.

Outlines

00:00

📚 Introduction to the Webinar on Bullying and Harassment Claims

The script opens with an introduction to a webinar on bullying and harassment claims in the context of workers' compensation. Tim Los, a senior lawyer at WorkCover Queensland, hosts the session and acknowledges the traditional custodians of the land. Guest presenters from DWF Lawyers, Elise and Georgie from WorkCover's comms team, and a mention of Anthony Forester's absence due to a settlement conference are highlighted. The session is recorded for those unable to attend live, and participants are encouraged to submit questions through a Q&A feature. The agenda includes discussions on primary mental injuries, bullying and harassment, and reasonable management action. Tim emphasizes that the information provided is general and should not be considered legal advice.

05:02

📈 Trends and Insights on Psychological Injury Claims

This paragraph delves into the increasing trend of psychological injury claims, which are more contested and costly. The presenter discusses the traditional skepticism of courts towards such claims due to concerns of opening floodgates. The 'reasonable management action' exclusion in statutory compensation is introduced, aiming to protect employers from unwarranted liabilities while allowing them to manage their workforce effectively. The presenter also shares statistics from Queensland and Safe Work Australia, indicating a rise in psychological injury claims and their costs compared to physical injuries. The session aims to address the balance between providing justice to individuals and preventing excessive claims.

10:04

👀 Recognizing Signs of Potential Mental Injury in the Workplace

The speaker emphasizes the importance of being alert to signs of potential mental injury in the workplace, especially with the growing awareness and destigmatization of psychological issues. It is noted that there is no legal obligation to provide a 'happy' workplace, but there is a duty to manage employees without infringing on their privacy and dignity. The paragraph also touches on the challenges of managing inherently risky workplaces and the need to respond appropriately to complaints. The presenter mentions the importance of having policies against bullying, harassment, and sexual harassment, and complying with them to prevent such issues.

15:06

🚫 Understanding Bullying and Harassment in the Context of Employment Law

This section clarifies the legal definitions of bullying and harassment, distinguishing between targeted behavior with a power imbalance (bullying) and unwelcome conduct (harassment). The speaker discusses the interchangeability of these terms in workplaces and the increasing scrutiny on workplace behavior, with higher standards being imposed. The paragraph also addresses the challenges employers face in managing risky workplaces and the importance of adhering to psychosocial hazard regulations, including responding to complaints and having clear policies against bullying and harassment.

20:07

🛡️ The Role of Reasonable Management Action in Workers' Compensation Claims

The presenter explores the concept of 'reasonable management action' within the Workers Compensation Act, explaining its significance in determining compensability in cases of psychological injury. The section outlines what constitutes management action and the importance of it being reasonable. It discusses how the worker must demonstrate that the management action was unreasonable in all circumstances for the exemption under Section 325 to apply. The paragraph also touches on the challenges of applying the RMA provisions in cases of bullying, especially when the manager is perceived as the bully.

25:07

🤝 Balancing Act: Addressing Bullying and Harassment in Common Law

David provides an overview of bullying and harassment claims in the context of common law, where an injured worker alleges negligence or fault on the part of their employer. The duty of care owed by employers to protect employees from foreseeable psychiatric injuries is discussed, along with the importance of context in determining what is reasonable. The speaker highlights that people do not sign up to be bullied or harassed, implying a higher standard of care in such cases. The paragraph also touches on the complexities of proving causation in damages claims related to bullying and harassment.

30:10

🏛️ Court Decisions on Bullying and Harassment: Legal Implications for Employers

This section presents summaries of court cases involving bullying and harassment, highlighting the legal implications for employers. The cases illustrate situations where employers were held liable for the wrongful acts of their employees (vicarious liability) or for their own failures to prevent harassment. The speaker discusses the importance of distinguishing between industrial complaints and psychological stress, emphasizing that employers have a right to manage staff, even when it involves addressing perceived incompetence.

35:11

👥 Practical Steps for Employers to Address Bullying and Harassment

The final paragraph outlines practical steps employers can take to prevent and address bullying and harassment. These include establishing clear policies and procedures, providing training and education, leading by example, promoting an inclusive culture, and implementing support systems. The importance of a reporting culture and regular communication is emphasized, along with the necessity of investigating and addressing all complaints. The paragraph concludes with a reminder to have consequences for violations of policies and to ensure that HR professionals are resourced and trained to handle such matters.

40:11

❓ Addressing Questions on Bullying and Harassment in the Workplace

The script concludes with a Q&A session where various questions related to bullying and harassment are addressed. Topics include the difference between bullying and harassment, how to proceed when bullying is not directly observed, the effectiveness of encouraging workers to resolve issues themselves, and the employer's duty of care when bullying occurs at a client's workplace. The responses provide guidance on the nuances of handling such situations and emphasize the importance of investigation, policy adherence, and maintaining a supportive and inclusive workplace culture.

45:12

🔑 Employer Obligations and Investigation of Bullying Allegations

This section discusses the obligations of employers when they become aware of potential bullying behaviors, even without a formal complaint. It highlights the importance of HR's role in proactively addressing concerns and the potential legal implications of not taking action. The paragraph also touches on the challenges of investigating bullying allegations when the victim is unwilling to participate, emphasizing the need for a balanced approach that respects the victim's wishes while fulfilling the employer's duty of care.

50:13

🤔 Navigating the Complexities of Bullying and Harassment Complaints

The final paragraph of the script focuses on the complexities of handling bullying and harassment complaints, especially when the accused and the accuser have conflicting accounts. It underscores the importance of a thorough investigation, documenting findings, and taking appropriate action based on the evidence. The paragraph also addresses the situation where an employee faces bullying at a client's workplace, emphasizing the employer's non-delegable duty of care to investigate and manage the situation, even if it occurs outside their direct control.

Keywords

💡Bullying and Harassment

Bullying and harassment are central themes of the video, referring to aggressive or unwanted behavior in the workplace that can lead to psychological harm. The script discusses the importance of distinguishing between the two, with bullying often involving a repeated pattern of behavior and a power imbalance, while harassment can be a one-time occurrence. Examples from the script include cases where employees have suffered psychological injuries due to such behavior, highlighting the significance of these issues in the context of workers' compensation claims.

💡Psychological Injury

Psychological injury, also referred to as psychiatric injury in the script, is a non-physical harm resulting from traumatic events or stressors in the workplace. The video emphasizes the increasing prevalence of such injuries and their costliness in terms of workers' compensation. The script provides examples of how bullying and harassment can lead to psychological injuries, which are significant because they are not always immediately apparent but can have long-lasting effects on an employee's well-being.

💡Reasonable Management Action

Reasonable management action is a concept discussed in the video in relation to workers' compensation claims. It refers to actions taken by employers that are considered reasonable and justified in managing their workforce. The script explains that if a psychological injury arises from reasonable management action, it may be excluded from compensation. The video explores the criteria for what constitutes 'reasonable' in this context, including the process and substance of the management action.

💡Common Law

Common law is mentioned in the script in the context of claims for negligence or fault-based liability regarding bullying and harassment. Unlike statutory compensation schemes, common law involves determining whether an employer was at fault for an employee's psychological injury. The video discusses the principles and case examples of such claims, emphasizing the duty of care that employers owe to their employees to protect them from foreseeable harm, including psychological injury.

💡Statutory Compensation

Statutory compensation refers to the system of benefits provided to employees for work-related injuries as per specific laws or statutes. The script discusses how psychological injuries, including those arising from bullying and harassment, may be considered under statutory compensation schemes. It also covers the reasonable management action exclusion, which can affect whether a claim is compensable under these schemes.

💡Workplace Culture

Workplace culture is an underlying concept in the video that influences how bullying and harassment are perceived and addressed. The script suggests that a positive workplace culture can help prevent such behaviors and the psychological injuries they cause. It also implies that leaders play a crucial role in setting the tone for an inclusive and respectful culture, which can mitigate the risk of bullying and harassment claims.

💡Duty of Care

The duty of care is a legal obligation that employers have to take reasonable steps to protect their employees from foreseeable harm, including psychological injury. The script explains that this duty is not limited to physical harm but extends to the emotional and psychological well-being of employees. Breaching this duty can result in an employer being held liable for damages in negligence claims related to bullying and harassment.

💡Investigation

Investigation is a key process mentioned in the script for addressing complaints of bullying and harassment. It involves looking into allegations to determine the facts and decide on appropriate actions. The video emphasizes the importance of conducting thorough and unbiased investigations, documenting findings, and taking corrective measures if necessary to uphold workplace standards and potentially prevent future claims.

💡Vicarious Liability

Vicarious liability is a legal principle where an employer can be held responsible for the wrongful actions of their employees, provided those actions occurred in the course of employment. The script discusses cases where employers have been found vicariously liable for bullying and harassment committed by managers or supervisors, highlighting the importance of employer oversight and management of staff behavior.

💡Performance Management

Performance management is referenced in the script as a context where bullying and harassment can occur, particularly when managers implement performance improvement measures. The video suggests that it is crucial for these processes to be handled properly to avoid exacerbating stress and causing psychological harm to employees, which can lead to compensation claims.

💡Policies and Procedures

Policies and procedures are essential components of workplace governance discussed in the script. They define acceptable behavior and provide a framework for reporting and addressing incidents of bullying and harassment. The video underscores the importance of having clear, comprehensive policies, and the necessity for employers to follow these procedures to maintain a safe and respectful work environment and to potentially mitigate legal risks.

Highlights

Introduction to the webinar on bullying and harassment claims and reasonable management action by Tim Los.

Acknowledgment of traditional custodians and introduction of guest presenters from DWF lawyers.

Housekeeping notes including recording of the session and availability on Work Cover's YouTube channel.

Discussion on the increase in psychological injury claims and their cost implications.

Explanation of primary mental injuries and their common causes, including bullying and harassment.

Insight into the traditional cynicism of courts towards psychological injury claims due to the 'floodgates' argument.

Analysis of the reasonable management action exclusion in statutory compensation claims.

Importance of being alive to signs of potential mental injury and the balance between employer duties and employee rights.

Differentiation between bullying and harassment, and their specific legal meanings.

The impact of increasing scrutiny on workplace behavior and higher standards imposed by law.

Overview of the Workers Compensation Act and its focus on section 32 for compensation claims.

Discussion on the definition and examples of management action in the context of reasonable management action.

Case law examples illustrating the application of reasonable management action in bullying and harassment claims.

Practical steps for employers to prevent and manage bullying and harassment claims, including establishing clear policies.

Emphasis on the importance of training, education, and leading by example to foster an inclusive workplace culture.

The necessity of a reporting culture and the importance of investigating and addressing all complaints of bullying and harassment.

Final thoughts on the proactive approach employers should take when dealing with psychological injury claims.

Transcripts

morning everyone welcome to work cover

queensland's common common law webinar

on bullying and harassment claims uh and

reasonable management action my name is

Tim Los I'm a senior lawyer at work

cover and I'm your host

today before we begin we would like to

acknowledge and pay our respects to the

yera and tourable uh peoples as the

traditional custodians of the land in

which we work and from which we are

speaking today we thank them and their

Elders past and present for their

ongoing connection to land Waters

culture and

community joining me in the room today

at work cover Central are our guest

presenters Damen Ben brunot managing

partner at DWF lawyers David mcra senior

associate and Sally noi solicitor at DWF

um also here are Elise and Georgie from

work covers comm's team and they're

running the show for us today so thank

you

both um Anthony Forester was due to

attend but he's been caught up in an out

of town settlement conference and send

his

apologies uh just some housekeeping so

we record these sessions um and we'll

send out an email with a link to the

recording it'll also have the slides and

I think there's a survey so you can give

us some feedback as well um the

recording also goes up on our work cover

YouTube channel so anyone can access it

that way if you are watching um on

recording because you weren't able to

get into the live session I'm sorry

about that it turns out our technology

has a limit to number of uh viewers we

can have live which we haven't actually

hit before so I think that's a good sign

of the interest in this uh the

topic um if you're watching live you can

submit questions there's a Q&A button up

the top I think it's next to the chat

button um so feel free to submit

questions throughout the course of

things um we'll do our best to get to

them at the end we've also got some

questions that we received uh at

registration time uh so I think we'll

start with those and if we've got time

we'll move on to the um the questions

that come through we'll do our best to

get to as many as we can um we can't

answer any policy or claim specific

questions if you do have any uh

questions along those lines we encourage

you to get in touch with a relationship

manager if you've got one or a customer

advisor who's worked on a claim for you

in the past uh any technical issues I

believe there's a help button um under

the more button in the tool bar at the

top um so have a look at that uh agenda

uh today's agenda we're going to start

by focusing on primary mental injuries

and injury Trends as well as touching on

uh what we mean by bullying and

harassment and then we'll move on to

unpacking reasonable management action

and bullying and harassment claims in

statutory compensation then finally we

will look at bullying and harassment

claims in common law and what employers

can do to help prevent and manage these

claims and then we'll move on to the

questions at the end uh one final thing

to add I'm sure we're all Keen to get

into it um anything that we talk about

today either work cover or DWF including

in response to questions um is just

general information only and shouldn't

be construed as as legal advice that's

enough for me I think I think everyone's

probably Keen to to hear what um guys

have to say thank you Daman well thank

you very much and it's good to see

everyone attend because this is a very

important topic it's increasingly

important compensation is a feature of

the federal uh system so the state-based

schemes and across all schemes uh

there's an increase in psychiatric

injury claims they as I'll touch upon

they're more contested they cost more

and they're increasing and obviously as

we see an increasing destigmatization of

psychological injuries in the community

which is welcome uh there is of course a

growing awareness so thank you for

joining us for what is a very important

uh topic all right let's kick off with

the next slide please well what we're

here to talk about is what we call

primary mental injuries now what do I

mean by that well it's where the claim

Advance is for a psychological injury um

and a secondary psychological injury in

contrast is a claim that can arise

secondary to a physical injury but here

we're talking about an injury that its

dominant nature is psychological

um and you'll see adjustment disorders

and those types of things often commonly

arise as well there's an increase in

those types of claims so there's an

increase in people having a physical

injury and also having what they call a

secondary psychological injury but let's

park the secondary psych because we're

here to talk about a primary

psychological injury now they arise

commonly out of bullying and harassment

and that's the sweet spot today that's

what we're addressing um and you'll see

the numbers that is in fact the greatest

cause traumatic event they arise from

overwork they can arise from

occupational violence in some Industries

Health disability Etc investigation of

complaints Performance Management and

decision- making processes so they're

the sort of if you like factual

scenarios that often give rise to a

psychological

injury next slide please all right now

courts and the legislature had have had

a traditional cynicism towards

psychological injury claims they've been

concerned a bit about the floodgates why

because you can measure a fracture you

can see it on an X-ray you can see it on

a scan but traditionally courts have

been saying well as has the legislator

how do we manage this how do we not let

the floodgates open too much and The

Floodgate argument underpins the

reasonable management action exclusion

at a staty level now s is going to

address that so generally of course in

the in the staty level that's about

whether a claim arises in the course of

employment and employment was a

significant tributing factor now that

means it's usually a no fault element

but you'll notice what the legislator

did here in site claims is insert a very

important exclusion provision the

reasonable management action what

they're trying to stay here is if the

claim arise from reasonable management

action it's non-compensable why so you

can reasonably manage people the

vagaries of The Human Condition some

people are more sensitive than others

but you can take comfort in the fact

that you can reasonably manage your

people and not be subjected to work

cover disputation and the reasonable

management action exclud uon is mirrored

across many schemes in in the country so

um so Sally is going to address that

because it's an important consideration

and of course The Floodgate concerns are

also apparent in the Law's response to

bullying and harassment claims and as I

say there the aim of the law is to

strike a balance the balance is to

provide access to Justice to individuals

to allow appropriate compensation but

also to prevent a potentially excessive

number of claims that's the that's the

overall if you like balance that is

attempted to be struck in these types of

matters all right let's look at some

numbers um I think this is really

interesting because this is a slide that

covers off on Trends in Queensland and

you can see there that psychological and

psychological injury claims if you look

at the dark blue that's the more recent

year has increased now up to

6,318 from 5,530 so those numbers are on

the rise and as I said that mirrors

other state schemes um and it's quite

High compared with say strain and sprain

it's about a third so it's fairly

significant and and the next uh graph is

also telling because what we're trying

to convey in that number is the fact

that psychological and psychiatric

injury claims uh cost more why do they

cost more because unfortunately there's

often a breakdown in the employment

relationship or they can be if not

managed well people stay off work for

longer and there's more cost in managing

particularly because people stay longer

which people are often surprised about

because we do lots of physical injury

claims where there's fairly expensive

intervention like surgery and the like

uh but but look at that you've got

psychological and psychiatric injury

claims which people get psychiatric

treatment so not the cost associated

with managing physical injury claims but

people are staying off work for longer

they're harder to get back to work and

they're costing uh work cover more and

in fact costing other schemes equally in

the same way so that's an important

Trend so the next um and and this is

more this basically mirrors the

Queensland story but I thought it was

really interesting because it's from

safe work Australia which is a national

data set more National and what I wanted

to bring to your attention was the

number one subcategory of mental stress

is work rated harassment and or

workplace bullying so that that's right

at the top of the N the type of claims

that are advanced work pressure which is

very subjective and is uh problematic at

both statutary and common law Arena

because it can be captured by reasonable

management action is number two an

exposure to traumatic event falls about

half um of the numbers related to work

rated harassment and workplace bullying

and of course I've touched upon

occupational violence in health

disability not for-profit scene you'll

see a lot of those as well and so that's

an issue that needs to be uh carefully

managed so that's by way of an overall

um if you like breakdown on on the

numbers um so I'm going to hand over now

to um to Sally who's going to talk about

what this all

means oh sorry that's for me my

apologies I jumped the gun guys I'm so

sorry so what does this all mean well be

alive to signs pointing to potential

mental injury if and when they emerge

okay now that's really important uh

because there's a increasing

destigmatization there's an awareness in

the community so it's it's very much you

have to be alive to it and I think

there's a general Improvement in that in

many workplaces that I encounter it's

still no obligation at law to provide a

happy workplace so I'm quoting from an

old case here the tension may be endemic

in the hierarchies associated with

workplaces so you don't have an

obligation law to Pride a happy

workplace it may feel like you do at

times but the the duty doesn't go that

far and it's always a balancing act it's

not a duty of invasive or dictatorial

care you need to be alive to a person's

right to privacy that's why it's quite

problematic if someone comes to you uh

with nonwork related stress you you've

got also their privacy and other

considerations you need to be alive to

there are limits to what an employer can

impose on a worker having regard to the

vital values of autonomy privacy and

dignity that's the slide I touched upon

for those interested in a case there's

an old case relatively old in Queensland

now dealing with an ambulance office of

hegy which uh really takes up that point

um and of course beware if your

workplace is inherently risky by that I

mean there are some workplaces ambulance

police uh par other uh fields of Public

Health and other public facing where uh

the work your workplace can be

inherently risky um even for example

there's a case in the high court that

concerned someone Prosecuting sexual

offenses uh was considered also to be a

a risky workplace so you do you must

have regard to the new code regarding

psychosocial hazards there been quite a

lot of presentation material presented

on that about assessing and managing

those risks and a key feature that

always comes down in terms of practical

measures is respond appropriately to

complaints don't sweep them under the

carpet uh there's various ways they can

be responded to which I'll touch upon

and there's various if you like how they

escalated and responded and have

policies that concern bullying

harassment sexual harassment Etc and and

comply with those policies um so that's

the there some of that's sort of the key

issues that

emerge next slide

please okay what is bullying and what is

harassment well there's there's an

interchange between them one of the

questions address this actually bullying

is about targeted Behavior with a power

imbalance um so so bullying is about if

you like unwelcomed Behavior or that's

targeted usually endemic in the

hierarchy it's often raised against a

supervisor someone in a managerial role

harassment can be that but it's got to

it's more broadly associated with

unwelcome conduct the term harassment is

commonly arises and often say the sexual

harassment unwelcome conduct it can be

between two co-workers it doesn't need

to be sexual or other impropriety it

just needs to be unwelcome conduct and

it's often repeated too um both bullying

and harassment they're banded around

fairly Loosely now in workplaces sadly

but they have specific meanings and they

uh and that's important to note them at

law now the LW is always reflective of

broader Community

concerns um and and and it has to be so

the point I'm making in the second is

there's an increasing scrutiny on

workplace Behavior with higher standards

now imposed and you'll see that from

judicial statements and I quote a case

there of Keegan so there is more

scrutiny I think there's higher

expectations I mean what was considered

we all know that what was considered

appropriate even in Professional

Services that is now inappropriate in

terms of uh you know if I can call that

self-regulating and managing um your

emotional stresses and the like so we're

we're all alive to the fact that there

are different standards and that's also

a welcome thing in terms of uh creating

a better workplace culture

but as I say there all is not loss for

employers because vicarious liability is

a bit more narrowly uh defined now

you're probably all aware of a case

because it's been covered off very uh uh

very uh often and it's a case where this

queensland's unique contribution to the

law of vicarious liability so really you

need to have something that arises in

the course of employment you don't it it

needs to be much more specific than just

work the work being the context and that

case Authority for that

proposition all

right right I'm now I'm now hit the mark

I wanted to get off too early which was

which was a mistake clearly but I'm

going to hand over to Sally now she's a

star in our team and she does a lot of

this work on reasonable management

action because employers sometimes come

to us and say hey we've got this site

claim um can you help us and we say of

course we can we're happy to because

there's a crossover here between if you

like

the statut and common law process

because reasonable management action

actually draws on concepts of industrial

old industrial law Etc and remember how

I talked about it being an important

exclusionary provision okay without

further Ado let's hand over to Sally

thank you um so the workers compensation

act is the starting point for any

compensation claims whether they are

psychiatric or physical injuries um but

today we will be looking closely at

section 32 um section 32 outlines the

meaning of an injury as well as

reasonable management

action uh the Bold the Bolder Parts on

the slide uh notes both of the elements

of a significant contributing factor uh

as well as a rising out of or in the

course of employment these particular

aspects are important uh and a few cases

are decided on these points alone uh at

its simplest the question to ask is was

the injury caused because of work or was

work the mere setting or background of

the

injury asking this question at the

outset uh may lead to an employer to

consider challenging an acceptance um

but in a bullying and harassment context

this can get uh somewhat convoluted in

that even workers interactions in the

workplace can be considered to be

connected to their employment so this

particular aspect of the legislation is

often decided uh in consideration of

medical evidence uh and whether there is

any other evidence indicating um there

were other circumstances such as a

personal life event uh which contributed

to the workers

injury there are many um elements we

could talk to in depth um but we will

not go into them today as the main focus

is on reasonable management action so on

that note if an injury if an injured

worker sustains a psychological injury

in the course of employment uh and their

employment is a significant contributing

factor to their condition the injury

will be compensable unless it is

excluded under the reasonable management

action provisions so regardless of how

primary uh psych injury occurred it's

important to determine whether the

stressor complained of is management

action and if so was that management

action taken in a reasonable reasonable

way by the

employer so what is management action

management action uh is not defined in

the

WC but has been examined in various

workers compensation

decisions there's a list on the slide of

various examples of management action um

but the WC actually puts it quite simply

in section 325 where it notes that

examples of actions that may be uh

reasonable management action taken in a

reasonable way are actions taken to

transfer demote discipline redeploy

retrench or dismiss a worker the

examples listed there which um you can

have a read through uh are essentially

just various specific circumstances of

what section 32 uh five

says uh so case law suggests that um to

be considered management action the

action um must be different to their

normal duties or simple day-to-day

instructions of the workers's employment

uh in other words something more than

what is part and parcel of their

employment uh we note that management

action can also involve the inaction by

a managerial supervisor um importantly

however the way the employer takes these

actions must also be reasonable and if

they weren't these actions will not fall

within section

325 slide please so then the question is

what is reasonable management action so

what is reasonable is a question of fact

and the test is an objective one we must

consider the circumstances that led to

and created the need for the management

action to be taken are the circumstances

while the management action was being

taken and the consequences that flowed

from the management action for the

exemption under Section 325 to apply

however the management action must be

carried out in a reasonable way the

worker must be able to demonstrate that

that the decision to take man management

action lacked any evident and

intelligible justification such that it

would be considered by a reasonable

person to be unreasonable in all the

circumstances the test is whether the

management action was carried out

reasonably um not whether it could have

been T undertaken in a manner that was

more reasonable or more

acceptable in general management actions

do not need to be perfect or Beyond

blemish to be considered reasonable uh

and whether the management action

involved a significant departure from

established policies or procedures and

if so whether the departure departure

was reasonable in

circumstances uh so while the um RMA

Provisions limit the types of

psychological injury claims um it is

often that the RMA provision doesn't

apply in Bull bullying cases this is

often but not always um because bullying

is carried out by someone who is not a

manager so even if the employer has good

policies in relation to bullying um the

injuries might still be caused by that

bullying so then the question is what if

the manager is the perceived bully we

then need to look uh more closely at the

application of the RMA Provisions in

saying this it would be unusual for the

QC or the icq to consider any form of

bullying reasonable um even if it may be

that it was in a management action con

uh context importantly however any

unreasonableness must arise from the

actual management action in question

rather than the workers's perception of

it so it may be that uh the worker

perceives a managers or co-workers

actions as bullying but in actual fact

they were not we have some relevant

cases listed on the slide here to help

put all of this together um but we'll

only discuss a couple of these today um

reasonable management action is the

subject of many QC and icq decisions um

and it's helpful to skim through some of

these in order to properly understand

understand how to determine uh whether

an action is

reasonable so in the king and workers

compensation regulated decisions um the

work the worker lodged a work cover

Queens claim for psychiatric injury

arising out of a series of stressors

during her employment with

coals so the commission was required to

consider four allegations here um of

bulling and harassment caused by her

supervisor these four allegations

related to a number of issues such as

belittling and berating the worker and

generally just bullying and harassment

one of these allegations however we

would like to specifically mention um as

it provides a good comparison between

something that is management action but

not

reasonable um and that's in the context

of uh bullying harassment

allegation so the worker in this case

alleged her supervisor arranged a

meeting at short notice um with two

other store managers um and she stated

that she would have liked a witness to

be present but there was no one

available at the time and then the

meeting proceeded anyway so the

commission noted that this situation

would put unreasonable pressure on the

worker um and accordingly it was found

that although the meeting was reasonable

management action um sorry although the

meeting was management action it was not

conducted in a reasonable way uh and

therefore section 325 could not be

satisfied um then we've got the case of

Gibson and the workers's compensation

regulator um so in this case the worker

appealed against the regulator's

decision confirming the claim for

compensation was not one for

acceptance uh the worker alleged a

number of causative stressors including

bullying and harassment from other

employees and Management's failure to

investigate and action her complaint

with respect to this

conduct um ultimately the workers's

appeal was dismissed on the basis that

the workers's version of events was not

favored over the

employers um however two stressors were

considered management action um

specifically the super supervisor's

response to the workers's complaints so

of relevance was a meeting that occurred

between the worker supervisor um and

another employee who was actually the

subject um of the workers's complaints

um the worker became agitated in the

meeting and the other employee left so

the commission found here that the

dealing of the workers complaint

combined with the uh convening of the

meeting was within the complaint policy

guidelines of the employer um and that

any stress all on the part of the worker

was as a result of her own perception of

the meeting uh and her own unrealistic

expectations as to how the meeting

should have unfolded rather than the

actual events so hopefully this has been

um a somewhat helpful discussion around

section 32 of the WC um and I'll pass

over to David now to discuss buing

harassment in common law claims thank

you Sally and good morning listeners I'm

tasked today with providing a bit of an

overview of the general principles and

case examples of bullying harassment

claims in a negligence or common law

context so that is of course where a

injured worker is alleging negligence or

fault on the part of their employer

rather than a the no fault compensation

scheme which Sally has just addressed so

the first slide um deals with the duty

of care owed by employers for

psychiatric injury and bullying matters

in some ways it is uncontroversial it is

the same duty of care that is owed to

workers with respect to physical

injuries so the relationship of an

employer employee gives rise to an

obligation on employer to take

reasonable care to protect the employees

against uh risk of injury psychiatric

injury uh which is foreseeable and we

have a quote there from the seminal case

of tame which confirms that

principle reasonableness of course is

contextual and case dependent what is

foreseeable and what is reasonable in

one case will depend on each different

worker each different workplace and what

goes on in those workplaces I think

that's particularly pertinent in

bullying claims because as a concept um

I think all reasonable minded people

would accept that people should not be

uh subject to harassment in the

workplace and as the case on the screen

W highlights it's it's one thing if one

develops a psychiatric injury because of

the ordinary work they contracted to do

and that occurs from time to time as

Damian has just touched on in cases like

First Responders emergency workers or

people with high stress jobs at the

heart of it people have agreed to take

on those jobs and the foreseeability of

the injury and uh the precautions that

need to be taken

uh flavored by that consideration but on

the contrary people do not sign up to be

bullied or harassed in the workplace so

a court may be more likely to find an

injury to be foreseeable in the

circumstances and import a high standard

precautions that ought to be

taken uh but again simply because risk

of injury is foreseeable does not mean

an employer will necessarily be at fault

uh the focus becomes the response to

that risk and uh the precautions that

would take

and the following slides are really just

an legislative encapsulation of the test

negligence and damages claims I'll just

touch on these briefly the the exercise

that um the assessment of risk is of

course perspective and not done with the

benefit of hindsight but it is really a

contextual analysis so it'll depend on

the circumstances of the case so in the

context of a bullying and harassment

claim if we have a known bully in the

workplace and there have been complaints

about this person of course the fore

ability the significance of risk and the

probability of injury be higher than in

other cases and that affects the

response that an employer must take to

discharge its duty of care I'll just

skip through

um another one

please I'll just deal with causation

briefly because it does become relevant

in um bullying and harassment claims so

say hypothetically a large scale

employer does not have an appropriate

mechanism for dealing with B in

complaints the employeer could well be

in breach of their duty of care but it

may be questionable whether that

particular breach has caused an injury

for example that that hypothetical

worker may have already been injured due

to the bullying prior to a complaint

being made such that the failure to

respond to a complaint is not the cause

of the injury so that's where causation

in the damages context can become quite

important of course in defending a claim

it is better to have no breach at all

than trying to rely on a causation

argument to properly defend a claim I'll

just move on now to some case law

summaries and these are necessarily

brief and you know truncated summaries I

what a quite often lengthy decision so I

encourage you to have a a read of the

decisions in Greater detail if they're

of interest to you and I appreciate too

that these decisions have been spoken

about at many seminars over the years by

people more uh knowledgeable and skilled

than I so forgive me if you've heard

some of this before uh the first case of

Ward and New South Wales decision I

present somewhat of a extreme example of

um harass harassing conduct but also to

show the distinction between uh

negligence or primary liability on one

hand versus vicarious liability which

Damian touched on earlier especially by

senior managers I mean in short

vicarious liability is where an employer

is held liable for the wrongful Act of

its employees uh if that wrongful Act

was done in the course of employment

even if the act itself may not have been

permitted and went against employers own

policies and training and the like so in

this case Mr Ward the pl if wasn't

accounts manager for the insurer

Alliance his manager Mr Smith um was

said to be an aggressive operator for

example he um brought all the accounting

Executives into a boardroom when he

commenced and said they were to blame

for some of the operational issues in

the business and he had been brought to

kick them in the head and uh the further

instances as I mentioned on the slide

there of extensive physical and verbal

abuse over a period of about 14 months

including slapping Mr Ward across the

back of the head and shoulder charging

him as he passed him in the hallway

uh interestingly another cooworker

complained about Mr Smith and he was

moved to another role however about

seven years later the plaintive Ward had

a breakdown uh developing PTSD in

depression with the evidence being that

was caused by Smith's conduct that is

the manager uh Alan were held liable for

um the conduct uh the court was

satisfied that it was an expected

consequence of the conduct some form of

psychiatric condition would arise and Mr

Smith was recklessly indifferent to the

consequence

um further the abuse by Mr Smith was

done and the apparent execution of

authority vested in him as manager in

terms of um marshalling his staff so

ultimately alans were liable they

weren't liable in negligence because

they had a proper system for responding

to the bullying complaints implemented

it and removed Mr Smith from the role

nevertheless liability was established

on the vicarious grounds and damages

were rewarded in the order of about $1.4

million so that decision

um just as others do um that managers

when they behave badly and when they

behave in the course of their employment

that liability can still be sheeted home

to an employer not withstanding that

there wasn't a failure of policy or or

systems the next case uh of Keegan and

the suzan

corporation sure many loyal Shoppers to

the suzan corporation out there miss

Keegan was a assistant manager at the

retail chain and she alleged Psych ELC

injury over just um the course of 11

days of um bullying and harassment

conduct by a new manager so quite a

short period of time U Miss Keegan the

plaintiff came back from maternity leave

and was subject to the manager's

Behavior including being left out of uh

management matters uh spoken to

aggressively in one instance where a

moop was held about 10 cm from her face

and there were other criticisms of Miss

Keegan's work as well miss Keegan raised

concerns about this Behavior with

another Superior and was in tears when

doing so so not withstanding the

relatively short course of conduct the

court found an injury was foreseeable in

the

circumstances here the real failure of

the business was not following its own

bullying and harassment policy which

required complaints to be taken

seriously and not trivialized uh justice

Henry the Supreme Court Judge who heard

the matter was quite scaling of some of

the responses the plth was told to quote

put some Lippy on and go home to your

bub and further that the employers third

approach of Keegan and Clark sorting out

the problem amongst themselves was not

acceptable circumstances so this case

was a case of a primary breach that is

Suzanne's own failures rather than the

vicarious liability of its um manager

Clark and damages were awarded to the

plane of meal of about $240,000 in this

case the next case is one of Robinson

which I alluded to earlier uh M Robinson

was a director of nursing uh a yor

health and she was subject to managerial

mistreatment by her CEO over about 10

months and sustained psychiatric injury

effectively the conduct included uh

blaming humiliation belittling and the

like uh as a matter of principle Justice

Henry observed that the senority of the

alleged perpetrator matters asone said

as put on the slide there the fact that

someone with such a powerful influence

over an employees's fate is the person

who's targeting that employee obviously

tends to have a crushing impact on the

employee as to heighten the inherent

risk of psychiatric injury sadly this

case involves such conduct by a CEO so

it's not hard to see why VI's liability

was established in the circumstances and

an award of in excess of $1.4 million

was made um the next case uh one where

the lawyer successfully defended the

matter and one which speaks to the

importance of showing actual bullying

rather than the perception of it is

Robertson in the state of Queens land uh

this was an enrolled nurse who brought a

claim saying that she had been badged

bullied mobbed by some of her colleagues

uh the issue arose out of some

Performance Management steps that were

taking place ultimately trial judge uh

rejected that many of the allegations

bullying occurred at all uh but as to

the foreseeability of the injury the

court found that um it's important to

distinguish between industrial

complaints uh and a person's issues

within the workplace and complaints

about failing to cope with psychiatric

uh stress ORS so it was material that

Miss Robertson in this case did not

complain that she was being bullied

badged or otherwise treated unfairly um

and the lesson to emerge is that an

employer is entitled to take reasonable

management action to

perform to manage their staff indeed the

court noted the court of appeal noted

it's um especially important that they

do so that they uh deal with um

perceived incompetence of their

employees in a health setting where

compet see their staff is an issue poses

a risk to other people and there's of

course never necessarily pretty um

managing staff and doing it in a

delicate way but this decision can

provide some comfort for employers the

final uh case I want to speak about

briefly uh is Robinson and L Jane just

to highlight a point about social media

uses much more to it in this case many

allegations but I'm just want to

highlight this one in brief um there was

an allegation with respect to B

harassment via um a manager's personal

social media posts and we all be of

course familiar with cyber bullying uh

the part of the allegation concerned the

manager making posts in contravention of

the employers social media policy now in

this case it was speculative whether the

posts were about the plan up at all but

you can see as I said on the slide there

the court found that they were not that

is the employer was not vicariously

liable only because the employer had a

policy against the wrongful act the

offending employee knew of the policy

and that the employee that is the

manager disregarded the policy and did

the wrongful act anyway uh the court

placed great weight on the fact that the

posts were the workers personal post on

their own Facebook page and there was no

evidence that um the employer Lor Jane

had any knowledge of it or permitted the

worker to um Post in that way so again

it's a decision of some comfort to the

employer but this is what seven years

ago now it's um not difficult to see in

the the Modern Age and in the postcode

ER postco era to discern of situations

where bullying by social media or

electronic communication could visit

liability on an employer where working

remotely and working electronically uh

communicating in that way is not only um

ubiquitous but it's often necessary in a

workplace things be done um efficiently

so um in short um policies need to be

there they need to be appropriate and I

doubt very much that um the court would

look

on Cyber interactions in any way

differently to iners interactions with

respect to um inability and questions of

that nature um that's the last case for

me I'll pass back over to Daman for some

uh practical uh steps that he's

identified for responding to bullying

drawing on as many many years as a

managing partner of our firm thanks

happy firm a very happy firm um thank

you David um I appreciate that and and

some just to go back one of the

takeaways I took from Sally was the

notion at a staty level that reasonable

management action is both substance and

process driven in other words was the

conduct management action was it in

substance reasonable and was the process

also reasonable so just be alive to that

and in terms of David's point he talked

about negligence and also vicarious

liability and I brushed over it a bit on

shockman but shockman is Authority for

that's a coworker who urinated in a in a

in a um Work Camp accommodation um on

another coworker and there was an an

attempt to argue that that was captured

by vicarious liability but of course the

court said no employment was just the

context it's still got a rise in the

course of employment but obviously the

cases David cited are really important

because if You' got a manager they are

in fact tasked to manage that means to

to inter to act to set performance

expectations all the usual pleora of

Duties that a manager undertakes and if

they're doing that uh in a way that

involves impropriety pulling and

harassment well then it's easy to see

how a court can seize upon that and say

well that is quite different because

that arises in the course of employment

okay so thanks for that um both Sally

and David now all is not lost because uh

you can do things and you ought to do

things and we a long way in workplaces

we've come a long way in terms of um

psychological injury claims and their

management um and we have much more

awareness about it it's an evolving

obviously project but I think the first

thing you need to do is establish clear

policies and procedures and that may be

comprehensive anti-bullying

anti-harassment policies you need to

clearly Define what's unacceptable

provide examples and importantly outline

the procedures for reporting and

addressing incidents you've got to have

a reporting culture guys it's really

important um when things are swept under

the carpet in these types of

environments or workplaces they they

fester and cause uh problems so so

that's probably the first thing make

sure your policies are followed it's

spend all this money get a good HR

person getting in place great processes

and policies and years later when

lawyers are looking at it and looking at

the factual scenario they're all over it

if they find that for whatever reason

you didn't follow your own process and

policy so the secret is articulating it

well um defining it well and following

it well so that's trick there uh okay

awareness training and education that's

really important um a lot of workplaces

are doing that now better and that's a

really good thing um training and

education needs to be ongoing it's not

it's not just a tick and flick it needs

to be Revisited regularly about what's

acceptable and what's not so people

clearly understand that and so that's uh

probably linked to the first point as

well lead by example I think that's

really important um and I think that's

often um overlooked I think all of us in

workplaces that are leaders have to lead

by example in the way we treat others

and you know as I say you do as a leader

set the tone of the organization and by

leaders I'm I'm defining it broadly to

people uh at a managerial level not

necessarily at the decease Suite level

so people that lead others be alive to

that be alive to the impact you have be

alive to the fact you need to lead by

example it's important to promote an

inclusive culture I think that's

important more broadly where people feel

uh they can turn up and be authentic um

and themselves to use the new HR

language that's really important because

it also promotes reporting and openness

and transparency um so there are

obviously uh some cultural

considerations always at play in any

bullying and harassment claim support

systems and employee assistance program

they're fairly stock standard now and

they're they're welcomed and I think

they're good because you're able to

address issues when they emerge and it

may be a work rated stress or

psychological issue it may be a nonwork

rated stress or psychological issue but

you know there you have to be alive to

this and give people the support and

assistance that they need but remember

as well the importance of privacy and

confidentiality in that in that context

as well so those are the sort of

considerations you have to navigate

there um

the the next thing that I'm talking

about there is regular um communication

and Reporting culture um and a reporting

culture I've touched upon that's very

important you need to have an

environment where people can come

forward and lots of times they don't and

that's where problems really emerge and

you need to keep records you need to

ensure that that's recorded and it's

looked at properly and that dovetails

nicely into the next Point investigate

and address all complaints now I'm not

saying it's a nuanced approach I'm not

saying that you need to bring an

external investigators app point

something uh you know with cost costing

you a lot of money uh you may need to do

that if it's a seite level or if it's a

highly sensitive matter involving say

sexual harassment um but you may you may

not do that it's a very nuanced approach

but the common thing is you have to

ensure that they're investigated and

address and it may be even internally it

may be done externally um you need to

you need to demonstrate to courts um

that you've looked at this seriously you

haven't turned a blind eye you haven't

put your head in the sand and that

you've and that you've made findings of

what transpired and you put in place

consequences for if there's been

violation and that goes back to the

first point about did you follow your

process and policy so I really encourage

that guys investigate all complaints uh

take them seriously you might have a

view um that something perhaps is less

serious than others but just be alive to

the fact that people respond very

differently in psychological context

what you might consider to be a moment

that isn't of any great moment in the

way you manage stress people can be

deeply affected by it so just be alive

to the vager of The Human Condition here

and the and the fact that people respond

very differently at different levels of

the workplace so please I encourage you

to investigate and address all

complaints um here's a plug for our HR

friends make sure they're resourced and

trained HR professionals to give advice

and address concerns and and as well as

having them in many sophisticated

workplaces uh on board in your

organization you can Outsource that and

get advice to where needed and as I said

have

consequences um for violation so it's

really important if you make a finding

that's been in propriety uh you do

something about it you know you you

councel depending on the obviously the

breach that you found you know the

violation and the consequences is all

very dependent upon what you found but

you've got to have consequences it may

just be at a lower level counseling

training Etc it may be at a higher level

obviously termination uh more rigorous

performance and other management

measures it may be removing someone from

an interaction that is unhelpful or a

manager that is unhelpful there's it's

there's obviously a whole plethora of

things that you need to

explore uh that is nuanced and is

responsive to the situation that you

find yourself in but the the point is

you need to have some consequences for

violation um and and that's the point I

made there all right now um I hope you

find that useful do we have some I think

we do actually have some questions that

are if you like pre-made yeah this next

slide is the questions that came through

uh people can submit questions when they

register to attend so these are the ones

that came through in advance so we'll

run through these ones first and I

believe some more have come through

which excellent put you're on the

spot shortly I think I think that first

one was the one that was covered in the

cont wasn't it difference bullying

harassment I think was back on slide 12

it was if you wanted to expand on that

feel free but otherwise we'll move on no

just to say this bullying is of an a par

dnamic harassment unome conduct they're

the key points of difference question

number two up there how do you proceed

if you don't see the bullying yourself

so you're relying on what the victim is

saying and the other party is denying

any wrongdoing that's that's a common

scenario you want to yeah well I think

it's as you mentioned Daman um

investigation is is key it's it's

probably a in a workplace where there's

just one isolated incident between two

people which no one has observed the key

is of course to investigate something

and it may be that it is just one

isolated thing and it's difficult to

make um substantial findings based on a

you know what he said she said if we can

put it that way uh the outcome of that

would May well be that perhaps now you

are Rod notice you perhaps can't take

steps to uh discipline or move somebody

if there arey employment law issues

arising and there's no findings being

made but there has been a complaint made

it's been investigated you follow your

processes and you are potentially now on

notice You've Really Got to Be Alive to

to other things but as I was alluding to

earlier um it's rare that something's

going to be so isolated there will be

people who can perhaps speak to you know

those two people's relationship whether

they observed anything whether there's

any you know collateral evidence that

suggests one conclusion is more likely

than the other

and and you base all that and you you

factor everything in and come to your

conclusions and as you say Daman

document them and take the action that

you need to take but I appreciate it is

often difficult where the bulling and

harassment might just be between two

people and no one has observed it can be

very difficult to to reach a conclusion

in those situations absolutely thanks

David we see in the stat determination

level sometimes you reach that point

where there's just not the the

confirmation or not enough information

in now our claims deter mination people

just have to make a decision on on the

information they've got what was the

more likely what was more likely to have

occurred that's right number three

should I encourage workers to attempt to

resolve issues themselves initially by

speaking up to the alleged bully can

this be effective or can it incite

further

bullying well I think Dave's got a case

example um but I I I I think the point

to keep in mind here is it's nuanced it

depends on the nature of the allegations

of bullying um if it's of a higher level

uh these things exist on a spectrum it's

not a good idea um I know mediation Can

Be an Effective workplace tool for

interpersonal issues but when it crosses

the line to bullying it is a little bit

problematic it's not impossible if it's

a lower level and perhaps it's you not

you don't find some aspects

substantiated but generally I think once

it comes mediation and putting people

together in the context of interpersonal

issues is help

but it can back fire on the issue

bullying Dave you've got it yeah I was

just going to touch on as I mentioned in

um an earlier slide that um case of

Keegan and suzan's um Justice Henry was

quite scathing that the approach taken

in that situation was that um uh the

worker was effectively left to deal with

the uh the bully U by themselves and one

can readily see how that might be an

inappropriate CA in in some cases they

said for lower level things it may be

that just facilitating a dialogue uh is

the appropriate course but as Daman says

it's it's nuanced it's it's facts

specific um important thing is once an

employer is aware and a complaints been

made to them um can't just assume that

the staff are going to take care of it

themselves it needs to be properly

managed needs to be investigated and you

know you can't make two people get along

of course uh but you can make sure that

people properly counseled uh and and

made aware that bullying and harassment

in the workplace is plainly uh

inappropriate thank you question four

what is an employer's duty of care if an

employee faces bullying at a client's

workplace I'll be brief on this but from

an employer perspective you can't wash

your hands of it and say Well it

happened at a client's workplace uh

because you've got what they call it law

and non- delegable duty of care so that

means you still got to investigate it

and you still got to find out as much

you okay now you've got no control in

terms of the employment control over the

client and the the perpetrator with the

client but you certainly have to manage

your employee by investigating and maybe

even taking steps depending on what you

find to remove them you need to take

steps to notify the client if you find

certain conduct is inappropriate you

might have rights under your contract

depending on if there is any you know

written or other contract in place and

say a labor high or a host um but you

certainly can't say well that's out

outside of my domain because that

employee went to a client's work site

because you're on notice um and you're

on notice about how you manage that

employee going forward as well depending

on what you find as being the nature and

extent of the bullying um so I think

that's an important consideration to

keep in

mind you and the last one thy risk uh

for a mental injury claim has been

identified what steps should an employer

take with consideration to reasonable

management

it it does depend a lot on the facts in

terms of this um it talks about when a

mental injury claim is been identified

well it depends on on what stage if you

like of what it arises out of but

obviously you know the usual things we

see are making sure you investigate you

have a process you follow um you ensure

people are appropriately supported as I

said reasonable management action is

both substance and process driven so um

it's hard in in a vacuum to answer that

because it really does depend upon at

what at what point in time the mental

injury claim has been identified but I

hope you can see the reasonable

management action from Sally slide and

from the Practical tips of the type of

measures that you would to undertake

thank you uh Lisa's um passed me some

questions that have come through over

the course of the presentation today

I've just noticed there's sort of a

theme here um and and your responses

might be varying slightly towards

Workplace Health and safety by so just

reiterating that uh this is just broad

broad responses from um DWF um just

generally on the topic rather than

advice first one there is uh what if an

employer's HR team is aware of a

supervisor potentially engaging in

bullying behaviors but no formal

complaint has been received um to take

action does the employer uh still have

an obligation to take action and could

they be liable um for breaching a duty

of care if they

don't um well I have a view on that um

and I'm sure David does as well

um when you when an employer knows or

ought have known um it doesn't just

depend on what you're told necessarily

it's what you may know or suspect in um

Pro say HR who's very much armed with

the obligation to uh you know provide a

harmonious to to promote a level of

Harmony um in in the workplace so my

view on that is uh to what extent that's

known by HR is a bit unusual if it

hasn't given rise to a complaint but if

it is known by HR or concerned about uh

you need to look at it and examine it

and uh you know you don't necessarily

need to inflame situation by having a

full-on investigation but you need to

satisfy yourself at HR that the the

supervisor's conduct is okay effectively

or or not as the case may be and councel

the supervisor accordingly in fact it's

a unique opportunity to cut something

off at the past if that scenario is

given to you it's a unique opportunity

for you to jump on to investigate it and

to maybe come up now you don't need to

to and take a formal external

investigation but you might find this of

substance to it you might need to

counsel the supervisor he or she might

be alive to it it might be a tone or

style issue and you can move reasonably

quickly on that um and so so that's my

view David have you got it the same yeah

I think the prevailing school of thought

in the work health and safety context is

that there's no really such a thing as

an off the Record complaint yeah once

the complaint is made you're aware of it

you've got to deal with it you got to

acknowledge it it may be that for

whatever reason it does fizzle out if a

person says look I don't want to engage

in any investigation and I'm just saying

this that if you do take steps to look

at it practically it can't go anywhere

because the person doesn't want to

engage in the process uh but you can't I

think uh deal with a complaint as if

it's not being made and uh sit in your

hands and uh hope it'll all go away

there's the duty to be proactive because

you're on on notice of a complaint even

if some of the particulars of of how it

was made or um why it was made might be

um you require further

scrutiny thank you um question two of

the three additional ones um and this is

about prosecution but you might also

want to speak to I suppose common law

liability have there been cases where

individuals have been prosecuted if they

are aware of company company bullying

policy so I suppose the company's got

good policies in place and makes people

aware of it but then their behavior is

contrary to the existing policies uh for

we we're not safety lawyers we have a

safety team at DWF they do a lot of this

work but I know a bit about it um it's

about whether someone it's about

reasonable practicality which kind of

mirrors some of the common law tests but

it's different Arena you're talking

about a quasi criminal offense Beyond A

Reasonable Doubt and there is capacity

to prosecute individuals um there's none

that I'm aware of in this space for uh

in Queensland I might add in Queensland

I I I don't profess

uh National expertise on safety but you

need to be alive to your director's

duties and duties of due diligence under

the under the safety legislation uh but

generally you'll find uh that workplace

health and safety because they have an

onerous criminal standard to discharge

not always but they often take on cases

where they're really reasonably

confident they can meet they have a

Primacy case and they can discharge

their um owners of proof so it's not

impossible uh but not as we speak in in

Queensland thank you and the final one

here is If an employer becomes aware of

bullying and harassment and they

approach the person who's U been bullied

but that person doesn't want to take it

any further um what are the obligations

on the employer to investigate yeah it's

um probably very similar to response for

the um for the first question uh it it

can be difficult and said I'm I'm no um

health and safety lawyer probably um

question for getting some advice on the

matter in that respect but as I said

it's from a statutory and a common law

perspective in terms of um giving rise

to an injury I I think the

foreseeability and the reasonableness

arises in great part on context and

being put on notice so if you are on on

notice that something's occurred you've

got to take steps now um it may be an

employment law question whether you

compel someone to engage in an

investigation I don't know the answer to

that it may be no um but as I said

proactively once you're on notice you

have to do something and as I said

earlier it practically it may not um

amount to much if the person doesn't

want to participate in investigation or

withdraws the um the accusation uh

there's not a I would think a great deal

you can do from it from from that

perspective because you wouldn't have

the the evidence base from which to make

any findings and probably take any

action I agree with that David I mean it

um you're still on notice but of that

person's potential and you still on

notice of maybe a dynamic that is less

than helpful that you might want to

consider and Council and uh review uh

but yeah it's very it is a bit dependent

because you you have an obligation to

investigate it it's dependent upon some

extent the findings you make dependent

upon how people want to engage and

people are entitled uh to to withdraw

concerns but you've really got to be

satisfied that there's no coercion or

pressure involved in that and that

otherwise uh the otherwise satisfied

that it you don't need to look at it

further so there is a little bit of

nuance factually in some of those

questions but uh I think David's hit the

point well that if someone withdraws if

you like um it can be at a practical

level difficult to know what to do with

that be

tough thank you now I had I jotted down

a point for myself and it's more a point

than a question but feel free to weigh

in if you'd like to and just I think we

mentioned earlier on something about

employers uh potentially challenging the

acceptance of of statutory claims and

and that's fine um it's important for

employers to communicate with work cover

and um give their side of what's whether

they think it was management action and

whether it was reasonable and undertaken

in a reasonable way um I suppose the

point I wanted to make was um always try

to make sure it's not it doesn't become

adversarial at that point I suppose it's

a it's um it's your worker that's lodged

a claim whether whether their suffering

an injury has defined under the ACT is

in question and but they're still going

through something and they will always

see the response as part of procedural

fairness the um the worker will see the

response so um keep it factual would be

my tip there and um give us as much

information as you can and obviously

make your case but um just remember that

the worker is going to see it as well

yeah I think that's a really good point

Tim and I think that the breakdown in

the employment relationship is an issue

that really surfaces in psychological

injury claims um because if you like

there is this fault element about resum

management action that can be imported

so what Tim says is absolutely right and

and when we help Employers in this space

we really look at the application of

reasonable management action factually

um and we're alive to the fact that you

know you don't want to exacerbate

anything because the worker as Tim says

we'll see it uh and so that's really

good good

advice that's all we have time for thank

you so much uh the three of you for

preparing and presenting today we really

appreciate it I'm sure everyone

listening appreciates as well if we

haven't gotten into a question I'm I'm

very sorry um we've just run out of time

uh as I mentioned earlier this is

recorded it'll go up on YouTube we'll

send out the link we'll send out the

survey um Damen mentioned the shockman

case I'll just put in a little plug all

all of our previous webinars are up on

our YouTube channel and there's a um

you'll see on there there's a 10-minute

one in which uh we talk exclusively

about the shopman decision um so feel

free to check that out if you'd like to

know more about that um you can submit

feedback also please feel free to submit

suggestions for future topics we do

these common law ones every other month

um and in between we I think work cover

just does General uh topics unrelated to

common law so if there's ever ever

anything you think that should be

covered in detail in an hourong session

please feel free to let us know um if

you're interested in attending any more

of these please keep an eye on your

email LinkedIn the events page on the

work saafe Queens Zone website and

that's all from us thank you again DWF

and Al THS thank you thanks guys