The decision by the Administrative Appeals Tribunal (Tribunal) in Ralser and Comcare [2012] AATA 510 (3 August 2012) arose from an incident between two work colleagues employed by the Australian Taxation Office (ATO). The incident occurred while a group of employees, including the Applicant were on a coffee break in a café near their workplace.

Background

While on the break in the café, a disagreement arose between the Applicant and his co-worker. During the disagreement, it was found that the Applicant flicked hot coffee in his co-worker’s face and, in response, the co-worker punched the Applicant in the upper right arm. These facts were not disputed.

Some time later, the Applicant made a claim for workers’ compensation under the Safety Rehabilitation and Compensation Act 1988 (Cth) in respect of injuries arising out of the incident, including a contusion and associated swelling in his arm, along with a spinal injury caused by jarring or whiplash caused by the punch. The claim was refused and the matter was reviewed by the Tribunal.

Judgment

Upon review, the Tribunal was required to consider whether the injuries occurred in the course of the Applicant’s employment or whether the injury to the Applicant occurred while he was temporarily absent from his place of work undertaking an activity associated with his employment.

The Applicant submitted that the physical injuries arose out of his employment because he was having coffee with work colleagues, and that these coffee breaks were networking opportunities at which employees obtained information about non-confidential work matters. For these reasons, the Applicant submitted that his employer expressly or impliedly expected employees to participate in activities of this kind.

In rejecting the Applicant’s claim for compensation for physical injuries arising out of the café incident, the Tribunal made the following findings:

  • while it may have been common for employees to take coffee breaks, the evidence did not establish that the timing and frequency of such breaks was regular or that the grouping of employees was determined on the basis of employment duties or functions
  • the fact of discussing work matters while undertaking a social activity outside of work does not render the activity within the scope of employment
  • there was no evidence that the Applicant’s supervisor was aware of the coffee breaks or that employees were required to obtain approval or authorisation for such breaks and, in any event, such findings would not necessarily have brought the activity within the course of employment, and
  • the Applicant’s attendance at the café on the day he was punched was not an incident of his employment, nor was it related to the performance of his duties or functions.

In addition to the claim for compensation in relation to the physical injuries arising from the punch, the Applicant also claimed compensation for anxiety and depression caused by:

  • the pain caused by the injuries sustained as a result of the punch, and
  • bullying and harassment suffered in the workplace, and the manner in which his employer dealt with the incident.

It was held by the Tribunal that the anxiety and depression which was caused by the injuries arising from the punch were not compensable as the original injury did not occur in the course of the Applicant’s employment.

However, in relation to the other cause of the anxiety and depression, it was held that the Applicant’s perception of bullying and harassment significantly contributed to his psychological symptoms. The Tribunal acknowledged that a range of stressors impacted on the Applicant having a susceptibility to having a perception of bullying in the workplace. On these grounds, the Applicant was held to have suffered an injury for which Comcare was liable.

Implications

Employers need to be aware that legal risks in relation to bullying and workplace harassment may also arise when an employee has a ‘perception’ of that conduct occurring.

Employers should ensure that complaints of bullying and workplace harassment are dealt with by investigating the complaints when they arise and providing clear reasons to an employee as to investigation findings when they are made.

The concerns of employees should be dealt with sensitively even when allegations are not substantiated, and this may require workplace mediation and employee assistance support.