By Andrew Steele - 26 Sep 2018
How far does an employer need to go to support an employee with
mental health/stress issues caused by a workplace investigation or
disciplinary process? Hilford v The Order of St John is an
example of how a personal grievance can succeed if the employer
does not provide support to an employee who is suffering from such
issues and does not investigate alleged bullying in an appropriate
manner.
Following several years of complaints from Mr Hilford, a
'flawed' investigation was carried out by Mr Hilford's employer, St
John. The investigation result was that there was no
bullying. However, the Authority held that investigation was
not carried out in a fair and reasonable manner.
- The investigation must be impartial, comprehensive and fair.
Here, one of the perpetrators of the bullying carried out the
investigation.
- All of the parties must be heard. Mr Hilford was not
interviewed. Only his colleagues were.
- The complainant must be given an opportunity to provide comment
on the investigation. Information was gathered by interviewing
other employees but was not provided to Mr Hilford for his
comment.
Earlier in the course of events, Mr Hilford returned to work,
but St John had no return to work plan in place and no steps were
taken to address the issues raised by Mr Hilford. St John had
discussed that Mr Hilford be referred for a health and wellness
check, but no referral took place. The subsequent inadequate
investigation itself caused Mr Hilford's stress and resulting sick
leave. In short, the Authority held that St John failed to take all
reasonable and practicable steps to provide Mr Hilford with safe
working conditions and that this unjustifiably affected his
conditions of employment to his disadvantage.
The Authority found that the employer was in severe breach of
its health and safety obligations as an employer and awarded Mr
Hilford $35,000 in hurt and humiliation.
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