Background

In the recent case of Gairns v Pro Music Pty Ltd [2024] QDC 118, Kanther Law acted for a successful plaintiff who experienced a psychiatric injury following a meeting with his former supervisor where he was demoted. The plaintiff was not given a notice or any prior warnings regarding his performance at work, or the demotion itself. Further, he was not offered a support person despite the sensitivity of the meeting itself to the plaintiff and the psychological impact that it may have cause to the plaintiff.  The meeting also took in an open plan place where other employees may have overheard or seen the meeting.

Her Honour Rosengren J found that the employer had breached its duty of care and awarded our client damages in an amount of $395,767.

The case of Gairns v Pro Music Pty Ltd highlights the importance of ensuring that reasonable steps are taken when conducting meetings in the workplace to avoid psychological injuries.

Protect Yourself 

Here’s what you can learn to protect yourself in similar situations:

Meeting Conduct Rights

 The court found that a reasonable employer should conducted the meeting in a confidential and respectful manner. Performance meetings or meetings involving sensitive information should not be held in open areas where other staff can overhear or see the meeting.

Further, the meeting should be conducted in a respectful manner without showcasing signs of inappropriate behaviour.

Some examples of inappropriate employer behaviour, include but are not limited to:

• Raised voice or yelling;
• Using threatening or intimidating language such as making threats about job security or future consequences;
• Exhibiting aggressive or passive body language such as pointing fingers, slamming doors, and any other body language that may be uncomfortable to the employee;
• Critising or reprimanding an employee in front of their colleagues;
• Intimidating an employee by pressuring the employee with implicated remarks that fail to meet workplace expectations and may result in professional repercussions.

If your employer has showcased any of the above, and you think that you are being bullied at work, consider making a formal complaint to the following:

• Employer or Manager;
• The Human Resources Department;

If you are unable or uncomfortable to lodge or file a complaint to the ones above, please consider the following:

• A union;
• Lawyer; and/or
• Lodge or apply for a Form F72 to Fair Work Commission.

Request Advanced Notice

 The employer ought to provide advanced notice when conducting performance meetings to ensure that the employee is prepared for the meeting. This includes the following:

• Providing advance notice of the performance meeting prior to the meeting;
• Providing specific details about the what will be discussed at the meeting;
• Inviting the employee to bring a support person if necessary.

Document Everything

 Both employers and employees alike ought to keep records during performance meetings. These records can be useful if a dispute arises about what occurred at the meeting and if any further meetings are called to refresh yourself regarding what was said at the last meeting.

Seek Support

 According to Fair Work Commission, the employer should advise the employee what the meeting is about and ask if they want to bring a support person. The employer has a duty to provide a safe system of work and must ensure that the employee is receiving appropriate support prior, during and/or after the meeting.

Ensure that any performance issue arising is being investigated

 The employer must conduct Investigation regarding the concerns about the performance and communicating the outcome of the investigation to the employee.

There ought to be systems in place to track performance of the employee

To ensure accuracy of the performance reviews or report conducted by the employer to the employee, the employee ought to receive a report or review in writing regarding their performance which specifies any concerns, improvement or feedback regarding the employee’s performance. A written notice or report ensures that steps would be taken if the performance does not meet the company’s standards.  It also enables the employee to understand any concerns that are raised and address them fairly and timely.

The employee ought to be given an opportunity to respond to the concerns about their performance

The employee should not be rushed into responding to any performance issues or concerns unless the concern has detrimental great impact to another employee involved or may cause great harm.

Take Away

Every employer has its duty of care to ensure that reasonable steps are taken when conducting meetings to avoid psychological injuries.

The case of Gairns v Pro Music outlines the importance of how performance meetings should be conducted. By knowing your rights, and documenting your experience, and seeking support when needed, you can better manage performance reviews and address workplace bullying or unfair treatment effectively.