Things can happen at work that can really stress people out. If something really bad happens, that stress can be more serious and lead to depression or post-traumatic stress disorder. Someone who suffers from such a condition may have difficulties functioning in everyday life, and that includes going to work. Mental injuries are receiving more attention for workers compensation and we believe the threshold is changing.

Mental injuries are receiving more attention for workers compensation

Even Phantom bullies can hurt

Many of my friends who were once journos fled the newsroom for the greener pastures (or at least the deeper pockets) of the public service, writes Markus Mannheim in “Even Phantom Bullies Can Hurt”

Few regretted it. Some whinge about process-focused dogmatists and the plodding pace of government, but they also speak in awe of the efforts spent ensuring that staff ”feel good”.

One ex-journalist told me recently his government workplace was ”phenomenal”. ”Managers go to the enth degree to check whether staff are happy with what they’re doing. But, the thing is, even though we have a lot of meetings to make sure we’re all supporting each other, there are heaps of disputes about bullying. I just sit there thinking about life in a newsroom, and wonder what on earth they’re talking about.”

I’ll admit I’ve lost perspective on what a ”normal” workplace is like. I’ve spent the last decade in politics and the media; industries not renowned for a softly, softly approach to personnel management. Arguments are an accepted part of reaching a conclusion; abuse from the public is unavoidable. Yet I realise this would create a legal mess in other workplaces. And perhaps that’s fair enough: why should most workers need a thick hide to do their jobs?

Nonetheless, outsiders regularly guffaw at the notion of bullied public servants. The bureaucracy’s image isn’t helped by the occasional high-profile compensation claim (such as the official injured while having sex on a work trip, or this week’s report on two Tax Office colleagues who stoushed over a cup of coffee). These cases are more complex than a prima facie account suggests, but they feed the public perception that APS staff need to harden up.

In truth, there’s no epidemic: each year, only a tiny fraction of public servants (0.13 per cent in 2010-11) are investigated for harassing colleagues. Comcare also notes that, last financial year, it received just 1.6 compo claims relating to mental stress for every 1000 full-time staff. Yet this doesn’t mean the problem isn’t serious at the micro level:

The reasons people bully others, or feel that they are bullied, are as complex as people themselves. I doubt there are any universally effective ways to stop workplace harassment. However, after reading recent case law, what’s clear is that many (but not all) APS compo claims could have been avoided if managers tackled perceived underperformance earlier.

This is counterintuitive for many public servants, because of the stubborn myth that initiating a performance management process creates legal risks. Increasingly, the reverse is true, as shown by two decisions this year: Commonwealth Bank v Reeve in the Federal Court, and Fox v Comcare in the Administrative Appeals Tribunal. Both highlight the need for employers not only to prevent bullying, but to act to prevent employees from feeling harassed, even if there is no proven bullying or harassment taking place. Ignoring a staff ”problem”, in the hope it will fade, is probably the worst decision a manager can make, yet it still happens regularly.

A performance management process often helps the troubled public servant, too, because it coaxes them to voice concerns – about workloads or office relationships – they may otherwise have suffered silently. It’s no cure-all: these processes don’t always work perfectly, nor are they always fair. But they can clarify misunderstandings, identify looming mental-health problems, and save a hell of a lot of public money.

Workcover stress claims

When someone has such high levels of stress at work from for example being ill-treated, bullied, harassed, discriminated that it causes a psychological injury or illness, should these injured workers be treated as if they were physically injured?

Truth is a psychological injury can hurt a person’s ability to work as much, or even more, than a physical injury. If the cause of that injury stems from the person’s job [workplace], should that person be eligible for workcover benefits as they would if they were physically injured? Yes! It should!

Thanks God for it seems the Court’s answer is increasingly becoming yes. However, while Australian jurisdictions have allowed for mental stress to be compensable under workers’ compensation legislation, in most cases there are severe restrictions.

In most (if not all)  jurisdictions, people who suffer mental stress (injury/illness) which  “ is caused or aggravated by work” are eligible for benefits.

The exception generally provides that workers compensation is not payable if the stress is predominantly caused by:

• An employer taking reasonable action in a reasonable manner to transfer, demote, discipline, redeploy, retrench or dismiss a worker; or
• A decision by the employer based on reasonable grounds not to award or to provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with employment to the worker.
• An expectation of 1 or 2 above.

As we have mentioned before, the scope of this exclusion is quite narrow for the following reasons:

1. The exception to the above is very narrow and only applies to reasonable action taken in a reasonable manner. Compensation is payable for stress where reasonable action is taken in an unreasonable manner or unreasonable action taken in a reasonable manner; and
2. Often the action to transfer, demote, discipline, redeploy, retrench or dismiss a worker is the last stage in a chain of events and the evidence will show that the action has been provoked by poor performance, which is an effect of general work stress which predated any action to transfer, demote, discipline, redeploy, retrench or dismiss a worker.

In other words, workcover insurers (and employers) are more likely to rely on a specific defence to a claim. This defence is for example contained in section 82 of the WorkCover legislation in Victoria which provides that

For example such a case is Westpac Banking (25 Jan 2011): read article - see full case

When you lodge a stress claim it will be necessary to specify in general terms the sources of your stress. This may occur briefly when you fill out the claim form or in more detail if you provide a statement to a WorkCover investigator or attend a WorkCover medical examiner. It is important that you understand the ambit of the exceptions in the WorkCover legislation under which compensation is not payable for stress from certain sources. These sources relate to reasonable actions taken in a reasonable manner by an employer to discipline counsel demote an employee etc.

Many cases are rejected on the basis that they fall within this exception. Many rejected claims are, ultimately, successful when they are referred to conciliation, a Medical Panel or a court.

Courts, tribunals and workers’ compensation boards have made it clear normal workplace stresses that are expected and part of the workplace environment are not eligible for benefits. However and thankfully, Courts are also increasingly seeing through insurer (and employer) tactics and are becoming more sensitive and sensible about the devastating effects stress can have on workers. We can only hope that this will continue!

Two decisions this year: Commonwealth Bank v Reeve* in the Federal Court, and Fox v Comcare** in the Administrative Appeals Tribunal have clearly highlighted the need for employers not only to prevent bullying, but to act to prevent employees from feeling harassed, even if there is no proven bullying or harassment taking place.

* Reeve case: the court awarded compensation to a bank manager who had tried to kill himself rather than face a meeting to discuss his branch’s performance.

**Fox case: the court  found the officer had suffered depression and anxiety ‘‘as a result of perceived bullying and harassment’’, even though it also found that many of the actions perceived as harassment were operational or administrative in nature, and not related to the officer or her performance.

The workers’ compensation landscape is changing as awareness of stress and mental illness increases,  there is likely going to be an increase in this type of claim. Which might make sense, because sometimes …

Also read: can I claim for stress under workcover

[post dictated and entered on behalf of WCV]

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