‘Behaviour posed genuine OHS concern’ — no reinstatement

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‘Behaviour posed genuine OHS concern’ — no reinstatement

A worker has lost his case for reinstatement, because his dismissal did not unlawfully flow from his compensable physical injuries but rather from management’s genuine concern that his behaviour posed a threat to staff safety.

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A worker has lost his case for reinstatement, because his dismissal did not unlawfully flow from his compensable physical injuries but rather from management’s genuine concern that his behaviour posed a threat to staff safety. 

 
The computer software engineer commenced employment with Silverbrook Research Pty Ltd — a NSW engineering, research and development firm in early 2001.
 
He subsequently suffered work-related injuries to both his forearms (tennis elbow), which limited him to one hour of keyboard work a day, and was awarded workers compensation by Silverbrook's insurer.
 
In mid-2005, the worker’s performance was reviewed by his supervisor, who identified shortcomings in the areas of communication and interaction with other staff members, areas which the company considered vital as work was conducted in multidisciplinary teams. The worker was placed in a six-month coaching program as a result, but withdrew before its completion.
 
Shortly afterwards, management launched an investigation into the worker’s complaint that he was suffering from stress flowing partly out of his injury, but also out of ‘difficulties’ he was experiencing with his work colleagues and supervisor.
 
In mid-2006, he underwent a further performance review, during which the same deficiencies were identified.
 
A series of behavioural issues
 
Subsequently, a series of incidents or behavioural issues involving the worker were reported to management, namely: 
  • He kicked and broke a glass door, apparently in frustration over the second performance review. 
  • He told staff that he had once smashed a window with his fist.
  • He admitted anger towards his supervisor and told him he wanted ‘something bad to happen’ to him.
  • He refused to communicate other than through handwritten notes or by pointing.
  • He walked aimlessly around the office for extended periods of time staring at staff.
  • He conceded that he had a ‘phobic response’ to persons named ‘Mike’ or people with black beards. 
  • He generally acted in a threatening and harassing manner, and there were concerns among staff that he would ‘go postal’ (turn violence).  
In light of concerns about the worker’s ‘emotional state’, management directed him to undergo psychiatric assessment to determine whether he was able to carry out work for Silverbrook without any risk to himself or other staff members. When he refused, he was suspended with pay. However, the worker continued to enter the workplace even after being directed not to, including one instance where he accessed his supervisor’s confidential files outside of work hours. A deal was eventually struck between Silverbrook and the worker’s union, APESMA, for him to undergo psychiatric assessment.
 
Termination and legal action
 
In August 2008, the worker received a letter from Silverbrook’s CEO terminating his employment, on the grounds that the report of the assessing psychiatrist did not give the company ‘sufficient comfort’ that it could discharge its statutory obligations to ensure the health and safety of all employees if he were return to work.
 
The CEO explained that although the report had indicated he was a low-risk source of workplace violence, management ‘must take into account the overall impact of your behaviour on others in the workplace and consider that such impact would be a negative one’.
 
The CEO also cited the worker’s failure to comply with a number of directions, and said that relations between him and other employees had deteriorated ‘irreparably’ — specifically, the worker’s refusal to accept the outcome of three investigations disproving complaints he made against his co-workers and supervisor made it ‘impossible’ for him to work in a satisfactory manner with these people.
 
A year later, the worker made a complaint to the Australian Human Rights Commission alleging discrimination by Silverbrook management and staff under the federal Disability Discrimination Act 1992. It was dismissed on the basis that it was lodged more than 12 months after the alleged unlawful discrimination took place.
 
In July 2010, the worker emailed Silverbrook with a request to resume work on the grounds that in light of improvements to his tennis elbow injuries, his fitness to work had recently been upgraded to being fit for pre-injury duties. When Silverbrook rejected his request, the worker lodged an application under s242 of the NSW Workers Compensation Act 1987 seeking reinstatement to his former position or to a comparable position.
 
Scope of claim limited to physical injuries
 
In the NSW industrial relations Commission, the worker argued that he was dismissed from his employment because of his ‘injuries’, which included the injuries to his forearms, and the emotional issues and psychiatric condition he suffered, partly as a result of difficulties with staff and partly as a result of the injuries to his forearms.
 
However, Silverbrook submitted that the worker’s application under s242 of the Workers Compensation Act was confined to the injury to his forearms, for the following reasons: 
  • That is the only matter which he referred to in his application and which was the subject of the treatment he received as part of his claim for workers compensation. 
  • Even if the worker’s emotional issues and psychiatric illness were to be covered by the proceedings, there is no evidence of his fitness to resume duties on that account. Silverbrook only received a certificate from the worker’s attending medical practitioner concerning his recovery from his injury to his forearms; nothing from his attending psychiatrist to confirm his psychological fitness to resume duties with Silverbrook.  
In accepting the submission of Silverbrook, Justice Connor commented that, ‘notwithstanding [the worker’s] submissions to the contrary, it would appear that [his] emotional difficulties are not workers compensation issues and not covered by the protection afforded by the WC Act.’
 
Genuine OHS concern
 
Justice Connor explained that the worker would be entitled to the remedy of reinstatement prescribed in s243 of the Act if it were established that he was dismissed because he was not fit for employment as a result of the injury to his forearm or substantially because of that injury.
 
However, his Honour was satisfied on the evidence that the worker’s dismissal did not flow either wholly or substantially from the workers compensation injury to his forearms but from his relationship with other Silverbrook staff members and the behavioural issues raised in the letter terminating his services. Furthermore, on the evidence of the psychiatric report, he was of the view that the worker’s emotional difficulties would continue to pose a barrier to his constructive return to work.
 
‘It seems to me that Silverbrook had genuine concerns on occupational health and safety grounds, both on behalf of [the worker] and the other staff with whom he would come into contact were he to resume work with it and that was the substantial reason for his dismissal (and its refusal for him to return to employment),’ he said.
 
Suspected vendetta
 
In any event, Justice Connor doubted whether it was practical for the worker and Silverbrook to re-establish an effective employer–employee relationship given the worker’s commitment to pursuing substantial damages in separate proceedings before the Federal Magistrates Court.
 
His Honour also noted that whereas the worker seemed prepared to resume working with people ‘whom he clearly had difficulties, [whom] caused him such emotional distress in the first place and with whom he is still pursuing a remedy in the Federal Magistrates Court, alleging human rights violations and seeking damages,’ he had rejected an offer to resume work on a limited, temporary basis from home (which would have eliminated contact with the staff with whom he had difficulties).
 
‘[This] must give rise to suspicions concerning his motives for instituting these current proceedings before me, ie whether he is genuinely seeking to return to work with Silverbrook or whether the proceedings he has instituted are a vendetta against his former employer,’ his Honour said.
 
The worker’s application under s242 of the Workers Compensation Act was dismissed.
 
 
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