Employer’s s11A defence confirmed at Presidential level
- Newsletter Article
- Published 14.07.2020
BC v State of New South Wales (NSWWCCPD 2020) (19 June 2020)
Deputy President Wood confirmed a senior arbitrator’s decision in favour of the employer on the basis that the employer had successfully demonstrated the worker’s psychological condition was wholly or predominantly caused by reasonable action taken by the employer with respect to discipline (the s11A defence).
Shortly after receiving correspondence from the employer in late December 2017 notifying him that an investigation was going to be conducted into a workplace incident involving the worker some months earlier, the worker alleged a psychological injury due to workplace bullying.
The employer conceded that the worker had suffered a work-related psychological condition however, the employer disputed the claim in reliance on the s11A defence (s11A of the Workers Compensation Act 1987) specifically on the basis that the worker’s accepted psychological condition was wholly or predominantly caused by reasonable action taken by the employer with respect to discipline.
The worker commenced proceedings in the WCC.
Senior Arbitrator Josephine Bamber found that the employer’s correspondence to the worker notifying him of the investigation and to set up a fact finding meeting were the start of the disciplinary process, and receipt of that correspondence by the worker was the predominant cause of him developing a psychological injury. The fact that the employer ultimately did not take any action against the worker was of no consequence noting the Court of Appeal had previously held that, in assessing reasonableness, the relevant material is what was in existence at or prior to the time when the decision was made and communicated to the worker.
Arbitrator Bamber found that the employer had established that its actions in relation to discipline were reasonable and that the defence under s11A had been made out thus warranting an award in favour of the employer.
The worker appealed Arbitrator Bamber’s decision.
The single basis of the worker’s appeal against Arbitrator Bamber’s decision was that she erred in finding that the employer’s actions had been reasonable.
Because Arbitrator Bamber’s decision that the employer’s actions were reasonable was a factual determination, in order to overturn the decision, the worker needed to establish that material facts were overlooked or afforded too little weight by the Arbitrator.
After reviewing all the evidence, Deputy President Wood concluded that:
175. It is abundantly clear … that the Senior Arbitrator found that the disciplinary action which predominantly caused the injury was the receipt by the appellant of the two letters dated 28 December 2017. It is also abundantly clear that the Senior Arbitrator provided sufficient reasons to explain that conclusion.
176. The conclusion reached by the Senior Arbitrator was open to her.
177. The appellant has failed to establish error on the part of the Senior Arbitrator. There is therefore no basis upon which the Senior Arbitrator’s determination should be disturbed and the determination is confirmed.
Deputy President Wood’s decision is confirmation that a thorough s11A defence can result in an employer defeating a worker’s claim of a work-related psychological injury. This even where it is accepted that the worker had a work-related psychological condition and even when the disciplinary action taken by the employer (according to the s11A provisions) might appear to be more of an investigative/fact-finding nature.
Richard Orr acted for the employer in the proceedings.