Employer exposed for lewd photographs

In Waugh v Simon Blackwood (Workers’ Compensation Regulator) [2015] ICQ 028, the Industrial Court of Queensland highlighted the breadth of an employer’s potential liability for activities undertaken by its staff, even where such activities have little connection with the employer’s business.

Ms Waugh was covertly and inappropriately photographed by her supervisor while at work. Her supervisor used a work mobile phone to take photos concentrated mainly on Ms Waugh’s chest area. When Ms Waugh discovered this, and asked to view the photographs, she suffered psychological injury. She subsequently sought workers’ compensation.

The employer disputed the claim on the basis that the injury was not work related.

At first instance, the Queensland Industrial Relations Commission agreed with the employer’s argument. It found that ‘the workplace was merely the background or setting in which the inappropriate behaviour took place’ and the significant contributing factor was the taking of the photographs, not Ms Waugh’s employment. Accordingly, her claim for compensation was denied.

Ms Waugh pursued an appeal through the courts and obtained further medical evidence, which stated that her distress was greatly magnified by the fact that the photographs were taken at work and by a superior employee.

The Industrial Court of Queensland (ICQ) allowed the appeal and accepted Ms Waugh’s claim for injury. The fact that the photographs were taken at the workplace was considered integral to the development of her psychiatric injury. It was noted that this was a case in which the employment was more than just the setting in which the inappropriate behaviour took place. Rather, had it not been for the employment, the injury would probably not have been sustained.

In the ICQ, the employer also submitted that, even if the injury was work related, the injury arose as a result of ‘reasonable management action’. Under the Workers’ Compensation and Rehabilitation Act 2003, if a psychological injury arises out of reasonable management action, the injury is excluded and the worker is unable to obtain compensation.

The ICQ found that the employer’s delay in advising Ms Waugh of the incident, its omission in disciplining her supervisor and its failure to report the incidents to a higher authority constituted less than a reasonable management response.

Accordingly, Ms Waugh’s claim was accepted and she will now receive workers’ compensation entitlements.

Should you have any queries about what constitutes reasonable management action or how to respond to work injuries, please contact a member of our team.

To read the full case, please click here.