Worker bullied at Department of Education

Key Takeaways

• A NSW Department of Education teacher was bullied and harassed by colleagues following her arrest for alleged historical sexual abuse offences.
• Despite her eventual acquittal of all charges, the teacher faced ongoing mistreatment, including exclusion from social events and being labelled a “sex offender.”
• The teacher’s workers’ compensation claim for psychological injury was initially rejected by her employer, citing section 11A of the NSW Workers Compensation Act 1987.
• The NSW Personal Injury Commission ruled in favour of the teacher, finding workplace bullying to be the predominant cause of her psychological condition and awarding her compensation.

Case Summary

A teacher was bullied following her arrest for alleged historical sexual abuse offences. The teacher defended her criminal case and then lodged a workers’ compensation case due to the treatment during and after her acquittal. The department claimed section 11A of the Workers Compensation Act 1987.

During the course of her employment, she was bullied and harassed. Colleagues called her a “sex offender” after she was charged with historical abuse offences. We successfully argued for compensation for her psychological injury, with the commission hearing that the bullying included exclusion from Christmas functions, and dismissed the employer’s reasonable action defence.

Employer’s Response

The NSW Department of Education teacher, who was acquitted of all criminal charges laid against her, alleged she was bullied and harassed by colleagues and went unsupported by her employer even after her trials had finished.

Her employer rejected her workers’ compensation claim, arguing her injury wholly or predominantly resulted from her being notified, at the conclusion of the criminal proceedings, that the Department’s Professional and Ethical Standards Directorate would conduct its own internal investigation into the sexual misconduct claims against her. The employer contended this was reasonable action in the form of discipline, blocking her claim pursuant to section 11A of the NSW Workers Compensation Act 1987.

Section 11A of the Workers Compensation Act 1987

WORKERS COMPENSATION ACT 1987 – SECT 11A

No compensation for psychological injury caused by reasonable actions of employer.

• Section 11A (1): No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment, dismissal of workers, or provision of employment benefits to workers.
• Section 11A (3): A “psychological injury” is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
• Section 11A (4): This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
• Section 11A (6): This section does not extend the definition of “injury” in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment. This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
• Section 11A (7): In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker’s condition, accepted medical terminology and not only terminology such as “stress” or “stress condition”.
• Section 11A (8): If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement):
  • (a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and
  • (b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.

Personal Injury Commission Ruling

There was no doubt that this case raised some complex issues and after a long process, it was finally heard in the Personal Injury Commission before Member Wynyard.

The NSW Personal Injury Commission heard that in 2017, the worker was arrested by police and charged with 21 offences relating to the alleged sexual assault of two males under the age of 16. The charges related to alleged incidents that occurred while she was a teacher at a high school in 1997. After she was charged, she was suspended on full pay, had her teaching credentials withdrawn, and, in March 2018, was redeployed to a district office on alternative duties while she awaited trial. It was at this office that she said she was bullied, ostracised and discriminated against.

She said her colleagues stared at her or ignored her, closed the door on her or walked away from her while she was talking. She said some colleagues openly harassed her, calling her a “sex offender” and referring to her and two others being investigated as the “three amigos”. She said she was excluded from social work events such as Christmas functions, was berated for taking a box of tissues without permission, and was forced to sit in a seat known as the “naughty chair”. The worker told the Commission she reported the bullying to her employer but nothing changed. She also asked to be moved to a smaller room away from others but was denied this. She said her anxiety became so bad that she couldn’t open emails because they were “too confronting”.

In late 2020, following two trials, the worker was acquitted of all charges.

The Department subsequently sent her an email asking her to attend a meeting, in which it notified her it was commencing the internal investigation. The worker expected the investigation and was relieved that she was not terminated at that point in time.

The worker’s clinical notes from her treating doctors showed she was suffering from work-related anxiety from as early as 2018 and was impacted by workplace bullying over the next three years. Email evidence showed she had reported the bullying to her manager and notified him of the impact it was having on her mental health in early 2020.

Findings of the Commission

PIC Member John Wynyard found most of the worker’s claims around bullying went unchallenged and accepted her medical evidence, showing she was suffering a high degree of anxiety back in 2018.

Her March 2020 email to her employer confirmed she “was ‘overwhelmed at the sub-par treatment’ she was receiving, that she was ‘being bullied’ and was unable to cope anymore”, he found. “The fact that [the worker] was also not checking her emails because they were too stressful for her, prior to her receiving the email giving notice of the [investigation] meeting, is further corroboration that she was already injured at the time she received notice that the investigation was to take place,” Member Wynyard said. The fact that the meeting caused her relief means it could hardly be the predominant cause of her injury.

Member Wynyard acknowledged that while the worker might have been anxious about the outcome of the investigation, the mistreatment of her in the workplace was the predominant cause of her psychological condition.

He dismissed the employer’s section-11A defence and accepted the worker remained completely incapacitated for work, awarding her weekly compensation payments back pay and on a continuing basis.

Case Reference

McKeown v Secretary, Department of Education [2024] NSWPIC 158 (2 April 2024)

Need Expert Assistance?

If you or someone you know has experienced workplace bullying or harassment, it’s crucial to seek professional legal support to protect your rights. At Coutts Lawyers & Conveyancers, our dedicated team of experienced employment law professionals is here to help you navigate complex legal processes and secure the compensation you deserve. Don’t let workplace mistreatment go unchallenged. Contact us today for a confidential consultation and take the first step towards justice and peace of mind.