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Performance Appraisal for s11A Defence

  • Newsletter Article
  • Published 18.04.2019

Dinning v Westpac Banking Corporation [2019] NSWWCC 49

The worker made a claim for medical expenses for treatment of a psychological injury suffered as a result of being aggressively targeted and harassed by management in relation to her job performance.

The employer accepted ‘injury’ and ‘incapacity’ as alleged by the worker but raised a defence to the claim relying upon section 11A of the WCA. This led the Arbitrator to focus on the definition of ‘performance appraisal’ in the context of the section and the applicable case law which indicated that this was not an informal and ongoing process but rather, a limited discreet process like an examination to determine the employee’s efficiency and performance.

The Arbitrator found that a series of meetings and discussions held between the worker and management concerning aspects of her work were not formal processes of performance appraisal but were in response to managerial issues that arose from her work. There were no specific processes put in place or guidelines established that could be recognised as constituting performance appraisal. In the absence of any overall assessment or evaluation of her work, the Arbitrator held that employer’s actions were not related to any recognised procedure or appraisal so that the section 11A defence was not made out.