The personal, private battles faced by our Australian Federal Police officers have become public thanks to recent media reports, detailing suffering from psychological injury caused by their employment. Bullying and harassment, poor support services and PTSD caused by responding to traumatic events are just some of the issues faced by AFP personnel.
It is important for any AFP personnel, and for that matter any person whose employer falls under the Commonwealth workers compensation scheme, to be aware of their right to make a claim for psychological injury.
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’). Under this system for an injury or disease to be compensable the condition must have been contributed to, “to a significant degree”, by the worker’s employment.
A heavy workload, a lack of support in the workplace, witnessing or being subject to traumatic events and even bullying and harassment by colleagues, can lead to psychological injury. These in turn can impact our relationships and personal lives. In this scenario, it is likely a workers compensation claim would be accepted. The argument is that work has contributed to the injury to a significant degree.
There can often be multiple factors contributing to a psychological injury, some of which are not related to work. These can include financial stressors and personal loss such as the breakdown of a relationship. Such factors often flow into our work life and cause difficulty. In those circumstances it may be difficult to be successful with a claim for psychological injury as work has not been a significant contributing factor.
Even when it is clear that employment has contributed to a psychological injury to a significant degree there is no guarantee a claim will be accepted.
Section 5A of the Act states that an injury is not to be accepted if it is “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.” Such administrative action can include:
“(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Until recently, these provisions have been a significant hurdle for workers to overcome in their attempt to have a psychological injury accepted. Many claims were rejected based on these provisions. If a variety of work-related causes were identified, and even one (albeit minor), administrative action was said to have contributed to the injury the entire claim would be rejected. By way of example, someone may have been harassed or perhaps could not keep up with an unmanageable workload. If this led to some form of performance management or administrative action which subsequently resulted in the person going off work the whole claim would be rejected. This was despite the main factor/cause of the condition being the bullying and/or workload.
Similarly, a person might have been subjected to a long series of traumatic events in the course of their employment, not unusual for emergency services personnel such as the AFP, but ceased work due to a form of administrative action. Again, that person would have their whole claim rejected because of the small contribution to the psychological injury from the administrative action.
This position was outlined in the matter of Hart. The Tribunal held that reasonable administrative action need not be the sole cause of a claimant’s injury for the injury to fall within the exclusionary provisions. They stated “If an excluded employment factor is causally implicated in the aggravation of a claimant’s condition, it does not matter that there are also other non-excluded causal factors.”
However, there has been a significant reprieve for workers caught out by these provisions by way of the recent High Court decision of Martin. In that matter the worker contended that her psychological condition arose in June 2011 from bullying and harassment in the workplace by her supervisor, Mr Mellett. She reported her condition improved when she acted in the role of media reporter when Mr Mellett was not her supervisor. The worker reported her condition deteriorated after being told that she would not be permanently appointed to the media reporter position, as she realised that she would need to return to her former position under Mr Mellett’s supervision. She asserted her deterioration did not arise from her disappointment in failing to obtain the appointment per se.
The High Court ultimately stated that in order for the exclusionary provisions to apply “What is necessary is that the taking of the administrative action is an event without which the employee’s ailment…would not have been a disease: it would not have been contributed to, to a significant degree, by the employee’s employment.”
This principle means, in our view, that unless reasonable administrative action is a significant cause of a worker’s condition the claim cannot be rejected.
The Martin decision has changed the lay of the land for psychological claims through the Commonwealth workers compensation scheme. Injured workers, including defence, police and other frontline personnel who have suffered real trauma in the course of their employment will have a greater chance of having their claims accepted. They will be able to access the medical and financial help they need as well as have potential access to lump sum compensation.
Tindall Gask Bentley are experts in workers compensation, offering a high level of experience and expertise to guide you through the complex claims process. Call your nearest TGB office to book an appointment or register your details here and we will be in touch soon.