Last week, the Australian Workers Compensation Commission (WCC) ruled that a former reality television contestant was entitled to compensation after she claimed she had been traumatised psychologically after appearing on the show.
The WCC found the woman who appeared on Channel Seven’s House Rules to be an employee of the network, and as such, entitled to compensation due to her remuneration.
Previously, the claimant had been denied a workers compensation claim after been deemed a contractor of the company, rather than an employee. The decision made recently is critical because it overturned this original decision of the Seven Network which had denied her claim.
The woman claimed that she had been portrayed negatively, “harassed and bullied throughout filming” and that she was abused on social media.
The concern is now the ramifications of the decision, which could open the door to other workers compensation claims by determining workers to be employees rather than contractors.
David Jones of Carroll & O’Dea Lawyers, one of NSW’s most experienced personal injury lawyers and a NSW Accredited Specialist in Personal Injury Law, explained that the decision had shown an employer-employee relationship, which is significant.
“You wouldn’t expect that a contestant on a reality TV show would, in effect, become an employee of the company producing the show,” he explained.
“As a consequence of that, employers need to review relationships with people, like contractors, who may, in fact, be employees and ensure that they have workers compensation coverage if that relationship should be found to be a relationship not of contractor and contractee, but in fact, employee and employer.
“Just because you don’t cast employment in a certain way, doesn’t necessarily mean that it will be found to be that relation.”
When asked if he believed that this case had set a precedent, Mr Jones said, “yes, certainly. This case will be relied upon to determine the scope of the relationship between employer and employee. It could also give exposure to claims previously thought not the be of that relationship.”
“It could definitely have some bearing in the gig economy. Employer and employee relationships are now quite sophisticated, and queries people who provide services to businesses and whether those people are, in fact, contractors or employees.”
Mr Jones explained that “business owners will need to seek legal advice. [I think] it gives expanded scope to claimants to recover compensation under workers compensation, and that then exposes the employers to damages claims and the like. It will be interesting to see what SIRA does as a result.”
SIRA, NSW’s State Insurance Regulatory Authority, regulates the workers compensation insurance scheme.
One of the more interesting factors of the case was the woman’s allegations that she had been the subject of extensive bullying and harassment on social media.
“The employer has no control over that aspect,” Mr Jones said. “The nature of these shows is that they are extensively promoted via social media. People go on these shows to gain social media followers. It’s reasonably foreseeable as an employer that these people could be subject to some online behaviour which might be distressing.
“An employer would have a responsibility to make sure it had appropriate counselling in place so that they can be guided in how they’re reacting to that sort of material. It is dangerous territory.”
Mr Jones also reminded us that, “contributory negligence is not relevant for the purposes of a worker’s compensation claim”, meaning that the contestant’s behaviour could not be determined to be a contributory factor.
“The worker only needs to show employment and injury; their behaviour does not necessarily disentitle them to compensation.”
In its ruling, the WCC concluded that the producers of the show were made aware of significant online abuse that the claimant received, but that they refused to take any steps to make the situation more bearable for the claimant.
While there has been significant discussion and potentially some pause taken by the producers of reality television programs, the case will likely be appealed.
It is the experience of Eighteen33 that other states and territories utilise a tool developed by the Australian Taxation Office to determine the employer and employee relationships, such as in QLD where there is an online tool for determining that relationship pertaining to insurance premiums and wage declarations.
NSW has no such tool in place to measure the relationship and therefore, specialist advice should be sought to confirm the nature of the relationship between employees and contractors. Eighteen 33 is able to provide further information about a business’s individual workers compensation requirements across all Australian states and territories, via our contact page.