Posted by: Francois Malan | Date: 14 May 2019
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:
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.
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.
In determining whether reasonable management action has been taken in a reasonable way, the Courts consider the following, amongst other things:
President Hall of the Queensland Industrial Relations Commission stated in Q-COMP v Education Queensland  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.