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Perspective

Employer liable for anxiety and PTSD caused by bullying

Bullying means repetitive acts that are unreasonable (which hurt, humiliate or intimidate) and affects the employees’ safety at work (see section 789FB of the Fair Work Act 2009 (Cth)). Where bullying behaviour causes psychological injury, a workers’ compensation claim will always be accepted.

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In the case of The State of Tasmania (Department of Education) v S [2020] TASWRCT 39, the Supreme Court found the Tasmanian Department of Education liable for anxiety and PTSD a teacher suffered after:

  • being bullied by colleagues;
  • being physically attacked by a student; and
  • witnessing aggressive conduct between colleagues and a student.

Her employer denied liability and suggested a COVID19-related restructure, and other administrative actions caused her condition. However, her employer also admitted it took no action when she previously raised complaints about workplace bullying and a toxic culture because she was unable to provide specific examples.

The three defences to a workers’ compensation claim for psychological illness are:

  1. It is not an injury (e.g. stress is not an injury as opposed to anxiety or PTSD)
  2. The injury did not arise out of or in the course of employment
  3. The injury was cause by reasonable management action

Reasonable Management Action are actions taken by the employer to manage the employee which is reasonable to take, and is undertaken in a fair and reasonable manner.

Lessons for employers

  1. Employers can assess on a case by case basis whether to investigate reports of policy and code of conduct breaches and low level or irregular conduct. However, employers must investigate any complaints of conduct which poses a risk to health and safety (including bullying, harassment and discrimination), or which breaches other legislation including the Fair Work Act 2009 (Cth), discrimination legislation and criminal law.
  2. A complaint requires a high level of detail, including relevant date, time, what occurred and details of any witnesses. Assumptions, conclusions and/or opinions should not be drawn before putting the allegations to a respondent.
  3. A bullying complaint, without the high level of detail, should not be ignored. The complainant (victim) should be asked further questions to investigate the validity of their complaint to determine if it warrants deeper investigation.
  4. Complaints should be rapidly dealt with as delay can significantly increase the risk of mental health problems. In Robinson v State of Queensland [2017] QSC 165, failing to act in a timely and determinative manner cost the employer $1.5 million as the Supreme Court found the risk of serious psychiatric harm was reasonably foreseeable to the Health Service given the Director’s concern about the complaints against her.

Written by Nes Demir

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Our team are here to provide the right advice for your business and workforce. If you have a question or require assistance, please contact Kim McLagan.

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