Webb v State of New South Wales [2019] NSWWCCPD 50 (13 September 2019)

Summary

The worker suffered a psychological injury on 21 April 2017 after a meeting in which his employer advised him of an investigation into an allegation of non-work related misconduct. The worker was subsequently exonerated.

Despite the fact that the allegation was of non-work related misconduct, the employer was under a duty to investigate.

The worker made a claim for weekly payments, medical expenses and lump sum compensation in respect of 16% whole person impairment.

The claim was denied on the basis that the injury was wholly or predominantly caused by reasonable action taken by the employer in respect of discipline, pursuant to section 11A(1) of the Workers Compensation Act 1987.

The Arbitrator found in favour of the employer and the worker appealed the decision.

Background 

The worker submitted that the meeting did not constitute disciplinary action as the meeting was called to ensure that the employer complied with its statutory obligations to investigate allegations of employee misconduct involving children.

The Arbitrator did not accept this submission, and determined that disciplinary action was a potential outcome of the investigation. The Arbitrator further determined that the fact that the worker was allocated alternate duties and was transferred to a different office pending investigation indicated a relationship between the meeting and potential discipline.

The Arbitrator found that while there had been psychological injury, it was wholly or predominantly the result of reasonable action taken in respect of discipline.

On appeal

Deputy President Elizabeth Wood noted the worker’s submissions to the effect that the Arbitrator had erred in determining that the employer’s action was with respect to discipline.

The employer submitted that the investigation was ‘with respect to discipline’ given the potential disciplinary action if the allegation of misconduct had been proven as a result.

Contrary to the Arbitrator’s view, Deputy President Wood considered the fact that the alleged misconduct did not occur at the workplace, and that it was non-work related to be highly relevant. She noted that the definition of discipline as indicated in Dennis, involves action taken in relation to the worker’s conduct or performance either in the workplace or arising out of the worker’s employment.

Relying on interpretations of ‘discipline’ in Kushwaha and other more recent case authorities which adopted a narrower definition of the term, Deputy President Wood held that there was no process instigated by the employer that was disciplinary in nature within the scope of the meaning attributed to it in those cases.

Deputy President Wood held that although the employer’s actions were reasonable, they were not with respect to discipline for the purpose of section 11A.

Implications

Action cannot be considered to be ‘with respect to discipline’ where that action may result in disciplinary measures on the basis of a potential finding or outcome.