A recent $436,000 injury damages case shows how important it is for employers to proactively look for and deal with signs of worker distress, employment and WHS lawyer Donna Trembath says in this Q&A with OHS Alert.

"Apart from a common law claim, the risks associated with ignoring or overlooking signs of distress are that an employer may be missing an opportunity to stop a problem in its tracks while it is at a manageable or low level," the DLA Piper special counsel said.

As reported in June, TriCare (Country) Pty Ltd was ordered to pay $435,584 to a psychologically injured administrative assistant, after the Queensland Court of Appeal found it was vicariously liable for a new manager's unreasonable treatment of the worker (see related article).

In a subsequent DLA Piper update, Trembath said the reason the worker "succeeded in her claim, where some other employees fail, is that she overcame the hurdle of proving that her psychiatric illness was reasonably foreseeable to her employer".

"[The] visible deterioration in her psychological state under her new manager... made the risk of psychological injury foreseeable," she said.

OHS Alert asked Trembath five questions about the case and related matters:

1) Why was TriCare vicariously liable for the manager's actions?

"An employer is usually vicariously liable for the conduct by its employees as long as it is committed in the course of employment. It is relatively simple to show that a manager's actions in exercising her authority are sufficiently connected to her duties.

"The issue of vicarious liability was not really tested in this case because the appeal was argued by each side on the basis that the manager was the relevant 'mind' of the employer, even though she had superiors at the employer's head office in Brisbane."

The manager's alleged unreasonable conduct towards the worker included speaking in a raised voice or in a belittling manner, counselling her about the boundaries of her role in harsh tones, and telling her she had "never met anybody so stupid as you", Trembath said.

2) What are some signs or factors employers should look out for to protect workers and avoid claims?

"Apart from employees being 'shaky' or 'teary', which was the crux of liability in TriCare, other signs to look out for to protect workers and avoid claims include:

• any other type of evident deterioration in an employee's psychological state;
• any express warning (for example, 'My health is suffering due to work') or a medical certificate for 'work-related stress' or 'workplace bullying'; and
• any implicit warning such as frequent or prolonged absences that are uncharacteristic.

"If any of these factors are present, we suggest that the employer follows up with the employee to check whether they are okay."

3) Apart from a common law claim, what are some of the risks associated with ignoring or overlooking signs of bullying or distress?

Employers that fail to act on a problem like TriCare are at risk of "letting it snowball", Trembath said.

"Being proactive may reduce the risk of a subsequent workers' compensation claim or an application to the Fair Work Commission for orders to stop bullying.

"There are also reputational and brand issues at stake in addition to the employer's duty of care."

4) What are some steps employers should take in these circumstances?

"The employer has to walk a fine line when intervening, always bearing in mind that an employee is entitled to privacy and personal dignity.

"Employees could be upset at work for personal reasons, or they may have a medical condition that they do not want to disclose. We see many cases of employees who are living with a condition such as depression or anxiety but who do not claim that it is work-related.

"However, if an employee is spoken to and they attribute their distress to work, the employer needs to carefully consider this and try to resolve the issue if this is in fact the case.

"If the issue is serious enough (for example, the employee reveals that they are receiving medical treatment for work-related stress) the employer should consider asking the employee to provide a medical certificate that they are fit to work, including any adjustments to the employee's position that may be required to enable them to safely perform work.

"The employer would then need to consider whether the adjustments can be made, which may include considering whether they are 'reasonable adjustments' within the meaning of discrimination legislation."

5) Legally, do these lessons and steps apply in all states and territories?

They do because "they relate to the common law and federal employment and discrimination law", Trembath said.

"As a general rule, courts in other jurisdictions are unlikely to depart from the decision in TriCare unless they are convinced that it is clearly wrong."