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The recent discussion in the media about sexual harassment in the workplace have brought home a few things to me:
Under the current Queensland workers compensation system, the onus is on the injured worker to prove that the incident happened. When it comes to bullying and harassment workplace injuries, this requires more than just the injured worker’s version of events. Unless the employer confirms that the incident occurred or there is some corroborating evidence, then WorkCover’s typical response is to reject the claim. The usual response from WorkCover is that the injured worker has the onus of proof and without any corroborating evidence, the worker has failed to satisfy WorkCover that the incident occurred.
The reason that the Queensland workers compensation system lets down victims of sexual harassment or bullying is that the very design of the system enables the bully or harasser to use their power to avoid a claim.
The abuser will rarely admit that they engaged in the behaviour. Often, they behave the way they do because it feeds their need for “power” or dominance. For them to admit that they are in the wrong, would involve a reversal of the power balance. Also, an admission exposes them to additional personal consequences. They could be exposed to criminal charges, reputational damage to themselves of the business and they may lose their job. Therefore, the reality for an injured worker is that they can expect WorkCover will be told by the employer that the incident never happened.
If it is a case of the accuser’s word against the abuser’s word, then WorkCover’s standard line is to reject the Application for Compensation. This means that the injured worker needs more evidence to get the claim across the line. The victim’s word is simply not enough.
However, the problem with these injuries is that workplace bullies or abusers are usually clever enough to ensure that there is no one else around to witness their offending behaviour.
Or if there are witnesses, the power imbalance in the workplace often means that the witnesses are not prepared to provide a statement due to their fear of putting their own job in jeopardy.
Injured workers are sometimes able to get a statement from a co-worker that outlines the general behaviour of the offender in the workforce or examples of prior incidents. But if that witness did not actually see the actual incident that led the injured worker’s Application for Compensation, then WorkCover invariably rejects the evidence.
If we look at the situation unfolding in the High Court in Canberra, many of the alleged behaviours occurred without witnesses. There are also allegations of a pattern of behaviour. Yet, if these events played out in Queensland, then it is likely that WorkCover would reject an Application for Compensation. This is because no one saw the individual incidents and the alleged offender denies in happened. It does not matter to WorkCover that their stories are “believable” or believed by others to be true. The applications for compensation would be rejected, and the associates would not have had the support of our otherwise terrific workers compensation scheme. This also means that the pathway to damages for negligence is also taken away from the victim.
As we see in the media reports, some of the associates abandoned their careers in the law despite being some of the brightest young minds to depart law school. It is shocking that those workers would have no recourse to support if they were Queensland workers. But this is the reality for victims of workplace sexual harassment in Queensland.
Of course, there needs to be a balance between the needs of an injured worker to be supported and the rights of the accused to natural justice and procedural fairness. Otherwise the risk of people abusing the system might arise.
But there needs to be a rethink of how Queensland manages sexual harassment in the workplace where a worker is injured. Queensland needs to support those victims and not traumatise them further by arbitrary rejections of their applications for compensation and support.
It is devastating to advise clients that, even though we believe their story, if the abuser denies it and there are no witnesses, then it is likely that they will be excluded from workers compensation entitlements. The abuser wins again, and it reinforces the power they have in the workplace and over their victims. Often those clients are further victimised when they must leave the employer because staying without the support of workers compensation rehabilitation is intolerable.
Queensland parliamentarians have an opportunity to lead the way and make amendments to the scheme that supports victims and provides a safety net when their workplace abuse becomes too unbearable for them to manage without support. We should be enabling the victims to get ongoing psychological support before they deteriorate into a serious or permanent psychological disorder rather than enabling the abuser.
Queensland needs to stop telling the victims of workplace abuse that their word is not good enough to win that support. We need to stop enabling the abusers to get away with it because the current scheme design allows them to make bare denials without those denials being tested.
The longer that workers feel that complaining about the behaviour is hopeless (or indeed harmful to their career or mental wellness), the longer the behaviour goes unchecked. The behaviour needs to stop. A workers’ compensation scheme that properly supports workers is one very important avenue to help curb the abhorrent behaviour. As a community, we should be demanding our government provides a scheme that proves to victims that they matter – that they can speak up – and they will be supported if they do so.
NOTE: The allegations against the former High Court judge have been denied and we make no comment about their truth or falsity of the allegations.
Posted in: Personal Injury
July 21 2020