Australia: School Safety 2007: Managing The Risk Of Claims By Employees Arising Out Of Performance Management Processes

Last Updated: 20 September 2007

Article by Andrew Tobin, Special Counsel, Workplace Relations, and Jessica Paten, Trainee Solicitor, Workplace Relations.


Discussion of performance management processes in the context of school safety may at first glance appear somewhat incongruous. Yet an ever-increasing tide of stress-related workers’ compensation – among other types of – claims indicates its relevance to workplace health and safety.

With particular emphasis upon the risk of those types of claims, this paper outlines:

  • the workplace health and safety obligations that Queensland employers owe to their workers;
  • the potential legal risks to which employers are exposed when they fail to discharge those obligations;
  • ways and means of seeking to contain those risks.

In the workplace health and safety context, the principal risk area is the risk of personal injury type claims, of whatever kind and however manifested, for psychiatric or psychological disorders arising out of performance management processes. However, the risks for employers are not isolated to the workplace health and safety area and the topic cannot be considered from that perspective alone. A broader range of industrial risks are involved and also have to be managed.

This paper seeks to give some coverage of the major risk areas involved. The topics are approached from an overall workplace relations law perspective.

Performance Management

‘Performance management’ is a term that eludes simple definition. It often conjures up the ‘sharp end’ of employer/employee relations when an employee’s performance or conduct is called into question leading to counselling, warnings, and ultimately, termination of employment. However, as some of the cases mentioned below illustrate, it is much broader than that.

Storey and Sisson label it "an interlocking set of policies and practices which have as their focus the enhanced achievement of organisational objectives through a concentration on individual performance."1

The Human Resources, Management and Business Glossary provides this similarly nebulous definition:

Performance management is the process of creating a work environment or setting in which people are enabled to perform to the best of their abilities. Performance management is a whole work system that begins when a job is defined as needed. It ends when an employee leaves your organisation. 2

In other words, performance management within an organisation is truly a ‘cradle to the grave’ exercise, beginning as soon as the need for a particular position is identified, and ending when an employee engaged to fill that position leaves it. A complete system of performance management will incorporate the following elements:

  • the development of clear job descriptions and appropriately focused recruitment processes;
  • comprehensive, but sufficiently flexible, statements of terms and conditions of employment (found in the contract of employment);
  • establishment of performance objectives or key performance indicators;
  • appraisal of individual and group performance against objectives;
  • provision of feedback;
  • recognition and rewarding performance;
  • provision of opportunities for promotion and career progression;
  • provision of education and training;
  • management of team dynamics and employee relationships; and
  • appropriate policies developed to accommodate the individual employer’s operational requirements and legal obligations. The subject matter of these will vary between employers and between industries but should always deal with:
    • performance management and discipline processes;
    • prevention of workplace bullying, unlawful discrimination and sexual harassment in the workplace;
    • complaint handling and dispute resolution.

The link between these processes, their implementation and failures on the one hand, and risks for employers and workers on the other hand, is demonstrated by a raft of case law, some of which is discussed below.

Stress on the Rise

In May of this year the Australian Safety and Compensation Council released the Compendium of Workers’ Compensation Statistics Australian 2004-05 (Compendium). It included some edifying, if not alarming, statistics regarding the rates of compensable workplace injury and illness experienced in the education sector and the rates of stress-related illness exhibited across all industries generally.

On a positive note, the Compendium showed that the number of total successful workers’ compensation claims across Australia was, in 2004-2005, reduced by 13% from those accepted in 1996-7, even though the number of workers had increased over the same period from 7.3 million to 8.4 million.3 However, the two main exceptions to this general pattern of improvement were the education and property and business services industries. The education sector experienced a 32% increase in compensated claims and was the only industry to experience an increase in incidence rates of injury or illness.4

During this same period, whilst the number of claims in most injury or disease classifications decreased, the number of claims for mental disorders globally increased by 58%.5 Furthermore, for the period 2003-4 to 2004-05, the education sector had the second highest percentage (after health and community services) of new mental stress claims, comprising almost 19% of total claims.6 The most common reported contributing factors to mental stress claims globally were ‘work pressure’ and ‘harassment’.7

These statistics clearly indicate that employers, and particularly educational institutions, can ill-afford to ignore the risk factors associated with employee mental illness and injury. The best way in which employers can safeguard against these risks is to know their obligations under occupational health and safety legislation and to implement strategies to manage obvious and known workplace stressors, including performance management processes.

Occupational Health and Safety Laws

Sources of employer obligations

Employers’ obligations regarding occupational health and safety derive from both legislation and the common law.8

In Queensland, in the current context, employers’ statutory obligations in relation to workplace health and safety derive primarily from the Workplace Health and Safety Act 1995 (Qld) (WHSA) and the Workplace Health and Safety Regulation 1997 (Qld) (WHSR).

Codes of practice, together with other instruments promulgated under the WHSA, prescribe practical guidelines to assist employers in preventing or minimising their exposure to the risk of employee injury or illness. If a code of practice, or other instrument, is prescribed for the management of exposure to a particular type of risk, observance of the terms of the instrument is, in practical terms, mandatory for the discharge by employers of their relevant workplace health and safety obligations under the WHSA.9

WHSA obligations

The WHSA imposes health and safety obligations on a range of people, including persons who conduct a business; persons who are in control of a workplace or workplace areas; owners, designers, manufacturers, erectors and installers of a plant; manufacturers and suppliers of substances used in the workplace; and persons in control of fixtures, fittings or a plant in a workspace area.10

Employers are obliged to discharge their workplace health and safety obligations.11 As noted above, they can do this by complying with the requirements set out in an applicable statutory instrument, including any relevant code of practice.12 Where there is no prescriptive instrument, the WHSA provides that an employer discharges their workplace health and safety obligation by doing both of the following:

  • adopting and following any way to discharge the person’s workplace health and safety obligation for exposure to the risk;13
  • taking reasonable precautions, and exercising proper diligence, to ensure the obligation is discharged.14

Employees also have a workplace health and safety obligation.15 They are obliged:

  • to comply with the instructions given for workplace health and safety at the workplace by their employer;16
  • to use personal protective equipment if provided by the worker’s employer and the worker is properly instructed in its use;17
  • not to wilfully or recklessly interfere with or misuse anything provided for workplace health and safety at the workplace;18
  • not to wilfully place at risk the workplace health and safety of any person in the workplace;19 and
  • not to wilfully injure himself or herself.20

Legal Risks

As noted above, employers can discharge their workplace health and safety obligations by complying with the prescriptive requirements of an applicable statutory instrument or, if there are no relevant instruments, by adopting and following some other means by which to ensure their health and safety obligation to their employees is discharged.

Adopting and implementing reasonable performance management practices that limit an employer’s exposure to the risk of stress-related injuries by employees subjected to those practices constitutes one aspect, among many aspects, of this duty.

More broadly, employers who fail to implement appropriate performance management practices run the risk of exposing themselves to a wide range of potential legal risks. These include claims by employees for:

  • damages for breach of contract, negligence or breach of statutory duties;21
  • compensation arising out of unlawful discrimination in the work area;22
  • relief in respect of unfair dismissal;23
  • relief in respect of unlawful dismissal;24
  • reinstatement as the result of a contravention of the ‘protected’ worker provisions of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA);25
  • bullying or ‘workplace harassment’ (itself a regulated workplace health and safety matter);26
  • vicarious liability arising out of the conduct of other workers;27 and
  • statutory workers’ compensation benefits.

This paper focuses on employers’ exposure to workers’ compensation claims. However, as mentioned above, strategies for the management of risks in that area in the performance management context will invariably overlap into the other areas of risk mentioned, and these should be kept in mind in developing and implementing relevant management processes.

Stress-Related Workers’ Compensation Claims


The Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) makes an employer legally liable, subject to a range of criteria including some discussed here, ‘for compensation for injury sustained by a worker employed by the employer’.28

The WCRA defines injury as "personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury."29 The WCRA s 32(5) provides that injury does not, however, include a "psychiatric or psychological disorder arising out of, or in the course of" the following circumstances:

  • reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;30
  • the worker’s expectation or perception of reasonable management action being taken against the worker;31
  • action by the Workers’ Compensation Regulatory Authority or an insurer in connection with the worker’s application for compensation.32

In the current context an employer’s primary concern, in order to avoid liability for a claim made under the WCRA during the course, or as a result of, performance management of an employee, will be to act and to be seen to act reasonably, that is, by taking ‘reasonable management action… in a reasonable way’. Acting reasonably will not only serve to avoid the imposition of liability under the WCRA, but will also go a long way to avoiding, not only injuries in themselves, but also the other relevant risks referred to above.

In other words, what is reasonable in the context of the WCRA is going to be reasonable in the context of defending an unfair or unlawful dismissal claim; responding to a workplace bullying complaint; defending an unlawful discrimination claim; or defending a common law claim for damages for personal injury. It is very common for an employer to be dealing with various combinations of these issues arising out of the one set of facts. And while ‘reasonable’ activity will not always be the complete measure of a defence to any particular type of claim, it will almost always be of very substantial assistance to an employer engaged in trying to manage that claim.33

The exclusion relating to ‘reasonable management action’ in s 32(5) (a) was initially introduced into the predecessor to the WCRA to combat the increasing incidence of workers’ compensation claims "where remedial action regarding a workers’ poor performance…was the stimulus for the claim."34 It has since been determined that this exemption is not confined to the impact of disciplinary action, and can extend to an employer’s systems of work and its implementation.35

‘Arising out of, or in the course of, employment …’

So far as the WCRA is concerned, a compensable claim under the legislation must ‘arise out of, or in the course of, employment’. It is mentioned here as an essential element of a compensable claim under the WCRA, but where stress-related maladies arise out of performance management processes, they will almost always constitute injuries arising out of or in the course of employment.

Avis v WorkCover Queensland [2000]36, a decision of the Industrial Court of Queensland, is regarded as the key case in Queensland exploring the meaning of the words ‘arising out of’ employment.37 In this case, Mr Avis was a secondary school teacher employed by Education Queensland from 1982 to 1997. In August 1997 he ceased work as he was suffering from a major depressive illness. Mr Avis sought workers’ compensation under the predecessor to the current WCRA, which was subsequently rejected by WorkCover Queensland. Mr Avis’ depressive illness arose out of difficulties he encountered with student discipline after the school at which he was employed introduced a new behavioural management plan. The Court found the adoption and implementation of the behavioural management plan to be reasonable management action. In doing so the President of the Court, President Hall, stated:

[T]he test posited by the words ‘arising out of’ is wider than that posited by the words ‘caused by’ and…the phrase ‘arising out of’ whilst involving some causal or consequential relationship between the employment and the injury, does not require that direct or proximate relationship [as] would be necessary if the phrase used were ‘caused by’.38

Reasonable Management Action

The WCRA contains no definition of ‘management action’ or ‘reasonable management action.’ Instead, it lists the following as examples of actions that may constitute ‘reasonable management actions’ if undertaken in a reasonable way:

  • actions to transfer, demote, discipline, redeploy, retrench or dismiss the worker; and
  • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker’s employment.39

Andrew Williams, in a paper on this concept of ‘reasonable management action’, considered it noteworthy that these examples relate to things either done or not done in relation to the specific worker.40 Yet, he states that the decided cases clearly indicate that management action encompasses a broader range of actions. As examples:

  • the implementation of a student behaviour management plan in Avis v WorkCover Queensland [2000] constituted ‘management action’ for the purposes of the legislation;
  • management action will extend to an employer’s decision to restructure their business, leading to an increased workload for an employee.41

President Hall recently refined this point in Parker v Q-COMP [2007]42:

…[T]here is nothing in the language of s. 32(5)(a) to suggest that it is confined to ‘management action taken in a reasonable way’ solely in connection with the claimant worker's employment. Management action often involves mediating between workers or otherwise adjusting their relationships.

The ‘reasonableness’ or otherwise of an employer’s management action is usually a more contentious point than whether or not an act done, or course of conduct engaged in by an employer is ‘management action.’ Certainly, it is well established that just because an employee’s work environment was a significant contributing factor or a cause of their psychological or psychiatric illness or disorder, does not inexorably lead to a conclusion that the employer’s system of work or its implementation was not reasonable (Svenson v Q-COMP [2006]).43 This is the case even where it is clear that the system of work or its implementation has miscarried, as such miscarriages can occur even with reasonable schemes that are reasonably implemented (Bowers v WorkCover Queensland [2002]).44

In the latter case, Ms Bowers attributed the development of her depressive condition to her difficult working relationship with her immediate superior. She further claimed that her volume of work was burdensome and that she lacked adequate training. Although Q-COMP acknowledged that Ms Bowers’ superior’s conduct and the employer’s systems were not blemish-free, these flaws were insufficient to demonstrate the absence of reasonableness.

A determination as to whether particular management action was or was not reasonable will sometimes be impacted by the employee’s own particular psychological pre-dispositions, and the employer’s knowledge – or absence of knowledge – of these. In WorkCover Queensland v Kehl [2002]45, Mrs Kehl was a school teacher employed by Education Queensland who claimed workers compensation for a ‘major depressive disorder’. At first instance, the Industrial Magistrate found that Mrs Kehl was suffering from a previous medical condition, which had been aggravated by the way in which Education Queensland had dealt with two complaints against her and a grievance she filed against the principal of the school in which she was employed. The Industrial Court upheld the finding of the Industrial Magistrate, and in doing so, determined that an employer’s knowledge of an employee’s susceptibility to mental illness is relevant in determining the reasonableness or otherwise of the employer’s management action:

There seems to be no reason for concluding that the circumstances of the case do not include circumstances relating to the psychological makeup of the worker where those circumstances are known to the employer. It is not a matter of suggesting that management should speculate about the psychology of each of its workers if they are engaging in management action which may impact on particular workers, or should require psychological evaluation of its workers. It is simply a matter of recognising that fixed with knowledge of a worker’s makeup a reasonable person would take that knowledge into account in assessing what is a reasonable way in which to implement an otherwise reasonable decision.46

The issue of multiple stressors was considered in Q-COMP v Education Queensland [2005].47 In this case, Mr McArthur was a school teacher who claimed workers compensation for a psychological disorder which he developed after a female student made a complaint against him, alleging inappropriate physical contact. The school conducted investigations into the matter and three days later advised Mr McArthur that the complaint was resolved in his favour. Mr McArthur subsequently developed stress-related symptoms including tension, headaches, anxiety and depression. It was accepted at first instance and on appeal that it was the allegations themselves, rather than the investigative process, which were the major contributing factor to the onset of the illness. Nevertheless, as the management action was reasonable in all of the circumstances, Mr McArthur’s disorder was excluded from the definition of injury. The reason for this was that where s 32(1) ‘ropes in’ a particular psychiatric disorder and s 32(5) excludes that same disorder, there is an inconsistency, which must be resolved by allowing s 32(5) to prevail.48

Whether an employer’s management action is reasonable will, of course, turn upon the circumstances of the case and, in some circumstances, the predispositions of the particular employee. The following are examples of management action by an employer where reasonableness was in issue. In one way or another, they all involve performance management issues:

  • An employer who advised an employee that they were aware of her previous convictions for dishonest application of money, and who subsequently stood down the employee on full pay whilst they investigated discrepancies in their own accounts, was found to have engaged in reasonable management action.49
  • Alteration to the scheme of paying commissions to sales staff which resulted in difficulties and delays in payments to some staff, and caused distress to an employee manager, was reasonable management action taken in a reasonable way.50
  • When an employer conducted investigations into alleged misuse of a company American Express card at ‘Hollywood Show Girls’ this was found to constitute reasonable management action, even though there was evidence that the employee’s manager had approved some private usage of the card.51
  • An employer was found to have engaged in reasonable management action when it convened a meeting with an employee to discuss his poor work attendance and performance and advised the employee that the reporting structures would be altered so that the employee would have a new supervisor.52
  • A supermarket manager chastised an employee in the presence of customers twice in the same day, causing embarrassment to the employee. One of these chastisements related to the spillage of water. Although this was a lapse in proper and reasonable staff treatment, it was reasonable management action, especially as the incidents were short in duration and one involved a safety concern.53
  • Qantas was found to have engaged in reasonable management action when it convened a meeting to investigate relationship difficulties between one of its team leaders and his second in command as well as safety concerns, even though it failed to provide details of this meeting to the team leader in advance.54
  • An employer who failed to notify an employee of the outcome of a grievance instituted against the employee did not engage in reasonable management action.55

Taken in a reasonable way

An employer’s actions can fall outside the statutory exemption if their management action, while itself reasonable, is not ‘taken in a reasonable way.’ Where an employee’s claim relates to allegations of bullying or belittling behaviour by an employer, factors that may be considered when determining whether management action, itself inherently reasonable, was nevertheless ‘taken in a reasonable way’ include things such as the language, tone of voice and demeanour used by the employer in carrying out the management action (WorkCover Queensland v Heit [2000]).56

In Versace v Braun [2005]57 the Court considered an employer’s decision to undertake a restructuring exercise. In this case, Mr Braun was the manager of a bakery prior to the restructure. Although he retained this position post-restructure and his substantial salary remained the same, he was to have an increased production role, the challenge of which he found threatening. It was held that the restructuring exercise itself amounted to reasonable management action, but that the employer had failed to implement this restructuring in a reasonable way. This was demonstrated by the employer leaving short sentences on Mr Braun’s mobile phone message bank, sending him SMS messages, and circulating a memorandum indicating that Mr Braun had accepted the restructured position when this was not in fact the case.

In Catholic Education Services v Q-COMP [2007]58 an Education Officer employed by the Catholic Diocesan Education Services was subject to a performance review process which was found to constitute reasonable management action, but unreasonably taken. Although the employee’s poor performance was found to justify a performance review process, elements of the implementation of the process found to be unreasonable included, leaving letters on his desk without comment or explanation and informing him in these letters that he would have a new manager; that a formal process of performance monitoring was to commence; and that his employment would be terminated in the absence of clear improvement in his performance.

Performance Management and Reasonable Management Action

There are a variety of things that employers can do to develop and implement their performance management practices so that if, or when, an employee suffers psychological injury arising out of or in the course of their work, the employer’s culpability for the consequences, however they manifest, is as limited as is possible.

As a priority, employers should comply with the requirements set out in occupational health and safety legislation and applicable codes of practice. For instance, the Prevention of Workplace Harassment Code of Practice 2004 is highly relevant to issues of performance management. In what is clearly aimed at the s 32(5) WCRA exception, the code provides that workplace harassment, otherwise called ‘bullying’, does not include ‘reasonable management actions, taken in a reasonable way.’59

Actions cited in the Code as constituting examples of behaviour that might amount to ‘harassment’, or ‘bullying’ include:

  • abusing a person loudly, usually when others are present;
  • repeated threats of dismissal or other severe punishment for no reason;
  • constant ridicule and being put down;
  • leaving offensive messages on email or the telephone;
  • excluding or isolating a person from workplace activities;
  • persistent and unjustified criticisms; and
  • humiliating a person through gestures, sarcasm, criticism and insults in front of customers or other workers.

These are obviously things to be avoided by employers in the performance management context, and the code identifies various mechanisms to assist employers to achieve this. Specifically, it goes about describing how employers can, in the workplace harassment context, implement the 5 pillars of risk management generally applicable to the management of exposure to all workplace health and safety risks 60, ie

  • looking for hazards;
  • determining who might be harmed and how;
  • deciding on control measures to prevent or control the level of the risks;
  • putting the controls in place; and
  • monitoring and reviewing the effectiveness of the control measures. 61

The code sets out the above process with sufficient specificity, particular to workplace harassment, to enable employers to comply with their workplace health and safety obligations in relevant respects. These include, for example, the development of a workplace harassment prevention policy and complaint handling system.

However, as mentioned earlier, those activities cannot be undertaken in a vacuum. Employer policies and complaint handling systems need to deal with some of the other, related, risks mentioned earlier in this paper, including, for example, risks of industrial claims arising out of inadequate or inappropriate termination procedures, and, the risk of claims based upon alleged unlawful discrimination or sexual harassment. For example there is no reason why an employer would have separate complaint handling systems for dealing with workplace harassment complaints on the one hand and unlawful discrimination or sexual harassment complaints on the other.

In addition to complying with the prescriptive requirements of codes of practice, other things that employers can do to minimise relevant risks include:

  • Formulating clear position descriptions so that employees are aware from the outset of employer expectations and the demands associated with a particular role;
  • Appropriate documentation of terms and conditions of employment, again, to establish clear expectations at the commencement of the employment relationship;
  • Conducting periodic employee performance appraisals. This will not only enable the employer to advise the employee of performance concerns as and when they arise, but will allow the employee to respond to these concerns and flag potential workplace stressors to the employer;
  • Implementing formal and equitable counselling processes to discuss employee performance and conduct issues. Care should also be taken to ensure that employees who exhibit stress-related symptoms, or who are exposed to potential workplace stressors, are managed in a way that takes account of their issues;
  • Developing and implementing appropriate disciplinary and dismissal procedures. These should involve elements of both substantive and procedural fairness, and will need to take account of any industrial laws regulating termination processes; and
  • Developing and implementing dispute, grievance resolution and complaint handling processes with clearly defined steps that can be applied flexibly. Care should be taken to ensure that these processes are impartial, are conducted in a timely fashion and, where necessary, protect the confidentiality of participants;
  • Training those responsible for giving effect to relevant procedures and processes. The best systems in the world are pointless if those charged with implementing them are ignorant of how to do so.

Employers should also ensure that they, or their employees who are responsible for performance management issues, are familiar with their applicable industrial environment. The nature and complexity of these will vary between employers and situations. However, applicable awards, agreements, contracts and existing policies will almost always provide some form of useful structure to be applied to a wide variety of performance management situations. Utilising the elements of these structures in the situations to which they apply will usually go at least some way to justifying an employer’s conduct and actions if that conduct and those actions are later called into question. This will be the case whether that occurs in the context of a personal injury type stress claim or some other claim.


1 J Storey and K Sisson, Managing Human Resources and Industrial Relations, Open University Press, Buckingham, 1993, p. 132, cited in Raymond J Stone, Human Resource Management, John Wiley & Sons Australia, Ltd 2005, p 277.

2 Susan M Heathfield, Human Resources, Management and Business Glossary, (at 2 May 2007)

3 Australian Safety and Compensation Council, Compendium of Workers’ Compensation Statistics Australian 2004-05, p 8 (May 2007)

4 Ibid.

5 Ibid, p 35.

6 Ibid, p 76.

7 Ibid, p 72.

8 The common law imposes an non-delegable obligation on employers to take reasonable care for the safety of their employees. See Kondis v State Transport Authority (1984) 154 CLR 672 at 687 (per Mason J).

9 WHSA, s 26(3)(a).

10 WHSA s 23(1).

11 WHSA s 24(1).

12 WHSA s 26.

13 WHSA s 27(2)(a).

14 WHSA s 27(2)(b).

15 WHSA s 23(4).

16 WHSA, s 36(a).

17 WHSA, s 36(b).

18 WHSA, s 36(c).

19 WHSA, s 36(d).

20 WHSA, s 36(e).

21 See the case of Glianos v Minister for Education Queensland & Anor [2006] QSC 197. In this case Mr Glianos was claiming damages for negligence and breach of contract relating to a psychiatric disorder which he claimed arose out of investigations carried out by the CJC and Education Queensland.

22 Anti-Discrimination Act 1991 (Qld) s 15. This section provides, amongst other things, that a person must not discriminate in: any variation of the terms of work; denying or limiting access to opportunities for promotion, transfer, training or other benefit to the worker; dismissing the worker (including forced retirement and failure to provide work); denying access to a guidance or occupational training program; developing the scope or range of such a program; treating a worker unfavourably in any way in connection with work.

23 See Workplace Relations Act 1996 (Cth) s 643. See also, Shanahan v University of Western Sydney AIRC (27 May 2005), Drake SDP, Hamberger SDP and Raffaelli C and Wilkinson v. Birdon Group (2005) 56 AILR 200-167 (4 April 2005).

24 See eg Workplace Relations Act 1996 (Cth) s 659(2)(a).

25 See Part 6, WCRA Protection for Injured Workers.

26 See the Prevention of Workplace Harassment Code of Practice 2004 promulgated under the WHSA.

27 See, Naidu v Group 4 Securitas Pty Ltd & Anor [2005] NSWSC 618. In this case an employer was found vicariously liable for psychiatric injury sustained by an employee due to his malicious mistreatment by a supervisor. See also Lulham v. Shanahan, Watkins Steel & Ors [2003] QADT 11 (5 August 2003) in which an employer was found vicariously liable under the Anti- Discrimination Act 1991 (Qld) for the conduct of several employees amounting the sexual harassment of one of their co-workers.

28 WCRA s 46(1).

29 WCRA s 32(1).

30 WCRA s 32(5)(a).

31 WCRA s 32(5)(b).

32 WCRA s 32(5)(c).

33 See, as an example, s 133 Anti-Discrimination Act 1991 (Qld).

34 WorkCover Queensland Bill 1996, Second Reading speech, in, Queensland, Parliamentary Debates, Legislative Assembly, 27 November 1996, 4459 (Santo Santoro).

35 Bowers v WorkCover Queensland [2002] QIC 18 (23 April 2002), Hall P.

36 QIC 67 ( 7 December 2000), Hall P.

37 See also, WorkCover Queensland v Curragh Mining Pty Ltd [2003] QIC.

38 Ibid.

39 WCRA s 32(5)(a).

40 ‘‘Management Action’ and ‘Reasonable Management Action’’ at [63], Q-Comp, Seminar Papers at 20 August 2007.

41 Exide Australia Pty Ltd v WorkCover Queensland [2002] QIC 24 (17 May 2002), Hall P.

42 QIC 25 (17 July 2007).

43 QIC 16 (31 March 2006), Hall P.

44 QIC 18 (23 April 2002), Hall P.

45 QIC 23 (17 May 2002).

46 Ibid.

47 QIC 46 (8 July 2005), Hall P.

48 President Hall made this observation when considering the predecessor to ss 32(1) and 32(5), which were ss 34(1) and 34(5) respectively.

49 WorkCover Queensland v Tomasich [2002] QIC 42 (13 August 2002), Hall P.

50 Carins v Q-COMP [2007] QIRComm 59 (6 August 2007), Asbury C.

51 Ibid.

52 Hastings Deering (Australia)Limited v Q-COMP [2007] QIRComm 49 (30 July 2007), Bloomfield DP.

53 Prizeman v Q-COMP [2005] QIC 53 (14 September 2005), Hall P.

54 Qantas Airways Limited v Q-COMP [2006] QIRComm 27 (22 February 2006), Blades C.

55 Delaney v Q-COM56 QIC 22 (24 May 2000), Hall P.

56 QIC 18 (24 May 2000), Hall P.

57 QIC 18 (17 March 2005), Hall P.

58 QIRComm 40 (3 July 2007), Bloomfield DP. In this case, other stressors were found to constitute ‘reasonable management action’. Therefore, the injury was excluded under s 32(5) WCRA.

59 Prevention

60 WHSA, s 27A.

61 Prevention of Workplace Harassment Code of Practice 2004 s 4. See also the Risk Management Code of Practice 2007.of Workplace Harassment Code of Practice 2004 s 1.1.P Review Unit [2005] QIC 11 (2 March 2005), Hall P.

© Hopgood Ganim

Australia's Best Value Professional Services Firm - 2005 and 2006 BRW-St.George Client Choice Awards

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.