It is unusual for issues of employment law to arise in a matter before the Coroners Court. Tragically, findings recently delivered by the Northern Territory Coroner highlighted the potential catastrophic consequences of inappropriate treatment and bullying in the workplace.
There are valuable lessons for employers arising from the inquest into the death of Paula Michele Schubert (Ms Schubert). The inquest into Ms Schubert’s death was listed before Coroner, Judge Greg Cavanagh who delivered his findings on 25 July 2018.
The catchwords in the findings relevantly include:
- Employee with mental health issues;
- Treated inappropriately by employer; and
- Bullying behaviour
The findings of the Coroner relevant to employment law issues are summarised as follows:
Paula Michele Schubert
Ms Schubert was born on 21 September 1963. She worked for the Department of Children and Families in the Northern Territory for 32 years. She was known to be meek, quiet and a compliant worker who tried her best and was always willing to please.
Ms Schubert lived in Darwin and had a close family. In 2000 she had a daughter. Her marriage ended in 2008.
In 2014 at the age of 50 she suffered a mental breakdown and began hallucinating. She became fearful of losing her job and made frequent approaches to other staff seeking reinsurance. Her employer referred her for medical assessment under the provisions of the Public Sector Employment and Management Act. Shortly thereafter she was admitted to the Mental Health Ward at Royal Darwin Hospital and was diagnosed with schizophreniform psychosis. Her illness was stabilised with medication.
She returned to work in March 2015 and described herself as functioning 98% of the time. She gained a promotion to the position of Executive Assistant, grater Darwin region on 19 October 2015. This was an AO4 position.
In December 2015 some symptoms returned and Ms Schubert became anxious believing she may be heading for another mental breakdown. She had a sense of abandonment and feelings that she was not undertaking her tasks adequately at work; she felt she was being pushed out and would lose her job.
Ms Schubert’s Manager, Patricia Butler, and other team members began to talk about how her health was deteriorating. By the end of August 2016 her Manager had a meeting with her about her health. On 6 October 2016 Ms Schubert informed Ms Butler she had schizophrenia. She later described her Manager as being very understanding. Ms Schubert’s health continued to impact on her work and her Manager, decided it was not fair that a person who was being paid AO3 wage was undertaking Ms Schubert’s work that she was struggling with. Ms Butler believed that if Ms Schubert transferred to an AO3 role, it would relieve some of her anxiety. Ms Butler believed she would have no option but to demote Ms Schubert.
On 19 October 2016 Ms Butler called a meeting with Ms Schubert for which she was not given any notice and had no opportunity to have a support person present. Ms Schubert was told the subject of the meeting was to revise her workload. Ms Butler asked how she was managing and was told by Ms Schubert that she was receiving medical support and advice. Ms Butler told Ms Schubert that there was a possibility of changing roles to relieve some of the stress she may be experiencing and that doing so may benefit her health and wellbeing. Ms Butler said the alternative role offered was a demotion. Ms Butler told her she needed to consider the impact on her take home pay as it was an AO3 position. Ms Schubert said she would think about it. During the next week, Ms Butler said that Ms Schubert would come to work each morning with a cup of coffee, and Ms Butler in reference to the impending change of roles and less pay, would say to Ms Schubert that she would have to ‘bring a plunger to work’.
Ms Schubert discussed the transfer to an AO3 position with her doctor and psychologist. On 1 November 2016 Ms Butler once more met with Ms Schubert, again there was no support person. Ms Butler asked how she was feeling and had she made a decision. Ms Schubert said she would transfer to the AO3 position, but wanted to clarify that she was not relinquishing her AO4 position. It was agreed that the new arrangement would be reviewed in 3 months.
Ms Butler spoke with Human Resources about the arrangement and was told by Human Resources that Ms Schubert could be temporarily moved to the AO3 role if she consented to a reduction in pay and was performance managed. HR seemingly did not understand that there was anything inappropriate with what management sought to achieve.
Ms Butler then spoke with her Supervisor, Marnie Dillon. Ms Dillon had been informed of Ms Schubert’s mental health issues. Ms Butler said she spoke with Ms Dillon as she felt uncomfortable about performance managing Ms Schubert.
Again, a meeting was scheduled with Ms Schubert for which she was not told what the meeting was for, or that she could bring a support person. Ms Schubert agreed to the demotion.
Ms Schubert attended work on 10 and 11 November. On 14 November it was noted that she appeared to have an anxiety episode appearing in a zombie like state.
On 15 November 2016 she sat in a team meeting and apparently did little other than draw a picture. At the end of the meeting Ms Butler said, in front of everyone, “Paula will share her minutes with everyone”. Ms Schubert looked surprised, Ms Butler said it was a good drawing and she should share it with everybody.
On 16 November 2016 Ms Schubert telephoned Ms Butler and said she needed 2 days off to take her parents to an appointment. The next evening was a pre-planned dinner with her family. When she did not arrive and did not answer the phone, her mother asked her brother to go and check on her. When he arrived at her home, the television was on and he could hear the phone ringing inside. He reported that to the family and rang the police.
The police found Ms Schubert’s body in her bedroom; she had hung herself from the bedroom door. She was 53 years of age.
Coroners Comments and Findings
The Coroner noted that Ms Schubert had an extensive medical history. He was critical of the way the Department of Territory Families had treated her, particularly given their knowledge of her mental health issues, stating:
“.. the primary one was seeking to demote Paula. It seems that the department thought it appropriate because they gained the consent of Paula. However, it is difficult to understand how that view could have been held given that it was obvious that Paula was overly anxious, desperate to please, afraid of losing her job and had known mental health issues. Obtaining Paula’s consent through a process that did not involve support persons where she was given no adequate notice of meetings and where no advance notice was given on the agenda must be known to be inappropriate. Leaving aside the obvious lack of fairness, the treatment of Paula by her employer was not consistent with the Anti-Discrimination Act in particular section 24 which states:
Failure to accommodate special need
(1) A person shall not fail or refuse to accommodate a special need that another person has because of any attribute…”
An attribute includes psychiatric or psychological disease or disorder whether permanent or temporary.
The Coroner acknowledged that the Department of Territory Families had prior to the inquest acknowledged that the demotion of Ms Schubert was inappropriate, however the Coroner noted:
“…it [the acknowledgement by Territory Families] did little to prepare me for the evidence of Paula’s manager, Ms Butler. In short it was shocking. The most
extraordinary part of the evidence was the recitation of the events on the morning of 15 November 2016.
These events happened in the context of Paula having agreed for the benefit of her anxiety issues to move to an AO3 position.
It was clear from the beginning of that working week that Paula was having significant health issues. According to Ms Butler, just the day before (the Monday), Paula had an anxiety episode. Thereafter Ms Butler saw her sitting at her computer in a zombie like state. At 11:00am Paula went to see her GP and did not return that day.
The very next day (the Tuesday) Paula participated in a meeting. There was no indication of what was discussed, but clearly Paula’s mind was no longer the AO4, but was being demoted to an AO3, similar to the other team members at the meeting.
It was at that meeting that Ms Butler having seen that Paula was not concentrating and doodling on a piece of paper said “Paula will share her minutes with everybody”. Ms Butler referred to it as a joke. Paula was said to have looked surprised.”
Paula’s psychiatrist, Dr Chapman, sat through the whole of the inquest. He heard that evidence. When he gave evidence he said that was likely to have been a “critical event”. He went on the elaborated:
“To expose somebody who was already under a degree of stress … to then have a public – effectively a public humiliation in the workplace, given the fear that she would lose her job, that’s critical.”
The Coroners formal finding was that Ms Schubert had died between 16 and 17 November 2016 from self-inflicted hanging.
Lessons for Employers
So what lessons should employers take the findings?
It is clear from the Coroners findings in this inquest that the treatment of Ms Schubert fell far short of what is expected of a reasonable and caring employer. The findings highlight the potential catastrophic consequences of an employer failing to meet its duty of care to its employees.
The facts outlined in the findings raise potential claims under the Fair Work Act 2009 and anti-discrimination legislation including the Disability Discrimination Act 1992, the Workers Compensation legislation and Occupational Health and Safety laws.
This inquest highlights that employers:
- Must accommodate and where necessary, make reasonable adjustments in the workplace for workers with mental illness[1].
- Must ensure the workplace is free from bullying and must address bullying if it arises.
- Should ensure managers undergo training in managing mental illness in the workplace and that they are aware of the relevant laws regarding discrimination and appropriate workplace conduct.
- That all employees are aware of their obligations of appropriate workplace conduct. Humiliation and belittling, even if done in a jovial or joking manner is not acceptable.
- Should consider an employee assistance programs to its workforce.
- Should ensure the workplace culture is one of respect and caring.
[1] See for example section 6 Disability Discrimination Act