Comcare and bullying – more psychologically injured workers can pursue their employers for compensation

In this recent case, in which the AAT overruled Telstra’s decision to deny compensation to a former employee for stress and psychological injury, we show that more psychologically injured and stressed workers within large organisations covered by Comcare can successfully pursue their employers for compensation for stress-related injuries. The ruling underlines that management’s often-used tactics of subtle bulling and harassment to push people out the door has a terrible human cost which the law is now seemingly prepared to recognise.

Comcare and bullying -more psychologically injured workers can pursue their employers for compensation

In a recent case ( January 2012) in which the Administrative Appeals Tribunal overruled Telstra’s decision not to pay compensation to an ex-employee for stress and psychological injury shows that it is possible to resist intimidation.

In the matter of Sami -v- Telstra [2012] Mr Sami  successfully won his compensation claim against Telstra for work-related psychological injuries – in particular in relation to bullying and harassment by his manager which occurred over a period of time.

Comcare and stress injuries: background

There is no doubt that the incidence of workplace injury/ies caused by stress has been growing quite steadily for the past 10 years or so. Obviously as the number of workplace stress injuries increased, so did the amount of money that was (eventually) paid (ultimately by Comcare ) out to those unfortunate injured workers.

As we mentioned in a previous article entitled “Comcare is cheating injured workers“, in 2006 the Howard Government decided to “tighten the screws” to stop the “pay outs” and in fact allowed large companies such as banks (i.e. NAB) and Telstra to relatively easily squeeze out of injury claims as it were. (Refer to Exclusionary Provisions which are part of the Safety Rehabilitation and Compensation Act). In layman’s terms, this meant that large companies, such as Telstra, could avoid paying out due compensation if the “psychological stress” was a result of “reasonable disciplinary conduct”; which was enough (jargon really!) to have a legit claim rejected (“excluded”). The jargon here referred basically to the presumption that the pyschological stress inflicted upon a worker was in some bizarre (of course!) way nothing but an “unreasonable reaction” of the part of the aggrieved worker and that the “disciplinary action was of course “reasonably taken”. Fully sick!

The Howard Government also ensured that there were more “exclusions” in place; for example if a worker became stressed because he/she failed to obtain a benefit such as, for example, a redundancy package when sacked, the company (Comcare) was “allowed” to deny the mentally injured or traumatised workers any compensation. This basically means that even though a company would deliberately screw a worker out of a job (workplace), they were not liable for any compensation! Sick!

That’s not all, folks, the Howard Government went as far as to implement an additional “exclusionary provision”; namely “reasonable administrative action”. Yeah… So now the only thing “management” had to show was that an endless list of “reasonable management actions” may have contributed to the employee’s terrible mental injuries, and just walk away!

Perhaps the final nail in the coffin was that ruled by the Federal Court (before 2006) in the case Comcare -v- Hart (2004) [FCA 1144]. In this case, Whitlam J considered provisions of the Safety, Rehabilitation and Compensation Act excluding failure to obtain promotion and its consequences from being a compensable injury. So basically it found that if only one of the exclusionary factors contributed to the [psychological] injury, then the claim should fail! Right — most stress-related work injuries are, of course, caused not by a single factor but by multiple ones! So it became virtually impossible for injured workers to prove that “reasonable administrative actions” had never ever contributed to their psychological injury/stress!

To give you an example, if you were to become extremely stressed in your job/workplace because your boss is bullying you but, for example, in addition to the bullying and intimidation, you also complain about your shift hours being changed, or that you have been made to work every weekend, or that you have been given extra work, whatever,.., your claim for “stress or psychological injury” would FAIL (notwithstanding that you may have been bullied to the verge of suicide!). Your claim would fail because it is enough if only one (1) of the “exclusionary” factors (i.e. the extra work may be seen as “reasonable administrative action”) significantly or materially contributed to your injury! (WTF!).

Needless to say that, since, employers licensed under the Comcare scheme such as Telstra, Optus, Australia Post, CBA, NAB, Linfox and others, have successfully relied on these extended exclusionary provisions to reject claims for stress-related injuries.

Sami v Comcare

Mr Sami fought and won his case    just a few months ago!

In arguing the case, Mr Rami’s defense stated that while “reasonable administrative action” may have been taken by Telstra in managing Mr Sami, the manner in which they behaved was not justifiable.

The Tribunal identified that there were a number of “actions” or factors which had contributed to Mr Sami’s psychological injury. These included issues about leave entitlements, reward certification and requests for a new uniform. Mr Sami had also been made twice redundant and the manner which he had been made redundant also appeared quite flawed.

The Tribunal found whilst all had been reasonable administrative actions, the fact that these actions had been carried out in an “unreasonable” manner meant that Telstra was ordered to pay Mr Sami compensation.

Bullied and under the Comcare scheme

The case shows that more psychologically injured and stressed workers within big organizations covered by Comcare can now successfully pursue their employers for compensation for stress-related injuries.

Further reading

New Comcare complaints process – information for CWU members

shortlink: http://aworkcovervictimsdiary.com/?p=6217