“Egg Shell Skull” Exposes Cracks In Workplace Procedures

Tippins v Tetris Group Pty Ltd [2021] NSWPIC 025 (24 June 2021)

The Applicant claimed weekly compensation, section 60 expenses and a lump sum for whole person impairment payment under section 66 of the Workers Compensation Act 1987 (the 1987 Act) for a psychological injury.

The Respondent contended that any psychological injury suffered by the Applicant was wholly or predominately caused by reasonable actions taken by the Respondent. The primary issue for determination was whether the Applicant’s condition resulted from his work, although the decision ultimately fell upon the Respondent’s failure to follow fair process in relation to disciplinary action.

The Applicant was employed by the Respondent for four years before ceasing work on 25 July 2017 (the deemed date of psychological injury). He lodged an Application to Resolve a Dispute on 24 February 2021. At the time of this decision, the Applicant was certified as totally unfit for work.

The Applicant alleged a series of abusive and threatening behaviours on the part of his Manager as a Director for the Respondent (all of which were either denied or explained by the Respondent). Aside from some direct quotes from the Manager the Applicant did not produce any evidence of injury or psychological treatment which he claimed was consistent abuse throughout his period of employment.

During his psychological assessment, the Applicant did not disclose his childhood trauma, history of borderline personality disorder or suicide attempt approximately 10 years earlier (which were uncovered upon review of hospital records). It was found however that he was not being deceitful but rather struggled to discuss these issues. It was also found that these pre-existing features likely heightened the Applicant’s sensitivities to his manager’s behaviours. The Applicant had a history of alcohol abuse disorder within a group of personality vulnerabilities which also pre-disposed him to difficulties in managing and processing experiences at work.

The Respondent argued that, apart from the Applicant’s evidence that he was being treated by a psychologist and that he is always angry, there was scant reference concerning the Applicant’s ongoing psychological condition.

Member Young accepted that the Applicant was exposed to very traumatic events and presented to the Respondent with an “egg shell skull psyche” such that that he was susceptible to perception that any criticism to which he was generally exposed would be taken highly personally.

In considering all of the relevant circumstances, including the Applicant’s background, mental health history and that the Applicant was able to perform his employment in a satisfactory manner until 25 July 2017, Member Young was satisfied the Applicant had an underlying propensity to personality disorder and that, at the least, the exposure of him to various events in his interchanges with management created a perception in his mind that he was being unfairly targeted and the subject of threats in relation to his employment.

Member Young added several witness statements (including the Manager’s) cast considerable doubt upon whether the incidents referred to by the Applicant are capable of constituting bullying or harassment “but that is not the test and nowhere in the workers compensation legislation are those words employed”. There was ample evidence from witnesses that many of the events occurred (albeit that the evidence was that they had not witnessed the Manager treating the Applicant any differently to any other employee or engaging in any form of bullying, harassing or abusive behaviour toward any person) and medical opinion supported the view that the Applicant’s reaction was sufficient to amount to psychological injury as a result of those events, regardless of the fact the Respondent’s management clearly did not intend that to happen.

It was found the Applicant, in the course of his employment with the Respondent, suffered psychological injury in the sense contemplated by section 4(b)(ii) of the 1987 Act. Member Young noted the section does not require that the employment be the main contributing factor to the Applicant’s mental state.

The question resolves around whether the events which have earlier been described were the main contributing factor to the aggravation of the Applicant’s mental state.

With there being no other events referred to in the evidence providing other reasons for aggravation of the Applicant’s mental state during his employment with the Respondent, it was concluded that the Applicant’s perception of real events in his employment was the main contributing factor to the aggravation of his psychological condition.

In considering the totality of events surrounding the Applicant’s departure, Member Young was satisfied that the Respondent had:

• no clearly recorded policy;
• not given advance written notice of matters of concern;
• not allowed the Applicant time to prepare;
• not advised of the entitlement to have a support person present; and
• not embarked upon a considered decision-making process (rather “delivered a decision on the spot”).

In determining the Section 11A defence, Member Young was of the view that the Respondent’s actions were not reasonable (as it had failed to follow fair process in relation to disciplinary action) and ultimately found in favour of the Applicant.

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