Managing Psychological/Bullying Claims - from a Workers Compensation Perspective Patrick Delaney
Overview Prevalence and Costs Definitions Workers Compensation Legislation Section 4, 9A, 11A Case Law Case Studies Best Practice
Prevalence and Costs Australian Workplace Barometer project (2009-11) - 6.8% in the previous 6 months; - 3.5% > 6 months. Productivity Commission - $6 billion and $36 billion to the economy
Costs to Employers WorkCover NSW Statistical Bulletin 2008/09: Psych Claims account for 6% of all claims; Psych claims: $29901 per claim; 20 weeks incapacity. Physical Claims: Cost $19381; 10.4 weeks incapacity. SafeWork Australia: Psych claims: $41 700 per claim; 25 weeks incapacity. Physical: $13300 per claim; 7 weeks incapacity.
Workplace Bullying Section 789FD(1) Fair Work Act: an individual or group of individuals repeatedly behaves unreasonably towards a worker or a group of workers at work; AND the behaviour creates a risk to health and safety. Examples of Workplace Bullying: aggressive and intimidating conduct Naidu v Group 4 Securitas Pty Ltd (2005) NSWSC 618. belittling or humiliating comments Naidu v Group 4 Securitas Pty Ltd (2005) NSWSC 618; Styles v Murray Meats Pty Ltd (Anti- Discrimination) [2005] VCAT 914. victimisation Naidu v Group 4 Securitas Pty Ltd (2005) NSWSC 618. spreading malicious rumours Willett v State of Victoria [2013] VSCA 76. practical jokes or initiation WorkCover Authority (NSW) (Inspector Maddaford) v Coleman (2004) 138 IR 21. inexclusion from work-related events Willett v State of Victoria [2013] VSCA 76. unreasonable work expectations Naidu v Group 4 Securitas Pty Ltd (2005) NSWSC 618.
Section 4 Workers Compensation Act 1987 injury arising out of or in the course of employment Perception of events is not relevant; The real question is whether real events led to a recognisable injury. State Transit Authority of NSW v Fritzi Chemler [2007] NSW CA 249 Does not need to be categorised as Workplace Bullying.
Actual Psychological Injury? DSM-IV/DSM-V not necessary. A condition that has produced a real physiological effect on the nervous system, not a mere emotional impulse. Stewart v NSW Police Service (1998) 17 NSWCCR 202; section 11A(3) of the Act
Conditions of Gradual Onset Various micro traumata experienced over time can cause the onset of a disease, including psychological injuries: Hallett v Commissioner of Police (2004) 1DDCR 580 per Walker J at 594 5; Rail Corporation New South Wales v Hunt [2009] NSWWCCPD 114.
Section 9A Workers Compensation Act 1987 a substantial contributing factor the contribution of employment to an injury needs to be real and of substance. a substantial contributing factor to an injury, not the sole contributing factor. Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324. the main contributing factor For aggravation, exacerbation or deterioration of a preexisting condition.
Section 11A Workers Compensation Act 1987 Section 11A provides a defence against a claim where three elements are established: that the whole or predominant cause of injury was action taken by the employer; that the action causative of injury falls under the specified categories outlined in section 11A; and that any such action was reasonable. Categories: transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
whole or predominant cause if there are competing work causes and only one comes under the categories set out in section 11A the defence will not succeed.
Categories Transfer: change of role or responsibilities. Manly Pacific International Hotel Pty Limited v Doyle [1999] NSW CA 465. Demotion and Promotion: uncontroversial. Discipline: learning or instruction imparted to the learner and the maintenance of that learning by training, by exercise or repetition. The narrow meaning of punishment, chastisement is secondary to the primary meaning although the word is often used in this sense in the popular speech. Kushwaha v Queanbeyan City Council (2002) 23 NSWCCR 339; [2002] NSWCC 25. Dismissal: when an employer terminates his or her employment without the worker s consent. Chisholm v Thakral Finance Pty Ltd [2011] NSWWCCPD 39. Provision of employment benefits to workers: no conclusive definition; Review of sick or other leave, provision of employee share schemes, or potentially beneficial rostering. ISS Property Services Pty Ltd v Milovanovic [2009] NSWWCCPD 27.
reasonable action Reasonableness is an objective test. Jeffery v Lintipal Pty Ltd [2008] NSWCA 138; Northern NSW Local Health Network v Heggie [2013] NSWCA 255. Whether action is reasonable requires consideration of all the facts. Department of Education & Training v Pembroke [2006] NSW WCC PD 182. The needs of the employer and the employee are relevant. Irwin v Director General of School Education (NSWCC, Geraghty, No 14068/97, 18 June 1998, unreported); Irwin cited with approval in Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1. The action, and the way it was carried out needs to be reasonable. Commissioner of Police v Minahan (2003) 1 DDCR 57; [2003] NSWCA 239 What occurs before and after the relevant action may be a guide to reasonableness, but is not determinative. Buxton v Bi Lo Pty Ltd (1998) 16 NSWCCR 234. Whether action was reasonable is to be judged based on the information available at the time. Northern NSW Local Health Network v Heggie [2013] NSWCA 255.
Reasonableness The question of reasonableness is one of fact, weighing all the relevant factors The test of "reasonableness" is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be [attended], in all the circumstances, by a question of fairness. Geraghty J in Irwin v Director General of School Education NSW CC NO 14068/97.
Case Study - Lesley Facts: Lesley alleged repeated sexual harassment by maintenance contractor. Employer reported there was ongoing mutual banter between them. Evidence: factual evidence supported events as described occurred; medical evidence supported psychological injury; 22% WPI. Outcome: criminal charges against contractor; Lesley never RTW in any capacity; WID claim; total claim cost $291495.36.
Case Study - Julie Facts: Julie had been employed for 2 months and alleged bullying and harassment by management and being given demeaning tasks. ER reported no bullying occurred and that Julie had been terminated for drug related reasons. Evidence: factual evidence supported that termination was not carried out in a reasonable manner; medical evidence supported psychological injury. Outcome: ARD registered; settled at mediation with final claims cost of $59938.97.
Case Study - John Facts: alleged that over the 4 years prior he had to put up with being spoken to like a child and being subjected to swear words and an unpredictable attitude from his supervisor. ER and Insurer Action: Provisional liability was accepted which allowed for timely mediation and counselling. Outcome: RTW PIDs within one week with a total claim cost $4298.20.
Resources SafeWork Australia Guide for Preventing and Responding to Workplace Bullying. SafeWork Australia Dealing with Workplace Bullying A Worker s Guide. WorkCover NSW Bullying Prevention Kit.
Prevention Identify the Potential seek consultation and feedback Control the Risk Set standards of behaviour Code of conduct Bullying policy Develop safe systems of work Develop Productive and Respectful Workplace Relationships Implement Reporting Procedures Provide Training and Education Monitor and Review
Controlling Claims Risk Policies and Procedures Develop Implement Educate Adhere Document Early Notification to Insurer Support for early intervention and RTW
Acknowledgements House of Representatives Standing Committee on Education and Employment report, Workplace bullying: We just want it to stop Fair Work Commission Benchbook on Anti-Bullying Hicksons Lawyers