Unfortunately workplace bullying remains a reality in Australia. It is a widespread and complex issue that can have a profound and devastating effect on a worker’s health as well as on their life. Tragically, in a number of cases, workplace bullying has pushed victims to take their own life.
Generally speaking if a worker’s stress condition is caused or aggravated by work, workers’ compensation is available.
However, as we have pointed out on numerous occasions, there is an exception in the WorkCover legislation which is just about always misused by employers and workcover claims agents to reject work related stress claims.
Stress claims are one of the most difficult areas for WorkCover claims. Even though the workcover legislation provides that if your stress condition is caused or aggravated by work you should be provided with workers comp, insurers and employers will often misuse certain exceptions within the legislation to reject work related stress claims.
Workers’ compensation is basically not payable if the stress is predominantly caused by:
- An employer taking reasonable action in a reasonable manner (i.e.) 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.
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 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.
What is or is not reasonable performance management is not clearly defined
Although “reasonable performance management” by an employer may not constitute bullying, what is or is not “reasonable” is not clearly defined. As a consequence, the line between reasonable performance management and bullying is often blurred: a difficult difference that is further complicated in circumstances where a “volatile” or “sensitive” worker is involved.
Suicide of a Teacher
The fairly recent findings of the Queensland Office of the State Coroner in the case of the 2011 suicide of a Queensland teacher, has put a spotlight on these issues.
Coronial inquest into the death of the (bullied) teacher
The deceased was a school teacher employed by the Queensland Department of Education. The teacher was found dead in his car on a rural property on 26 June 2011, along with a suicide note detailing his long struggle with depression, problems at work and relationship difficulties. A subsequent inquest was conducted to determine the circumstances that contributed to the teacher’s death. This included consideration of his mental health and the potential impact of the employment relationship.
The teacher started as a deputy principal at a senior school in Cairns in 2008. During 2009 and 2010, the principal of the school raised performance concerns about the teacher’s adherence to curriculum and line management tasks. The principal was noted by staff as having “strong and definite expectations from teachers and a strong leadership style”.
Colleagues observed that the teacher subsequently felt uncomfortable at work and felt that he was unable to satisfy the principal’s demands. The teacher also gave the impression he was offended, humiliated and intimidated by the principal’s comments regarding his performance.
In April 2010, the teacher made enquiries about transferring to a school closer to Brisbane. The teacher wanted to be closer to family and to “move on” from the issues he had experienced at work. The teacher was told he was not eligible for a permanent transfer on the basis that he had not held his position for the requisite period detailed in departmental policy.
By the end of 2010, the teacher was granted a temporary transfer on compassionate grounds to a deputy principal position at a school north of Brisbane. The principal at the new school was described as “authoritative, behaviourally intimidating, very direct, brusque and with high expectations”. The principal had previously been the subject of workplace harassment complaints and had been reprimanded for this conduct.
Soon after starting at the new school, the teacher was accused of minor indiscretions and was formally investigated for issues such as alleged excessive internet usage, suspected involvement in stealing chocolate fundraising money and wearing inappropriate attire (football shorts) at a school athletics carnival. The teacher denied any misconduct.
The principal met with the teacher and expressed significant concerns about the teacher’s ability to attain the standards expected of a deputy principal. At this time, the teacher was allegedly also experiencing personal difficulties and was concerned that a permanent appointment may have been in jeopardy. It was in this context, that the teacher committed suicide.
The findings of the coronial inquest
Please take a deep breath before reading this paragraph!
The Coroner found the following:
- That the teacher suffered from depression and anxiety that predated his employment at both schools
- that the (school) department lacked policies or procedures for the sharing of workers information between schools. Relevantly, the new school was not made aware of the teacher’s experience at Cairns and did not consider whether the transfer was appropriate in these circumstances
- that the issues raised against the teacher at the new school were relatively minor and did not warrant formal reporting and investigation, and
- that the teacher committed suicide due to domestic issues, difficulties in performing to the expected standard at his workplace and accusations of inappropriate conduct that were unsubstantiated or trivial.
The Coroner (only) recommended that the (school) department develop a policy or guideline on sharing information between schools about staff and their employment history, particularly when being considered for transfer or relocation.
The teacher’s tragic suicide has been the subject of investigation by WorkCover Queensland. In light of the coronial inquest’s findings, we understand a prosecution may be initiated for failing to ensure the health and safety of a worker.
Commentary: the plight and suicide of the teacher is not an isolated event
We are quite appalled that the teacher’s suicide was ultimately blamed on “other things” rather than the —frankly— obvious bullying he endured at his 2 workplaces….! This case really shows that the line between what is reasonable and what is not is extremely blurred indeed.
Sadly, the tragic situation and ultimate suicide of the teacher is not an isolated occurrence.
The NSW State Coroner also fairly recently investigated the suicide of a young engineering apprentice who frequently endured verbal and physical bullying in the workplace. The young apprentice was told he was useless and endured workplace bullying every day before his death, an inquest in Sydney heard.
A teenage apprentice was set alight, feared being raped and had a chart of his mistakes publicly displayed in his workplace, an inquest into his death has heard.
The apprentice father said his 17-year-old son was verbally abused from day three. He said he was called “a useless f***ing c***” every day by his supervisor and other tradesmen. (read more: Inquest into death of bullied apprentice | The New Daily)
These cases illustrate the importance of workplaces adopting a robust approach to work health and safety that appropriately responds to the needs of individual workers (labelled “sensitive” or “volatile”). This could involve implementing policies and procedures that ensure that any issues relating to performance are explored in a sensible and constructive manner.
All workers should be allowed and encouraged to speak to their supervisors if they are not coping with workplace expectations or tasks.
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