Balancing employee wellbeing during grievance procedures :: Sparke Helmore
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Disciplinary action and dealing with grievances are tricky at the best of times for employers. This is even more complicated when employees are suffering from a mental health issue or illness. In such circumstances, considerable care needs to be taken in deciding how, if at all, to proceed with disciplinary or grievance procedures.

The case of Christos v Curtin University of Technology [2017] WASCA 110 highlights the difficulties that can be faced by universities (and employers generally) in managing grievance processes or disciplinary procedures in circumstances where the employee is, or reasonably may be, suffering from a psychiatric injury—whether connected to the employment or not.

Background

The Plaintiff was employed by the University as an applied mathematics lecturer in January 1991, obtaining permanent tenure on 12 June 1992. Shortly thereafter, he came into conflict with staff members. Years later, in 2003, the Plaintiff lodged a workers' compensation claim for a psychiatric condition allegedly suffered in the course of his employment as a result of being bullied, victimised and harassed by various colleagues—the claim was denied.

On 20 February 2009, the Plaintiff issued a writ against the University seeking an award of damages on the basis the University had breached its duty of care, causing him to suffer psychiatric disability.

He provided a 309-page witness statement at trial, outlining numerous alleged incidents and events, including:

  • The handling of a formal written grievance submitted by the Plaintiff in May 2002, which was not resolved in the requisite time frame.
  • The University's response to around seven student complaints lodged against the Plaintiff, eventually leading to him being stood down on 2 September 2002. Most complaints were not sustained, but the Plaintiff was counselled for one matter and reinstated, which was determined as a lawful suspension.
  • Termination of the Plaintiff's employment on 28 October 2004 due to material found on his work-issued computer. The Plaintiff was unsuccessful in unfair dismissal proceedings, which progressed to the Full Bench of the Australian Industrial Relations Commission.

Under the Limitation Act 1935 (WA), any events before 20 February 2003 were statute barred from consideration. Nevertheless, it was found that the Plaintiff suffered an adjustment disorder on or around 2 September 2002 and that the failure to progress his grievance complaint was a contributing cause of his psychiatric condition. However, the suspension, decline of his workers' compensation claim and termination of his employment dwarfed any contribution to his present disability made by the failure to expeditiously resolve the grievances.

Justice McKechnie dismissed the Plaintiff's action following the 19-day trial, determining that:

  • the University acted reasonably at all material times and did not breach any implied or incorporated term in its contract with the Plaintiff
  • the specific risk of psychiatric injury was not foreseeable, and
  • the actions of the University's staff did not materially cause or contribute to the Plaintiff's psychiatric disability.

Was there in fact a failure on the University's part?

The Plaintiff appealed to the Full Court of the Supreme Court regarding the University's failure to assess and resolve the formal written grievances he submitted between 20 February 2003 and 28 October 2014.

He alleged it was foreseeable that the University's conduct in dealing with the grievances would cause or aggravate a psychiatric injury and that, to avoid the risk, a reasonable person in the University's position would have progressed and sought to resolve the Plaintiff's grievances in line with their grievance resolution policy. It was submitted that the University failed to do so, which materially contributed to the Plaintiff's recognised psychiatric injury.

The Court dismissed the appeal, however, Justices of Appeal Mitchell, Beech and Murphy questioned whether the Trial Judge had applied the correct test for reasonable foreseeability in coming to a finding.

Justices Mitchell and Beech held the Judge did not address whether there was a reasonably foreseeable risk that the University's conduct in dealing with the Plaintiff's grievances would cause or aggravate a psychiatric injury, having regard to what the Defendant knew about his psychiatric state. In their view the University would have foreseen a risk that its conduct, in dealing with the Plaintiff's grievances, could aggravate his existing psychiatric condition. Significantly, the University was in possession of a report from a consultant psychiatrist dated 26 June 2003, which put it on notice that the Plaintiff was suffering from psychiatric illness that had been triggered by events at work.

Justice Murphy was prepared to accept that the Trial Judge had considered the question of foreseeable risk (referencing the correct test) and correctly concluded that it was not foreseeable that the University's conduct would pose the risk of a new psychiatric injury or the exacerbation of an existing one—particularly when none of the University's witnesses had been cross-examined regarding whether they knew or had cause to suspect the Plaintiff would suffer a psychiatric injury.

His Honour observed that Justice McKechnie concluded the grievance process ultimately did not proceed because it required the Plaintiff's cooperation, and he was unable or unwilling to participate, or (if he was) he was unable to do so in an orderly or meaningful way. For example, the Plaintiff:

  • refused to participate unless an independent legal investigator was appointed
  • refused to cooperate while he was not being paid - did not set out a comprehensive or coherent set of submissions
  • advised he did not feel he was in a fit state to pursue the grievance complaints, and
  • continued to add more grievances against different people.

Justices Mitchell and Beech, however, disagreed and held the Trial Judge had not applied the correct test for foreseeability. The University knew in June 2003 that the Plaintiff was suffering from a psychiatric illness and that student complaints were causing him stress. Being on notice of the Plaintiff's psychiatric condition, the University ought to have foreseen a risk that its conduct in dealing, or not dealing, with the Plaintiff's grievances could aggravate his psychiatric condition. Like Justice Murphy, their Honours agreed a reasonable person would not have attempted to complete the grievance resolution procedure during the relevant period even where the hypothetical reasonable employer would foresee a risk that not progressing the Plaintiff's grievances might aggravate his condition. Further, if the only outcome to the grievance procedure that would have satisfied the Plaintiff was a resolution he favoured or one which exonerated him, they did not consider that a failure to undertake the grievance resolution process materially contributed to his psychiatric injury (on the balance of probabilities).

Make sure you have a robust procedure

This decision highlights the importance of universities having appropriate procedures in place to address grievances and that they are responsive to workers experiencing a psychiatric injury. The system should include obtaining expert medical opinion on the worker's condition throughout the grievance process, if and when it is necessary.

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