Jacquie Seeman and Katie Kossian

When failing to act means having to pay

Jacquie Seeman and Katie Kossian

25 October 2017

Employment Disputes Employment Policies

A recent Queensland Supreme Court decision1 has found that Queensland Health was negligent in failing to manage a series of workplace grievances adequately – which caused a senior nurse to develop a psychological injury, rendering her unable to work.

THE FACTS

Mrs Robinson was the District Director of Nursing for the Cape York Health Service and a member of its executive team, reporting to the District’s Chief Executive Officer, Ms Turner.

In the course of her duties, Mrs Robinson was required to manage an interpersonal conflict between two senior nursing staff, Ms Holford and Ms Holmes. Following an external investigation which made unfavourable findings about Ms Holmes and recommended that she be removed from the workplace, Ms Holmes accused Mrs Robinson of bullying and harassment. These allegations appeared to be unfounded and vexatious, but they nonetheless caused Mrs Robinson significant stress and anxiety.

The resolution of these allegations lay with Ms Turner, who, at first blush, appeared to be supportive of Mrs Robinson and who told her on several occasions that she would be kept ‘safe’ when Mrs Robinson explained to her that she felt threatened and vulnerable. However, Ms Turner did not act to resolve the complaints made, but rather compounded Mrs Robinson’s poor mental state through a series of incidents in which she publicly humiliated and undermined Mrs Robinson, and deliberately isolated and excluded her from relevant decision making processes.

As a result of this treatment over approximately 10 months, Mrs Robinson developed an adjustment disorder with mixed anxiety and depression. Mrs Robinson left work on workers compensation in January 2011 and was compulsorily retired in May 2014.

Mrs Robinson subsequently commenced proceedings against the State of Queensland, claiming that it had a non-delegable duty to avoid exposing her to a foreseeable risk of psychiatric injury in her employment and that, through Ms Turner’s conduct, it had breached that duty.

THE FINDINGS

His Honour Justice Henry agreed with Mrs Robinson.

In finding the State of Queensland liable, he explained that:

The attribution of direct liability to the defendant for its failures…necessarily involves an inference that the defendant, an abstract corporate entity, knew or acting reasonably ought to have known of the need to do that which it failed to do. Where those failures involved conduct by Ms Turner in carrying out her role as CEO the implication of corporate knowledge flows compellingly from the fact she was at the managerial apex of the Service. Her knowledge ought be inferred to be the defendant’s knowledge…’2

In considering the breach of duty of care, his Honour noted that:

The defendant breached its duty to take reasonable care to avoid psychiatric injury by failing to take timely and determinative action on Ms Holmes’ complaints. While other staff had some involvement in that failure, its substantial cause was the conduct, largely by omission, of Ms Turner, conduct for which the defendant would be vicariously liable.’3

He went on to find that Mrs Robinson had been the subject of ‘managerial mistreatment’ by Ms Turner and surmised:

As to whether Ms Turner’s course of managerial mistreatment of Mrs Robinson breached the defendant’s duty to take precautions against a risk of psychiatric injury to Mrs Robinson, the risk was reasonably foreseeable by reason of the very nature of the type of behaviour involved. In an era when the potentially grave psychological harm done by workplace harassment and bullying is well known, unjustified blaming, humiliation, belittling, isolation, undermining and contemptuous disregard of an employee by a CEO was conduct collectively raising a foreseeable and not insignificant risk of psychiatric injury.’4

In the context of those findings, his Honour awarded Mrs Robinson $1,468,991 in damages.

THE LESSONS

This case is a timely reminder that emotions run high and interpersonal problems can escalate quickly in the context of workplace grievances.  Employers should deal with grievances as promptly as possible, using a clear and well-communicated process, to avoid compounding stress.

Employers should also ensure that they provide adequate support to all parties throughout investigations, as another recent Queensland Court of Appeal decision5 has found that the employer’s duty of care in this context may extend to supporting an alleged perpetrator through an investigation process.

If your workplace does not have a grievance procedure, or if you aren’t sure if your existing policy is suitable for your organisation’s needs, then don’t hesitate to get in contact with our Employment and Safety team to discuss any questions or concerns you might have.

————

References:

1 Robinson v State of Queensland [2017] QSC 165

2 At [9]

At [348]

4 At [304]

5 Hayes v State of Queensland [2016] QCA 191