Published: 03 November 2017
Author: Michael Burdess
Workplace bullying and WorkCover
A union organiser in Victoria recently mentioned that the most common question they get from members in the WorkCover area is when they have experienced bullying or stress at work should they lodge a WorkCover claim?
The organiser explained that “members come to me with this question because they understand there can be some stigma attached to making a WorkCover claim for bullying or stress and that it may affect their employment in the future. Also, they might have heard that bullying or stress claims are often rejected.”
Defining Workplace bullying
There are various definitions as to what bullying is. According to the Australian Human Rights Commission,
- Workplace bullying is verbal, physical, social or psychological abuse by your employer (or manager), another person or group of people at work.
- Workplace bullying can happen in any type of workplace, from offices to shops, cafes, restaurants, workshops, community groups and government organisations.
- Workplace bullying can happen to volunteers, work experience students, interns, apprentices, casual and permanent employees.
- Some types of workplace bullying are criminal offences. If you have experienced violence, assault and stalking you can report it directly to the police.
WorkSafe says “Workplace bullying is characterised by persistent and repeated negative behaviour directed at an employee that creates a risk to health and safety.”
Legal perspective on workplace bullying or stress claims
It’s always difficult to make a decision as to whether a claim for stress or bullying should be lodged through the WorkCover scheme. There are various factors which need to be weighed up before making a WorkCover claim.
The first thing to be aware of is that the WorkCover claim is unlikely to solve the problems in the workplace. The purpose of the WorkCover scheme in these situations is to assist an injured worker in helping pay their medical bills and covering time off work if needed. The WorkCover scheme is not involved in improving the workplace if there is bullying occurring or if you work in a stressful environment.
Although in some instances a WorkCover claim can address and solve issues in the workplace, it should not be relied upon as the primary means to do so.
This should be differentiated between other areas of the Victorian WorkCover Authority which will investigate complaints of bullying.
Secondly, you must have “an injury” in accordance with the legislation. This means that you must be diagnosed as having a psychological condition related to the bullying at work.
The next thing to consider is whether it is worthwhile lodging a claim from a financial perspective. Bearing in mind that in these situations WorkCover is there to pay (for the most part) medical and like expenses and weekly payments. If you have had little to no time off work and your medical expenses are also minimal then there may be little point in lodging a claim.
A further consideration is that the insurer for WorkCover will have the option of rejecting your claim if they consider it to arise out of "reasonable management action taken in a reasonable manner". For example, if you were employed as a casual worker and your shifts were reduced due to a downturn in work, it is likely that this would be considered reasonable management action.
If you sustained a psychological injury due to that decision, you would likely not be entitled to WorkCover benefits. We do however see that this provision is relied on to a very significant degree, often in cases where the management action was not reasonable or was not taken in a reasonable manner.
In cases of bullying, you can expect that the person you are making the allegations against will likely deny that they have done anything wrong. This is by no means saying that you should not proceed with a claim, but it is something to bear in mind. Bullying claims are often rejected on the basis that the other person or people involved deny the allegations and it was unable to be proven otherwise.
Challenging the insurer’s decision
Any reference above to the rejection of a claim by the Insurer is something that you are able to challenge. If you challenge a decision, the first step is a process called conciliation, and then if the matter cannot be resolved there, you can proceed to the Magistrates' Court.
In summary, there is no easy answer to the question of whether a claim should be lodged. It’s probably best to consult with your union or with a lawyer to assist in making that decision. Often getting a professional perspective on the situation can be a good thing.