By

Mike Toten

Mike Toten is a freelance writer, editor and media commentator.

An employee who was subjected to attacks on social media by current and former work colleagues and then suffered a psychological injury has failed in his claim for workers compensation.

The NSW Personal Injury Commission found there was insufficient connection between his injury and his employment.

The employee worked in a cinema. While at home, he commented on Facebook that he had been to a show by a US comedian. A former work colleague put a post on Facebook criticising both the comedian and the employee for having supported him. Then a current co-worker joined in, making it clear that she disapproved of the employee, both as a person and a co-worker. Then other co-workers “liked” her comments. Eventually, there were about 20 comments posted on the same afternoon.

The employee claimed he then had a panic attack because he was fearful of facing his co-workers when he returned to work. He was unable to attend work and was diagnosed with anxiety and adjustment disorder, but his workers compensation claim was rejected.

The employee appealed against that decision, claiming that it arose from his fears that he would not be able to face his co-workers and be able to perform his job. He argued that “but for” his employment at the cinema, his injury would not have occurred – if the alleged attacks had occurred while he did not work there, they would not have triggered the injury.

Decision

The Commission agreed that the Facebook posts had triggered his injury, but rejected his claim and his “but for” argument.

It found as follows:

  • The original post about attending the show was unrelated to his employment and was made while he was not at work.
  • The negative responses to the post occurred before he returned to work. Therefore, they were also unrelated to his employment.
  • His main “critic” on the posts was a former employee, not a current one.
  • The employee was never actually exposed to a hostile work environment; he was concerned that it may become hostile when he returned to it.

For the above reasons, there was no unbroken causal connection between sustaining the injury and his employment. And even if there was, it was not a “substantial contributing factor” towards the injury.

What this means for employers

This case provides some insight into the degree of “connection” required between an injury and employment for the injury to become compensable.

The “but for” test of causation is not the correct one – whether the injury arose out of or in the course of employment is the one used.

In this case, the content of the Facebook posts was unrelated to employment and did not occur while any of the posters were in the course of their employment. Also, the employee’s adverse reaction to them occurred while he was not at work and before he returned to work.

Read the judgment

Williams v Dendy Cinemas Newtown [2023] NSWPIC 675 (14 December 2023)