An employee of a regional council centered on Moranbah in the Bowen Basin has won a ruling that the management action that caused an adjustment disorder as a result of a disciplinary proceeding that was reasonable management action taken unreasonably.
Trevor Maher joined the Isaac Regional Council as a Regulatory Services Program Leader in March 2016.
In May 2018 and number of concerns arose in relation to his conduct.
A meeting to discuss the suspension was convened by two management representatives “very close to knock off time” without any notice to Maher of its purpose and without affording him any opportunity to prepare any response to the allegations. Neither was he given, the opportunity to bring in a support person until – on the council’s version of events – the meeting was underway and before its purpose was revealed.
Regardless, he was suspended on pay while an “external investigation” was carried out.
Some of the allegations were – in a draft report from the Council’s consultants, Livingstones – found to have been substantiated, as a result of which he was issued a Show Cause Notice in August 2018 concerning breaches of the Council’s Code of Conduct.
His employment was terminated as a result of the findings in May 2019.
He is recorded as suffering “an adjustment disorder with anxiety and depressed mood” as from 29 August 2018 but his application for workers’ compensation was denied by Local Government WorkCover on the grounds that any such injury resulted from “reasonable management action”.
Maher’s referral of the matter to the Regulator in August 2019 resulted in the original decision being confirmed.
He appealed that decision to the Queensland Industrial Relations Commission, contending that the absence of prior notice of the purpose of the “suspension” meeting and the giving of opportunity to call a support person into the meeting, was unreasonable.
The matter came before Commissioner McLennan before whom Maher also alleged it had been unreasonable for the Council’s Show Cause Notice not to fully particularise all allegations in the grounds on which they were made; and to have issued that Notice prior to its receipt of the final version of the external investigation report.
The Council denied these allegations and contended that if there were any instances of procedural unfairness, they amounted to a mere “blemish”.
It also assert that although Maher was summoned to his manager’s office at 4:40 PM “cold”, he must have “sniffed the wind”.
In the Commissioner’s view “it should not have been left to Mr Maher to assume what the meeting was about… rather, the onus is on the Council to tell him in advance”.
Further “the failure to offer Mr Maher the opportunity for a support person prior to the suspension interview was unreasonable”.
In relation to the Show Cause Notice, the court found that there was insufficient particularisation within the notice itself in breach of the particular disciplinary provisions of the Local Government Regulations.
Further, the Council should have required the external investigated to prioritise the delivery of the final investigation report including all attachments to enable its prompt deliberation on the matters “in their entirety”.
Having regard to the breaches concerning the Show Cause Notice and the suspension meeting, the court was compelled to conclude that the action taken in relation to Mr Maher, however reasonable, was not taken on a reasonable manner.
As a result the Council was not afforded the defence under s 32 (5) of the Workers Compensation and Rehabilitation Act in relation to “reasonable management action”.
Several of Mr Maher’s other submissions were rejected by the court. Maher will now be entitled to receive statutory time off work compensation, a lump sum payment and/or common law damages for the injury sustained.
Maher v Workers’ Compensation Regulator [2021] QIRC 313 McClennan IC, 10 September 2021
source https://cartercapner.com.au/blog/senior-employee-wins-psych-damages-claim-for-reasonable-management-action-taken-unreasonably/
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