INSIGHT

Employer defence rejected after meeting caused psychological injury

By Tom Bleby
Employment & Safety

In brief 3 min read

A recent decision of the New South Wales Personal Injury Commission (Commission) highlights the importance of ensuring employers give employees adequate time to prepare for a disciplinary meeting.

Key takeaways

When directing employees to attend a disciplinary meeting, employers should ensure employees are given sufficient time to prepare for the meeting and, depending on the circumstances, comply with a policy or rectify any performance issue prior to the meeting occurring. A failure to do so may mean the meeting amounts to unreasonable action on the part of the employer.

Background 

Mr Dimopoulos, a ramp services and baggage handling employee for Jetstar Services Pty Ltd (Jetstar), alleged that he became incapacitated for work after a disciplinary meeting he attended with his manager in April 2019. The meeting related to Mr Dimopoulos' failure to submit a leave request for two days of sick leave taken earlier in the month. His justification was that he did not have time to submit the leave request.

Mr Dimpoulos had already been placed on a performance improvement plan due to recurrent lateness for work, had been investigated for two allegations of misconduct (one of which was substantiated), and had been issued two written warnings. Mr Dimopoulos claimed that he felt targeted by his manager and alleged that he sustained a psychological injury during the course of his employment, with the date of that injury being listed as the date on which the disciplinary meeting occurred.

Mr Dimpoulos claimed that his injury was the result of bullying and harassment by his manager and colleagues, and sought compensation for permanent impairment, claiming a whole person impairment of 15%.

After being initially accepted, Mr Dimopoulos' workers compensation claim was subsequently denied on the grounds of a defence under section 11A(1) of the Workers Compensation Act 1987 (NSW). Under section 11A(1), compensation is not payable where, among other things, the injury is wholly or predominantly caused by reasonable action taken by the employer with respect to performance appraisal, or discipline.

Decision

Accepting that Mr Dimopoulos' psychological injury was wholly or predominantly caused by Jetstar's actions regarding discipline, the Commission said that the onus was on Jetstar to establish that its actions were reasonable. Whether those actions were reasonable was a question of fairness, assessed by reference to what was or, having made reasonable enquiries, could have been known by the person taking the action at the time.

The Commission found that it would have been reasonable for Jetstar to have provided Mr Dimopoulos with more time to properly prepare (and possibly comply with the policy the subject of the meeting (in this case, the leave policy)).

On that basis, Jetstar's actions were not accepted by the Commission as reasonable. The matter was remitted for a referral to an independent medical assessment to determine Mr Dimopoulos' whole person impairment.