Unfairly sacked workers can claim damages for psychiatric injury after High Court ruling

The majority opinion said, “psychiatric injury is an illness which is a different type of damage from mere mental distress”. It noted a person’s employment “is usually one of the most important things in his or her life”.

“‘It gives not only a livelihood but an occupation, an identity and a sense of self-esteem.’ An unfair process of termination for alleged misconduct could affect all three of those interests,” the majority wrote.

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They noted “a great deal of water has passed under the bridge of Addis in the United Kingdom” in the last 100 years, indicating it had been “overtaken” by other legislation and case law that subsequently could not be “transplanted to Australia”.

Harben, a workplace relations advisor, said the law had evolved faster in the UK compared to Australia, but there may be “no good reason” for that.

“Sometimes it’s just the right case at the right time coming along with the right facts,” he said.

Arnold Thomas Becker senior associate Nick Korkliniewski, who represented Elisha, said his client’s employer should have followed their own disciplinary procedures if they wanted to sack him.

In a statement, Korkliniewski said: “Community expectations around rights to psychological safety at work and the de-stigmatisation of psychological injury means that the time was right for the law to recognise the requirement of an employer to consider their employee’s psychological health in the course of investigative and disciplinary processes.”

Vision Australia have been contacted for comment.

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