понедельник, 16 марта 2015 г.

Австралия (трудовые отношения). Компенсация работнику за получение психологической травмы на рабочем месте должна быть обусловлена не только связью полученной травмы с выполняемой работой, а также, в связи с тем, что выполняемая работа послужила существенным фактором к получению психологической травмы.

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When are psychological injuries covered by 

workers’ compensation?

Wednesday, 11th March, 2015, by Loran McDougall
In today's Workplace Bulletin:
  • Case Law: Psychological injury suffered at work not covered by workers’ compensation
Dear Reader,
If one of your employees sustains an injury in the course of their employment, they may be entitled to workers’ compensation under your business’s workers’ compensation insurance policy.
This entitlement applies to injured employees who are:
  • full-time;
  • part-time;
  • casual or seasonal;
  • on commission;
  • pieceworkers;
  • executive directors; and
  • deemed workers, i.e. those who are deemed to be an employee for the purposes of workers’ compensation legislation, such as a contractor.
Workers’ compensation covers both physical and psychological injuries, though there are limits to when psychological injuries are compensable, as determined by the workers’ compensation scheme in your jurisdiction.
This means that, when it comes to psychological injuries, determining when an injury is sustained in the course of an employee’s employment is not always straightforward. Charles Power explains below.
Until next time,
Jessica Oldfield
Loran McDougall
Workplace Bulletin
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Case Law: Psychological injury suffered at 

work not covered by workers’ compensation

by Charles Power
Editor-in-Chief, Employment Law Practical Handbook

In Waugh v Simon Blackwood (2014), a Queensland librarian was denied workers’ compensation after she suffered a psychological injury when her supervisor secretly took photos of her at work. In six of the photos, the focus was on her breasts and her head was cut out of the shot.

The librarian was informed of this in a meeting with HR and managerial staff, who seemed to downplay the issue by pointing out that the photos were taken of her while she was in her work clothes and in a public place.

The librarian felt hurt and humiliated and sought workers’ compenstaion for psychological injury. Medical testimonies said that she suffered an adjustment disorder with anxiety and depression, due to:
  • sexual harassment in the workplace; and
  • the way in which the HR and managerial staff had informed her of and dealt with the incident.
In upholding the Workers’ Compensation Regulator’s decision to reject the librarian’s claim, the Queensland Industrial Relations Commission said that, “Even if it could be said that the injury arose out of, or in the course of, her employment, the employment was not a significant contributing factor. The significant contributing factor was the taking of the photographs … This had nothing to do with the employment”.

Although Queensland is one of the jurisdictions that limits the circumstances in which compensation will be paid for a psychological injury, this decision is relevant in relation to sexual harassment, discrimination and bullying by colleagues and managers.

Is an employee likely to have a workers’ compensation case for a psychological injury?
Whether an employee will have a case for workers’ compensation if they are harassed, discriminated against or bullied by a colleague or manager may rest on the degree to which employment must contribute to the injury under the relevant legislation, as outlined in the following table:
JurisdictionHow must employment contribute to the psychological injury?
CthEmployment must contribute to an injury to a material degree.
ACTEmployment must be a substantial contributing factor.
NSWEmployment must be a substantial contributing factor.
NTEmployment must contribute to an injury to a material degree, i.e. be the real, proiximate or effective cause.
QldEmployment must be a significant contributing factor.
SAEmployment must be a substantial cause.
TasEmployment must be the major or most significant factor.
VicEmployment must be a significant contributing factor.
WAEmployment must contribute to an injury to a significant degree.

Remember, workers’ compensation claims will usually not be accepted if they are related to reasonable management action you have taken in relation to dismissal, redundancies, deployments, transfers, performance appriasials or disciplinary action.

Charles Power
Charles Power

Employment Law Practical Handbook

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