Workplace bullying compensation in Queensland: WorkCover, stop-bullying orders and damages

Bullying is one of the most common causes of psychological injury claims and one of the hardest categories to run, because the law draws a line between bullying and management, and insurers and employers argue that almost everything falls on the management side. This guide sets out how a Queensland worker injured by bullying can be compensated, what the exclusion actually says, and what else can be done.

Key points

• A diagnosed psychological injury caused by bullying is compensable where employment was a significant contributing factor. Since 2019 it no longer has to be the major factor.
• The exclusion for reasonable management action taken in a reasonable way is the main battleground, and it does not cover action that was unreasonable or carried out unreasonably.
• The Fair Work Commission can make stop-bullying orders; damages against the employer are available where negligence caused the injury.

What has to be shown

A psychological injury must be a diagnosed condition, not just distress, and employment must be a significant contributing factor. The bullying itself is usually a pattern: repeated unreasonable behaviour directed at a worker that creates a risk to health and safety, which is the definition the Fair Work Act and the Queensland work health and safety guidance both use. Single incidents, performance management, rostering changes and disciplinary processes are where the exclusion comes in.

The reasonable management action exclusion

Section 32(5) of the Workers' Compensation and Rehabilitation Act excludes a psychiatric injury arising out of reasonable management action taken in a reasonable way, or the worker's expectation or perception of such action. The exclusion has two limbs and both must be met: the action must itself be reasonable, and the manner of carrying it out must be reasonable. A performance review is reasonable management action; a performance review conducted by shouting in front of colleagues is not carried out in a reasonable way. Many claims turn on the second limb, and the evidence for it is contemporaneous: emails, texts, diary notes, complaints made at the time and the employer's response to them.

Evidence

Psychological claims are won and lost on records. Keep a dated log of incidents with names of witnesses. Keep emails and messages. Make written complaints through the employer's process and keep the replies. See a GP early and describe what is happening at work in the same terms you use elsewhere. A referral to a psychologist or psychiatrist provides the diagnosis the claim requires.

Remedies beyond WorkCover

A worker who is still employed and being bullied can apply to the Fair Work Commission for a stop-bullying order, which is about ending the conduct rather than compensating it. Work health and safety regulators can be notified; Queensland has a code of practice on managing psychosocial hazards that sets the standard an employer is expected to meet. Where the employer knew of the risk and did nothing reasonable about it, a common law claim for damages, including future income loss, is available in addition to the statutory claim, subject to the usual impairment assessment and election.

Frequently asked questions

Is bullying covered by WorkCover in Queensland? Yes, where it causes a diagnosed psychological injury and employment was a significant contributing factor, unless the injury arose from reasonable management action taken in a reasonable way.

My claim was rejected under the management action exclusion. Can I appeal? Yes. Apply to the Workers' Compensation Regulator for review within three months. A rejection is not necessarily the end of the claim, and the "reasonable way" limb is often where the review is decided.

Can I sue my employer for bullying? If the employer's negligence in failing to prevent or respond to the bullying caused the injury, a damages claim can follow the statutory claim.

Sources

• Workers' Compensation and Rehabilitation Act 2003 (Qld), s 32 (including s 32(5)), ss 540–545 — legislation.qld.gov.au
• Fair Work Act 2009 (Cth), ss 789FC–789FF (stop-bullying orders) — legislation.gov.au
• WorkSafe Queensland, Managing the risk of psychosocial hazards at work code of practice 2022 — worksafe.qld.gov.au
• Fair Work Commission, Bullying — fwc.gov.au