In this alert, Solicitor Hannah Staunton and Senior Associate Jacqi Marshall discuss the recent decision of Waugh v Simon Blackwood (Workers’ Compensation Regulator) [2015] ICQ 028 where the Industrial Court of Queensland overturned earlier decisions to reject an application for compensation by a female worker who developed a psychiatric injury upon finding out that her supervisor had taken covert photographs of her chest.  

Facts

Ms Waugh (worker) was employed at the State Library of Queensland (employer). In 2012 the workers’ supervisor covertly took photographs of a number of people, including the worker. Some of the photographs of the worker concentrated on her chest area. The supervisor used the employer’s electronic devices to take the photographs.

It was later discovered that the worker’s supervisor had over 2,500 photographs on electronic devices, a number of which focussed on the chest area of female staff including the worker. She was identifiable because a number of the images included her face.

The worker only became aware of the photographs after hearing rumours at work. The worker made enquiries with her employer who initially “brushed her off” but later confirmed that the supervisor had taken covert photographs of her. The worker requested to see the photographs on two occasions and was told they would be provided. The worker then commenced sick leave and while on leave again requested to see the photographs. The photographs were later posted to her home.

The worker successfully lodged an application for compensation pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Act) for a psychiatric injury. The Regulator set aside that decision and substituted a new decision to reject the application on the basis that the worker failed to satisfy section 32 of the Act which provides that an injury (for which compensation is payable) is a personal injury arising out of, or in the course of employment, if the workers’ employment is a significant contributing factor to the development of the psychiatric injury.

The worker unsuccessfully appealed the Regulator’s decision to the Queensland Industrial Relations Commission (Commission). The Commission found that the worker’s injury did not arise out of, or in the course, of her employment. The significant contributing factor to the development of the worker’s psychiatric injury was the taking of the photographs by her supervisor, not her employment. The Commission found the worker’s employment was merely the background or setting in which the supervisor’s inappropriate behaviour took place. The Commission further concluded that the manner in which the employer dealt with the issue was reasonable management action taken in a reasonable way.

Latest Appeal and Judgment

The worker appealed the Commission’s decision to the Industrial Court of Queensland. Justice Martin allowed the appeal in favour of the worker on 8 October 2015 meaning that the decision of the Commission was set aside and the initial decision of WorkCover Queensland to accept the application for compensation was confirmed.

In reaching his decision Justice Martin concluded that the worker has demonstrated that her psychiatric injury arose out of, or in the course, of her employment and that her employment was a significant contributing factor to the development of her psychiatric injury. The evidence of two expert witnesses (psychiatrists) was that the effect of the photographs being taken (and then becoming known to the worker) was to invalidate and demean the worker in her working environment. The worker’s distress regarding the photographs was heightened by the fact that they were taken by her supervisor at work. Justice Martin explained that had it not been for the worker’s employment, she probably would not have developed a psychiatric injury.

Justice Martin then went on to find that the employer failed to take reasonable management action in a reasonable way in response to the worker’s enquiry about whether her supervisor had taken covert photographs of her. The employer’s actions were not reasonable in that there was a delay in advising the worker of the nature of the photographs, the employer failed to impose any disciplinary action against the supervisor for his misconduct, and the employer failed to report the incident to the Crime and Misconduct Commission.

Take Away Points

  • The definition of injury in section 32 of the Act was amended in October 2013 and this case is based on the previous legislative provisions.
  • For psychiatric injuries, the Act now requires that employment is the major significant contributing factor to the injury rather than significant contributing factor as previously required for all injuries including psychiatric.  Given the undisputed medical evidence, however, it is likely that the decision in this matter would have been the same under the current legislation.
  • Even if it is found that employment was the major significant contributing factor to a psychiatric injury, it is not compensable if it arose out of reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment.
  • When considering the reasonableness of action taken by the employer, the matters which contributed to the injury must not be considered in isolation but instead should be taken into account “in a global way”.