Did you know that workplace bullying compensation payouts are becoming more and more common? If you’ve been a victim of workplace bullying, it’s important to understand your options. In this blog post, we’ll discuss the basics of workplace bullying compensation payouts and what you need to know. Keep reading for more information!
Table of Contents
- Workplace Bullying and Harassment – What is Workplace Bullying?
- What are Victims of Workplace Bullying Entitled to?
- What to do if you’re experiencing workplace bullying, harassment or discrimination
- Role of the Health and Safety Representative in Workplace Bullying
- Workplace Bullying Compensation Payouts
- Common-Law Claims – Psychological Injury.
- Workplace bullying in Physical Injury Claims
- When to seek legal advice for psychological injuries?
Workplace Bullying and Harassment – What is Workplace Bullying?
Workplace bullying includes any bullying, harassment and discrimination can leave you feeling weak and unable to stand up for your mental and physical health.
To tolerate and encourage such toxic behaviour at work is not only unmoral but can on some occasions be illegal. Every worker should not feel like they are the subject of workplace harassment or unreasonable behaviour in the workplace.
Workplace injuries arising from psychiatric injury have increased a lot in recent years as the pace of work takes a big impact on people’s mental health.
If you have been the subject of bullying, harassment or discrimination and you have suffered incapacity or psychological injury as a result, you may be able to pursue a workers compensation claim on the basis you have suffered psychological harm.
You can find out more about workers compensation stress claims at the Foyle Legal Workers Compensation Stress Claims page.
What are Victims of Workplace Bullying Entitled to?
Victims of workplace bullying with an accepted workers compensation claim will be entitled to the same monetary compensation as in other workers compensation claims.
In the year from 1 July, 2021 to 30 June 2022 the maximum level of benefits a person is entitled to are set out in Schedule 2 of the Workers Compensation and Injury Management Act 1981. The maximum benefits are:
- Weekly payments and money for permanent impairment: $239,179.00
- Medical Expenses and Statutory expenses: $71,754.00
- Rehabilitation Expenses: $16,743.00
In addition to the above-prescribed workers compensation benefits, in certain circumstances, the amount that a person is entitled to may be increased. The amount for medical expenses can be increased based on a person’s needs, and the amount for weekly payments of compensation may be able to be increased if a person is permanently totally incapacitated for work.
You can find out more about workers’ compensation claims, and how much your claim may be worth by looking at the Foyle Legal Workers Compensation Claim page.
What to do if you’re experiencing workplace bullying, harassment or discrimination
If you are experiencing workplace bullying, harassment or discrimination you should report the behaviour to your manager or a health and safety representative. In larger organisations, you could report the behaviour to the human resources department. It is important to realise that most workers compensation claims regarding workplace bullying, repeated unreasonable behaviour or discrimination are not accepted by the employer’s insurer.
It is important that you have a clear ‘paper trail’ to support a claim that you have been subjected to unreasonable behaviour or have been bullied at work. Some ways to do this are:
- Keep a written record of workplace activities including any adverse action by other workers or employees – you could also keep a record of how any such behaviour makes you feel;
- If you are able to do so, print out any relevant emails or correspondence;
- Seek medical assistance from a General Practitioner, Psychologist or Psychiatrist and ask them to keep notes of what you have told them – this can be useful as an independent record of what is happening;
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Role of the Health and Safety Representative in Workplace Bullying
In the new Work Health and Safety Act 2020, the powers and functions of a health and safety representative for a work group are —
- to represent the workers in the work group in matters relating to work health and safety; and
- to monitor the measures taken by the person conducting the relevant business or undertaking or that person’s representative in relation to workers in the work group; and
- to investigate complaints from members of the workgroup relating to work health and safety; and
- to inquire into anything that appears to be a risk to the health or safety of workers in the work group arising from the conduct of the business or undertaking.
Health and Safety Representatives can therefore be a useful resource. They can represent workers and have many of the tools required to improve the situation when behaviour creates problems in the workplace. Sometimes, through negotiation, they can assist in resolving a dispute between employees.
Workplace Bullying Compensation Payouts
Most workers’ compensation claims for psychiatric injuries are not accepted. If a claim is not accepted then an injured worker can pursue an application for the acceptance of liability through WorkCover WA. The worker’s compensation scheme is a very technical scheme, and it is very common for injured workers to use the assistance of a specialist workers compensation lawyer.
Workplace bullying compensation payouts will generally be determined by the following:
- Is liability accepted for the injury?
- If liability is not accepted then the worker will have to substantiate that they have suffered an injury in the course of their employment or whilst following their employer’s instructions;
- Does the worker have evidence that they have been incapacitated due to their work and will continue to be incapacitated? Incapacity is generally proven with medical reports and medical certificates.
- Does the worker have a partial or total capacity for work? In claims that are not accepted, the worker bears the burden of showing any incapacity for work. If they have a partial capacity for work then a worker also bears the burden of showing how much they could earn in some suitable employment;
- Whether there is a continuing connection between incapacity and the work injury;
- The extent of any whole person impairment which may enable workers to pursue a common law claim against their employer;
- Whether the circumstances in Section 5(4) of the Workers Compensation and Injury Management Act 1981 apply (more detail below).
In order for a person to have a workers compensation claim, they must have suffered an ‘injury’ as defined in the workers compensation scheme. Section 5 of the Workers Compensation and Injury Management Act 1981 says that an ‘injury’ does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in Section 5(4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer.
Section 5(4) of the Workers Compensation and Injury Management Act 1981 says that for purposes of the definition of injury, the matters are as follows —
(a) the worker’s dismissal, retrenchment, demotion, discipline, transfer or redeployment; and
(b) the worker’s not being promoted, reclassified, transferred or granted leave of absence or any other benefit in relation to the employment; and
(c) the worker’s expectation of —
(i) a matter; or
(ii) a decision by the employer in relation to a matter, referred to in paragraphs (a) or (b).
It is therefore the position in compensation law that a workers compensation stress claim cannot be pursued if the workers compensation claim arises from employment law matters such as an employer not providing more entitlements to an employee or work performance in circumstances of dismissal, demotion or disciplinary action.
No Win, No Fee Lawyers
Under the No Win, No Fee arrangement, you won’t need to pay Foyle Legal’s Legal fees (the fees that we charge for the work we do on your claim), unless we get you a settlement amount.
Your lawyer will take you through this arrangement in more detail including any terms and conditions in your obligation free first initial consultation.
For quick information on our No Win, No Fee terms and disbursements, please visit our No Win No Fee Lawyers Page
Common Law Claims – Psychological Injury
In the Western Australian workers’ compensation system, injured workers can only bring common law claims against their employer in limited circumstances. The crucial factors regarding a common law election are:
- You cannot make a common law election unless you have a whole person impairment of not less than 15%. If a judge determines at trial that you have a whole person impairment of not less than 15% then your case will fail and there is likely to be an order that you pay your employer’s legal costs; and
- You must show that your employer was negligent or in breach of their statutory duty in causing your injury; and
- You must make a common law election and commence legal proceedings before the Limitation Date.
In many cases, if you are successful in pursuing a common law claim, the damages you will be awarded will be significantly higher than the amount you would receive in a settlement under the workers compensation statutory regime. There are several heads of damage such as pain and suffering damages, damages for loss of opportunity and gratuitous services that are available in a common law claim but not in a settlement under the workers compensation scheme. It is also much easier to claim for medical needs that will be necessary for the future.
Common law claims are complicated and you should obtain the assistance of a lawyer before choosing whether to proceed with a common law claim.
You can find out more with Foyle Legal’s Complete Guide to Common Law Claims.
Workplace bullying in Physical Injury Claims
It is common for work injury clients of Foyle Legal to also experience workplace bullying following a physical injury. This often occurs in circumstances where a person has suffered a physical injury and then return to work on a return to work programme.
The way the bullying happens during a return to work programme can include:
- Refusing to make appropriate accommodations for a workplace injury;
- Refusing to address complaints of workplace bullying by taking reasonable management action to ensure sufficient support is provided;
- Treatment by another employee or other employees whereby the person with a physical injury is treated as inferior because they have a limited capacity for work;
- Threatening to terminate a person’s employment if they do not undertake full duties, even though they are medically certified as having restrictions;
A return to work provider may be able to mediate between an employer and the injured worker to ensure that a return to work programme is performed in a reasonable way. There are entitlements of $16,743.00 available for vocational rehabilitation.
Conflict and frustration are predictable in circumstances where a person who suffers a work injury has difficulty returning to work. In some circumstances, an injured person will not be able to return to work with their employer.
The lawyers at Foyle Legal often help clients in circumstances where they have returned to work and feel like a victim of workplace bullying. At Foyle Legal, our compensation lawyers and trained legal services providers will listen to your problems and help to advise you regarding the best way to get out of the bullying situation and move forward with your life.
When to seek legal advice
You can seek legal advice at any time regarding a work-related stress claim. We find that our clients usually know when their employment situation has reached the point where they need legal help. We have provided more information about the help you may need below.
Personal Injury Law Advice From Personal Injury Lawyers
It is common for people who are victims of workplace bullying and harassment to come to Foyle Legal when their relationship with their employer has broken down.
We help injured people to bring workers compensation stress claims through WorkCover WA so that they can either get their claim accepted or settle their case.
If you would like to know more your can Contact Foyle Legal Today.
Foyle Legal does not operate in the area of employment law. It may be appropriate for injured people to get other advice about dealing with their situation from an employment lawyer. This advice may include whether the person can pursue a claim after being bullied or subjected to bullying under the Fair Work Act. Appropriate advice may also include claims about workplace discrimination, applications under federal anti-bullying laws, general protection claims and breach of an enterprise agreement.