We regularly see employees whose spirit and health have been broken by workplace bullying, often because of unreasonable performance management activities by employers. Usually employees suffer a psychiatric reaction over a period of time which results in them not being able to work, having to take personal leave for extended periods and eventually resigning or being sacked.  It is best to try and avoid this situation occurring and there is a range of legal options open to employees. But where an employee breaks down, one option is to apply for WorkCover benefits, usually under WorkCover Queensland’s no fault statutory benefits scheme (which may lead to a common law negligence claim). Strict time limits apply to workers compensation applications.

Psychological or “stress” claims are just as much a workplace injury as a broken leg. However, the evidence is not always so clear. The primary issue of dispute in a stress related claim is usually whether the injury resulted from reasonable management action taken in a reasonable way. Claims are often rejected where they are not specific enough or the unreasonableness of the management action is not clear. Remember that management action does not have to be perfect to be reasonable. Detail and preparation at the time of lodging the claim are the keys to success. Employees should note:

• WorkCover will not investigate the facts and circumstances of the claim. It is up to you to provide evidence. The employer will be allowed to respond to the claim with their own evidence (to which you can respond) but WorkCover will not actively speak to witnesses themselves.
• You should provide full details of individual incidents which have caused your medical condition. If this is not possible, do the best you can because a general assertion of bullying activity is insufficient. Use the When, Where, Who, What Rule – when did it happen, where did it happen, who was there and what happened – what was said or done or what occurred. Be as specific as possible. This may be distressing but is necessary. Get help if you need it.
• You can ask fellow workers to provide statements and employers should not try to stop you. Of course, co workers are under no obligation to help and there is a line where a request becomes harassing behaviour. The unfortunate reality is that most current employees will not want to get involved. Ex employees are usually able to be more helpful.
• Make sure you separate what is just background from the facts of the bullying incidents which caused the injury.
• Highlight the unreasonable nature of the management action if this is an issue. This could be how something is said or the tone and timing of emails or the failure to conduct a timely or appropriate investigation of a complaint. For unreasonable performance demands, compare the performance requirements with those contained in a position description or note the unreasonable time demands or volumes required. Note any failure by the employer to follow their own policies.
• It is important for your claim to be easily readable and understood. Set out incidents in a chronological history or grouped under types of behaviour with the most serious first. Make sure your statement of facts is easy to read with headings, sub headings, paragraphing, and page numbering.

Employers often face claims they consider to be unfounded and due to no more than normal workplace pressures. Many of the above comments also apply to them. Remember that an accepted claim may result in increased premiums so it is worth taking the time to respond properly to claims and ask witnesses to provide their versions of events. Consideration should be given to engaging expert assistance in gathering evidence to defend the claim.

The initial decision is not always the end of the matter either. Both employees and employers can seek a review on the papers if the initial decision by WorkCover is not satisfactory and there is also a final appeal available to the Queensland Industrial Relations Commission. These are of course general comments only and not exhaustive. This bulletin comments on the position in Queensland only. This is a complex area. Please contact us if you would like any further information or help.