Robert John Schmidt v Q-COMP

Date of decision: 24 July 2009, I.M. J Hodgins

Mr Lippett of Counsel, instructed by Sciaccas Lawyers for the appellant

Mr Sapsford of Counsel, instructed by Dibbs Abbott Stillman for Q-COMP

Key words – Golf Course Superintendent - Injury Type: psychological injury – major depresssion – Appeal Outcome: appeal dismissed - Significant sections considered: –

s32(5) reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment

Head Note

The worker, Robert John Schmidt was employed as a Golf Course Superintendent by the Hyatt Regency Coolum.

On 12 September 2007, the worker applied for compensation for “psychological injury” due to “excessive workload and unrealistic expectations”. The worker claimed that his injuries occurred over a period of time.

There were three main stressors alleged to have contributed to the Claimant’s injury:

- Increased excessive workload over the most recent 12 months

- Disciplinary action by management including a meeting of 12 March 2007 and a formal warning dated 14 March 2007

- Management style and treatment by the General Manager

On 24 October 2007, the Insurer rejected the worker’s claim on the basis that the alleged stressors arose out of reasonable management action taken in a reasonable way.

On 24 January 2008, the worker applied to Q-COMP for review of the decision to reject the claim.

On 29 February 2008, Q-COMP confirmed the decision of the Insurer on the following grounds:

- There was insufficient evidence to conclude that the worker’s workload was excessive and that management’s actions were unreasonable

- It was reasonable for management to highlight the worker’s performance issues

- There was no evidence that management acted inappropriately or unreasonably towards the worker. The formal warning and the manner of management action were reasonable

The Industrial Magistrate dismissed the appeal on the following grounds:

1. The worker’s appointment to landscaping was reasonable management action in response to management’s view that it could be combined with his existing position. When it was apparent that the change had not led to an improvement, landscaping was severed from the worker’s responsibility with no reduction in salary. These were reasonable management actions taken in a reasonable way

2. Management’s failure to give the worker an opportunity to respond during the meeting of 12 March 2007 was a flaw in process. However, management had reached the point of frustration and felt the need to clarify his position and the gravity of the situation. Not giving the worker an opportunity to respond was a blemish, but did not amount to unreasonable management action.

3. The disciplinary notice was reasonable management action even though the content was partly flawed (ie it included matters that were not current).

The issue on appeal was whether the alleged stressors for the worker’s injury were the result of “reasonable management action taken in a reasonable way”.

To determine this, the Industrial Magistrate summarised the law as follows:

- Where there are a number of events leading to a psychiatric or psychological injury, the claim will succeed if one event is significant and not excluded as reasonable management action taken in a reasonable way

- Repeated blemishes joined by subject matter, time and personality in a discordant workplace, to management’s knowledge, may justify a global assessment

- “Reasonable” requires considering all the circumstances, including the manner of delivery of management action. Management action need not be perfect, it can be “blemished” and still not be unreasonable

The Industrial Magistrate applied this to each of the stressors as follows:

1. Workload

(a) It was reasonable for management to combine two positions and commensurately increase the worker’s remuneration. This is because of his previous performance and experience.

(b) The worker’s approach to work longer hours was not necessary, as he had a second-in-charge for each position. Management’s direction to the worker to delegate more duties to the second-in-charge could have improved efficiency and was sound management practice. Management addressed the issue of the worker’s inability to copy in a timely fashion by appointing a second-in-charge to assume sole responsibility for one of the positions.

(c) Words said by management to the worker did not amount to an accusation of lying, but merely reflected frustration.

2. Golf course condition

(a) Management had become frustrated with worker’s lack of action and response about the standard of the golf course.

(b) Management provided the worker with instructions to improve the standard.

3. Performance Meeting

(a) The subject of the meeting had previously been canvassed with the worker on numerous occasions. It should therefore have not been a surprise to the worker.

(b) The failure to give the worker an opportunity to respond at the meeting was therefore a blemish but was not sufficient to constitute unreasonable management action.

4. Disciplinary Notice

(a) Although the notice was flawed, the worker clearly understood its basis.

(b) It was not the content of the notice that upset the worker, rather the simple act of receiving it after many years of dedicated service.

Conclusion

The Industrial Magistrate determined that none of the alleged stressors constituted unreasonable management action. At worst, some may have been flawed but only to the extent of being a “blemish” and not sufficient to meet the standard of “not reasonable”.

This decision has been appealed to the Queensland Industrial Court.