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stress claims
What Are Stress Claims?
Stress claims are for psychological injuries in the workplace in Western Australia. There are many kinds of stress claims:
- Overt bullying - yelling, swearing, threats, assault
- Covert bullying by isolation and exclusion - having work duties taken away from you, being excluded from team meetings, being ignored
- False allegations - especially in a performance review or during disciplinary action
- Procedural unfairness - being given no opportunity to respond before being given a first and final warning or before being suspended or dismissed or before being made redundant
- "Burnout" - from work overload
- "True PTSD" - from being exposed to death, a near death experience, violence
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Section 7 Exclusions
Section 7 of the Workers' Compensation and Injury Management Act 2023 provides the following:
7 . Exclusion of injury: reasonable administrative action
(1) In this section —
administrative action includes any of the following actions —
(a) an appraisal of the worker’s performance;
(b) suspension action;
(c) disciplinary action;
(d) anything done in connection with an action described in paragraph (a), (b) or (c);
(e) anything done in connection with the worker’s demotion, dismissal or retrenchment, or the worker’s failure to obtain a promotion, reclassification, transfer or other benefit, or to retain any benefit, in connection with the worker’s employment.
(2) A psychological or psychiatric disorder, including any physiological effect of the disorder on the nervous system, that a worker experiences is not an injury from employment if it results wholly or predominantly from —
(a) administrative action, not being administrative action that is unreasonable and harsh on the part of the employer; or
(b) the worker’s expectation of administrative action or of a decision by the employer in relation to administrative action.
However, "administrative action" is not any managerial action that your employer does - it is limited to performance appraisals, suspension action, disciplinary action, dismissals, promotions, demotions, transfers, reclassifications, retrenchments, redundancies, and benefits of employment, such as when annual leave may be taken. This means that managerial action related to work allocation and rosters is not covered by the statutory definition of "administrative action".
administrative action includes any of the following actions —
(a) an appraisal of the worker’s performance;
(b) suspension action;
(c) disciplinary action;
(d) anything done in connection with an action described in paragraph (a), (b) or (c);
(e) anything done in connection with the worker’s demotion, dismissal or retrenchment, or the worker’s failure to obtain a promotion, reclassification, transfer or other benefit, or to retain any benefit, in connection with the worker’s employment.
(2) A psychological or psychiatric disorder, including any physiological effect of the disorder on the nervous system, that a worker experiences is not an injury from employment if it results wholly or predominantly from —
(a) administrative action, not being administrative action that is unreasonable and harsh on the part of the employer; or
(b) the worker’s expectation of administrative action or of a decision by the employer in relation to administrative action.
However, "administrative action" is not any managerial action that your employer does - it is limited to performance appraisals, suspension action, disciplinary action, dismissals, promotions, demotions, transfers, reclassifications, retrenchments, redundancies, and benefits of employment, such as when annual leave may be taken. This means that managerial action related to work allocation and rosters is not covered by the statutory definition of "administrative action".
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Meaning of "Unreasonable and Harsh"
"Unreasonable” means ‘not guided by reason or good sense; not based on or in accordance with reason or sound judgment; exceeding the bounds of reason; immoderate; exorbitant’. It can also mean ‘irrational, not based on or acting in accordance with reason or good sense, going beyond what is reasonable or equitable, excessive’. See Pilbara Iron Company (Services) Pty Ltd v Suleski [2017] WADC 114 at [157].
“Harsh” means 'unpleasant in action or effect'. It can also mean 'an action which is severe, rigorous, cruel, unfeeling. See Suleski [158]-[159].
What is unreasonable and harsh will vary according to the circumstances of the case. For example, where an industrial award provides that termination of employment shall not be harsh or unreasonable an employer is under an obligation to give procedural fairness, the content of which will vary according to the circumstances. See Suleski [160].
An employer’s decision may be harsh in its consequences for the personal and economic situation for the worker. See Suleski [161]-[162].
Whether the action of the employer is unreasonable would normally be considered by reference to the decision of the employer, how it was arrived at and the process involved in taking action including any issue of procedural fairness, whereas whether an employer's action is harsh is more focused upon the consequences to the worker or because it was disproportionate to the gravity of the worker's conduct. See Suleski [168].
The correct test to determine whether discipline was unreasonable and harsh was outlined in Pilbara Iron Company (Services) Pty Ltd v Suleski [2017] WADC 114 at [171]: In my view the arbitrator erred in law in the way in which he approached the determination of whether the implementation of the PMP was unreasonable and harsh as set out in his reasons [100]. The correct approach was to determine whether in all of the circumstances, looked at objectively, the action of the employer in placing Mr Suleski on the PMP was unreasonable and the consequences were harsh. The relevant circumstances included all of the circumstances leading up to the decision to implement the PMP, including how Mr Suleski was informed of the decision, which in turn must be considered in the context of all of the policies, guidelines and codes of conduct which regulate Mr Suleski's conditions of employment and work performance, how he was informed of the decision to implement the PMP and how the PMP impacted upon Mr Suleski after it was imposed, both in relation to his work performance and any personal issues. An opportunity to address poor work performance would in my view not normally be unreasonable or harsh, depending on the procedure that was followed and what any internal guidelines or codes of conduct require and depending on what are the consequences to the worker.
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Contemporaneous Records
- The best way to prove a stress claim is with "contemporaneous records". These are records, such as:
- Emails
- Letters
- Text messages (SMS, Facebook messenger, Whatsapp) - even to family or friends
- Phone logs
- Diary notes
- GP consultation notes
- Psychologist consultation notes
- EAP consultation notes
- Incident report
- Workers' compensation claim form
- First certificate of capacity
- These records are evidence of how the worker was perceiving workplace events at various points in time and whether the worker had any expectation of discipline or dismissal - that is, they were afraid that they might get fired.
- Arbitrators tend to be very suspicious of "polished" witness statements written months after the events in question, especially after the worker has been given legal advice on the section 7 exclusions.
- Arbitrators will look for inconsistencies between the workers' witness statements, the worker's answers during cross-examination, and the contemporaneous records.
- The arbitrator will pay most attention to the contemporaneous records - what is recorded in them - and also what is not recorded in them. Quite often, an arbitrator will find too many inconsistencies and will find the worker to be an unreliable witness. The worker can be left in a "legal blackhole" where it is impossible for them to discharge their burden of proof because they do not have the crucial evidence that the arbitrator is satisfied with. Their application is dismissed. They should have accepted the legal advice of an experienced lawyer and settled their claim for a lump sum payment.
- Before writing a witness statement, the worker should get legal advice from an experienced lawyer who will first discover all of the contemporaneous records relevant to the claim. That way, inconsistencies and other difficulties with the evidence can be identified at the earliest possible stage.
Co-Worker Witness Statements
The next best way to prove a stress claim, especially bullying and false allegations, is with witness statements from two or three co-workers.
It is unwise for the worker to interview co-workers for their witness statements. Otherwise, there is the danger that an arbitrator won't trust the co-workers' evidence or the worker's evidence. This is best left to an experienced lawyer.
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