by Tom Maling
Given the amount of time we spend at work and the high rate of Australians who experience a mental illness each year (approximately 4 million), it’s hardly surprising that work often causes a mental illness, or makes someone’s mental illness worse.
There are special laws in the Comcare system limiting the circumstances when an employer is liable to pay you compensation for a psychological injury. If you think you may have received a psychological injury from work, it’s very important you understand the law prior to making a claim.
Psychological injuries caused by work include Post Traumatic Stress Disorder (PTSD), Adjustment Disorders, Anxiety and Depression. However, those who already have a diagnosis of a mental illness may also be eligible for compensation where work has made their illness worse. This is because the law says that compensation may be paid where an illness is aggravated by someone’s work.
What is the law?
The relevant law for Comcare matters is the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’). Under the Act, injuries which are caused by an employer’s “reasonable administrative action” are not eligible for compensation.
The big issue for workers here is that if a cause of the psychological injury is a reasonable administrative action, the whole claim will fail. So, if work has made your PTSD symptoms worse and one of the reasons is a reasonable administrative action, then your claim fails. Even if it’s only a 10% cause, you are not eligible for compensation.
Often workers battle on for a long time after they receive their psychological injury, or don’t seek help straight away. The final straw may be an action by the employer which is later considered to have been a reasonable administrative action. Unfortunately, these workers are then excluded from compensation for medical treatment and time off work.
What is a reasonable administrative action?
Some key points are:
- The action must be related to the conditions of your employment and not your everyday tasks. So, giving you tasks to complete or telling you how to complete your work are generally not administrative actions. However, performance appraisals, discussing your pay and conditions, or directing someone to not come to work until they are certified as being fit, are administrative actions.
- The administrative action must be taken in a reasonable manner. This takes into account the actual action, how it was taken, the facts surrounding the action and how it impacts you. Basically, everything. However, just because there was more than one way of doing the action does not mean it was not taken reasonably.
As you can see, the reasonable administrative action rule provides a defence for employers when a worker suffers a psychological injury. Given the very wide scope of the rule, it is imperative that claims are made at the right time, as the consequences for a worker are very harsh.
Therefore, before you make a claim for a psychological injury, you should seek legal advice and not delay. Often, a claim which is appropriately made can show that a reasonable administrative action actually had no bearing on the injury, or that an action was not reasonably taken. Alternatively, a claim can be made before the employer can say it was caused by a reasonable administrative action.
Matthew Bridger is an experienced Canberra Comcare lawyer. He is assisted by Thomas Maling, who has a particular interest in mental health issues and workplace psychological injury claims. Please feel free to contact us to discuss your circumstances and how we can help.
IMPORTANT: If you (or someone you know) are experiencing symptoms of a mental illness you should seek help from your GP immediately. Alternatively, other resources you may access include: