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We often think about Workers Compensation claims as being claims for physical injuries. A construction worker with bad knees might spring to mind, a worker who types all day might have a compensable repetitive strain injury (RSI)condition or a landscaper might have a bad back.
It is important to remember that the South Australian workers compensation system (administered by an independent entity known as Return to Work SA) can also assist you if you are suffering from a psychological injury caused by sexual harassment in the workplace.
The South Australian workers compensation system is a no fault system. This means that you can be compensated for your injury regardless of whose fault it is. It can however be a long and traumatic process and we do encourage you to seek out support while you make a claim.
What is Sexual Harassment?
The Sex Discrimination Act 1984 defines sexual harassment as:
(1) A person sexually harasses another person (the person harassed ) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
Examples of sexual harrassment in the workplace
Sexual Harassment in the Workplace
Sexual harassment in the workplace continues to occur at unacceptable levels within Australian workplaces.
The latest Australian Human Rights Commission workplace sexual harassment survey, released in November 2022, has found that 1 in 3 workers had been sexually harassed at work in the previous five years. This statistic has not changed since the previous survey in 2018.
In the 2017/2018 financial year, sexual harassment complaints to the South Australian Equal Opportunity Commission (EOC) were the second most prevalent. The 2017/2018 complaints were predominately from women but the Commission saw an increase in complaints from men too.
In 2016, the EOC was commissioned to deliver a report into sex discrimination and sexual harassment in the South Australian Police (SAPOL). In that report, the EOC found that 21% of women and 8% of men have experienced sexual harassment in the previous 5 years.
In December 2018, the Australian Council for Trade Unions (ACTU) released the findings from their 2018 survey into sexual harassment which found that 64% of women who responded to the survey had personally experienced sexual harassment in the workplace on one or more occasions. The survey also showed that 41.2% of those who had experienced sexual harassment did not disclose the sexual harassment to anyone. The ACTU survey elicited 9600 responses, a feat most statisticians wouldn’t sneeze at.
We could provide further statistics, at a local and international level but there is no need. It is well established that sexual harassment in the workplace is prevalent, has serious consequences for victims and workplaces, and seriously limits women’s equal participation in the workforce. This is why Sex Discrimination Commissioner, Kate Jenkins, led an enquiry into sexual harassment in the workplace and made 55 recommendations in the Respect @ Work Report.
 The results of that survey can be found here: https://humanrights.gov.au/time-for-respect-2022
 Respect at Work: Sexual Harassment National Inquiry Report (2020) can be found online: https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexualharassment-national-inquiry-report-2020#Za70h
Has sexual harassment caused you to suffer a psychiatric injury?
The Return to Work Act 2014 (the law that underpins the SA workers compensation system) defines injury as either a physical or mental injury. A mental injury is described in the Return to Work Act 2014 as a psychiatric injury and this means an injury that is ‘pure mental harm.’
To be eligible for worker’s compensation, work needs to have been the significant contributing cause of the mental injury.
 Return to Work Act 2014 section 4.
Julie works as an administrative assistant at a busy real estate agency. Julie works with all of the real-estate agents but spends most of her time assisting Graham, the owner of the agency. At first, Julie really enjoyed working with Graham. Graham was kind and took time to explain things to her when she wasn’t sure. After 6 months of work, Graham began emailing Julie and asking her about her weekend and other personal questions. Julie would tell Graham that she had a nice weekend and would give general details about her life. Julie wasn’t too worried about these questions but did think it was strange that Graham had such an interest her life. Graham would also regularly ask Julie about her boyfriend and details about their relationship. Julie began to feel uncomfortable but didn’t feel as though she could say anything. One night, Julie stayed back on a Friday night to have work drinks with her colleagues. At the end of the night, Graham asked Julie whether she enjoys having sex with her boyfriend. Graham then grabbed Julie’s breasts and tried to kiss her. Julie froze and tried to pull away. Julie left the party and Graham sent her explicit text messages. Julie was too scared to go to work on Monday and thought about just quitting. Julie wasn’t sleeping or eating and she was having panic attacks when she thought about having to see Graham. Julie decided to see her doctor. Julie’s doctor diagnosed her with depression and anxiety.
Julie’s depression and anxiety was caused by her work and this injury could be classified as a psychiatric injury for the purposes of lodging a workers compensation claim.
Let’s break down what ‘psychiatric injury’ means
In the Working Women’s Centre’s experience, psychiatric injuries often include depression disorders, post-traumatic stress syndrome, anxiety disorders and adjustment disorders.
All of these disorders have a range of symptoms including but not limited to feeling sad, moody, low, hopeless, nervous and feeling elevated stress or worry. Sometimes in a sea of feelings it is also hard to pinpoint what you’re feeling and that’s okay. Beyond Blue have provided a helpful checklist to help you navigate your way through this.
Here is a link:
There are many reasons why you might be suffering a psychiatric injury, this fact sheet deals with psychiatric injuries caused by sexual harassment in the workplace.
It doesn’t take a rocket scientist to understand that if you’re suffering from a psychiatric illness, it is may affect your work. In many cases, a psychiatric illness might manifest in high absenteeism (sick days), effect productivity, or effect your ability to cope with your workload and workmates.
Like any work injury, our community recognises that if your psychiatric injury has been caused by work then you may need time off to recover, receive medical attention and consider rehabilitation options. This is why we have a worker’s compensation system to help workers recover and rehabilitate. If your psychiatric injury has been caused by sexual harassment in the workplace and it has caused you to require medical attention or time off work, then you should seriously consider making a worker’s compensation claim. If you broke your arm at work, would you think twice about making a claim? Probably not! Psychiatric injuries are just as legitimate and therefore just as compensable!
How to make a worker’s compensation claim? A step by step guide:
[Section 32 of the Return to Work Act 2014]
You may be entitled to receive interim payments while you wait for your workers’ compensation claim to be processed. If you have waited more than 10 days for your claim to be determined you must be offered interim payments. It is important to note that if your claim is rejected you may need to pay this money back. The agency will need to recover payments via debt recovery, [section 201] and it is unlikely that this will occur.
The debt recovery process occurs in the Magistrates Court of South Australia, for debts less than $100,000.00 and in the District Court of South Australia for debts exceeding $100,000.00. If the claim is for $12,000 and under the claim will be considered a minor civil claim. At the minor civil claims stage, you cannot be represented by a lawyer.
Recent changes to workers compensation in South Australia do not affect claims relating to psychological injury.
What if the sexual harassment has aggravated my pre-existing mental health issue? Can I still make a claim?
If you have been suffering from a mental health condition and the sexual harassment in the workplace has aggravated the injury, you still may be entitled to workers compensation for the aggravation. That is because the Return Work Act 2014 defines an injury that includes an injury that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury.
 Return To Work Act 2014 section 4.
Important Extras to Remember