Psychological Claims Getting Tougher
A female librarian was shocked when she discovered her boss had been secretly taking photos of her at work focusing on her breasts. The man was her immediate superior and had covertly taken fourteen photos of her.
Earlier she had suspected something was odd about his behavior and raised her concerns with the library’s human resources manager. Some time later the HR manager and head of the library called her in and told her what the man had been up to. They defended the man to an extent, pointing out the photos were taken in a public place and she was in her work clothes.
She demanded to see the photos and was sickened to find six of the photos concentrated on her breasts, cutting out her head. She felt humiliated and hurt.
She sought compensation for psychological injury. Doctor’s testified that as a result of sexual harassment in the workplace she suffered an adjustment disorder with mixed anxiety and depressed mood. However WorkCover Queensland and the Queensland Industrial Relations Commission ruled against her.
The commission ruled that even though the incident happened at work, they were not satisfied the injury arose out of, or in the course of, her employment. They ruled the workplace was merely the place where the inappropriate behavior took place. Her employment was not a “significant contributing factor” to her psychological injury. The commission said the “significant contributing factor” was the taking of the photographs by her boss and “this had nothing to do with the employment”
The case suggests a tighter interpretation of the laws regarding restitution for psychological injury in the workplace.
She was in the workplace when she suffered a psychological injury due to inappropriate behaviour by her boss, yet she not entitled to workers’ compensation.
It raises questions about sexual harassment, discrimination and bullying by work colleagues and bosses – are these now deemed to be classified as being outside workplace laws and having nothing to do with a person’s employment?
It shows the importance of getting good legal advice to determine whether you have a case. It can come down to the definition of the degree of “contributing factor” in a psychological injury. Under Queensland law employment has to be a “major significant” factor contributing to the injury. Under federal law an injury has to be contributed to a “material degree” by employment. Under NSW law employment must be a “substantial contributing factor” for an injury.
It’s complicated, so best get expert legal advice if you are in this unfortunate position.