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’ 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
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
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 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  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 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 ).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 ).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 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 .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 ).56
In Versace v Braun 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 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)http://humanresources.about.com/od/glossaryp/g/perform_mgmt.htm.
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  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  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  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  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  QIC. 38 Ibid. 39 WCRA s 32(5)(a). 40 ‘‘Management Action’ and ‘Reasonable Management Action’’ at , Q-Comp, Seminar Papers at 20 August 2007. 41 Exide Australia Pty Ltd v WorkCover Queensland  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  QIC 42 (13 August 2002), Hall P. 50 Carins v Q-COMP  QIRComm 59 (6 August 2007), Asbury C. 51 Ibid. 52 Hastings Deering (Australia)Limited v Q-COMP  QIRComm 49 (30 July 2007), Bloomfield DP. 53 Prizeman v Q-COMP  QIC 53 (14 September 2005), Hall P. 54 Qantas Airways Limited v Q-COMP  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  QIC 11 (2 March 2005), Hall P.
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  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  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  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  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  QIC.
39 WCRA s 32(5)(a).
40 ‘‘Management Action’ and ‘Reasonable Management Action’’ at , Q-Comp, Seminar Papers at 20 August 2007.
41 Exide Australia Pty Ltd v WorkCover Queensland  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).
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  QIC 42 (13 August 2002), Hall P.
50 Carins v Q-COMP  QIRComm 59 (6 August 2007), Asbury C.
52 Hastings Deering (Australia)Limited v Q-COMP  QIRComm 49 (30 July 2007), Bloomfield DP.
53 Prizeman v Q-COMP  QIC 53 (14 September 2005), Hall P.
54 Qantas Airways Limited v Q-COMP  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.
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  QIC 11 (2 March 2005), Hall P.
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