A recent decision of the New South Wales Personal Injury Commission (NSWPIC) serves as a reminder of the differing standards of proof when determining liability for claims of bullying and/or harassment under workers compensation laws and the Fair Work Act 2009 (Cth).
In the matter of Goodacre v Trafx Pty Ltd [2024] NSWPIC 6, the NSWPIC was tasked with determining whether Trafx Pty Ltd (the Employer) was liable for a worker's psychological injury.
The worker was employed as a Traffic Controller on a casual basis and claimed that he had suffered a psychological injury as a result of bullying and harassment by the Employer.
The worker claimed that a supervisor had been making sexual innuendo remarks to younger staff members, particularly females, and had been taking the worker's phone and browsing porn sites. He stated that he reported this behaviour to the owner of the business, but his reports were ignored and instead his shifts were cut. When he asked why his shifts were cut, he was told that the supervisor did not want to work with him anymore. When he asked for a meeting with management to discuss his concerns and complaints, he was told to "f*** off".
The worker also claimed that in April 2019 he was unfairly blamed (and threatened with termination of his employment) for the conduct of his work colleague (who had falsely advised a motel that he was there for work with the Employer when caught urinating in the garden). The worker was told that there were no shifts for him, and then issued with a disciplinary letter at his home some two months later. The Employee claimed that at this time, he was told that his house did not look like a drug addict's house.
Furthermore, according to the worker, despite being told he was a supervisor in June 2019 and provided with a utility vehicle, by December 2019, he was again not getting shifts and had another supervisor attend his home and demand the utility vehicle back. He then spent the next six weeks unsuccessfully requesting shifts and claimed that others employees were spreading unfounded and unfair rumours that he was a drug addict and that no one wanted to work with him.
The employer and insurer disputed liability on the basis that the NSWPIC could not be satisfied that the worker was bullied and harassed, given that there were no witnesses who corroborated his claims. The employer and insurer also submitted that the reason why the worker's shifts were cut was because he had exhibited inconsistent and erratic behaviour at work, which had resulted in clients banning him from their worksite.
The NSWPIC noted that in accordance with the principles of Attorney General's Department v K [2010] NSWWCCPD 76, it could make a finding that causation had been established as long as real events occurred, which were perceived as creating an offensive or hostile working environment, and a psychological injury followed.
The NSWPIC, while accepting that the worker had not filed any evidence to support his claims, noted that the Employer's evidence confirmed that real events had occurred (or at least had not been denied).
In this regard, the NSWPIC noted that the supervisor had not actually denied the specific allegations made by the worker, or that the worker had reported such matters to him.
Further, while the worker and the employer provided differing reasons for the reduction in the worker's shifts, the NSWPIC considered that this was not necessarily determinative, as it was satisfied that the reduction had occurred. The NSWPIC also noted that the employer had agreed that the worker was given a disciplinary letter.
As these real events had occurred and the worker perceived them to be bullying and harassment, the NSWPIC was satisfied that these events which occurred in the course of employment were causative of the worker's psychological injury.
This was even though the worker had exhibited poor behaviour in the workplace, including swearing at other colleagues, doing donuts in a work utility vehicle, leaving another colleague in an isolated location, and threatening to take legal action against the Employer.
The matter was therefore referred for assessment of permanent impairment to determine the worker's entitlement to lump sum compensation.
Lessons for employers
As can be seen from this decision, the standard of proof for claims of (psychological injury arising from) bullying and harassment is quite different in the context of workers compensation claims in NSW, than other claims say under the Fair Work Act 2009 (Cth).
For workers compensation claims in NSW, it is only necessary that the factual event has occurred and is perceived by a worker (even if the worker's perception is not necessarily reasonable), as creating an offensive or hostile working environment. That will generally lead to a finding that any resulting psychological injury is work related and therefore compensable.
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