Employer Conduct In Relation To Non-Work Related Complaints

21 May 2021

It is a sadly all too common occurrence that employers are faced with addressing complaints raised by co-workers relating to issues unrelated to their work. Commonly, these matters relate to bullying, physical and sexual assault and harassment that have not arisen out of or in the course of employment.

Nevertheless, there is considerable complexity for employers in addressing a worker’s request that a matter be addressed, particularly where the complainant is required to work alongside or in the same location as the alleged perpetrator.

In a recent decision in the former NSW Workers Compensation Commission, the potential consequences of addressing such complaints was considered.

In that matter, the Arbitrator found that the applicant’s employment was the main contributing factor to an aggravation or exacerbation of a psychological condition pursuant to section 4(b)(ii) of the Workers Compensation Act 1987 (1987 Act).

In this matter the applicant alleged a psychological injury on 20 December 2019 when she was sexually assaulted by a colleague at a work social event. She was, at the time, on leave.

She reported the assault to the respondent and completed Incident Notification Forms on 30 December 2019 and 20 January 2020. Dispute notices were issued by the respondent’s insurer, which was maintained following an internal review.

The applicant initially agreed to return to work in the same building as the alleged perpetrator, however, on a different floor and in a different role. Her supervisor observed she was distressed and, despite her initial agreement, requested that she work at a different location. She ultimately agreed and returned to work on 4 February 2020.

The applicant was not expected to return to her substantive office location until 1 July 2020 and charges were otherwise expected to be laid against the alleged perpetrator by 30 June 2020. She was not informed that the alleged perpetrator had been removed from her workplace until 27 July 2020 and she ultimately returned to her original workplace on 4 August 2020, however, in a different role.

The applicant contended that uncertainty over the alleged perpetrator’s employment status caused her great concern and she was aware that no action had been taken to suspend or remove them from the workplace until July 2020. She also evidently felt loss in losing her role, particularly as she had created a life around her previous location.

The applicant commenced proceedings in the former NSW Workers Compensation Commission and the matter proceeded to an arbitration hearing.

The applicant submitted that despite having suffered depressive symptoms as a result of the sexual assault, those symptoms were exacerbated and made worse as a result of the alleged lack of support by the respondent, primarily as she was transferred while the alleged perpetrator remained in his role.

In contrast, the respondent submitted the following:

  • The applicant’s psychological condition flowed from the alleged assault on 20 December 2019 and was therefore not a work related condition;
  • There was no obligation to assist the applicant as the circumstances of the alleged assault was a criminal matter;
  • There was no obligation to place the applicant’s rights over the rights of other employees, particularly as the alleged assailant had not been charged; and
  • Despite the above, the respondent had made attempts to protect her from coming into contact with the perpetrator.

The respondent further submitted that there could not be two equal ‘main contributing factors’ for the purposes of section 4(b)(ii) of the 1987 Act and that there was no evidence on what ‘the’ main contributing factor to the applicant’s condition was.

On the issue of causation, the Arbitrator observed that the applicant was seeking to establish that there was an aggravation, acceleration, exacerbation or deterioration of a condition that had resulted from the assault and that employment was the main contributing factor to aggravation, acceleration, exacerbation or deterioration of that condition for the purposes of section 4(b)(ii) of the 1987 Act.

The Arbitrator ultimately accepted that there was a work related aggravation of the applicant’s psychological condition. In line with the Court of Appeal decision in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249, she was satisfied that there were real events which actually occurred and that were perceived by the applicant as creating an offensive or hostile working environment. She confirmed at [145] that ‘there is no requirement at law that the applicant’s perception of the events must be reasonable rational or proportionate.’

The Arbitrator observed that a defence under section 11A(1) of the 1987 Act had not been raised and accordingly the issues of reasonableness in respect of the respondent’s actions were not considered.

Accordingly, notwithstanding the respondent’s best intensions, the applicant successfully established that the suffered an aggravation of a psychological condition.

The above demonstrates the fine line with which employers must navigate when addressing such complaints, particularly as taking action against an alleged perpetrator may result in liability for a workers compensation claim.

While a defence to any psychological injury raised by an alleged perpetrator may be raised on the basis of section 11A(1) of the 1987 Act, such as reasonable action taken or proposed to be taken with respect to disciplinary action or termination, it is very unlikely that such a defence will be available where the claim is made by the complainant.

If the medical evidence establishes that the complainant perceived or misperceived an employer’s actions in a negative way and that this resulted in or caused an aggravation of a psychological condition, then the complainant will be entitled to pursue a claim for workers compensation benefits.

Accordingly, should an employer receive notification of a non-work related issue, efforts must be made to address the matter in a sensitive manner, particularly where the employer has a duty to ensure the health and safety of its workers, by:

  • understanding the nature of the allegation and whether it is even remotely work related;
  • whether the complainant wishes to make a formal complaint against the other worker as part of workplace misconduct;
  • whether any report has been made to police;
  • any concerns the worker may have about the work environment as it relates to the alleged perpetrator, and any requests about changes to work arrangements;
  • communicating with the complainant in relation to any return to work arrangements and potential contact with the alleged perpetrator whilst maintaining privacy;
  • understanding the obligation of duty of care to both the complainant and alleged perpetrator; and
  • striking a balance between ensuring the safety and wellbeing of both the complainant and alleged perpetrator.

Ultimately, should an employer seek to investigate allegations, then it is best practice to ensure that support persons are offered to both the complainant and the alleged perpetrator during all meetings, and that all attendees understand the matters discussed must remain confidential. Detailed written records should always be kept and all conversations and meetings should take place in a confidential and private setting. Employers must always consider the well-being of both the complainant and the alleged perpetrator.

This article was written by Jenne Tzavaras, Partner, Ron Galea, Senior Associate and Tarana Singh, Associate.

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