By
Gaby Grammeno
Contributor
When a vulnerable young worker became a target for bored co-workers who thought they were ‘only joking’, the power imbalance and lack of supervision left the worker traumatised, with compensable psychological injuries.
The worker, a 19-year-old Afghani national, was employed for four months as a mail officer with Australia Post from April 2020.
Though the work itself was not taxing, the behaviour of some of her older co-workers caused her great distress. As a Muslim, she was called a ‘terrorist’ by a fellow mail sorter: ‘Making fun of my religion was keeping her amused and entertained’, she told the tribunal.
As well as saying her religion was ‘weird and stupid’, the co-worker allegedly made derogatory comments about her appearance and persisted in pinching and punching her on her arms with sufficient force to cause bruises, despite being asked to stop. The offensive remarks extended to the young woman’s mother, whom she described as a ‘letter-box’ (with reference to face-covering garments that leave only the eyes exposed) though the co-worker had never seen her mother.
The young woman was also told she was ‘dumb’ and ‘desperate for money’. When the taunting upset her to the point of tears, the co-worker allegedly laughed and said ‘Look at her, she’s just about to cry’.
She felt isolated and excluded from any decision-making, and because they made fun of her accent, rolling their eyes and laughing, she felt she could never speak up for herself.
She believed one of her co-workers had intentionally hit her with the pallet jack, and an upsetting altercation occurred when she was late for a shift, having forgotten her cutter and needing to retrieve it from her car.
The behaviour of her co-workers made her so uncomfortable that she chose to take her breaks in her car, cried as she was driving home, and began losing weight and losing sleep. Though she felt the harassment was unrelenting, she tried to tolerate it by keeping her head down, fearing she’d risk losing her job if she reported it. She was also studying nursing at university and needed the income for the fees.
On 19 July 2020, she submitted an incident report saying she ‘always got bullied, discriminated and harassed because of my religion, appearance and race’.
After leaving her job she sought medical help for her psychological state and was diagnosed with an adjustment disorder with anxiety, depression and insomnia, but the employer denied liability for compensation.
Believing her mental health and been affected by what she’d been going through at work, she put in a workers comp claim for depression, anxiety and mental health injuries. She also applied to the Fair Work Commission, asserting she’d been bullied, harassed and discriminated against at work.
Australia Post undertook an internal investigation of her complaints. It found her claims of bullying and harassment had not been substantiated and were therefore not considered to be breaches of the organisation’s harassment discrimination bullying policy or ethics. The employee relations case manager, in an email to the compensation claims manager, attributed the young woman’s distress to fatigue due to additional work at night at a second job.
In January 2021 the employer rejected her claim for compensation, and in March 2022 it also rejected her further claim for permanent impairment or non-economic loss. Both decisions were later affirmed on reconsideration.
Following this, she sought a review of the decision by the Administrative Appeals Tribunal.
In the tribunal
The tribunal’s role was to decide whether Australia Post was liable to pay compensation for the woman’s claimed workplace injury.
The tribunal considered the medical evidence that the young woman was ‘embittered’ but not mentally ill had been coloured by the outcome of the employer’s investigation process. It preferred the evidence that the woman’s condition – adjustment disorder with mixed anxiety and depressed mood – had become chronic.
The tribunal found she was a credible witness who had gone from being a driven, motivated young woman working two jobs and undertaking a nursing degree to being someone who struggled to leave her room. It found she was suffering from a psychological condition.
The tribunal criticised the employer’s investigation into the complaint, saying it had not provided her with procedural fairness, and that many of its conclusions were based on supposition rather than fact. It ‘did not acknowledge that perpetrators of alleged bullying may not be truthful, reported and relied on comments of support persons to arrive at a judgement of character and made no reference to the fact the one corroborating witness to the alleged bullying had not participated in the investigation’.
While the employer’s investigation acknowledged the shortcomings of the supervision, it ‘made no attempt to consider the context of the allegations, a tense time of much community angst at the commencement of the Covid pandemic’. It did not consider the worker’s age or the perceived power imbalance between her and her co-workers and arrived at a ‘dubious’ conclusion that her perception or recollection of events may have been significantly affected by exhaustion from working two jobs.
In the tribunal’s view, the investigation report had been the basis for the employer’s rejection of the woman’s compensation claim.
The tribunal found that the woman’s perception of bullying and harassment by her co-workers fitted the Australian Human Rights Commission’s definition of bullying. While the mocking of her religious beliefs and bullying was not intended to hurt, the co-workers' behaviour was unacceptable.
The tribunal found that she had been bullied and harassed because of her religion and that her employment had contributed to her injury to a significant degree.
AAT Member Anna Burke said of the young woman’s claim for total and permanent incapacity, ‘the thought of condemning a 20-year-old to the scrap heap because we have now labelled and accepted them as permanently damaged’ was concerning.
‘Surely the Comcare system is there to assist injured workers, not pathologise them creating a cycle of never believing they can get better or seeking to get better as their benefits may be cut off.’
The Member said the tribunal was concerned by ‘Australia Post’s approach of traumatising a vulnerable person by conducting what seemed like a witch hunt against a young, naive and impressionable person. There surely has to be a better way to deal with complex workplace issues instead of simply lawyering up’.
The tribunal set aside the decision under review and decided that the woman was entitled to compensation for her condition.
What it means for employers
Complaints of bullying and harassment need to be investigated with regard to all relevant factors and circumstances, and investigations must afford procedural fairness.
Read the decision
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