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.

Facts 

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 “monitoring”. 

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. 

Decision 

In accepting all of the worker’s evidence in preference to that of the supervisor, Deputy President Swan took into account the following:

  • 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 occasions. 

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 medical evidence.

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 appeal.  

Takeaway Points

  • 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.