Workplace Harassment — A Health Issue: Anti-Discrimination Cases and Workers' Compensation Claims
| Author | Ross Taplin,Robert Guthrie,Joseph Oliver |
| Published date | 01 December 2009 |
| Date | 01 December 2009 |
| DOI | http://doi.org/10.1177/135822910901000402 |
International Journal
of
Discrimination and the Law, 2009, Vol. 10,
p.
163
1358-2291/2009 $10
© 2009 A B Academic Publishers. Printed in Great Britain
WORKPLACE
HARASSMENT-A
HEALTH
ISSUE:
ANTI-DISCRIMINATION
CASES
AND
WORKERS'
COMPENSATION
CLAIMS
ROBERT GUTHRIE, ROSS TAPLIN AND JOSEPH OLIVER
Curtin University
of
Technology, Western Australia
ABSTRACT
163
This article describes the adverse health-related effects
of
racial and sexual harass-
ment elicited from files held
by
the Western Australian Equal Opportunity
Commission where the complainant has nominated sexual or racial harassment as
a ground
of
discrimination. Those results are compared with publicly available data
on work-related stress claims obtained from the Compendium
of
Workers'
Compensation Statistics Australia 2004-06, arising from allegations
of
harassment.
Information gleaned from a survey
of
unreported court decisions (from publicly
available legal data bases, such as www.austlii.edu.au and www.ohs.alert.com) is
also reviewed.
The purpose
of
examining this data is to consider the links between various
forms
of
unlawful harassment, workplace stress and the evidence
of
adverse effect
upon worker health. The results
of
this triangulation
of
data are consistent with that
body
of
research which shows that workplace harassment can give rise to a range
of
adverse health outcomes. This paper explores how the inter-relationship
of
anti-
discrimination and workers compensation laws may affect claimant behaviours.
INTRODUCTION
A review
of
workers' compensation data for the last decade shows that
although the recorded rate
of
injury and accident has fallen in all
Australian jurisdictions, the rate
of
claims for adverse health conditions
arising from workplace stress has continued to rise in almost all juris-
dictions.1 Workers' compensation laws in all jurisdictions specifically
exclude claims for compensation when the worker's stress-related condi-
tion occurs while the worker is subject to a reasonable managerial or
administrative direction. The effect
of
these provisions is that workers
who suffer a stress-related condition through their work may not be enti-
tled to workers compensation
if
the reasonable managerial or
administrative direction was a significant stressor. These exclusions differ
slightly in detail and are more strictly applied
in
Queensland and the
Commonwealth. Their effect may be that workers who have suffered
ill
164
health through workplace harassment are excluded from claiming
workers compensation when other managerial-related stressors are
involved.2
A literature review
of
the effects
of
workplace harassment on the
health
of
workers shows that many workers suffer significant adverse
health reactions to harassment. Further, the Compendium
of
Workers'
Compensation Statistics Australia
2004-06
shows that workplace
harassment is responsible for about 11%
of
all workplace stress claims.
The duration rates (absence from work) for workplace stress claims are,
on
average, twice the normal duration
of
other claims. Consequently,
they are also on average twice the cost
of
other workers compensation
claims.
This paper uses data from Western Australian Equal Opportunity
Commission (WAEOC) files and publicly available data on workers'
compensation to investigate the links between harassment, workplace
stress and the evidence
of
adverse effect upon worker health.
METHODOLOGY
Access was obtained to a sample
of2006-08
files from WAEOC. These
cases covered alleged instances
of
sexual harassment, racial harassment
and bullying in the workplace. A total
of
seventy-six WAEOC files were
analysed which dealt with claims for workplace harassment.
Files which included claims for harassment were identified from the
WAEOC
hearing lists. These cases dealt with complaints in relation to
sexual and racial harassment. Bullying without evidence
of
any other
unlawful harassment, which is also discussed here, was outside the
WAEOC jurisdiction at the time
of
the study. From the hearing lists the
relevant WAEOC files were identified and located from archives. These
closed files were examined to obtain key information including the form
of
harassment, the duration and details
of
lost work time
(if
any) and the
medical evidence filed in support
of
the application.
These files related to claims which were resolved during the period
2006-08 although they did not comprise all
ofthe
harassment cases dealt
with
by
the WAEOC in this time period. Claims which were pending or
in still in progress were not examined. All data examined remained confi-
dential and claimants cannot be identified from the published data.
There are some obvious limitations with this WAEOC study. First,
the sample is relatively small, although it is probably a good sample
of
the overall number
of
harassment claims made to the WAEOC. Second,
some information in the files was vague
or
incomplete. This is due to the
self-reporting nature
of
complaints to the WAEOC, that is, complainants
provide materials they deem necessary for the prosecution
of
their case.
WAEOC attempts to elicit all relevant details from the complainants but
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