The Industrial Relations Commission (IRC)
accepted that a female traffic control employee sustained a
psychological injury arising from sexual harassment by her
supervisor during a car trip.
On 13 September 2013, Ms Davy (the worker) alleges that her
supervisor Mr Mullins (the supervisor) asked her to accompany him
on a "monitoring" trip in his vehicle.
The worker said she became distressed when the supervisor missed
the exit and refused to advise where he was taking her.
The supervisor ultimately drove into a caravan park and told the
worker to "relax," as he was booking them in to a caravan
for the night because he knew she liked "to party". The
worker said that she did not like to party, in response to which
the supervisor told her to get into another vehicle to go
The Regulator had rejected the worker's application for
compensation for psychological injury, arguing that she did not
sustain an injury as defined by section 32 of the Workers'
Compensation & Rehabilitation Act 2003 or alternatively,
that if she did sustain a psychological injury, that injury arose
from "reasonable management action" of the employer. The
worker appealed that decision to the IRC.
In accepting all of the worker's evidence in preference to
that of the supervisor, Deputy President Swan took into account the
The Facebook messages sent by the worker to one of her
colleagues on the night of the incident stating "got hit
on by my boss big time .... it is a good case for sexual
harassment..... it's like the worst day ever, even now I really
don't want to type about it I need someone to talk to....He
made me feel very uncomfortable and I just froze with fear as I
don't know this guy".
The email sent by the worker to her employer on 21 September
2013 reporting the incident.
The fact that the worker was prepared to participate in a
face-to-face mediation with the supervisor whereas he was not.
The fact that the supervisor had a set of keys to the
worker's share house and had previously slept there on
Deputy President Swan did not consider the supervisor to be a
credible witness. She found that he either exaggerated his
responses or was vague to the point of being disingenuous.
Dr Muntgomery provided medical evidence on behalf of the worker,
stating that she suffered an adjustment disorder with mixed anxiety
and depressed mood as a consequence of the "humiliating
and frightening nature of the sexual harassment and associated
sense of overwhelming fear and helplessness".
The Workers' Compensation Regulator did not produce any
Deputy President Swan rejected the Regulator's submission
that the worker's injury arose out of or in the course of
reasonable management action. It was abundantly clear that the
event on 13 September 2013 was causative of the worker's
psychological injury and reasonable management action did not
factor in that injury.
The decision of the Regulator to reject the worker's
application for compensation for psychological injury was set aside
and the Regulator was ordered to pay Ms Davy's costs of the
As is always the case in any trial, the demeanour and responses
or credibility of witnesses is carefully scrutinised by the
presiding judicial officer. If witness evidence is crucial to the
success or otherwise of the case, then pre-trial interviews are an
essential part of trial preparation.
There is of course no guarantee of how witnesses will present
on the day and litigants should always be appraised of the risks of
a "he said/she said" contest.
If no medical evidence is adduced to counteract an
opponent's evidence, then it is likely that the judicial
officer will accept what medical evidence is before it.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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