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Through the looking glass: reasonable foreseeability and psychiatric injury

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This article was written by Erica Long. 

Implications for employers

Employers need to be mindful of the legal complexities that managing the mental health of employees brings to the workplace. 

In particular, an employer's duty to take reasonable care for the safety of their employees is compounded by the many circumstances and wide ranging personal issues that mental health issues can raise.

Established workplace procedures addressing mental health related grievances should be followed to proactively but sensitively manage the concerns at hand unless the particular situation requires a different approach from a duty of care perspective, or if there are other considerations. For example, if an employee deliberately obstructs a grievance process or if an employer chooses to delay their enquiries on account of a reasonably held concern for the employee's wellbeing. 

Ensuring an adequate education framework and training for managers and employees is in place to address mental health issues in the workplace is also key to discharging an employer's duty of care obligations. In particular, managers need to be supported in identifying and addressing the many overlapping factors that may impact on the safety risks to an employee's mental health.  

Background 

Dr Christos (Employee) was employed as a professor at Curtin University (Employer) until his dismissal in 2004. 

The key issues litigated by the Employee was whether the Employer had breached its duty of care to ensure his safety by a failure to apply its policies in dealing with the Employee's grievances and if so, whether the breach was a cause of the Employee's ongoing psychiatric illness

In May 2002, the Employee engaged the Employer's dispute resolution policy by making a formal complaint of bullying, harassment and victimisation. The policy provided that grievances should be resolved in three months. This did not occur. 

Subsequently, in August 2002, the Employer received 14 complaints from students about the Employee.  On 2 September 2002, the Employee was lawfully suspended from teaching while the complaints were investigated. Most of the complaints were not sustained and the Employee was reinstated to duties. 

In November 2002, the Employee went on leave and did not return to work being certified as unfit to perform any duties due to a stress related psychological issue.  

In early 2003, the Employee lodged a workers' compensation claim. This was rejected.

Throughout 2003 there were various communications between the Employee, representatives of the Employer and doctors concerning, amongst other things, the resolution of the Employee's grievances from May 2002. 

The Employee's list of grievances, and the number of persons he held responsible for the grievances, continued to grow.  However, the investigation into the Employee's grievances did not progress. This was because the Employer felt that while the Employee was on leave and medically certified as unfit for work it was reasonably exercising its duty of care by not continuing its investigation.

By June 2003, after having received medical advice that it was in the Employee's interests to do so, the Employer determined to proceed with the investigation.  However, the investigation was ultimately sidelined due to concerns about the Employee's health and issues resolving the terms of reference for the investigation. 

The Employee's employment was subsequently terminated in October 2004 for reasons unrelated to the investigation.  

After an unsuccessful wrongful dismissal claim, the Employee brought a claim for alleged psychiatric injury stemming from, amongst other things, an alleged breach of duty care of the Employer by failing to progress the complaints made by the Employee in accordance with the Employer's grievance policy.  

The primary judge found against the Employee in the first instance. 

Decision of the Western Australian Court of Appeal 

The Court of Appeal ultimately dismissed the Employee's appeal and found the Employer did not breach its duty of care (or the Employee's contract of employment) by failing to progress with the complaints made by the Employee in accordance with the Employer's grievance policy.

However, the Court of Appeal made some interesting and noteworthy comments in relation to assessing whether a risk of psychiatric injury is reasonably foreseeable when it upheld the Employee's first ground of appeal; that it was reasonably foreseeable that the Employer's conduct would cause or aggravate the psychiatric illness of the Employee. 

All the particular circumstances of the Employee must be taken into account

The Court of Appeal held that the primary judge did "not address the critical question" of whether a reasonable person in the position of the Employer would have foreseen a risk that its conduct in dealing with the Employee's grievances could cause or aggravate a psychiatric injury to the Employee.  In particular, the Court of Appeal found it was necessary to apply the reasoning of the High Court in Koehler that all of the particular circumstances of the Employee needed to be taken into account by the Employer in assessing risk.  

When the Employer was put on notice in 2003 that the Employee was suffering from a psychiatric illness triggered by events at work and that inaction on his grievances was causing him stress, the Employer should have taken this into account in its dealing with the Employee and its application of the grievance policy. 
In these circumstances, the Court of Appeal was satisfied that a lay person would have appreciated that a "real, and not far-fetched or fanciful," risk that dealing (or not dealing) with the Employee's grievances could aggravate his psychiatric illness. As a consequence, the foreseeability test was satisfied.

Identifying a reasonable response to the risk

Despite this, the Court of Appeal rejected the Employee's extrapolation of this appeal ground and did not agree that in order to avoid the risk of psychiatric injury (or its aggravation), a reasonable person in the Employer's position would have progressed and sought to resolve the Employee's grievances in accordance with the policy.

The Court of Appeal considered that as the Employee was unwilling to engage with the Employer in delineating his complaints and resolving his grievances, a reasonable employer would not have attempted to complete the grievance procedure in the face of such opposition. This was the case even in circumstances where it had foreseen a risk that not progressing the grievances might of itself aggravate the risk of injury. 


Christos v Curtin University of Technology [2017] WASCA 110

 
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