The ability to counselling employees about their effectiveness in the workplace is important for employers. Unfortunately, not all employees respond to counselling meetings as productively and openly as employers might hope.
A meeting can be severely derailed if an employee responds badly to feedback about their work performance or workplace behaviour and, depending on how such circumstances are handled, the employer may face claims that the meeting, or the employer’s conduct in the meeting was unreasonable.
This was the case recently at an ACT government agency. The agency held a meeting with an employee about whom other staff members had complained. As a result of the meeting, the agency faced claims of bullying and harassment in the workplace by the employee, and allegations of psychological injury to the employee.
In that case (S and Comcare (Compensation) [2016] AATA 465), two senior managers conducted the meeting with an employee after receiving complaints that she was dealing with staff in a disrespectful and rude manner. The meeting went for about an hour and involved raising the complaints, giving the employee the opportunity to respond and developing strategies to help the employee improve her management style, including suggesting she keeping a diary to aid her self-reflection skills. The employee did not have a support person with her in the meeting and become upset during the course of discussions.
The employee claimed to have suffered a “major depressive disorder, single episode” as a result of “bullying and harassment by senior officer” said to have occurred during the meeting. Comcare (the employer’s insurer) accepted that the employee had sustained a psychological injury but denied liability to pay her compensation on the basis that the meeting (and what transpired during the meeting) was reasonable administrative (i.e. management) action carried out in a reasonable manner. The employee appealed the decision to the Administrative Appeals Tribunal (AAT).
The question for the AAT to decide was whether the meeting was reasonable management action carried out in a reasonable manner.
In reaching a decision, the AAT considered a range of arguments from the employee as to why the meeting was unreasonable. One of the major issues for the AAT to settle was whether the meeting was a formal counselling session or an informal initial discussion. The employee argued that the meeting was a formal counselling meeting and therefore she should have had the opportunity to have a support person there and should have been given details of the complaints before the meeting. In her submission, failing to make allowances for those things meant that the meeting was unreasonable and was carried out in an unreasonable way.
The AAT found that the meeting was actually an informal meeting and that despite one of the senior managers making a formal record of the meeting, the purpose of the meeting was not to make any findings about the complaints or to formally impose any disciplinary penalty but rather to raise the unsubstantiated complaints with the employee and hear her version of events. On finding that the meeting was informal, the AAT held that the employer was under no obligation to give the employee details of the complaints before the meeting, nor was it unreasonable that no support person was present.
The AAT also examined what took place during the meeting and whether the senior managers who conducted the meeting acted unreasonably. Specifically, whether they exhibited bias or yelled, pointed or spoke over the top of the employee.
The AAT found that the senior managers acted professionally during the meeting. It did not accept the employee’s version of events. On this point, the AAT said, “whether an administrative action was taken in a reasonable manner is not established solely on the basis of the impact on the employee.” Meaning that, although the employee didn’t like the meeting and it made her upset, the meeting was not unreasonable.
The AAT did, however, accept that the meeting was not perfect. It said, “The meeting could have been conducted more reasonably... But the fact that the meeting could have been conducted more reasonably does not make it unreasonable.”
In cases such as this, reasonableness will be objectively determined, not based on the employee’s emotional response to the circumstances.
It can be difficult for employers to tell employees when they aren’t meeting expectations, particularly when they take the news badly. But, employers can take comfort in decisions such as this which give authority to the position that even when meetings don’t go perfectly or an employee gets very upset, that does not mean the meeting is unreasonable or has been carried out in an unreasonable manner.
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