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)