The decision last week by the Administrative Appeals Tribunal
(AAT) in Ralser and Comcare [2012] AATA 510 (3 August
2012) arose from an incident between two work colleagues employed
by the Australian Taxation Office (ATO). The incident occurred
while a group of employees, including the Applicant were on a
coffee break in a cafe near their workplace.
While on the break in the cafe, a disagreement arose between the
Applicant and his co-worker. During the disagreement, it was found
that the Applicant flicked hot coffee in his co-worker's face
and, in response the co-worker punched the Applicant in the upper
right arm. These facts were not disputed.
Some time later, the Applicant made a claim for workers'
compensation under the Safety Rehabilitation and Compensation
Act 1988 in respect of injuries arising out of the incident,
including a contusion and associated swelling in his arm, along
with a spinal injury caused by jarring or whiplash caused by the
punch. The claim was refused and the matter was reviewed by the
AAT.
Physical injury – was the injury sustained in the
course of employment?
Upon review, the AAT was required to consider whether the
injuries occurred in the course of the Applicant's employment
or whether the injury to the Applicant occurred while he was
temporarily absent from his place of work undertaking an activity
associated with his employment.
The Applicant submitted that the physical injuries arose out of
his employment because he was having coffee with work colleagues,
and that these coffee breaks were networking opportunities at which
employees obtained information about non-confidential work matters.
For these reasons, the Applicant submitted that his employer
expressly or impliedly expected employees to participate in
activities of this kind.
In rejecting the Applicant's claim for compensation for
physical injuries arising out of the café incident the AAT
made the following findings:
while it may have been common for employees to take coffee
breaks, the evidence did not establish that the timing and
frequency of such breaks was regular or that the grouping of
employees was determined on the basis of employment duties or
functions;
the fact of discussing work matters while undertaking a social
activity outside of work does not render the activity within the
scope of employment;
there was no evidence that the Applicant's supervisor was
aware of the coffee breaks or that employees were required to
obtain approval or authorisation for such breaks and, in any event,
such findings would not necessarily have brought the activity
within the course of employment; and
the Applicant's attendance at the café on the day he
was punched was not an incident of his employment, nor was it
related to the performance of his duties or functions.
Psychiatric injury – bullying and harassment
In addition to the claim for compensation in relation to the
physical injuries arising from the punch, the Applicant also
claimed compensation for anxiety and depression caused by:
the pain caused by the injuries sustained as a result of the
punch; and
bullying and harassment suffered in the workplace, and the
manner in which his employer dealt with the incident.
It was held by the AAT that the anxiety and depression which was
caused by the injuries arising from the punch were not compensable
as the original injury did not occur in the course of the
Applicant's employment.
However, in relation to the other cause of the anxiety and
depression, it was held that the Applicant's perception of
bullying and harassment significantly contributed to his
psychological symptoms. The AAT acknowledged that a range of
stressors impacted on the Applicant having a susceptibility to
having a perception of bullying in the workplace. On these grounds,
the Applicant was held to have suffered an injury for which Comcare
was liable.
What does this case mean for employers?
Employers need to be aware that legal risks in relation to
bullying and workplace harassment may also arise when an employee
has a 'perception' of that conduct occurring.
Employers should ensure that complaints of bullying and
workplace harassment are dealt with by investigating the complaints
when they arise and providing clear reasons to an employee as to
investigation findings when they are made.
The concerns of employees should be dealt with sensitively even
when allegations are not substantiated, and this may require
workplace mediation and employee assistance support.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author.
A court has determined that an employee had a workplace right under the Fair Work Act 2009 to make a complaint entitling the employee to proceed with her general protections claim.
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