In a fairly recent Australian Industrial Relations Commission (AIRC) case, an employee’s manager was found to have harassed an employee by telephone calls and attempting to visit the employee at home, which constitutes a breach of privacy and disregard of this basic civil right constitute grounds for dismissal. The same applies to a workcover case manager who is found to harass an injured worker.
Harassment by boss & by workcover case manager constitutes of bullying and invasion of privacy
Details of the AIRC case in point
The AIRC heard at the Hearing that the manager became upset after learning that an employee had complained to senior management about her conduct as centre director.
However, despite clear warnings from senior management not to contact the complainant, the former centre director [the manager] was alleged to have telephoned the employee at least five times and also attempted to visit her [the employee] at home! [WTF!]
Commissioner Richards found that the former Manager’s actions amounted to harassment because the employee clearly felt her privacy was intruded upon.
The applicant [the manager/centre-director] also failed to observe a reasonable and lawful direction given by her employer, which was supplementary or in addition to the breach of company policy.
The manager breached a reasonable and lawful direction by her employer.
In the Commission’s view, the manager’s actions in disobeying the direction given to her, compounded by the breach of the employer’s bullying and harassment policy, was destructive of the trust and confidence placed in her by her employer, and therefore the AIRC – fairly-rejected the manager’s unfair dismissal claim.
In this case, the NSW Tribunal has sent a very clear message to employers, and that is that managers are their frontline defence against being held indirectly liable for harassment in the workplace.Training to ensure managers recognise and act on potentially unlawful behaviour is therefore of uttermost importance.
Details of a harrassing workcover case manager: a real example
A genuinely and severely injured worker contacted his lawyer. He wrote the following email to his lawyer about the behaviour of is then case manager:
“I am constantly being harassed by my current Xchanging case manager, Mrs X. She even calls me on my private mobile number, up to 6 times a day and her behaviour is most outrageous and inappropriate. During my last telephone conversation I actually started screaming at her and told her to f*** off.” I had a nervous breakdown and nearly had to be admitted to a psychiatric hospital as an emergency.
The matter revolves around my fitness to work. Ms. X keeps telling me that SHE thinks I am fit for work, in-spite of all the contrary medical evidence (IMEs, Medical reports, Vocational Assessment). She is now sending me again to an independent psychiatrist for assessment for the 6th time in 7 months. She is not only clearly doctor shopping, but she keeps yelling at me and has told me (I have recorded the messages) that “she will make ‘me’ get my lazy butt back at work in the next week or two…”; that “she note I had been referred to a psychiatrist but there is no need for that as I can talk to her…”; that – when I told her my last major reconstructive surgery broke apart – she “is not interested in my physical condition…”; and that “stating that I am suicidal and threatening with suicide is not an excuse not to undergo an immediate vocational assessment…” (whilst my employer had just unlawfully sacked me from a longstanding senior management position based on “impairment”! and whilst all IME reports clearly state that another Vocational would be of no use).
Most concerning is the fact that Xchanging disregards the ACCS Certificate issued [date] allowing me to have ongoing psychology treatment. She even asks me repeatedly to pay the accounts myself now well over $900 (refer to attachment for details and copy of ACCS certificate). She has told me several times that ACCS rulings do not count and that they are not valid.
Mrs X [case manager] also repeatedly told me that “she would do everything to cease my psychology treatment AND physiotherapy”.
Please see enclosed letter detailing the above.
My questions are:
- do I need to contact ACCS re the breach of the certificate?do I have the right to take out a restraining order against Ms X [case manager]; they can write to you or my treating practioners but not ever call me (it sends me into a frenzy and I get so upset I need to take tranquilizers! – my psychologist and psychiatrist have documented this and are happy to corroborate that Mrs X is aggravating my PTSD and severe depression)
- Is it worth complaining to WorkSafe about Xchanging?
- Can they send me to IME’s so frequently (every couple of weeks ;6 in 7 months?)
The lawyer’s reply
“Thank you for the email and sending me a copy of the letter you prepared for the insurer. I have previously written to the insurer and will fax another letter either this afternoon or tomorrow morning and then send you a copy of both letters for your records.
In the letter I will address the issues you have raised, as well as giving a final warning that any further infringement of your civil rights will result in a complaint to WorkSafe. Allow me to fax this urgent letter to them addressing all the issues in your email (inc IME appointments) and we can take it from there. I will also confirm that ALL future correspondence is to go through myself and your treating doctors, and that they do not have permission to contact you directly without prior approval.
I will also telephone a senior manager at WorkSafe today outlining our complaints.
I assure you I will address this issue as sternly as possible and ensure you do not experience this treatment again.
I confirm I will email you the letters and update either tonight or tomorrow morning at the latest.”
The saga continues
Despite several stern lawyer’s letters to Xchanging (and copies sent to Mrs X) and two formal complaints to WorkSafe, the workcover case manager continued to repeatedly BREACH the injured workers’ civil right of PRIVACY. The injured worker developed such a severe PTSD (Post Traumatic Stress Disorder) from the relentless harassment and bullying that he could no longer tolerate his phone ringing. His treating psychologist and psychiatrist instructed him to disconnect his home phone (for many months and then set it only to answer phone) and the injured worker was also instructed not to answer any unknown private mobile telephone calls.
After several weeks, the telephone calls ceased, however, the case manager relentlessly continued to directly email the injured worker.
The injured lawyer intervened again several weeks or months later:
“I am going to be talking with a Senior Legal Manager from WorkSafe later today again in order to voice our concerns about the insurance companies behaviour. This should result in significant changes from now on. I will provide you with a further update following the meeting, but rest assured, the insurer will behave very differently from now on.
I will be in touch shortly and I will provide you with a complete summary.”
A week or so later, the injured worker received the following email from his lawyer:
Well, they did not! The Xchanging workcover case manager continued to email the injured worker directly. When the injured worker (as instructed by their psychologist and psychiatrist) did not read those emails, the case manager held the injured worker accountable for not responding to queries and/or not attending an IME!!!
And it goes on and on and on…
And they have the cheek to turn things around and make the injured worker like if he is bulling the case manager?
And then… finally a breakthrough, about 1 year later…
The EVIL Xchanging workcover case manager accidentally sent a copy of the rudest email ever to the injured worker (the email was meant for the injured worker’s employer!).
For the full story, please read our previously posted article “case manager rudest email ever“.
By the way, whilst this evil email was addressed to the employer (but mistakenly was sent to the injured worker), it is worth noting the injured worker’s employer response to the injured worker (and cc’d to the evil case manager). The injured worker had obviously sent a copy of his response to the rude email to his employer.
The employer clearly did not approve of the way the injured worker was being treated by Xchanging, probably fully well knowing that psychological injuries sustained during the claims process is in fact see as part of the “employment” and therefore compensable.
Thanks to this evil email from the evil Xchnaging case manger, notwithstanding that there were orders in place prohibiting Xchanging and said evil case manager to make contact directly with this injured worker (via phone, email etc), the injured worker’s lawyer was able to have this EVIL case manager replaced in LESS than 24 hours. The injured worker received a letter from Xchanging via express post less than 24 hours after this email, confirming the appointment of a new case manager.
To say that Xchanging KNOWS they have done wrong would be an understatement indeed.
- You can find a good sample letter to demand that the workcover case manager does not communicate directly with you here, in the comment section, letter kindly provided by Atlas_LegalAU
- Another good sample letter and information can be found here.
We are very very sure that what this injured worker has experienced is a pattern of misconduct & abuse that is commonplace if not the norm for workcover insurances across Australia.
the fact that this injured worker has documented it is invaluable beyond belief.
Who, in the interest of saving money, has turned a blind eye to the treatment of people whose care is entrusted in them. All the while this horrible caseworker has done irreparable damage to this injured worker with no regard for his safety, not to mention quality of life.
To Erin Brockovich and to a Workcover Victim, the natural next step is filing a class action lawsuit against what sounds like a horrible, broken system.
Remember that if you sustain a psychiatric injury (i.e. depression, PTSD, anxiety etc) BECAUSE the way your claim has been handled, you are entitled to compensation. In some cases, it is even possible to hold the insurer directly LIABLE for the suffering caused!