Commission clarifies what is unreasonable action by Councils in staff disciplinary matter

The QIRC has clarified when disciplinary processes will not be “reasonable management action taken in a reasonable way” thereby exposing local governments to compensable claims for psychological injury.

Highlights

In the decision of Maker v Workers’ Compensation Regulator [2021] QIRC 313, the Queensland Industrial Relations Commission (“QIRC”) held:-

• While the conduct of a meeting held to suspend the employee from duty was reasonable management action, it was taken in an unreasonable way because:-
  • the employee was not given any prior notice of the suspension meeting or advice about its purpose;
  • contrary to Council’s disciplinary procedure, it failed to offer the employee the opportunity to have a support person before requiring him to attend the suspension meeting;
  • it was not sufficient to offer the employee a support person at the beginning of the meeting after notifying the employee what the meeting was about.
• The preparation of the Show Cause Notice issued to the employee was management action not taken in a reasonable way as the Council listed a variety of factual allegations, followed by code of conduct and policy extracts, and expected the employee to connect the dots.  Pursuant to section 283 of the Local Government Regulation 2012 (“the LGR”), it was incumbent on Council to make that connection and provide the particularisation within the notice itself.
• The preparation and issuing of the Show Cause Notice before Council was in receipt of a final investigation report attaching all supporting evidence was not reasonable.  It was incumbent upon Council itself to weigh up the evidence and determine, within a reasonable timeframe, whether it is more probable than not that the concern(s) or allegations were proven.  This could not be done in the absence of all the supporting evidence and a final investigation report.

Facts

During May 2018, various concerns regarding the employee’s conduct were raised by other Council staff and he was suspended on pay. An external investigation was commenced and a disciplinary process instigated.

The employee lodged an application for workers' compensation with LGW on 2 November 2018.  That claim was in respect of a psychological injury sustained on 24 August 2018 which was said to have arisen out of the suspension, the investigation and the disciplinary process.

On 5 March 2019, that application was rejected. LGW concluded that there was no entitlement to compensation because "section 32(5) of the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”) operates to exclude your psychological condition from the definition of 'injury' under section 32(1) of the Act."

The Regulator confirmed LGW's decision on 8 August 2019.

The employee subsequently appealed the Regulator's decision.

There was no dispute between the parties that:-

• the employee was a worker within the meaning of s 11 and schedule 2 of the Act;
• the employee suffered a personal injury;
• the employee’s injury arose out of, or in the course of, his employment;
• the employee’s employment was the major significant contributing factor to his injury;
• the employment issue that was the major significant contributing factor to the employee’s injury was the overall disciplinary process, including the suspension, the investigation and the issuing of a show cause notice on the 23rd of August 2018.

The issue that was for determination in the appeal, was whether or not under section 32(5)(a) of the Act, the psychiatric condition that the employee suffered was to be excluded as an “injury”, as it arose out of "reasonable management action taken in a reasonable way by the employer in connection with the worker's employment"

Decision

The QIRC held that the following complaints by the employee about Council’s conduct were examples of reasonable management action taken in a reasonable way:-

• in the face of a number of allegations from other team members, it was reasonable for a decision to be made to suspend the employee for his conduct;
• in circumstances where several different team members reported that the employee had made them feel anxious and uncomfortable, and at times had acted in an abusive and vindictive manner, it was reasonable to direct the employee not to have contact with his team members whilst suspended;
• it was reasonable to take notes during the suspension meeting;
• it was reasonable not to record the suspension meeting by audio or video means;
• it was reasonable not to provide a Notice of Disciplinary Action or particulars of the allegations against the employee at the suspension meeting.  A letter describing the allegations in general terms, the investigation process to be followed and providing contact details should the employee require further information was sufficient;
• the 2 month delay between suspension and the provision of allegations was reasonable in circumstances where an external investigator was engaged and 7 witnesses needed to be interviewed;
• a period of 13 days to consider the allegations, before being invited to participate in an interview with the investigator, was reasonable;
• strict compliance with the requirements of section 283 of the LGR is not required when initially presenting the allegations to the employee and inviting a response;
• it was reasonable to rely upon two Council employees to give evidence in favour of interviewing an independent witness.

However, the QIRC also held that the following complaints were examples of reasonable management action not taken in a reasonable way:-

• requiring the employee to participate in a suspension meeting without prior notice of the meeting or advice about what it would entail;
• notifying the employee at the commencement of the meeting what the meeting was about and then offering a support person, instead of advising that he could bring a support person to the suspension meeting in advance of the meeting;
• issuing a Show Cause Notice that did not comply with the requirements of s 283 of the LGR because it did not clearly identify the policies / procedures / legislation found to have been breached for each allegation or particularise essential facts required to be identified, so that the employee could properly respond to the notice;
• issuing a Show Cause Notice before a final version of the investigation report, including the attachments to the report, had been provided to Council and considered.

Whilst the above findings may provide useful guidance on the conduct of disciplinary processes, it is important to recognise that whether management action is reasonable and whether such action was taken in a reasonable way will be an inquiry of fact to be determined objectively on a case by case basis.  What may be reasonable on one set of facts may not be so in a different matter involving different factual considerations.

Implications

When taking disciplinary action against an employee under section 197 of the Local Government Act 2009,a local government should ensure that employees are:-

1. notified in advance of the purpose of a meeting taken to suspend an employee;
2. given an opportunity to bring a support person to a suspension meeting prior to the meeting taken place; and
3. given written notice of the disciplinary action to be taken, the grounds on which the disciplinary action is taken, and the particulars of the conduct claimed to support the grounds with sufficient particularity so that employee are not required to “joint the dots”.

Failure to comply with these requirements may result in a finding that reasonable management action was not taken in a reasonable way, thereby leaving open the possibility of compensation being payable under the Act for a psychiatric or psychological disorder suffered by the employee as a result of the disciplinary process.

If you would like to better understand the process to be applied before taking disciplinary action against a local government employee please email Kristie Taylor or Tim Fynes-Clinton, or call us now on (07) 3243 0000.