By: Shane Don and Sach Fernando
Your workplace should be free from bullying, harassment or discrimination. Unfortunately, for countless workers this is not the case.
Bullying in the workplace can have adverse toll on an employee’s psychological health, often compromising their capacity to continue in their chosen career.
What is workplace bullying?
WorkSafe Victoria provides guidance on the definition as the ‘repeated, unreasonable behavior directed at an employee or group of employees that creates a risk to health and safety’.
Unreasonable behavior means behavior a reasonable person would expect to victimise, humiliate or threaten. This includes but is not limited to repeated verbal abuse, threatening body language or unnecessary pressure.
What should I do if I have been bullied?
1. Consult your General Practitioner and provide a detailed history of the bullying and harassment at work which resulted in your psychiatric injury, and how it is impacting you now. Your GP can also provide you with a referral to a psychologist or psychiatrist and issue a Certificate of Capacity.
2. Report your psychiatric injury to your employer as soon as possible, and the impact it is having on your psychological health.
3. Submit a WorkCover Claim. You must complete this form and provide it to your employer to forward on to their insurer. The WorkCover insurer should take no more than 28 days to determine your claim. In the event that your claim is rejected by the WorkCover insurer, you should dispute the decision at Accident Compensation Conciliation Services. It is important that you also obtain legal advice.
What are my entitlements?
If your WorkCover claim is accepted you are entitled to:
1. Weekly payments of compensation. This will be at a rate of 95% for 13 weeks, and 80% thereafter for a total of 130 weeks. If you have no work capacity into the foreseeable future, you may receive weekly payments to the age of retirement.
2. Payments for medical and like expenses including consultations with your GP, psychiatrist, psychologist and medication.
3. Impairment Benefit -Once your psychiatric injury is considered permanent and stable, you can make an Impairment Benefits claim. You are entitled to this lump sum benefit if you reach a psychiatric impairment assessment of 30% or more pursuant to the Guide to the Evaluation of Psychiatric Impairment for Clinicians. You are not required to prove fault on the part of your employer to succeed in this claim.
4. Common Law Damages – If the consequences of your psychiatric injury are severe and you can establish negligence on the part of your employer, you are entitled to a lump sum award of damages for your pain and suffering, and economic loss.
How do I prove that my employer was negligent?
You must establish that your employer knew or ought to have known about the bullying you were experiencing, making it reasonably foreseeable that you would suffer psychiatric injury. Your employer’s action or inaction will determine whether they breached their duty of care to you.
In circumstances where your psychiatric injury developed due to a conflict with a colleague, you must again demonstrate that your employer was aware of the health impact the conflict was having on you – making it reasonably foreseeable that you would sustain a psychiatric injury.
At Maxiom Injury Lawyers, we will support you through the WorkCover process and always be in your corner. Whilst we understand that these matters are complex, we will relentlessly fight to ensure that you receive the compensation you deserve. If you require our assistance, please call us on 0488 722 444 or 1800 85 30 85.
Sach Fernando, Principal and Accredited Specialist in Personal Injury Law
PH: 1800 85 30 85
Shane Don, Lawyer
PH: 1800 85 30 85