Even if an employer is seemingly behaving within the law, hastiness or a lack of empathy can come back to bite.
Two recent cases highlight the importance of following the spirit and not just the letter of the law, particularly when it comes to psychological injury compensation claims.
The first, a recent case brought to the Administrative Appeals Tribunal (AAT) shows that even when a manager is following the correct procedure regarding preferred arrival and finishing times of staff, they need to pay extra attention to the way in which they implement changes to a worker’s schedule in order to avoid inflaming an already sensitive situation.
A sudden shift
An employee of the Department of Prime Minister and Cabinet had been working flexible hours since 2009 – arriving late and staying back late – in order to manage her sleeping problems.
This was unilaterally changed by her employer after she returned from the Christmas break in January 2015. The employee says her workload increased to what she felt was an unreasonable level. Her new manager informed her that the tasks allocated to her should not be onerous as they were consistent with where her skill set should be. The manager also said the employee’s flex-hours were no longer on the table, she’d now have to report to work at 9am due to “operational needs”.
The manager noted that the previous flexible work policy hadn’t been changed in seven months, and therefore it was reasonable it was reviewed. The manager also told the employee that if she provided a medical certificate backing up her sleeping condition that her flex-hours might be reconsidered.
The employee’s legal representation made an argument to the tribunal that the managers behaviour was in fact retaliatory. They said that the day prior to having her flex-hours removed without warning, the employee had sent an email to the manager raising concerns about her supervisory skills, which may have upset her. AATA member Mark Hyman says there wasn’t enough evidence for him to support this theory, but suggested the manager, “growing impatient with [the employee], took action perhaps more precipitately than was reasonable.
“She gave the direction [that the flex hours would be removed] orally, at the meeting, without the reflection that perhaps should have preceded a decision of that kind,” he added.
The employee ended up taking two months of long service leave and when she returned in April 2015, she felt her workload was still too heavy and there was “more pressure being put on [her]”. In early 2016, the employee was hospitalised for a month; her doctor’s note diagnosed her with “severe depression and severe psychological distress.” After an unsuccessful attempt to return to work, she left the organisation.
She sought compensation for her psychiatric disorder, which she believed was connected to her manager’s treatment of her and her unreasonable workload. The employer rejected the claim.
In this case, the AAT found that the employee’s condition would have still occurred even if the flexible hours hadn’t been removed, but noted that the employee operated under the DEEWR Enterprise Agreement, which set the work days at seven and a half hours, to be completed between the hours of 7am and 7pm.
While Hyman found that the employer’s stance that it wasn’t liable for her reaction to the administrative changes to be accurate, he says the actions were still unreasonable.
It might not have been a direct connection to the removal of the flex-hours that led to the employee’s time in hospital, but Hyman suggested the tense relationship between the employee and the manager could have, and said she was entitled to compensation.
“The matter is remitted to [the employer] for determination of the amount of compensation that may be payable to [the employee],” says Hyman.
A lack of empathy
In a different appeal case, the Federal Court found that a “heated handover meeting” played a part in an employee’s psychological injury. The employee, a human resources director for the National Library of Australia, requested time off to care for his sick mother and subsequently sought compensation from his employer for his adjustment reaction with anxious mood condition caused when this conversation became emotionally charged.
The employee was performing a full-time carer role for his mother ahead of setting up alternative care options for her. He reported that he hadn’t properly slept in three weeks and had been losing weight as a result of the stress.
Senior AAT member Linda Kirk said the meeting regarding the employee’s carers leave, was “conducted in an unreasonable manner”. The employee was not provided with an agenda, was clearly in a distressed state (his sick mother was waiting outside the meeting as no one was able to stay at home and care for her), and on more than one occasion, his manager accused him of being disrespectful for sending an email that said he wasn’t able to attend work instead of calling.
The employee, who was reportedly shocked that this was the source of such passion, claimed he had tried to call first, but the manager didn’t pick up. This is confirmed within the email sent to the manager by the employee:
I rang for you Friday afternoon but you were out of your office.
I regret very much to tell you that I think I’ll be off work for the next fortnight. Mum is still very frail and I am literally with her constantly while she’s awake. Her mid afternoon nap offers some opportunity to wash her clothes and so on.
I have contacted ACT community services for an urgent ACAT assessment to get some in-home care and am very hopeful that can occur this week. All going well services should be available by end-Jan which will enable me to return to work.
On the upside, mum has responded well to my care and is much less ill than she was, I think. Further scheduled medical treatment should help.
[Manager], I’m very conscious about the effect of my absence on the EA negs; perhaps getting that [other] fellow on, as we discussed before Christmas, would enable things to tick over? I could also shepherd him by phone. I’ll leave you to consider.
With best regards,
According to a statement from a witness who was present in the meeting, “Both parties raised their voices and were speaking over each other about whether the email should have been sent. [The manager] was fixated on the communication method which in [the witness’s] view displayed a ‘lack of judgement’.”
The employer argued the manager was simply attempting to ascertain how long the employee would be on leave for in order to make sure things would run smoothly in his absence. While the manager is well within his rights to seek such information in order to ensure for business as usual, the law has found that the way in which he went about it was problematic.
The compensation costs are yet to be determined.
Always include the HR voice
Both of these cases highlight the important role HR can play in training managers, or even being part of difficult conversations. As all good HR practitioners know, it’s wise to take a consultative approach with staff. In fact, in many cases it’s a legal requirement.
Charlene Woodbine, an experienced industrial relations lawyer and senior HR professional at Vitil Human Resources, says effective forms of consultation can lead to:
- Improved productivity
- A positive workplace culture
- A resilient workforce
- A reduction in the number of claims made against an employer
“The Fair Work Act does not prescribe any rules in relation to how consultation must take place. However, it is important to ensure that the consultation is genuine and not treated as a mere formality. It is also critical that decisions are not finalised until the consultation process has occurred and the employee’s responses have been given genuine consideration,” says Woodbine.
If you’re after some tips around ensuring compliance in this area, Woodbine suggests starting early, being prompt when responding to employees’ questions and giving them as much information as you can. If you withhold information, it raises red flags and tensions. She also suggests taking employee’s feedback onboard, keep a written record of all conversations and, perhaps most pertinently to these two cases, give employees ample time to mull over the change you’ve proposed.
HRM has previously highlighted research showing the positive effects to come from giving your employees a voice and making sure they feel heard. You’re not just protecting yourself, you’re cultivating a stronger, happier and more effective workforce.
Discussing topics like this with employees can be hard. AHRI’s short course ‘Having difficult conversations’ is designed to give you tips on what you should and shouldn’t say.