When it comes to safety and health at the workplace, workers’ mental health is just as important as physical health, but unlike the common causes of a physical injury that are usually tangible, such as a defective chair or a toxic substance, the common causes of a psychological injury can be easily overlooked because they are often intangible – such as the words or conduct of co-workers, which can amount to bullying and harassment.
Workplace bullying and harassment is a widespread concern. In a survey conducted by the Public Service Commission in 2020 concerning the workplace culture across 70 Australian Public Service departments and agencies, one department recorded as high as 15% of surveyed workers reporting having been bullied at their workplace, with a further 8% suspecting themselves of having been bullied.
Bullying and harassment behaviours in the workplace are often perceived as conduct towards a worker that is repetitive, unreasonable, aggressive and intimidating. Where this conduct causes a psychological condition, compensation may be available.
As with any workplace injury be it physical or psychological, the starting point is an application to WorkCover Queensland, or, where applicable, the employer’s WorkCover self-insurer. Where there is medical recognition of a psychological condition, acceptance of the application should generally follow provided that the conduct complained of is not found to be “reasonable management action carried or in reasonable way”, so for example if the employer is able to demonstrate that the alleged bullying/harassing conduct was in fact a justifiable reprimand by the employer, or reasonable attempts by an employer to provide corrective instruction to an errant employee, the WorkCover application won’t be accepted.
Assuming the application is accepted, so called statutory entitlements will flow to the injured worker: replacement wages for the period the injured person is unable to work, plus funding and management of treatment, rehabilitation and return to work programmes. At such time as this statutory phase comes to an end, if the injured person is left with a permanent impairment, especially one that is likely to affect their future work capacity, the injured person might elect to seek further compensation by way of a claim for common law damages, but this involves a new and different set of considerations.
An entitlement to statutory compensation does not guarantee that common law damages will be recovered. The recovery of common law damages carries with it the additional requirement of proving that the injury occurred due to negligence of the employer, or the breach of the duty of care owed by the employer to the employee.
In cases where an employer is actually aware of bullying and harassing conduct but fails to do anything to protect the target of the conduct, establishing negligence or breach of duty will be straightforward. But those situations are relatively rare. Usually the perpetrators of such conduct do so when management’s back is turned, so to speak. In this scenario the liability situation is more complex.
Generally, employers are liable for the negligent acts of employees – this is known as vicarious liability – but only if these acts have occurred in the course of employment. Intentional wrongs such as physical assaults or, relevantly, verbal abuse or harassment, are generally not regarded as occurring in the course of employment and thus do not attract the liability of the employer. So to use an obvious example, if a worker suddenly screams abuse at another worker for no reason and that causes a psychological injury, the injured person may be able to access workcover statutory entitlements, but is unlikely to establish an entitlement to common law damages.
The situation becomes less clear the more closely the abusive and harassing conduct is intertwined with actual work duties, so if the abuse or harassment is committed by a superior in the course of providing training – say if a worker is insulted for not learning a task quickly enough – this might attract the vicarious liability of the employer. It is a matter of weighing up each situation case by case.
This is no more than a very basic overview of what is a complex and developing area of law. For those subjected to bullying and harassment in the workplace, there is no substitute for expert legal advice tailored to their specific situation.
