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City Desk
2 August, 2010  
Bully beef

Not all mental breakdowns are equal … Some are more “reasonable” than others … Victoria leads the nation in workplace bullying claims … New amendments come as a great relief to captains of industry … Luke Williams reports

imageVictoria has a problem with workplace bullying.

The garden state has the nation’s highest number of bullying and harassment worker compensation claims.

Of the 2,700 worker compensation claims accepted in 2007-08 for mental injury, 38 percent were primarily related to workplace bullying and occupational violence.

According to health-care professionals some bullying victims are so injured they never return to work.

The injuries associated with bullying include anxiety, hair loss, teeth grinding, arthritic conditions and – most frequently – post-traumatic disorder.

Bullying can be extremely difficult to prove in an adversarial workcover compensation scheme with victims often fighting long and expensive battles.

Forty percent of mental injury claims are initially rejected in Victoria and many of those end up in court where claimants face unsympathetic insurance company doctors, intimidating medical panels, lengthy delays, inadequate return-to-work programs, employers denying any liability and petty mindedness over often minor benefits.

Brutalised workers frequently are left even more injured and even less likely to return to work.

In a recent submission to the government the Shop, Distributive and Allied Employees Association said:

“There is anecdotal evidence to suggest that some workers would not have had to endure either the voluntary or involuntary humiliation of psychiatric hospitalisation if not for the initial rejection of liability of their claim.”

In February, 19 year-old cafe worker Brodie Panlock committed suicide after months of severe workplace bullying.

Among other things she was called “fat and ugly”, and had fish sauce poured down her back at her work.

The perpetrators at Cafe Vamp were fined a record amount of $335,000 and there were calls for criminal sanctions to apply to workplace bullies.

imageTim Holding (pic), the Victorian minister responsible for WorkCover announced 40,000 snap workplace inspections across the state, as part of their “Respect at Work” education and enforcement campaign. He said:

“We want people to speak out on bullying and to stand up for each other. This is something that everyone needs to take responsibility for – bullying must be stopped in its tracks.”

Premier John Brumby announced that workplace bullies were “lowly cowards who would not be tolerated”.

Unfortunately, the substance didn’t quite fit with the spin.

The workplace inspections did go ahead – less than one month later.

However, on July 1 amendments to the Accident Compensation Act took effect, making it more difficult for victims of workplace bullying and work-related psychological injury to obtain benefits.

The changes, passed with bipartisan support, expanded the mental injury exclusionary provisions, widening the scope for employers to show that employee injuries were “reasonable in the circumstances”.

While the previous exclusions covered transfer, demotion, discipline, redeployment, retrenchment and dismissal – section 82 has been expanded to cover counselling, investigations of alleged misconduct, training, suspension and appraisal.

It now also protects decisions not to take specific management action.

The key difference is the expanded protection of “performance management” practices from liability for mental injury.

The broadening of the exclusions followed recommendations in a government-commissioned report by Peter Hanks QC, more or less to the letter.

The Hanks review recommended the broadening of the exclusions largely because expensive mental injuries “threaten the long-term viability” of the WorkCover scheme through “upward pressure on premium costs”.

Indeterminate liability would be a valid concern, if it was solidly supported by the facts.

However, mental stress claims have stabilised over the past six years.

In the 2003-2004 year there were 2,920 claims in Victoria for mental stress. In 2007-08 there were 2,518 and 2,601 claims in this category were accepted in 2008-09.

Nationally, there is been a decline in mental injury claims from 7,860 in 2003-04 to 5,950 in 2007-08.

In Victoria, generally WorkCover premiums are decreasing. In 2003-04, the average premium was 2.22 percent, in the 2008-09 year premiums had fallen to 1.38 percent.

Making it more difficult for workers to claim compensation for mental injuries doesn’t so much reduce costs as redirect them.

The other costs of mental injury – sick days, staff turnover, lower productivity, management time and resources, redundancies and the flow-on to the health and welfare system, are unaffected by successful exclusionary provisions.

In submissions to the Hanks review, employer groups portrayed some mental injury claims as industrial “weapons” used by aggrieved workers who don’t like or got the losing end of proper management decisions.

The Victorian Employer’s Chamber of Commerce and Industry said that the old set of exclusions threatened “employer autonomy”.

“VECCI believe the amendments will restore management prerogative and confidence to make those reasonable decisions without severe premium penalty.”

However, it is not simply a matter that unsustainable mental injury claims could stem from management telling staff to arrive on time, lift their game or demoting under-performing employees.

The problem cuts both ways. Workplace performance management is not just used to just dress-up otherwise genuine injuries, but also by bullies to professionally undermine and personally attack rival colleagues.

Research from the Workplace Bullying Institute indicates that the most commonly reported type of workplace bullying worldwide was false accusations of “errors that weren’t actually being made”.

Victoria Police is an organisation with high numbers of costly mental injury claims.

In its submission to the review, the police suggested the exclusions needed to be broadened to better “help” their employees.

As a result of the amendments, “some employees must miss out on the benefit of honest and constructive feedback”.

That police officers are sustaining mental disabilities because they can’t cope with getting constructive criticism from their managers, seems a rather disingenuous argument.

Even if employers concede they have a workplace problem with bullying, many are genuinely at loss about how to deal with it.

They are not sure what constitutes bullying, let alone the extensive obligations to prevent and manage it under occupational, health and safety law.

The only states that have employer codes of practice on bullying, Queensland and Western Australia, have half the number of accepted bullying compensation claims per capita than Victoria.

South Australia remains the only state with a statutory definition of workplace bullying.

Over the past five years, those three states have significantly reduced bullying and harassment compensation claims.

WorkSafe Victoria recently won praise for starting to take a preventive, training-based approach to changing psychologically hazardous and dysfunctional workplaces.

The Hank’s review reached the conclusion it did because of it’s limited parameters.

Bullying and other related unsafe work practices need to be dealt in ways that go beyond the reach of the Accident Compensation Act.

Ultimately, bullying – the biggest cause of mental injury claims in Victoria – was mentioned just twice in Hank’s 560-page review.

To date, there have only ever been two prosecutions initiated by WorkSafe for bullying in Victoria. One of those was Cafe Vamp.

The other was the successful prosecution in 2004 of the foul-mouthed former Ballarat radio announcer Reginald David Mowat.

The next step for Victoria is to make legislative changes that make life more difficult for the bullies, rather than the victims.

Luke Williams reporting