Your Employer’s Duty Of Care To Your Mental Health

What is psychological injury?

A psychological or psychiatric injury is an illness or condition that affects how you feel, think and behave. It can include depression, anxiety and PTSD (post-traumatic stress disorder). Symptoms can include guilt, anger, fatigue, poor concentration and social anxiety.

A mental injury can be caused by a traumatic incident, like an armed robbery or witnessing another worker’s serious accident. It could also be caused by bullying, excessive workloads, policy or procedure breaches, and other issues.

The effects of this injury can last for months or years.

Your employer’s duty of care

Every employer has a duty of care to create a healthy environment for workers. Work health and safety laws tell employers how to manage the risk of hazards, whether physical or psychosocial.

If their risk management fails, workers could suffer a psychiatric illness or psychological disorder due to their work, and the employer could be liable.

Claiming workers compensation for mental harm

If you suffer mental harm at work, you may be eligible for workers compensation for medical expenses and lost wages. You would need to prove that the injury occurred due to your employment, rather than something else in your life.

However, you may not be eligible for workers compensation if the injury occurred due to a ‘reasonable decision or action’ by your employer. This could include dismissal, retrenchment, transfer, performance appraisal, disciplinary action or deployment. This means it’s important to know if you can make a claim for mental health.

Limiting mental health claims

Your employer must limit the risks of mental health injury by putting certain processes in place, including:

• risk management process – to help identify hazards, remove or reduce risks, and review their control measures regularly to ensure they’re effective
• reporting process – a method for workers to report their concerns, even anonymously if necessary
• early intervention – a plan for responding early if signs of mental harm occur, such as unexplained absences or declining work performance.

If these processes don’t exist or are ineffective, the risk of mental injury increases.

Note: As a worker, you also have a responsibility to follow all WHS policies and procedures to protect yourself and others.

If your employer is negligent in protecting your mental health

If you suffer a psychology injury due to your employment, you may be able to claim workers compensation for medical expenses and lost wages. This is ‘no-fault scheme’, which means you can receive compensation no matter who specifically caused the injury.

However, if your employer’s negligence partly or wholly caused your injury, you may also be able to make a ‘common law claim’ for damages. These claims provide compensation for pain and suffering, as well as past and future lost income and superannuation.