Psychological Injury – Documents, documents and more documents!
I realise now how we, as lawyers, must drive our clients crazy asking them to meticulously document their conversations and decisions. But two cases in the last week remind me why I do it.
The risk of documents when you don’t act
In Swiderski V Addelaide Oval Management Authority, Mr Swiderski was successful in the South Australian Employment Tribunal, in gaining discovery of all of his employers notes and documents of the complaints he made about their mistreatment of him. Some had been withheld. His argument will be a trial, that he was bullied and harassed and that lead to his mental injury. The obvious question to ask is why didn’t they hand them over? If he can show that his mental injury arose from mistreatment, his claim will be successful.
In contrast, the case of Batista v Wells Fargo demonstrates why excellent documentation, that evidences actions and sheds light on the reasons for decisions are so powerful.
Mr Batista initially took time off work for a meltdown. He made complaints against his manager, Ms Rhodes, of bullying (making a complaint to the FWC for a Stop Bullying Orders) leading to her being placed on administrative leave whilst investigated and generally suggested he had a mental disability. At the conclusion of the investigation against Ms Rhodes, his employment was terminated. The evidence, supported by documents prepared by the Wells Fargo employees, showed a history of repeated breach of policies and misconduct and no bullying and harassment. It evidenced the intentions of the decision-maker at all times was focused fairly on the conduct and that the termination was reasonable.
What are good documents?
The three key things are:
- Must be made at the time of the undertaking the task (when counselling for example)
- Must capture exactly what the issue is and facts (not opinions)
- When you make a decision explain in the document why you made the decision (particularly in adverse action claims it is the subjective intention of the decision maker that is critical).
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