Vinod v Boral Shared Business Services Pty Ltd [2019] NSWWCC 254 (25 July 2019)

Summary

An employer has successfully defended a worker’s claim for psychological injury relying on section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’).

Legislation

Section 11A of the Workers Compensation Act 1987.

The employer has the onus of establishing a defence to a claim for psychological injury under section 11A of the 1987 Act. The employer must prove that the worker’s injury was wholly or predominantly caused by reasonable actions taken in relation to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of the worker.

Background

The worker had commenced work with the employer in September 2007. He alleged that he had been subjected to poor management, workplace bullying and stress from about May 2015, when he started reporting to a new manager.

The worker claimed that his new manager had a micromanaging style and that he was overbearing. The worker alleged that he was singled out and bullied about his time sheets.

The employer submitted that the worker was ‘asked to do no more than other employees in relation to the completion of timesheets’ and that completing these records was an essential requirement of the worker’s employment.

A number of meetings were arranged with the worker to discuss completing timesheets. The worker did not attend a final meeting that was scheduled for 6 February 2017 and resigned later that day. The employer planned to terminate the worker’s employment on the same day.

Decision

The dispute came before Arbitrator Burge who was required to determine:

1. whether the worker’s injury was wholly or predominantly caused by the actions of the employer;
2. whether the actions taken by the employer related to performance appraisal, transfer and/or discipline of the worker; and
3. whether the employer’s actions were reasonable.

The worker’s evidence revealed that ‘it was overwhelmingly the issue of timesheets which caused his difficulties in the workplace’. The worker did not describe any specific incidents which he claimed to constitute examples of bullying and harassment, other than matters relating to timesheets.

Arbitrator Burge noted that the worker’s treating psychologist had suggested there were elements of workplace bullying involved but did not set out specific instances of the bullying in his reports.

Contemporaneous clinical notes of the worker’s treating medical practitioners referred to stress stemming from the completion of timesheets. The employer also obtained medical evidence which supported the view that the issue relating to the timesheets wholly or predominantly caused the worker’s psychological injury.

Arbitrator Burge concluded that the worker’s injury was predominantly caused by the employer’s actions with regard to discipline. In his opinion, each of the employer’s actions predominantly arose from the issue of the worker’s completion (or non-completion) of timesheets.

Arbitrator Burge accepted that the test of reasonableness of the employer’s actions was objective. He noted that the requirement to complete timesheets was shared by every person in the worker’s team. Arbitrator Burge found that it was reasonable for the employer to request the worker to complete the timesheets as it was a fundamental part of his employment.

Critically, Arbitrator Burge stated:

“...when the respondent became aware of the applicant’s issues with regards to timesheets, it began a careful, measured and considered approach to try and assist the applicant to complete the timesheets as required…

In my view, the respondent reacted appropriately in undertaking an investigation into whether the requirements of the applicant’s role were too onerous, and once that investigation concluded, took appropriate steps by way of discipline and performance management to try to have the applicant comply with the directives of his employer. “
The section 11A defence was successfully made out with an award entered in favour of the employer in respect of the claim for weekly compensation and section 60 expenses.

Conclusion

In order to successfully defend a claim relying on section 11A, the medical and factual evidence must support the employer’s contention that the worker’s psychological injury was wholly or predominantly caused by reasonable actions taken in relation to transfer, discipline and/or performance appraisal.