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Employer exacerbated trauma from sexual assault

Her workers comp claim was disputed.
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Employer exacerbated trauma from sexual assault

Employer exacerbated trauma from sexual assault

3 March 2021

By Gaby Grammeno

When a woman working at a police station in a Sydney suburb was sexually assaulted by a police officer at a work social event and suffered a psychological injury as a result, her workers comp claim was disputed. The commission tasked with resolving the dispute, however, found that her employment was the main contributing factor to an aggravation or exacerbation of her psychological condition and she was entitled to compensation.

The incident

The worker was employed by the NSW Police as a principal executive officer, based at police headquarters at a western Sydney location.

At a work social event in December 2019 to farewell a senior police officer, she’d been sitting on a bar stool when she was intrusively assaulted by a professional acquaintance, then asked by a security guard to leave. The assailant left with her. They walked to a nearby park, where he raped her.

The woman reported the assault to her employer the next day. She was removed from her role and transferred to a different office.

She submitted an Incident Notification Form and a claim for workers compensation a week or so after the assault, but her employer’s insurer issued a notice disputed the claim. The following month she again provided an Incident Notification Form, but again the insurer declined liability for the alleged injury. After an internal review, the insurer confirmed its decision to reject the claim.

The worker then applied to the NSW Workers Compensation Commission to resolve the dispute.

In the Commission

The employer’s position was that the assault did not occur in the course of, nor did it arise out of, her employment.

The worker’s statement said the sexual assault was a traumatic event and she felt humiliated and ashamed. The assault itself and the stress of needing to report it and having it investigated, including undergoing intrusive intimate forensic procedures, had caused her to suffer a psychological injury.

She disclosed her psychological history, noting that she’d been diagnosed with depression two years earlier, which she’d managed with medication. Since the assault, the daily dose of her medication had increased.

No action had been taken to suspend or remove the perpetrator from the workplace, but the woman was keen to return to work to reclaim a sense of control, normality and routine in her life and career.

After an initial offer to return to her previous workplace but be deployed on a different floor, her boss was concerned that might not be advisable and asked her to work at an inner city office instead. She agreed, but her new role was undefined, there was no timeframe on the arrangement and no date set for her to return to her previous role.

She felt that the move had defined her as the problem, a burden to be managed, and that she’d been transferred to preserve the perpetrator’s working conditions and rights. She felt that losing her role was a huge loss, and that she’d been put in a ‘dumping ground’ and excluded.

A medical assessment recommended a part time return to work at her previous office in March, but by then COVID-19 restrictions were being implemented and she was directed to work from home. In late May she was told she could return to her previous workplace from 9 June but before she commenced work there, she was informed that there would be no work there for her until 1 July.

She felt her employer was withdrawing support when she needed it most, and this aggravated her psychological condition.

Almost eight months after the assault, the perpetrator was removed from her previous office. She was finally able to return to work there on 4 August –– but in a different role.

Evidence provided by medical practitioners was largely consistent with the worker’s representation of events. Her treating psychiatrist ‘reinforced how badly treated [the worker] has been through this’.

The commission determined that the woman’s employment was the main contributing factor to an aggravation or exacerbation of the psychological condition she experienced as a result of the assault. She was partially incapacitated for work as a result of the compensable injury. Accordingly, she was entitled to compensation, including her medical and related treatment expenses.

The bottom line: Employers should provide appropriate support to anyone who is the victim of an assault, not protect the perpetrator while demoting and transferring the person who’s been assaulted.

Read the judgment

Nguyen v State of New South Wales (NSW Police Force) [2021] NSWWCC 35 (3 February 2021)

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