2.1.2 Exceptions to entitlement for mental injuries

There is no entitlement to compensation in respect of an injury to a worker if the injury is a mental injury caused wholly or predominantly by any one or more of the following:

  • management action taken on reasonable grounds and in a reasonable manner by or on behalf of the worker’s employer
  • a decision of the worker’s employer, on reasonable grounds, to take or not to take any management action
  • any expectation by the worker that any management action would, or would not, be taken or a decision made to take or not to take, any management action
Meaning of wholly

Management action needs to be the whole and only cause of the injury.

Meaning of predominantly

Management action can be the predominant cause where other causes contribute to the injury but the management action is still the predominant cause. To be the predominant cause, the management action must exceed the other or all other causes combined in power and influence.

Whether management action is the predominant cause of the injury where multiple causes are in issue depends upon an evaluation of the proportionate contribution made to the injury by management action on the one hand and the other cause or causes on the other. This evaluation is not carried out in any technical or formal way but by applying common sense to the facts of the particular case.

Meaning of reasonable grounds

Determining whether management action has been undertaken on reasonable grounds requires an objective assessment of the action in the context of the circumstances including:

  • the circumstances that led to and created the need for the management action to be taken
  • the circumstances while the management action was being taken, and
  • the consequences that flowed from the management action.
Meaning of reasonable manner

Whether the management action was taken in a reasonable manner will depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.

To be considered reasonable, the action must be lawful and must not be ‘irrational, absurd or ridiculous’.

Any unreasonableness must arise from the actual management action in question, rather than the worker’s perception of it.

In determining whether the grounds and/or manner of the employer is reasonable or not, regard must be had to the provisions of the employees relevant industrial instrument eg: Award or Enterprise Agreement.

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Examples of management actions

Management action includes but is not limited to, any one or more of the following:

  • appraisal of the worker’s performance
  • counselling of the worker
  • suspension or stand-down of a worker’s employment
  • disciplinary action taken in respect of the worker’s employment
  • transfer of the worker’s employment
  • demotion, redeployment or retrenchment of the worker
  • dismissal of the worker
  • promotion of the worker
  • reclassification of the worker’s employment position
  • provision of leave of absence to the worker
  • provision to the worker of a benefit connected with the worker’s employment
  • training a worker in respect of the worker’s employment
  • investigation by the worker’s employer of any alleged misconduct:
  • of the worker or
  • of any other person relating to the employer’s workforce in which the worker was involved or to which the worker was a witness
  • communication in connection with an action mentioned in any of the above paragraphs.

An application under the Local Government Act 1989 (LG Act) or proceedings as a result of that application, in relation to the conduct of a worker who is a Councillor. The LG Act allows an individual Councillor, a group of Councillors or a Council to apply to a Councillor Conduct Panel (established under the LG Act) to make a finding of misconduct against a particular Councillor or to authorise an application under VCAT Victorian Civil Administrative Tribunal for a finding of serious misconduct against that Councillor.


Note: The LG Act allows an individual Councillor, a group of Councillors or a Council to apply to a Councillor Conduct Panel (established under the LG Act) to make a finding of misconduct against a particular Councillor or to authorise an application under VCAT for a finding of serious misconduct against that Councillor.


 

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