Brennan v BWP (NSWPIC 2024)

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Key Takeaways

In this decision, the Commission explored what is meant by ‘discipline’ as a category that appears in the s11A(1) defence for psychological injuries. The Member’s decision provides guidance on how to examine whether an employer action, when some learning or instruction is imparted on the injured worker, falls within that specific s11A(1) category.

Brief Facts

The worker, a return to work coordinator, alleged that she sustained a psychological injury due to bullying and harassment at work, deemed to have occurred on 21 November 2022. The two main grievances which allegedly caused the injury were as follows:

Grievance one: On 11 November 2022, while on sick leave with rhinovirus, the worker was notified of a complaint against her. The complaint related to a phone conversation with an injured employee, in which the injured employee believed the worker was being rude. The worker explained the conversation occurred while the injured employee was driving, and it was difficult to hear.

Grievance two: Between 14 and 18 November 2022, while still on sick leave, the worker received numerous contacts from her manager, including a voicemail being told that if she didn’t return the call, the manger would arrange a police welfare check. The manager’s evidence was that the contacts were to educate the worker about sick leave policies, and genuine concerns for her safety and wellbeing.

The employer accepted that the worker suffered a work related psychological injury and relied on the s11A(1) defence. Section 11A(1) of the 1987 Act states:

Compensation is not payable if the injury wholly or predominantly results from reasonable action taken or proposed to be taken by the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment, dismissal or the provision of employment benefits.

The employer argued that the whole or predominant cause of the worker’s injury was the employer’s reasonable action with respect to discipline. The employer relied on the broad definition of ‘discipline’ set out in Kushwaha v Queanbeyan City Council [2002] NSWCC 25 (Kushwana). The Member confirmed that the meaning of discipline set out in Kushwaha was: “learning or instruction imparted to the learner and the maintenance of that learning by training, by exercise or repetition is part of the primary meaning of discipline”.

Judgment

The Member was critical that the discipline definition in Kushwaha continued to have a practical application in modern workplaces. Regardless, the Member did not go so far to find that the discipline definition in Kushwaha was not good law. The Member however found that the s11A defence was not made out in this case because:

Grievance one: the employer imparted some instruction to the worker, but did not seek to maintain that by training, exercise or repetition. The action therefore fell short of the ‘discipline’ s11A category. Further, the employer did not act reasonably by failing to give the worker an opportunity to respond to the complaint.

Grievance two: the employer sought to educate the worker about its leave policies, but again this fell short of the definition of discipline, even applying the definition established in Kushwaha. Further, the employer did not act reasonably in contacting the worker by email and phone regularly over four days on the worker’s private devices while the employer knew the worker had a non-workers compensation medical certificate.

Implications

We may start to see the Commission distancing itself from the broad discipline definition set out in Kushwaha. Regardless of that, this is a good example of the evidentiary burden which lies on employers to establish all elements of a s11A defence. That is, not just that the action was reasonable, but first that the action actually falls into a s11A category.