Written by Peter CarterDecember 17, 2021
An overworked section head of the Cairns Regional Council who was blamed for financial errors and subjected to an unwarranted performance improvement process has won substantial damages after a four week Supreme Court trial, for the psychological injury he sustained as a result.
Paul Ackers – a supervisor of the council’s payroll unit – had a pre-existing depressive illness which worsened as a result of its investigation of a union complaint against him and an additional 12 hrs of work per week following the loss of three experienced staff in March and April 2015.
Absent sufficient adequately skilled staff – some of whom had been resentful at changes he had introduced – he bore an unusually demanding workload and as one would expect, a higher than usual number of errors were made.
Responsibility for the mistakes “was pinned on Mr Ackers” rather than on the “extraordinary” work pressure under which he had been put with the council making it clear to him that a consequence of the performance improvement review might be the loss of his job.
He took sick leave in September 2015 and – due to the condition which manifests physically in a tremor to his right forearm and hand and a severe stutter – has not returned to work.
Ackers’ lawsuit for injury compensation damages was filed in April 2018 but so suspicious was the council that their former employee was malingering, it put him under video surveillance the footage from which was “not materially inconsistent” with the worker’s own account.When the matter came before him in February and for two further weeks in July, Justice Jim Henry observed that while employers were entitled to “assume normal fortitude on the part of an employee”, a greater degree of care may be required when an employer imposes an “abnormally stressful workload” or where an employee is “exhibiting signs of psychological stress”.
He concluded the long hours “while extremely demanding”, were not such as to “alone make psychiatric injury to a person of ordinary fortitude reasonably foreseeable”.
His Honour was also satisfied the union complaint had to be addressed and the process the council employed was reasonable. Ackers had however – to the council’s knowledge – been left psychologically vulnerable by the investigation through which he had been put.
Recognising that a performance improvement process is a tool of modern management, Justice Henry rejected the council’s contention it was used in this case as “some sort of benign exercise in improving the performance generally of the unit”.
Rather, it was in his opinion, conducted under the “flawed and unfair” premise that Ackers was responsible for the errors complained of whereas in truth they “had been made inevitable by prolonged inadequate staffing”.
For that reason Justice Henry considered the council should bear responsibility for the resulting injury to the 51-yr-old worker.
“A person of greater fortitude might have coped with that treatment,” His Honour observed. “But council knew Mr Ackers was already in psychological distress by this time” in June 2015, before the performance improvement process began in July.
“The accumulation of corporate knowledge of the workload [and] of signs Mr Ackers exhibited of psychological distress” made the risk of a serious psychological injury reasonably foreseeable”.
He ruled the council was in breach of its duty of care which “was causative of a major depressive illness”.
Council must pay the damages assessed at $1.276 mil less advances made by way of statutory workers’ compensation.