By Joseph Nunweek

Let’s start today with some bullying basics, straight from Health & Safety Handbook Editor-in-Chief Michael Selinger:

“Workplace bullying is repeated, unreasonable and unwelcome behaviour directed towards a worker or a group of workers that creates a risk to health and safety. Unreasonable behaviour is behaviour that a reasonable person, having regard to the circumstances, would consider victimising, humiliating, threatening or undermining.”

Although there’s plenty to unpack in those two sentences from a legal perspective, you’ve probably picked up on certain key elements in Michael and I’s previous bulletins. There’s the dimension of a risk to health and safety. There’s also the requirement that behaviour be repeated.

You’re probably aware that the law protects the reasonable actions that an employer or manager has to take in terms of managing conduct and performance. Here’s Michael, again:

“Sometimes, a worker may confuse management action with bullying. However, as long as management action is reasonable and is undertaken in a reasonable manner, it will not be bullying.”

That’s simple enough, right? I think, deep down, we all have a common sense recognition of what would be reasonable management action and what wouldn’t.

You wouldn’t swear and bellow at an employee in a performance appraisal to get what you want, and you wouldn’t abuse the dismissal process to get rid of an employee just to victimise or humiliate them.

But what you intend and what a worker perceives can get into murky territory when it comes to workers’ compensation claims, as the case I discuss today shows.

Worker’s comp decision: Nurse perceived bullying and wins compensation

In Corbett v Northern Territory of Australia [2015] NTSC 45, a nurse claimed she had suffered a psychological injury in the course of her employment with a rural clinic.

She had experienced what she felt was ongoing bullying and harassment from a co-worker, and said she had then been on the receiving end of adverse treatment by a supervisor when she raised her concerns about this.

After receiving notice that her latest performance review had been unfavourable, she felt unable to return to work or continue working as a nurse.

Her employer disputed her claim, in part because it said that the injury came about as a result of its reasonable administrative action.

Under workers’ compensation laws, a stress claim cannot be brought if it results from reasonable management action (reasonable management action will also be a defence under the FWC’s anti-bullying provisions).

The magistrate who initially heard the nurse’s case concluded that her depressive illness was in response to actions taken to address issues of competency and performance.

And he couldn’t find anything in those actions that indicated that they were unreasonable.

Makes sense when you put it like this. Open and shut case. Or so you’d think.

The decision on appeal

The Northern Territory Supreme Court found that the magistrate had failed to take into account how the nurse had perceived what had happened to her.

Workers’ compensation case law states that if a worker perceives the conduct of others as creating an offensive or hostile working environment, and as a result of that perception suffers a psychological injury, causation (and eligibility for compo) is made out.

It’s known as the ‘eggshell psyche’ principle. It recognises that what you or I might be able to grin and bear or grind through at work could cause damage to someone else. Some people (physically or psychologically) may at times be more fragile than others.

The magistrate’s error was in finding that her reactions to events at her work were not relevant because he considered such actions unreasonable.

What the magistrate was actually expected to do in a situation like this was:

• Decide whether a worker had perceptions of an offensive or hostile working environment (whether that perception was reasonable or not);
• Determine whether those were perceptions of an incident or incidents which actually happened or formed an actual state of affairs; and
• Consider whether it was those perceptions that caused the psychological injury.

There’s a catch…

The decision of the magistrate was quashed. But rather than grant the nurse the right to received workers’ compensation, the Court said the matter should be retried.

This was because although the worker held perceptions that her working environment was hostile, there was a possibility that those perceptions were “irrational or near irrational” or that she had “misattributed her breakdown” to events and situations involving her co-workers.

For an employer, this is an important test. You will not be obliged to pay workers’ compensation to a claimant where their perception of having been bullied is not based on an actual state of affairs.

So, for example, if a worker becomes possessed by an irrational belief that another worker is stalking and harassing them, this does not create a valid worker’s compensation against you.

Nevertheless, you should always investigate bullying allegations promptly, fairly and comprehensively. Even if those allegations aren’t well-founded, you should be able to support yourself with documentation to show you handled a complaint well when it came up.

What this means for your business

Because workplace bullying can be tackled in so many forums now – the Fair Work Commission’s anti-bullying jurisdiction, discrimination tribunals, civil damages for negligence, and workers’ compensation claims – it can be really difficult for businesses to understand which rules apply where.

The ‘eggshell psyche’ principle is a rule for the purposes of workers’ compensation – not liability. The focus is on the consequence of conduct on the worker claiming compensation, and not the motivation or intention of a co-worker or manager.

It will not apply when a claim of discrimination is made, or necessarily have a bearing on an FWC decision to issue a stop-bullying order.

However, it’s a reminder that different workers will come to you with different histories and different needs. It’s not necessarily different from the different physical health indicators that your team members have. Some are stronger; some are weaker; some will be more susceptible to back injuries; some will burn faster in the sun.

When it comes to managing your workers – and managing bullying – it’s always useful to remember that one worker may perceive things very differently from another.

While there may be little you can do in the rare case where a worker is completely irrational, it’s good to start by recognising the adverse impacts some workplace interactions can have on certain workers.

Putting (reasonable) measures in place to help them cope will help avoid long, drawn-out claims, and keep down your premiums.

And if you ever want to want to more about the practical steps you can take to address bullying in your workplace, remember that Michael’s Bullying Guide provides crucial tools to help you identify, investigate and prevent it.