March 2018


Workplace bullying claims 'problematic'

by Kate Tilley, editor, Resolve

Workplace bullying claims are "very difficult" because employers take complaints personally, says Page Seager partner Nick Sweeney.

Mr Sweeney presented an AILA master class in Hobart late last year and spoke to Resolve in February.

He said most bullying claims were investigated, a high percentage were disputed, and many successfully challenged by employers.

However, the adversarial nature of the claims and the length of time they took to resolve, "doesn't help [a claimant's] health situation".

Getting an injured employee back to work was frequently problematic because often they did not want to return to the same workplace, even if a perpetrator had left, or employers did not want them back.

While the federal Fair Work Act (FWA) contained specific references to workplace bullying, Mr Sweeney said there were none in the Tasmanian workers' compensation laws and that was probably the case in other states and territories. Before 1988, there was no ability to lodge a workers' compensation claim for stress in Tasmania.

Under current law, when a physical or psychological injury occurred, a claimant had to prove it was work related to be entitled to compensation.

Under workers' compensation law, a single incident could be sufficient to manifest a psychological injury; the FWA required repeated unreasonable behaviour.

"Someone suffers a psychological injury only if they are incapacitated for work," Mr Sweeney told Resolve.

"Stressors can be evident for weeks, even months, but, if they still turn up for work, there is no injury."

A claimant required a doctor's certificate to show they were injured. "There is usually a history [of bullying or stressors] before they see a doctor."

Mr Sweeney said doctors should identify specific medical conditions, like anxiety, depression or an adjustment disorder. "Stress is not a specific diagnosis," he said.

When an employer received a claim, they often took it personally, denied any bullying behaviour, and wanted lawyers and their insurers involved.

"Often an employer says they've not been told or that other [external] things in a person's life have caused their stress," Mr Sweeney said.

A loss adjuster would be appointed to take statements from the claimant, other employees and supervisors. Clear, factual differences meant a dispute existed, so compensation payments stopped and the case was referred to a tribunal.

Mr Sweeney said it was "a long process" which could take months. If the dispute was not resolved at conciliation, it went to a trial and a determination.

There are "difficult dynamics", he said.

Mr Sweeney said occupational health and safety had traditionally emphasised physical injuries, but the focus had to shift to psychological injuries and creating better workplaces from a mental health perspective.

"It's impossible to have a stress-free workplace but the ideal employer would have systems in place to talk to people about workplace issues and deal with problems before they get out of control.

"Some employers spend a lot of time on this; but many Australians don't understand mental illness."

Employers' defences to bullying claims included the ability to demonstrate they were engaged in performance management or taking "reasonable administrative action" with the employee.

Mr Sweeney said it was common for employees expecting poor performance reviews to see a doctor for stress symptoms.

Bullying is repeated unreasonable behaviour that creates a risk to health and safety.
 "Reasonable management actions, conducted in a reasonable manner, are not bullying."

Under the FWA, psychiatric conditions are injuries which are diseases for the purpose of s25. To be entitled to compensation, employment must have contributed to a substantial degree.

S25(1A) says compensation is not payable for a disease that is an illness or a disorder of the mind and which arises substantially from:

(a) reasonable action taken in a reasonable manner by an employer to transfer, demote, discipline or counsel a worker or to bring about the cessation of a worker's employment; or

(b) a decision of an employer, based on reasonable grounds, not to award or provide a promotion, transfer or benefit in connection with a worker's employment; or

(c) reasonable administrative action taken in a reasonable manner by an employer in connection with a worker's employment; or

(d) the failure of an employer to take action of a type referred to in paragraph (a), (b) or (c) in relation to a worker in connection with the worker's employment if there are reasonable grounds for not taking that action; or

(e) reasonable action taken by an employer under this Act in a reasonable manner affecting a worker.

In Headway Support Services v Wickham [2009] TASSC 99, Justice Blow allowed an employer's appeal against a Workers Rehabilitation & Compensation Tribunal finding that compensation was payable. He found the employer had taken reasonable administrative action, but said: "It is not necessary for the action to be worker friendly or that it be taken with the utmost sensitivity and delicacy."

In St Helens Oysters v Coatsworth [2007] TASSC 90, Justice Evans said: "It is notorious that the genesis for conditions such as stress, anxiety and depression may be multifaceted. The causes may be many and varied and it can be very difficult to identify the most significant causative factor… Accordingly, when a worker claims to suffer from a condition of this nature in circumstances where there are a variety of potential causes for the condition, an employer may show a reasonably arguable case concerning liability by providing evidence of plausible potential causes that are inconsistent with liability."

In Comcare v Martin [2016] HCA 43, the High Court returned to a tribunal's original decision a claim was compensable, although the employer had argued that failure to get a promotion was not.

The High Court's judgement said: "Causation in a legal context is always purposive. ... It has been said more than once in this court that it is doubtful whether there is any ‘common sense' approach to causation which can provide a useful, still less universal, legal norm. Nevertheless, the majority in the Full Court construed the phrase ‘as a result of' ... as importing a ‘common sense' notion of causation. That construction ... did not adequately interrogate the statutory text, context and purpose.

"The causal connection giving rise to the exclusion from the definition of injury is met where the disease suffered by the employee is a mental condition or an aggravation of a mental condition suffered by the employee in reaction to a failure to obtain promotion, including in reaction to a perceived consequence of that failure to obtain promotion. The nature of the perceived consequence – whether personal or professional, direct or indirect, real or imagined – is beside the point."


FWC hears few bullying complaints

by Kate Tilley, editor, Resolve

The Fair Work Commission (FWC) has heard few workplace bullying complaints with most claimants more likely to pursue workers' compensation claims, Clyde & Co senior associate Andrew Crowley told Resolve.

Anti-bullying provisions were introduced into the Fair Work Act 2009 on 1 January 2014.

Mr Crowley said theories on why FWC had heard few bullying cases included a requirement the complainant still be employed to be entitled to lodge a complaint and the remedies. FWC could make "any appropriate orders, except pecuniary payments".

They could include orders for people to sit in separate areas, an employee to be transferred elsewhere, retraining, or disciplinary action, if warranted. However, Mr Crowley did not believe it could extend to FWC ordering a workplace bully's dismissal.

He said employers needed to have clear mechanisms to deal with workplace bullying and the ability to resolve issues internally. "You need a policy so everyone understands their obligations and rights, a clear process to complain, and procedures to investigate and potentially resolve the problem," he said.

"It may require a frank conversation with the [perpetrator] and sometimes they may have external training to better understand workplace rights. Some need anger management training and may not realise the impact of their conduct."

Mr Crowley agreed that, in some circumstances, bullying on social media could fall within the workplace bullying definition. "I don't think it would be too hard to draw the nexus" between social media bullying by a workplace colleague and the essential element of the bullying being work-related, he said.

FWC's 2015 judgement in Rachael Roberts v View Launceston Pty Ltd [2015], FWC 6556, was one of the few that included social media bullying.

A superior defriending the complainant on Facebook was one of 18 separate, specific bullying allegations, of which nine were accepted by FWC Deputy President Nicole Wells.

She said the real estate agency's sales administrator Ms Lisa Bird's action in defriending property consultant Ms Roberts "... evinces a lack of emotional maturity and is indicative of unreasonable behaviour, the likes of which I have already made findings on". There was "evidence of inappropriate dealing with Ms Roberts which was provocative and disobliging.

"Mrs Bird took the first opportunity to draw a line under the relationship with Ms Roberts on 29 January 2015, when she removed her as a friend on Facebook as she did not like Ms Roberts and would prefer not to have to deal with her."

DP Wells said there was no suggestion Ms Roberts was being performance managed.. [and] no real suggestion any of the behaviours complained of by Ms Roberts were considered reasonable management action."

She found Ms Bird's lack of understanding of "the nature of the behaviour displayed at work has the proclivity to see the behaviour repeated in future".

She therefore made an order to stop the workplace bullying.

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Resolve is the official publication of the Australian Insurance Law Association and
the New Zealand Insurance Law Association.