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  • Mark Shaw

Ongoing performance monitoring wasn't sole cause of psych injury

“Ongoing" performance monitoring, along with a team leader's management style and a heavy workload, caused an employee's psychological injury, a commission has ruled in rejecting an employer's 'reasonable action' defence.

The Westpac personal lending specialist claimed lump sum workers' compensation for an adjustment disorder that she alleged arose from bullying and harassment from her team leader, whose management style "created a toxic and stressful work environment".

But Westpac denied liability, arguing her injury was wholly or predominately caused by reasonable management action taken in respect of a performance appraisal.

In applying to the NSW Personal Injury Commission to resolve the dispute, the employee said she had worked for Westpac and its predecessor for 18 years without issue, and only began to experience breakdowns and panic attacks following the team leader's appointment in April 2019.

She said she had periods off work between February and October 2020, at which point she returned on a progressive basis in a new team where she was "thriving".

When she was informed in October 2021 that she would be transferred back to the same floor as her former team leader, she claimed she suffered a panic attack, and ultimately stopped work altogether the following month.

But Westpac argued the employee never complained about the team leader's alleged bullying, and only mentioned it to her doctor in February 2020 as a "reconstruction to excuse her poor work performance".

It told the Commission the team leader had been monitoring the employee's continued failure to meet her 'adherence to schedule' (ATS) targets, which included attending and leaving work on time and not exceeding allocated break periods. And it was "objectively reasonable" for the team leader to manage these issues, it said.

The team leader denied making unreasonable demands of the employee and telling her she would be "performance managed"; she also said she didn't send abrupt emails or stand over the employee in an intimidating manner.

However, Westpac conceded that the employee, among other staff members, had reported issues with the team leader's management style.

Performance appraisal a "limited process"

Commission Member Michael Moore rejected that the employer was "undertaking a performance appraisal" by monitoring the employee's ATS compliance.

He highlighted that performance appraisals involve a "discrete and limited process" whereby an employer assesses an employee's efficiency and performance in achieving the expectations of their entire role.

"Simply dealing with one very limited aspect of the [employee's] work performance is not in my view a performance appraisal," he said.

He noted that he had "no difficulty" in finding that "ongoing monitoring" and assistance to help the employee comply with ATS standards was "reasonable action", however this was "simply a management process", and not an appraisal.

Member Moore said that even if rejecting the employer's reasonable action defence was wrong, the evidence suggested the performance monitoring process did not wholly or predominately cause the employee's condition – "a number of clearly identifiable issues" also contributed.

These included: the team leader's management style; the employee's difficulties in completing training to an acceptable level; her "heavy workload"; and her anxiety over her ability to undertake personal advice sessions with clients.

As an aside, Member Moore found the evidence hadn't established that the team leader engaged in bullying.

"'Bullying' is the repeated and intentional use of words or actions against someone to cause distress and risk to their wellbeing... In the absence of clear evidence establishing that bullying occurred the use of the term is, to say the least, unfortunate and inappropriate," he concluded.

Finding employment was the main contributing factor to the employee's injury, the Member referred the matter for assessment of her whole person impairment.


Miller v Westpac Banking Corporation [2023] NSWPIC 356 (20 July 2023) Reference

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