The below article has been provided by Kevin Zhang, Senior Lawyer, Corney & Lind Lawyers.
Lunchroom disciplinary action not reasonable management action
The decision earlier this month by the Industrial Relations Commision of Raineri v Simon Blackwood (Workers’ Compensation Regulator) further clarifies when management action can become unreasonable and provides valuable insight to the scope of employee rights to a safe place of work as well as implications for a reasonable employer’s discharge of its obligations to providing that safe work environment.
Mr Ranieri, a Protective Security Officer (PSO), a position by appointment of the Minister, was employed to perform security duties at the Roma Street Police Headquarters (PHQ). During the course of his employment, the working relationship between Mr Ranieri and his ‘manager’, Ms Irving, a Senior Protective Security Officer (SPSO) in training, had become increasingly hostile. In the lead up to a lunchroom confrontation following Ranieri querying the clarity of a workplace memo authored by Irving, the Commission accepted that Irving threatened to restrain and forcibly remove Ranieri from the lunchroom and building, which as a SPSO in training, she was not yet authorised to do. At the same time, Irving instructed another co-worker to make a covert recording of the incident, and proceeded to hand Ranieri, who was still on his lunch break, an empty box to pack up his locker and leave the building.
The Commission heard that, as Ranieri opted to disengage from the situation by walking away from the lunchroom, Irving placed herself in the door way and alleged that Ranieri had assaulted her by making contact with his stomach as well as communicated that staff from another building are on their way to forcibly remove him.
A lengthy investigation was then carried out by HR during which Ranieri, whilst suspecting a recording was made of him, was not given the opportunity to examine and review the contents of.
Mr Raineri later attended upon a psychiatrist and was diagnosed to suffer from psychological injury.
The Commission found that the action of Irving did not constitute reasonable management action in circumstances where as a SPSO in training, Irving did not yet possess the authority to issue a directive and that where ambiguities existed in the document itself, it was unreasonable to allege a failure on the part of Raineri to observe
building procedures. Subsequently, it then follows that the actions taken by Irving, being of a disciplinary nature, were not reasonable in the absence of any insubordination.
Further, with regards to the covert recording, whilst the Commission held that any failure by the HR investigator to provide a copy of the recording was a mere ‘blemish’, the conduct of Irving herself in making the recording and not providing it to HR was itself unreasonable.
The decision of the Commission was to set aside the decisions of Workcover and the Regulator, and that Ranieri’s application for Workers’ Compensation be accepted.
Implications of the Decision
- It is necessary for employees, subject to workplace investigations, to make a request for documents be provided under principles of procedural fairness, which includes contents of any "listening devices".
- Employees should seek clarification as to the extent of the authority of their supervisors, but in a careful manner so as to avoid misunderstanding and hostility.
- Employers should ensure that disciplinary actions are carried out only by direct managers and not staff with mere supervisory functions. It is prudent that all staff in supervisory positions are trained to bring up workplace issues with managers and not take management actions into their own hands.
- Employers should ensure that all staff are instructed as to chain of command and make clear distinction of responsibilities between supervision and management as well as fostering a culture of open dialogue and discussion.
- Employers should ensure that supervisors are given the proper authority to give direction on all aspects of ordinary daily duties but monitored for compliance, in particular, with exercising power over staff in a proportionate and lawful manner.
This decision confirms that the law now recognises the effect workplace disputes can have on an employee’s health. It is therefore important for employees to understand their rights and entitlements in that regard and for employers to ensure that management is well trained to manage supervisor and staff member conflicts in a way that is open and fair, without causing injury to human resources and exposure to costs.
Our Brisbane Personal Injury Lawyers and Employment Lawyers are regularly advising both employers and employees in these circumstances.
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