Decision explores duty of care and psychiatric injury

Palmer & Ors v State of Queensland [2015] QDC

McGill DCJ

27 March 2015

This judgement analyses what employee actions can be classified as being within the course of employment and shows that, if an internal investigation process is followed by an employer, there is no special duty of care owed to minimise the risk of psychiatric injury to employees being investigated.

Background

In 2008, the plaintiffs were employed at a government-run regional respite centre in managerial or administrative positions.

In late 2008 and early 2009, there was a dispute at the Centre whereby a number of residential care officers (RCOs) complained about some of the managers and administrative staff. One of the main complainants was a residential care team leader. An independent investigation was set up which found that the complaints were not substantiated.

Three of the four plaintiffs were transferred from their positions until the outcome of the investigation.

During the investigation, it was alleged that a senior manager commented to the plaintiffs, “How can 60 RCOs be wrong,” indicating she accepted the complaints.

The RCOs and others held a picket over two days outside the Centre during the dispute.

The plaintiffs alleged that they suffered psychiatric injury as a result of negligent treatment by their employer. The plaintiffs' psychiatric injury was not in dispute.

Judgement

Regarding the team leader's behaviour, it was held that “in an ideal world, she would have been identified as an undesirable employee and dismissed, but we do not live in an ideal world. The major stressor confronting the plaintiffs was simply the hostility generated by the team leader, personally and through the others whose discontent she mobilised.”

However, the employer was not vicariously liable for the team leader's actions in this respect or the actions of those she recruited to her cause as her action had no connection, other than contextually, to her work duties.

Judge McGill found that the senior manager, despite her denials, had made comments which suggested she thought the sheer volume of RCOs complaints indicated there was something wrong with the management team. His Honour found that the remark was gratuitous, inappropriate and offensive but did not in itself amount to a breach of duty for which the defendant was liable.

His Honour went on to say: “The manager acted with a lack of sympathy for the plaintiffs and it is easy to see things which she could have and should have done better, but it does not follow that there was a negligent failure to take reasonable care to avoid psychiatric injury in regards to any of her actions”.

As to the alleged complaints against the plaintiffs by the RCOs, it was found they were entitled to complain, whether their complaints were supported by facts or not. This could not support an allegation of negligence against the defendant.

His Honour found that as to the investigation process, there was little in the way of support provided to the plaintiffs by the employer, except for referring them to the employee assistance scheme and some support provided later by a counsellor. However, Judge McGill found from the investigations that there was no duty to provide special or additional support. His Honour said that if such a duty did arise, the defendant would have been found to have breached it.

It was reasonable for the government agency that employed the plaintiffs to make a decision to move them out of their positions until the complaints had been investigated properly and the union had been informed. There was no duty on the employer to discuss this decision with the plaintiffs prior to it being made.

The court's conclusion

Judge McGill found that each of the allegations of negligence was either not made out or did not amount to a breach of duty by the employer.

His Honour found the employer's apparent policy of trying to appease the RCOs could not be characterised as negligent, nor could the decisions to move the plaintiffs out of their positions. He noted: “Whilst the actions could have been approached with more sensitivity, it would still have been a blow to the plaintiffs because, regardless of how it was handled, it would have looked to the plaintiffs like the team leader and her allies had won”.

On this point, it is significant to note that the fourth plaintiff who was left in her position still developed much the same injury as the others. This supports the conclusion that it was the campaign of making complaints against the plaintiffs that was the crucial stressor which led to their injuries, and that was not something for which the defendant was responsible.

Consent orders have been entered with orders to be made that the plaintiffs will pay the defendant's costs of the matters from the date of the compulsory conference to the delivery of judgement.

Key points for employers

The judgement analyses what actions on the part of employees can be classified as being within the course of employment. Complaints by more junior level employees towards higher level employees will rarely be held to be “within the course of employment”.

The judgement also sets out that if an internal investigation process is followed by the employer, there is no special duty of care owed to minimise the risk of psychiatric injury to employees being investigated, within the context of the investigation. This confirms the law as stated in New South Wales v Paige (2002) 60 NSWLR 371.

The judgement also highlights the necessity to request particulars of inadequate pleadings and to require the plaintiff to tie evidence led at trial back to the pleadings or particulars.

NB. The plaintiffs are seeking appeal of the original judgement in the Queensland Court of Appeal. The trial date is pending.