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Australian employee wins workers compensation benefits after coworker takes covert photographs of her

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An Australian employee has won her bid for workers’ compensation benefits for psychological injury after she learned that a coworker had taken covert photographs of her.

The coworker had taken covert photographs of a number of people, including the employee.  Some of the photographs concentrated on the employee’s chest area with her head and face out of the photo.  She was identifiable because other photos included her face.  The coworker had used electronic devices supplied by the employer (a state library) to take the photographs.  Over 2,500 photos were found on the electronic devices, a number of which focused on the chest area of female employees.

The court decided that there was a “necessary association between the injury and the employment”.  Had it not been for the employment, the employee’s psychological injury would probably not have occurred.  As such, the injury “arose out of, or in the course of, employment”. Further, the employment was a “significant contributing factor” to her injury, given the evidence of her psychiatrists.

The applicable workers compensation legislation provided that workers were not entitled to benefits for psychological injury if it arose out of “reasonable management action”. The court decided that, considered “in a global way”, the employer’s actions had not been reasonable.  In particular, the employer had delayed in telling the employee about the photographs and their nature; the employer did not say anything to her until she approached another employee about the matter; and the employer had not imposed any disciplinary action on the male employee who took the photographs, but instead had allowed him to resign at the end of his contract (with four months of notice).

As a result, the employee was entitled to workers’ compensation benefits for psychological injury.

Waugh v Simon Blackwood (Workers’ Compensation Regulator) & anor [2015] ICQ 28 (8 October 2015)