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Increasing work pressures on teachers and claims of psychological injury

A psychological injury can occur because of a specific event, such as a traumatic incident, or because of exposure to multiple events or repeated events over time, such as bullying, harassment, violent students and untoward work pressures or a combination of them all. Psychological injuries can start out as stress, and can be later diagnosed formally as depressive disorders, adjustment disorders and even post-traumatic stress disorders.

Sections 4 and 9A of the Workers Compensation Act 1987 (NSW) (the 1987 Act) are the relevant sections which injured teachers can satisfy and therefore bring successful claims for psychiatric injury.  The difference between sections 4 and 9A revolve around whether an injury can be categorised as a ‘disease’ or ‘personal injury’.

To establish a disease injury under section 4, an injured teacher must demonstrate that an injury arose out of or in the course of employment and that the employment was the main contributing factor.  For example, a disease is caused when a person is unable to repeatedly deal with stress imposed upon them, and that ‘disease injury’ can be acquired a little or a bit more each day.

For a ‘personal injury’ to be established under section 9A, employment needs to be the substantial contributing factor. There are certain criteria that need to be considered for this section including:

(a)        the time and place of the injury,

(b)        the nature of the work performed and the particular tasks of that work,

(c)        the duration of the employment,

(d)       the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,

(e)        the worker’s state of health before the injury and the existence of any hereditary risks,

(f)         the worker’s lifestyle and his or her activities outside the workplace.

This means to establish an injury under section 9A, the connection to employment needs to be substantial but at the same time allows for other contributing factors.

It is important to understand how these sections work given the complexity of work arrangements and the industrial issues all employers face. Industrial issues allow management to consider and utilise certain defences to psychological injury claims, namely section 11A of the 1987 Act.

A claim for psychiatric injury can also be tested and ultimately denied by an insurer and employer if it is established by the insurer/employer, who is required to prove the defence, that the injury occurred in the context of reasonable action taken by the employer in relation to dismissal, retrenchment, transfer, performance appraisal, disciplinary action or deployment. If an employer can establish that the injury was wholly or predominantly caused by the reasonable action, the next issue to be determined is whether the action taken or proposed was objectively reasonable. Notoriously, this defence can be difficult to maintain by insurers and employers, as seen in White v Secretary, Department of Education [2023] NSWPIC 113, a case about a psychological injury sustained by a teacher.

In this case, Ms White was teaching a disabled student who passed away. As a result, she sustained a psychological injury on 7 August 2021. She then sustained a further psychological injury due to incidents between 27 August 2021 and 8 November 2021 because of a mandatory COVID-19 vaccine mandate and how it was enforced by her employer. This included attending a meeting relating to issues on 5 October 2021. Live issues in the matter included whether Ms White’s injuries were caused by employment or if they were caused by reasonable action taken by her employer in respect of the COVID19 vaccine requirements.

The Department argued in this case that, if Ms White sustained a psychological injury arising out of or in the course of her employment, then it was caused wholly or predominantly by reasonable action taken by the Department with respect to discipline and/or dismissal.

In her decision, Member Snell, after establishing that “the law in relation to “main contributing factor” is one of causation that requires consideration of the evidence overall”, found both injuries were related to employment and that the Department was not reasonable in how they dealt with Ms White. Ultimately when determining whether the Department’s actions were reasonable, Member Snell considered all the facts of the case which included:

1. the Department’s knowledge of Ms White’s pre-existing psychological distress due the recent passing of her student before the later industrial issues relating to the vaccine arose;
2. the Department’s knowledge of Ms White’s previously expressed concerns regarding the mandatory vaccination requirement;
3. the lack of adequate notice provided to Ms White of the meeting with her supervisor and administration manager when she returned to work to discuss industrial and performance related issues;
4. the lack of a support person to attend the meeting; and
5. the lack of providing EAP counselling subsequent to the meeting.

Considering the psychological injury resulting from the vaccine mandate, Member Snell assessed the medical evidence which highlighted that “the mandatory COVID vaccine has been perceived by the claimant as being bullied and harassed. The Claimant alleges that the behaviour of the principal towards her was one of intimidating and bullying in nature, which the principal has denied.”

The evidence therefore established that the actions of the Department were both the substantial and main contributing factors to her psychological injury as “Ms White was already depressed by the loss of the child for whom she was caring. The mandatory COVID vaccination has resulted in exacerbation of her symptoms.”

While this claim is somewhat unique, it serves as a reminder to employers that it is important, when a claim is made, to ensure appropriate investigations are undertaken and to adhere to their internal policies including offering support persons for industrial meetings and counselling services such as EAP.

If you are tasked with dealing with a claim of psychological injury by a staff member, please contact David Ford or Thomas Felizzi.