When a manager communicates with an employee about matters that may be stressful to that employee, when does the duty of care not to cause psychological damage actually engage? The courts have addressed this question on numerous occasions, most recently in the Victorian Court of Appeal in the decision of Pateras v State of Victoria (March 2017).
Ms Pateras was a careers teacher at Galvin Park Secondary College. She had been a successful teacher at the school and had been independently recognised. In 2006 and 2007, she experienced various personal issues, including separation from her husband, a relationship with an assistant principal at the college, gynaecological issues and her son having glandular fever.
In late 2007, Ms Pateras applied for a different teaching classification at the college. She attended two interviews in October 2007 in front of a selection panel of three, which included the school’s principal. Following the second interview, the principal had a conversation with Ms Pateras in which he offered her the new position. The details of other parts of the conversation were in dispute.
At trial, Ms Pateras’ evidence of the conversation was that she accepted the offer but he told her three times he would not accept her acceptance as it was not in the best interests of the college. She deposed that she maintained her acceptance but that the principal suggested she consider her acceptance over the next 24 hours and come back with a different answer.
The principal gave evidence that he told Ms Pateras she was successful and that he wanted to speak to her about the position and its expectations but that the applicant did not want to speak about this and became upset. He said he suggested their discussion continue on another day. He denied he told Ms Pateras her acceptance was not in the best interests of the college, or that he pressured her to consider her acceptance.
Ms Pateras ceased work following this conversation. She sent an email to the selection panel in which she said she felt ‘forced into the position of being unable to accept the offer’. She instituted a complaint process that resulted in an investigation and a determination against her. She sought a review of that determination by the Merit Protection Board, who found in her favour. Subsequently she was advised that an investigator had found that the principal attempted to dissuade her ‘by prevaricating over your acceptance of the position and suggesting that you reconsider in the interests of the school’. She was offered the position at the school, which she accepted.
Ms Pateras attempted to return to work but was unsuccessful. She commenced common law proceedings, alleging a psychiatric injury with physical consequences.
Judge O’Neill in the County Court and the Court of Appeal found that the duty of care to avoid psychiatric injury had not been engaged at the relevant time. The case turned largely on credit and the trial judge preferred to evidence of other witnesses to that of Ms Pateras. Ms Pateras appeared in person at the trial, although she was represented on appeal.
The High Court in Koehler v Cerebos stated that the relevant duty of care is engaged ‘if psychiatric injury to the particular employee is reasonably foreseeable’. The relevant question is ‘whether this kind of harm to this particular employee was reasonably foreseeable’. This requires attention to the nature and extent of the work being done by the employee and the signs given by the employee concerned in the context of the ‘fundamental aspects of the relationship between the parties’. In Hegarty v Queensland Ambulance Service (Qld Court of Appeal, 2007), the court stated that ‘litigious hindsight’ should not prevent recognition that there are good reasons why the employer’s duty of care ‘does not extend to absolute and unremitting solicitude for an employee’s mental health even in the most stressful of occupations’. The court should examine ‘what limits there might be on the kind of steps required of an employer’.
Ms Pateras argued the duty had been engaged on 22 October 2007 because the principal was well aware that Ms Pateras had had several absences from school in the months before October 2007. However, there was evidence that, while Ms Pateras had consulted her doctors and obtained medical certificates, she had not presented them to her employer and continued to attend her place of employment. Further, while the principal was aware Ms Pateras was stressed and nervous during the selection and interview process, and understood she had been physically unwell, his evidence was that he did not have any concerns about her mental state, as distinct from normal nervousness and anxiety.
The trial judge concluded that while the college and possibly the teachers knew of Ms Pateras’ time off work, this was in order to look after her son and for gynaecological problems and had nothing to do with stress and anxiety. Further her problems during the interview process did not put any teachers or the principal on notice that continuing with the interviews was likely to cause any stressful reaction. The trial judge found there was nothing to indicate that Ms Pateras might suffer the ‘significant psychiatric injury which subsequently transpired’.
This finding was not disturbed and the Court of Appeal dismissed the appeal.
The decision illustrates the importance for employers in presenting evidence at court as to the history of an employee’s absences and unrelated issues. Employers cannot obviously breach an employee’s privacy during employment but once litigation commences, the discovery process and judicious use of subpoenas on treating medical practitioners will provide employers with ample material to cross-examine a plaintiff as to the reasons behind absences from work.
The lesson from the case for injured workers is to lodge any medical certificates as to psychological problems with their employers to ensure an awareness of stress and other psychological issues and so put employers on notice in respect of the relevant duty of care.
This article was written by David Guthrie, Partner.