The following legal case (NSW) related to alleged workplace bullying and abuse, again, highlights the “reasonable administrative action” defence so extremely heavily relied upon by workcover insurers and employers to reject “stress” claims.
In determining whether management action is ‘reasonable’ pursuant to s 11A of the 1987 Act (in NSW), the Commission (or Court) will assess both the management action (transfer, demotion, promotion, performance appraisal, discipline, redundancy, dismissal or the provision of employment benefits etc) and the manner in which the action, including any related investigation process, is carried out.
In this case, the worker’s injury was said to have arisen predominately from reasonable management action with respect to discipline.
Work injury and reasonable management action: NSW legal case
Further to our related article “Stress claims and reasonable administrative action in the workplace“ which summarises the essence of how to lodge a workcover claim for stress, what ‘reasonable administrative action in the workplace’ is, here is -again- a good illustrative legal case (NSW) highlighting the “reasonable administrative action” defence so extremely heavily relied upon by workcover insurers and employers to reject “stress” claims.
Background of the legal workcover NSW case
Mr A (the psych injured worker) alleged that he had suffered a psychological injury arising from the nature and conditions of his employment with Rail Corporation NSW between 2001 and 2010. The injured worker relied on a number of separate incidents that he considered to be abuse and/or bullying and he also claimed that the process taken in undertaking a “disciplinary investigation” was unreasonable and also contributed to his psychological injury.
The Respondent (employer/insurer) disputed liability and relied on the defence under s 11A of the Workers Compensation Act 1987 (NSW) (the 1987 Act) – that the Worker’s injury arose wholly or predominately from reasonable management action with respect to discipline.
The injured worker relied on evidence from fellow colleagues and medical evidence, in particular, from his General Practitioner who diagnosed him with “Adjustment Disorder with Mixed Anxiety and Depressed Mood”.
The Arbitrator (Wynard) initially found that the employer’s actions were not considered to be bullying or harassment.
The Arbitrator also found that the medical history did not show that the injured worker had suffered a psychological injury before receiving notification of the disciplinary investigation.
Furthermore, he found that while there was evidence that the injured worker’s psychological injury arose from the commencement of the disciplinary investigation the employer had taken reasonable disciplinary action.
The injured worker appealed the decision stating that the Arbitrator had erred on a number of grounds, each of which Deputy President (DP O’Grady) rejected. The Deputy President found that the Arbitrator had rightly considered all of the evidence and as such it was open to the Arbitrator to come to his conclusions.
In relation to the employer’s defence under s 11A of the 1987 Act, it was submitted by the injured worker that the Arbitrator erred in finding that the action of the employer in regard to discipline was ‘reasonable’. The injured worker argued that the process in which the disciplinary investigation was carried out (the length of the process and not being informed throughout the process) was not reasonable. However the Deputy President rejected the injured worker’s argument, stating that the Arbitrator had provided reasons for his decision, in determining that the four month period taken for the disciplinary investigation was not prolonged or unreasonable.
You can read the full text of the legal case here:  NSWWCC 407, and Andrews v Rail Corporation NSW  NSWCCPD 7
As we covered in our previous article, in order to have a chance at a successful stress claim, the following is needed:
- the injured worker needs to prove that they have a recognised, diagnosable psychological and/or psychiatric condition/illness. Simply being ‘stressed’ is not enough to successfully lodge a workcover claim!
- provided the injured worker has been diagnosed with a recognised psychological/psychiatric illness/condition, the (injured) worker must also prove that work was a ‘substantial or significant cause‘ of the development of the mental illness/ condition. This is NOT (always) straightforward
- Even in case the injured worker is suffering from a psychological/psychiatric condition/illness and work was a substantial cause of the illness, the employer and/or workcover may then (as was the case here) rely on the defence that the condition illness resulted from ‘reasonable administrative action taken in a reasonable manner’.
Not all work related stress, anxiety or depression means that a person is entitled to worker’s compensation. Being depressed or upset that you were refused for example a pay rise or promotion is not generally considered to result in a workcover claim. Likewise, suffering emotionally (even severely) after being disciplined for alleged poor work performance would not normally result in workcover claim being accepted, unless you could show that the way you were disciplined was not reasonable. Basically, If the insurer finds that your psychological condition has arisen as a result of “reasonable administrative action taken in a reasonable manner” then your claim for compensation for psychological injury will be rejected.
And so it is that many psychological cases are notoriously hard to win
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