The Western Australian Court of Appeal recently handed down judgment that held that an employer was not negligent for a Worker’s psychiatric injury that he claimed was caused by the employer failing to progress and resolve his grievances in a timely manner and in accordance with the employer’s grievance management policies.
Dr George Christos brought a claim for damages for psychiatric injury against his former employer, Curtin University, whom he had worked for as a mathematics lecturer until his termination in October 2004.
Shortly after commencing his employment with Curtin, Dr Christos was in conflict with other staff members and lodged a grievance in accordance with Curtin’s grievance policy. The grievance investigation was concluded within the policy’s required three month time frame and Curtin was found to be at fault.
In August 2002, Curtin received 14 complaints from students about Dr Christos and the following month Dr Christos was lawfully suspended while these complaints were investigated. Most of these complaints were dismissed (apart from one minor matter for which Dr Christos was counselled for).
Following his suspension Dr Christos went off work on sick leave and lodged a workers’ compensation claim for a psychological injury (which was rejected). Dr Christos then lodged multiple grievances with Curtin which included allegations of unfair treatment, a dispute over complaints by students, a dispute over leave, his failure to be nominated for ‘excellence and innovation teaching’ award and complaints of bullying and harassment by various Curtin staff members.
In July 2004 Dr Christos took his work computer to Curtin IT for repairs and a large quantity of illegally downloaded music and some pornography was found (for which a person close to Dr Christos was found to be responsible). This ultimately resulted in Dr Christos’s termination of employment in October 2004.
Judgment in the first instance
In February 2009, Dr Christos commenced common law workers’ compensation proceedings against Curtin in the Supreme Court of Western Australia claiming he had sustained a 30% permanent psychiatric impairment.
Dr Christos claimed that Curtin was negligent on two grounds. Firstly, for failing to assess and resolve the multiple grievance complaints he made in accordance with Curtin’s grievance and dispute resolution policies, and secondly, that Curtin and various staff members bullied, harassed and victimised him.
The primary judge, Justice McKechnie, dismissed the action finding that Dr Christos was not bullied or harassed as he had alleged. Justice McKechnie also held that Curtin was not negligent for failing to assess and resolve his grievances as there were good reasons no to. One of these reasons was that the process could aggravate Dr Christos’ psychiatric condition. Another was that Dr Christos was unwilling or unable to engage with Curtin to delineate his numerous complaints.
Judgment on Appeal
Dr Christos appealed the decision in the Court of Appeal, but only in relation to the primary judge’s finding that Curtin did not breach their duty of care for failing to assess and resolve Dr Christos grievances. The finding that Dr Christos was not bullied or harassed by other staff members was not challenged.
The basis for the appeal was the argument that a reasonable person in Curtin’s position would have foreseen that its dealings with Dr Christos’ grievances could cause or aggravate a psychiatric injury and Curtin’s failure to seek to resolve the grievances in accordance with their policy materially contributed to his psychological injury.
Although the Court of Appeal held that a reasonable person in Curtin’s position would have foreseen a risk of injury in failing to progress and resolve the grievances in accordance their policy (on the basis that Curtin was aware that Dr Christos was stressed and on sick leave), it upheld the primary judge’s decision that Curtin had not breached their duty of care as the grievance process could have aggravated Dr Christo’s psychiatric condition, and because Dr Christos was unwilling or unable to engage with Curtin in relation to his numerous complaints in any event.
It was held that even if Curtin had breached their duty of care, Dr Christos had not proven (on the medical evidence presented) that the failure of Curtin to resolve his grievances in accordance with their policies was the cause of his injury and that only an outcome completely exonerating Dr Christos would have made a difference to his psychiatric condition. As such Dr Christos was unsuccessful with his appeal.
This article was written by Matthew Thickett, Partner and Sarah Hartney, Associate.