September 29, 2016

Like many organisations, the state peak body for child care professionals – the Family Day Care Association of Queensland – holds a biennial strategic planning retreat that it goes to great lengths to assure its success and which staff are required to attend.

Lisa McConnell – an administration officer with the association in Brisbane – enjoyed the benefit of 8.30 to 3 hours of work to accommodate her own child-care responsibilities.

Her contract did not state she was required to attend overnight events or the staff retreat but when told in February 2014 that year’s event had been scheduled for 28 and 29 August she was enthusiastic about the gathering.

A week before,  McConnell told her superiors she couldn’t join the 60 odd other attendees after all “due to child care difficulties”. Her husband Peter could not in the end, get the necessary time off to fill in for her for school drops and pickups.

She proposed she attend most of the Redcliffe event – only missing later afternoon sessions and the staff dinner – but management did not take her late withdrawal lightly.

Were she not to attend, it would be the second retreat she would miss which was potentially indicative of a “lack of commitment” to the organisation.

Numerous discussions in person and by phone ensued that day urging – or in McConnell’s words, “badgering” – her to do whatever was needed to make herself available for the entire event. The pestering included, she says, admonishments like “you must know someone who could look after your children.”

The worker did consider an offer from a colleague that her daughter take care of the kids, but decided against it.

On 27 August McConnell made it clear to superiors Debbie Gibson and Tracey Robinson her absence unfortunately couldn’t be avoided. It was during that 10 min phone discussion that Robinson – a regional manager who worked mainly from her home in Maryborough – stood her down and demanded McConnell deliver her written resignation.

Robinson also gave instructions for her to leave the FDCA premises in Brisbane immediately but it was unclear for how long and what the terms of the “stand down” were.

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McConnell was stunned.  In her eyes she had been sacked “without warning and without grounds”. She suffered severe anxiety and distress that developed – according to expert psychiatrists – into a serious adjustment disorder that kept her from working.

It was that event and injury that gave rise to the workers compensation claim that was to come before the Queensland Industrial Relations Commission and eventually the Industrial Court of Queensland.

Before the QIRC, the association contended McConnell never had any child care arrangements in place and never had any serious intention of attending the retreat other than up to 2 pm each day. It contested the worker’s account of the conversation and argued because “reasonable management action” immunity applied, WorkCover benefits should be denied.

Commissioner  John Thompson agreed McConnell had been “disingenuous” in assuring her employer that arrangements for the care of her kids were in place – when they were not – but on other matters, he preferred McConnell’s recall of what was said to that of Robinson.

He agreed the employer was entitled to investigate assistance to assure her attendance and to consider whether her actions warranted disciplinary measures.

But the conduct of the disciplinary action by telephone on 27 August – without any forewarning and without giving the employee opportunity to respond from her point of view – was clearly wrong.

“The manner in which the employer handled the non-attendance by McConnell at the retreat could very well feature in a HR textbook,” he ruled, “as an instructional example of what constitutes unreasonable management action and management action not being taken in a reasonable way.

His dismissal of FDCA’s appeal against the Workers Compensation Regulator’s decision to allow the claim prompted yet a further appeal by the association that was decided this month.

On the latest occasion the employer argued the 27 August telephone conversation was not a disciplinary process at all. The direction given was – it claimed – nothing more than notification not to come to work while other staff were absent at the retreat.

That proposition was rejected by Justice Glen Martin who concurred that the employer was entitled to take measures to deal with the issue but the way it had gone about it was not “reasonable management action taken reasonably”.

FDCA could not – he concluded – avail itself of the Workers Compensation and Rehabilitation Act s 32 (5)(a) reasonable management action immunity.

McConnell’s psychiatric injury was therefore one for which workers’ compensation time off work and medical expense payments must be made and in the case of any permanent psychiatric impairment, a lump sum payment awarded.

Family Day Care Association of Queensland Inc v Workers’ Compensation Regulator [2016] ICQ 018 Martin J, President 7 September 2016

Categories: Personal Injury , Litigation & Law Practice

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