Stress at Work

If you have an injury arising out of or in the course of or due to the nature of employment a claim for compensation should be lodged. This includes psychological injuries such as stress, anxiety, depression and post traumatic stress disorder.

If you are required to seek medical treatment or alternatively time off work, a claim for compensation should be submitted to your employer or at the very least, notice of the injury be given.

Stress, anxiety and depression can arise over time. It is in the interests of workers to confirm that they are suffering stress with their employer by documenting the cause of the psychological condition and informing their employer as to that cause and as to the psychological condition. This is important if any potential common law claim is to be pursued.

Under the no fault scheme, there are exceptions to the rules. If your stress, anxiety and depression wholly or predominantly arises out of reasonable action taken in relation to management action that includes the following:

• appraisal of the worker's performance;
• counselling of the worker;
• suspension or stand-down of the worker's employment;
• disciplinary action taken in respect of the worker's employment;
• transfer of the worker's employment;
• demotion, redeployment or retrenchment of the worker;
• dismissal of the worker;
• promotion of the worker;
• reclassification of the worker's employment position;
• provision of leave of absence to the worker;
• provision to the worker of a benefit connected with the worker's employment;
• training a worker in respect of the worker's employment;
• investigation by the worker's employer of any alleged misconduct-

…then the WorkCover insurer may reject the claim.

If your psychological injury arises wholly or predominantly from matters outside those considerations referred to above, it is more likely that the claim will be accepted.

Even if your psychological injury does arise wholly or predominantly from the matters referred to above, there still remains the question as to whether the employer acted reasonably.

Accordingly, if the employer intends to rely upon such a defence, the worker must turn his or her mind to considerations as to why the employer acted unreasonably in the causation of the psychological injury.

An injured worker must also appreciate that if the psychological injury relates to discriminatory conduct such as unfavorable treatment relating to;

• age;
• carer status, family responsibilities, parental status;
• disability (including physical, sensory and intellectual disability, work related injury, medical conditions, mental, psychological and learning disabilities);
• employment activity;
• gender identity, lawful sexual activity, sexual orientation;
• industrial activity;
• marital status;
• physical features;
• political belief or activity;
• pregnancy, breastfeeding;
• race (including colour, nationality, ethnicity and ethnic origin)
• religious belief or activity;
• sex;
• personal association with someone who has, or is assumed to have, one of these personal characteristics.

…then an application can be made to the Human Rights Commission and/or the Equal Opportunity Commission. Any such application must be made within 12 months of the discriminatory conduct.

It must be appreciated that if a discrimination action is to be litigated, that the successful party is not necessarily awarded costs.

COMMON LAW

To pursue a common law claim for past and future loss of wages and pain and suffering, about a psychological condition is notoriously difficult.

First, an injured worker must have a "serious injury". (see earlier comments on "serious injury").

Secondly, the worker must establish negligence.

The courts have been unwilling to impose obligations on the employer where the employer did not know or could not reasonably know, that what it was doing or not doing was causing a psychological condition.

The courts have readily accepted that work does impose occupational stress but the courts have required something more in a negligence claim; that is, the employer must be aware of a psychological injury being caused by its conduct or lack of action.

It is therefore imperative for a worker suffering psychological injury that he or she makes written and/or expressed complaints as to the cause of the stress and the fact that it is causing psychological injury. It will then be a matter for the employer to determine what it can or ought do to avoid the risk of injury.

Many cases have been dealt with in the Supreme Courts of various jurisdictions and the High Court of Australia, but there is a leading case in the UK which has provided some considerations as to what is necessary in a common law claim for psychological injury. These considerations are as follows:

1. There are no special control mechanisms applying to claims for psychiatric (or physical) illness or injury arising from the stress of doing the work the employee is required to do. The ordinary principles of employer's liability apply.
   
   
2. The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable: this has two components (a) an injury to health (as distinct from occupational stress) which (b) is attributable to stress at work (as distinct from other factors).
   
   
3. Foreseeability depends upon what the employer knows (or ought reasonably to know) about the individual employee. Because of the nature of mental disorder, it is harder to foresee than physical injury, but may be easier to foresee in a known individual than in the population at large. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability.
   
   
4. The test is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health.
   
   
5. Factors likely to be relevant in answering the threshold question include:
   
   
   • The nature and extent of the work done by the employee. Is the workload much more than is normal for the particular job? Is the work particularly intellectually or emotionally demanding for this employee? Are demands being made of this employee unreasonable when compared with the demands made of others in the same or comparable jobs? Or are there signs that others doing this job are suffering harmful levels of stress? Is there an abnormal level of sickness or absenteeism in the same job or the same department?
   • Signs from the employee of impending harm to health. Has he a particular problem or vulnerability? Has he already suffered from illness attributable to stress at work? Have there recently been frequent or prolonged absences which are uncharacteristic of him? Is there reason to think that these are attributable to stress at work, for example because of complaints or warnings from him or others?
6. The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further enquiries of his medical advisers.
   
   
7. To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it.
   
   
8. The employer is only in breach of duty if he has failed to take the steps which are reasonable in the circumstances, bearing in mind the magnitude of the risk of harm occurring, the gravity of the harm which may occur, the costs and practicability of preventing it, and the justifications for running the risk.
   
   
9. The size and scope of the employer's operation, its resources and the demands it faces are relevant in deciding what is reasonable; these include the interests of other employees and the need to treat them fairly, for example, in any redistribution of duties.
   
   
10. An employer can only reasonably be expected to take steps which are likely to do some good: the court is likely to need expert evidence on this.
    
    
11. An employer who offers a confidential advice service, with referral to appropriate counseling or treatment services, is unlikely to be found in breach of duty.
    
    
12. If the only reasonable and effective step would have been to dismiss or demote the employee, the employer will not be in breach of duty in allowing a willing employee to continue in the job.
    
    
13. In all cases, therefore, it is necessary to identify the steps which the employer both could and should have taken before finding him in breach of his duty of care.
    
    
14. The claimant must show that that breach of duty has caused or materially contributed to the harm suffered. It is not enough to show that occupational stress has caused the harm.
    
    
15. Where the harm suffered has more than one cause, the employer should only pay for that proportion of the harm suffered which is attributable to his wrongdoing, unless the harm is truly indivisible. It is for the defendant to raise the question of apportionment.
    
    
16. The assessment of damages will take account of any pre-existing disorder or vulnerability and of the chance that the claimant would have succumbed to a stress related disorder in any event.

Please appreciate that any common law claim ought be instituted within 6 years of the date of injury.