Wednesday, 27 October 2010

Stress Claims – Exclusion for Reasonable Management Action – effective 5 April

Entitlement Provisions
Section 12 of the Act will replace the current section 82(2A) with a broader provision
which will result in the exclusion of claims related to “mental injury” if they are related to
“reasonable management action”. The new provision should overcome the previous
difficulties that have occurred when a person has lodged a claim for “stress” related to
performance management; unless the person was in a formal disciplinary process the
exclusion could not be applied. It is important to note that, for the exclusion to be
applied, the injury must be caused “wholly or predominantly” by the management action

Amended Provision
Compensation is not payable in respect of an injury consisting of an illness or
disorder of the mind caused by stress unless the stress did not arise wholly or
predominantly from—

(a) reasonable action taken in a reasonable manner by the employer to transfer,
demote,discipline, redeploy, retrench or dismiss the worker; or

(b) a decision of the employer, on reasonable grounds, not to award or to
provide promotion,reclassification or transfer of, or leave of absence or benefit
in connection with the employment, to the worker; or

(c) an expectation of the taking of such action or making of such a decision.

There is no entitlement to compensation in respect of an injury to a worker
if the injury is a mental injury caused wholly or predominantly by any one or
more of the following—

(a) management action taken on reasonable grounds and in a reasonable manner
 by or on behalf of the worker's employer; or

(b) a decision of the worker's employer, on reasonable grounds, to take, or
not to take any management action; or

(c) any expectation by the worker that any management action would, or
would not, be taken or a decision made to take, or not to take, any management
action; or

(d) an application under section 81B of the Local Government Act 1989, or
proceedings as a result of that application, in relation to the conduct of a
worker who is a Councillor within the meaning of section 14AA.”

WCV's: what is now classed as “reasonable management action”?
I'm sure that worksafe will have a loophole to hide in here...!

http://www.qcomp.com.au/__data/assets/pdf_file/0018/3276/Reasonable-management-action.pdf


http://www.qcomp.com.au/__data/assets/pdf_file/0019/3277/Reasonable-management-action-taken-in-a-reasonable-way.pdf


http://www.jetson.net.au/SJA%20pdfs/SJA%20reas%20mgt%202009.pdf


Management action causing workplace injuries: reasonable or unreasonable?

Two recent cases consider whether management action causing injuries is
“reasonable” so as to prevent successful workers’ compensation claims.

In the first case, an employer sent a letter to an employee accusing him of
unacceptable behaviour (failure to adhere to team protocols and inappropriate
language), and threatening formal disciplinary action if his behaviour was repeated.
The letter aggravated the employee’s adjustment disorder, causing him to
“freak out” and go “weak at the knees”.

The Administrative Appeals Tribunal found the employee’s failure to adhere to
protocols was because he was acting in a role he had not undertaken for years
and performing unfamiliar tasks. Further, his language was not directed against
and did not offend his supervisor. The Tribunal held the letter was unreasonable
and the employee was entitled to compensation.

In the second case, the Queensland Industrial Relations Commission reached
the opposite conclusion. An employee was formally counselled on a number
of occasions for swearing. He was later diagnosed with acute paranoid psychosis,
and it was accepted that the employment was a significant contributing factor to
his condition.

The Commission found that the employer’s disciplinary action was overwhelmingly
reasonable and in accordance with the company’s policies. Further, the employee’s
interpretation of events was “idiosyncratic” and his perception of the appropriateness
of his treatment was not relevant.

Lambert v Comcare [2009] AATA 13; Wyllie v Q-COMP (WC/2008/42)

11 comments:

Fighter said...

The term "reasonable management action" is so subjective & vague that it can mean anything. What is reasonable to you maybe unreasonable to me. Go figure!

Anonymous said...

I am currently fighting a decision in QLD, what they have called my reasonable managment action is, comments like sort your shit out and harden up.. This has to be the biggest most biased toward employers section of the act..

Anonymous said...

people like you anonymous is what makes this country stuffed. bring back the old days when only the good and tough survived and not the weak and high maintenence.

Anonymous said...

Goodness,
I hope you never injure yourself either physicall or mentally at work.

Anonymous said...

What makes this country stuffed is all the stupid laws we have created that allow people to wiggle out of their bullying tatics. Whatever happened to manager and employees discussing and negotiating. I am surrently going to Industrial Relations in QLD becuase Qcomp believe it was reasonable for my employer to humiliate me in front of others, to accuse me unjustly and without any evidence of wrongdoing and then to threaten me with the sack when I go to the toilet to be sick. Reasonable my ASS. I can guarantee if I had hardened up and retailiated I would have been subject to worse in the following days. What has the world come to.

Survivor said...

I sympathize with targets of bullying because I experienced it myself in more than one workplace. For people who have not encountered this trauma, I say you are lucky. I hope you’ll never have to suffer this misery. The effects of workplace bullying can only be understood by those who have endured it. Workplace bullying destroys worker’s mental health & livelihood. It can cause marriage breakdown. The present law does not protect victim, instead the victim is made to feel guilty & ashamed. Blaming the victim is the mantra of WorkCover & Employers. No wonder there have been suicides.

Anonymous said...

Thank you survivor, I cannot agree with you more. As a victim of work place bullying by a senior manager, which escalated to the point of suffering a total meltdown that had me off work for 5 months, during which time I had used 11 weeks of personal leave, I was offered leave without pay, I fought to avoid a work cover claim for fear of how my organization would react. Week 12, I lodged my claim as I was nowhere near being able to return to work, I had never suffered like this before, I was an emotional wreck for 4 solid months. My employer did not disappoint, upon receiving my claim, my company car, phone & laptop were demanded for return. The level of support was underwhelming, I had no means of transport or communication, spiteful bastards. We are now about to go to conciliation, I'm mad and about to even the card!

Anonymous said...

Thank you survivor, I cannot agree with you more. As a victim of work place bullying by a senior manager, which escalated to the point of suffering a total meltdown that had me off work for 5 months, during which time I had used 11 weeks of personal leave, I was offered leave without pay, I fought to avoid a work cover claim for fear of how my organization would react. Week 12, I lodged my claim as I was nowhere near being able to return to work, I had never suffered like this before, I was an emotional wreck for 4 solid months. My employer did not disappoint, upon receiving my claim, my company car, phone & laptop were demanded for return. The level of support was underwhelming, I had no means of transport or communication, spiteful bastards. We are now about to go to conciliation, I'm mad and about to even the card!

Anonymous said...

I am a RTW coordinator. So much here seems to be about revenge on the employer and how bad the employer treats ANY workcover claim. In my experience the legit claims get all the help in the world. If you're not getting all the help you need perhaps it is because you aren't playing by the rules...

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Anonymous said...

I feel truly bullied by an employee who works for me who accused me of bullying her. I have never bullied this employee, I have been kind and fair and even handed and this is the clear observations through anonymous upward feedback where I had very high scores from my team. The bullying claim resulted in two very stressful investigations - I had no support from HR or unlike the employee any kind of union. For three months I felt physically ill from the stress of it all. Although I was found completely clear of the charges I know that the claims were malicious and intended to throw mud at me. I now have to manage this person again now that the investigations are over and feel sick at the thought. I am genuinely scared of this person.
I have no doubt that there are many people that have been bullied at work and I understand that they need all the support they can get including support from workcare.
However, the flipside of this is that there are good managers out there losing their health over people who for their own reasons have a bone to pick and know how to play the system.