Workplace bullying – Has management taken reasonable action?

The Fair Work Commission defines workplace bullying as an event where “a person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers at work” and “the behaviour creates a risk to health and safety”.

Some behaviours which constitute an act of bullying may include any of the following, but not limited to:

• exclusion from work-related events;
• unreasonable work expectations;
• belittling or humiliating comments;
• aggressive or intimidating conduct; and
• teasing, practical jokes or initiation ceremonies.

Under section 789FC of the Fair Work Act 2009 (the FW Act), victims of workplace bullying are able to apply for an order to stop the bullying.

But what if you have sustained a psychological or psychiatric injury as a result of the workplace bullying?

Injured workers can lodge Workcover claims for psychological or psychiatric injuries if such injuries arose out of, or in the course of their employment, and satisfy the meaning of ‘injury’ under section 32 of the provisions of the Workers’ Compensation and Rehabilitation Act 2003 (the WCR Act).

However, bullying will not include reasonable management action carried out in a reasonable manner (s32(5)(a) of the WCR Act).

Between 2017 and 2018 WorkSafe Queensland reported in the Queensland workers’ compensation scheme statistics 2017-2018 that 78.4 per cent of claims for statutory work-related injuries were rejected due to the injury not meeting the definition under the WCR Act.

Claims for psychological or psychiatric injuries had a higher chance of rejection. Out of a total 2,996 decisions, only 37.6 per cent of psychological and psychiatric injuries were admitted, whilst 62.4 per cent were rejected. WorkSafe Queensland goes on to explain that 93.5 per cent of rejections were based on the fact that workers cannot receive compensation for psychological or psychiatric injuries which arise out of the course of reasonable management action, as they are excluded under section 32(5)(a) of the WCR Act.

Has reasonable management action been taken in a reasonable way?

In determining whether reasonable management action has been taken in a reasonable way, the Courts consider the following, amongst other things:

1. The worker or appellant bears the onus of proof;
2. Was the worker susceptible to a psychiatric/psychological injury (Workcover Queensland v Kehl [2002] HCA 35);
3. Was the risk of psychological/psychiatric injury reasonably foreseeable (Wyong Shire Council v Shirt [2002] HCA 35);
4. Was the management action “reasonable” in all circumstances of the case (Workcover Queensland v Kehl [2002] QIC 23);
5. The words “arises out of” does not require a direct or proximate relationship between management action and the psychological/psychiatric injury (Avis v Workcover Queensland [2000] QIC 67);
6. Management action does not need to be without blemish, unless such individual actions are repetitive and of long duration (Prizeman v Q-COMP [2005] QIC 53);
7. The role of “fairness” when management deals with a worker known to have decompensated in the face of workplace pressure (Delaney v Q-COMP Review Unit QIC 11);
8. If multiple stressors are attributed to the onset of the injury, is there a nexus between other events (not management action) and courses of conduct complained of which did fall within management action not taken in a reasonable way (Delaney v Q-COMP Review Unit QIC 11)

President Hall of the Queensland Industrial Relations Commission stated in Q-COMP v Education Queensland [2005] QIC 46:

It is not the concern of s.32(5) to nominate stressors which may be taken into account in determining whether a particular psychiatric or psychological disorder falls within the rubric of s.32(1). The concern of s.32(5) is to remove certain psychiatric and psychological disorders from the statutory definition of “injury” Where a situation arises in which s.32(1) “ropes-in” a particular psychiatric or psychological disorder and s.32(5) excludes the same psychiatric or psychological disorder, there is an inconsistency which because of the use of “notwithstanding” must be resolved by allowing s.32(5) to prevail.

With these laws in place it is becoming increasingly difficult to successfully appeal decisions made by the Workers’ Compensation Regulator to reject claims for psychological/psychiatric injuries on the basis that they arose out of reasonable management action taken in a reasonable way.

If you have any questions regarding workplace-related injuries sustained in the course of management action, please feel free to contact me.