Case explores employer's responsibilities amid misconduct investigation
The Supreme Court of Queensland recently looked at an appeal involving an employee who said that his employer owed him a duty of care even during his suspension.
In this case, the employee suffered a psychiatric injury after suspension pending an investigation.
Does the employer’s responsibility extend to this period, even though there were misconduct allegations?
Performance issues
The employee started to work for the employer, Gympie Regional Council, in 2008. By 2014, he was a manager in the council’s local laws branch.
Following a staff survey in late 2013, the employee’s work performance became an issue, culminating in a meeting. Afterward, the employee became the subject of allegations of misconduct by a co-worker.
The following month, a meeting was conducted with the employee, his managers and a human resources employee, where he was given a letter informing him that he was suspended on full pay pending a formal investigation into the misconduct allegations.
An internal investigation showed findings of lesser misconduct and poor management. In August 2014, the employee forwarded a medical certificate to the employer, which stated that he was suffering from a medical condition and would be unfit for duty for two weeks.
After several days, he emailed another medical certificate to HR, which said that he was suffering from work-related stress and anxiety that required further management and would be unfit for duty until the end of the month.
According to records, the employee was not informed of the results of the investigation until January 2015. He did not return to work, and his employment was terminated.
Duty of care
During the trial, the judge had to consider: issues of an employer’s duty of care, foreseeability, breach and causation concerning the employee’s suspension; the work performance meeting; the delivery of the investigation report; and whether the employer provided adequate support during the suspension and investigation.
A further issue was raised if the employee “would have made a recovery or would have improved in relation to his psychiatric condition or symptoms if his suspension had been lifted in August 2014.”
To succeed on appeal, it was necessary for the appellant to establish that the primary judge erred in making the following four findings:
- The employer, in suspending the employee, did not owe him a duty of care.
- The risk of the employee’s psychiatric injury was “not reasonably foreseeable.”
- If a duty of care was owed, it was not breached by the employer in suspending the employee.
- Any breach was not causative of the employee’s psychiatric injury.
A recent New South Wales (NSW) Supreme Court decision dealt with the issue of an employee who claimed damages after suffering severe injuries while traveling home from his workplace.
Final decision
Ultimately, the Supreme Court dismissed the appeal. It explained that the duty of care, in this case, does not extend to incidents of the contract of employment, such as the disciplinary procedures done by the employer.
As to the foreseeable risk of psychiatric injury, the Supreme Court said that the trial court was correct in considering that the employee had no history of any psychiatric illness or special vulnerability that the employer was aware of before their dispute.
“Prior to these events, the employee had been described as ‘an extroverted and happy employee, who had not experienced any performance issues in his employment’,” the court said.
It further ruled that “being withdrawn and showing some signs of stress and anxiety after [his meetings with the employer] were not an abnormal reaction to the situation he found himself in and were not out of the norm of what would have been expected from someone of normal fortitude in his situation.”
Thus, the court said that “the signs that the employee was under stress as a result of the suspension and the other circumstances relied upon were insufficient to make the risk of psychiatric injury reasonably foreseeable from the employer’s perspective,” so the duty of care is not owed in this case.
As for his suspension, “a view could be reached, bona fide, that it was in the interests of ensuring the welfare of all in the team, including [the employee], that he be removed from the workplace while the complaints were investigated,” said the appeal court.
And finally, the appeal court agreed with the primary judge who accepted that the suspension had an impact on the appellant, but was only one of the stressors.
