No bullying, but compensable psych injury


No bullying, but compensable psych injury

An employee whose hours were changed at short notice was found to be suffering a psychological injury caused by work, but the HR manager involved had not bullied the employee.


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An employee whose hours were changed at short notice was found to be suffering a psychological injury caused by work, but the HR manager involved had not bullied the employee. 

The office manager at Hungry Jack’s South Australian office claimed weekly payments and medical expenses under the Workers Rehabilitation and Compensation Act 1986 (SA) for a psychological injury that totally incapacitated her for work. Fatigue, sleeplessness, panic attacks, difficulty concentrating and no appetite were identified as the symptoms she suffered.

With respect to the injury’s cause, she alleged she was bullied by Mr D, the HR manager, in relation to the issue of a change to her hours, given an excessive workload, given inadequate support in the office and treated differently in the workplace after her sister’s position was made redundant. 
The company rejected the employee’s claim, arguing her injury was a consequence of reasonable action taken in a reasonable manner including the process of carrying out redundancies both nationally and in the state office where she worked.

The company argued her evidence was so poor and uncompelling that she had not discharged the onus of proof in accordance with s30A of the Act. The employee lodged an appeal with the South Australian Workers Compensation Tribunal. 

Background to the case

In February 2013 Hungry Jack’s made a number of positions redundant nationally, including the employee’s sister, who worked as a receptionist at the company’s South Australian Office. 
The woman was upset by her sister’s dismissal, but felt relief as her sister had dragged her into her conflicts at work. The redundancy also meant she would be required to perform additional duties.
Shortly after the employee’s sister was made redundant, Mr S — the operations manager for South Australia — (who was interstate at the time) sent an email advising the employee, who’d been working from 7.30am to 3pm each weekday since 2001, that her hours would need to revert back to 9am to 5pm, beginning with the following week. 
In a subsequent phone call, she advised Mr S she was unable to work past 3pm because she needed to pick her children up after school, and raised a concern about the extra work she would have to perform. She was informed by him of the need to prioritise her work and told the matter would be discussed when he returned to the office.  
Following the phone call, Mr D, the HR manager, approached the employee in the reception area and raised the issue of her change in hours. Believing he had spoken to her in a smug and teasing manner, the employee was left upset by the encounter. She later confronted Mr D about his manner and an altercation took place. 
Afterwards, Mr D emailed Mr S to advise him he had tried to talk to the employee about her hours, but that she had “gone off at him”. He described raising his hands in a stop gesture when the employee was yelling at him. The employee also emailed Mr S regarding the issue of her hours and the altercation with Mr D.

Her version of events was that he had yelled at her and put his hand up to her face. She described his actions as bullying. Ultimately, Mr S accepted Mr D’s account of what happened, believing it was just one of the employee’s "outbursts". 
The day after her altercation with Mr D, the employee felt overwhelmed and distressed by the amount of incomplete work that was piling up. She also formed the view she was being ignored at work by her co-workers.  
When Mr S returned to the Adelaide Office, the employee interpreted his behaviour towards her as extremely negative. She also formed the impression Mr S was unfairly blaming her for her sister’s action in lodging a workers compensation claim. 
In late February 2013, Mr S held a meeting with the employee to discuss how the work would be done.  The employee was upset because Mr D was also at the meeting, indicating that her earlier email regarding his behaviour towards her was not addressed, and she felt Mr S was hostile towards her. 
In early March 2013, the employee consulted a GP, and was provided with a sick certificate for the rest of the week. The following week she lodged her claim for workers compensation. 

Decision: Situation 'of her own making'

Her Honour, deputy president Farrell, accepted the employee suffered from a psychological injury that was not only caused by work but left her totally incapacitated for work.  
She found it had been caused predominantly by the employee’s perception regarding the increased workload, the proposed change to her hours, the dispute with Mr D surrounding that issue and her belief she was being excluded by other colleagues. 
DP Farrell rejected Hungry Jack’s argument that the employee’s evidence was poor and uncompelling. However, she also found the employee had interpreted relatively minor behaviour on the part of her colleagues as bullying.

In relation to Mr D’s conduct towards the employee, her honour said that in the absence of some prior bullying behaviour on his part, it could not be objectively regarded as bullying. 
While DP Farrell accepted the employee felt ignored at work, she accepted it was not as a consequence of her colleagues’ conduct but as a result of some other cause, possibly a cognitive distortion.  

Relevantly, she noted the evidence of the SA office’s administrative assistant that the situation was of her own making; namely, the employee had been upset and angry and did not want to communicate with people in the office, and her co-workers were merely responding to the way she behaved.
DP Farrell accepted the employee’s disputation with Mr D and her feeling of being excluded are not administrative action as envisaged by the Act.

Injury was compensable

Nevertheless, her honour was also satisfied the injury was compensable and was not caused by reasonable administrative action carried out in a reasonable manner. She explained:
"The proposal to change her hours was causative. I am satisfied that the proposal can be regarded as administrative action. However I am not satisfied that the steps taken to implement the proposed change to her hours were carried out in a reasonable manner. This is particularly so having regard to the way she was informed, the limited time frame in which it was expected that she would be able to adjust her long standing arrangements and the unfortunate meddling by Mr [D] in the issue. [The employee], a long serving employee who had family commitments that would need to be adjusted if her hours were changed, was treated poorly in that process. The process was not carried out in a reasonable manner.
"The increase in the duties she would be required to undertake might be considered to be administrative action in the context of this case. However it was unreasonable. While I accept that Mr [S] was attempting to find some solution to the changed circumstances in the office there can be no doubt that [the employee] was going to be required to bear the brunt of the changes."
The bottom line: Employers need to provide adequate notice in an appropriate manner when proposing changes to an employee's conditions such as a change in hours.

K v Hungry Jack's Pty Ltd [2014] SAWCT 41 (30 September 2014)
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