In this edition, we address:
- An interesting decision on what evidence is required by the Tribunal for it to make a reasonably arguable case determination on a s81A referral for claims for psychological conditions based on a dispute as to the factual circumstances giving rise to the initial incapacity/injury – Harriet Frost and William Geason
- A case review regarding a pregnant worker who made a stress claim due to the Employer’s response to her request for restrictions on her duties. The case highlights the importance of carefully considering the employer’s actions when seeking to dispute liability under section 25(1A) – Mat Wilkins and Mathew Calvert
JMC Automotive Group Pty Ltd trading as Jackson Motor Company v J. [2023] TASCAT 131 (12 July 2023)
The Claim
The Worker made a claim for a psychological condition which he alleged had been caused by bullying and harassment over an extended period, and subsequently, harassment from a JMC employee at his new workplace.
The Employer’s Position
The Employer disputed liability for the claim under s81A and relied on a number of statements to argue there was a factual dispute as to the cause of the Worker’s condition and therefore he did not suffer an injury to which his employment with the Employer was the major or most significant contributing factor. Specifically, the Employer submitted that the Worker had resigned from the Employer on good terms, and that the Worker had a number of personal issues affecting his mental health such as a marriage breakdown, custody issues, a previous suicide attempt, mental health problems, alcoholism, bankruptcy. As such, the Employer said that there were a number of potential plausible causes for the Worker’s condition other than his employment with JMC.
The Worker’s Position
The Worker’s position was that the evidence filed in support of the Employer’s s81A referral provided only general denials and did not address his allegations. Further, he said that the Employer had failed to provide any detail of the investigation. It was argued that the Employer’s evidence was insufficient to inform the Tribunal of what the Employer’s case might be at a final hearing.
The Decision
Deputy President Clues accepted that the specific allegations in the Worker’s complaint had not been traversed. However, an assessment could be made based on the evidence provided, including the Worker’s complaint, as to what the Employer’s case at a final hearing would be.
On her review of the evidence, the Worker appeared to be on friendly terms with his colleagues, had participated in “banter” and had been supported through his personal issues.
The Deputy President also accepted that on one view, it was arguable the exchanges between the Worker and his colleagues could be viewed as “workplace banter”, “innuendo” or “teasing.”
The Deputy President held that in some circumstances teasing can be positive, though accepted that in others teasing can become bullying. Deputy President Clues was unable to determine whether the “workplace banter”, “innuendo” and “teasing” did amount to bullying or harassment, or whether the Worker had been a willing participant.
It was accepted that the Employer had provided evidence of other plausible potential causes for the Worker’s condition including his marriage breakdown, custody battles, a previous suicide attempt, bankruptcy, alcoholism, business failure and unstable employment.
The Learning Point
When disputing a claim for compensation in relation to psychological injuries on the basis of a factual dispute, it is critical that an Employer’s evidence addresses the allegations made by a Worker to the extent that the Tribunal is informed of what the Employer’s case may be at the final hearing.
More Information
If you have any queries or would like further information about this article, please contact:
Mat Wilkins
Principal
M: 0419 106 417
E: mwilkins@pageseager.com.au
Tom Pilkington
Principal
M: 0417 669 478
E: tpilkington@pageseager.com.au
Harriet Frost
Special Counsel
M: 0400 645 418
E: hfrost@pageseager.com.au
William Geason
Lawyer
T: (03) 6235 5170
E: wgeason@pageseager.com.au
Preston Rowe Paterson v H. [2023] TASCAT 122
Background
The Worker made a claim for compensation on 27 March 2023 alleging she was suffering from workplace stress, anxiety and panic.
In the initial workers compensation medical certificate, the Worker stated she had:
“Presented workplace with a medical letter advising appropriate restrictions to consider in work due to pregnancy. Work then called in for a meeting without advising to have a support person. Informed [worker] that they no longer had a job for her as would be unable to fulfil role, but then advised her it would be a mutual decision – despite it not. This all resulted in extreme stress panic and anxiety. In the workplace currently feels discriminated against and extremely anxious to be near Damien/Shelley and feels her work is jeopardised.”
The Employer disputed liability to pay workers compensation pursuant to section 25(1A)(a), (b) and (c) of the Act. In effect, the dispute was on the basis that the injury the Worker was suffering from was a disease which arose substantially from reasonable action taken by the Employer in a reasonable manner.
In support of its argument, reliance was placed on a statement from the Employer. The Worker commenced employment on 28 July 2020 and transitioned into the role of assistant graduate valuer on 13 May 2022. The Worker was expected to undergo training for a further 12 months and after passing an exam to transition into the role of property valuer. At the date of the injury the Worker was still required to undertake inspections with a supervisor and not independently.
On 16 March 2023, the Worker provided the Employer with a letter from a medical practitioner outlining some advisable restrictions in performing her role as an assistant property valuer due to being pregnant. In brief, these included not inspecting properties that had wet paint, known mould/fungal issues or issues with rot.
The Worker requested another assistant valuer go to an upcoming valuation due to the building being condemned and on advice from other employees the building was rotting. The Worker stated in that email that she was still able to perform her job just with precautions.
The Worker was asked to attend a meeting the next day. At that meeting the Worker was advised the restrictions put in place by her doctor meant she was unable to undertake her role and there was no alternative role for her to undertake. There was discussion of the Worker moving into a suitable role with a different Employer. The Worker did not attend work on 20 and 21 March 2023.
On 21 March 2023, the Employer advised the restrictions contradicted the duties she was required to perform, and the Employer was seeking business advice to collaboratively problem-solve and navigate the situation. The Worker attended work between 22 and 24 March 2023 but was not permitted to attend any property inspections. She provided her initial workers compensation medical certificate on 25 March 2023.
The Issue
The issue before TASCAT was whether it was reasonable for the Employer to advise the Worker that there was no alternative role for her to undertake and that she should consider alternative suitable employment.
The Decision
Deputy President Clues on examination of the evidence, including the Worker’s Terms of Employment, found that of the 10 duties listed only two of those were impacted by the restrictions.
Deputy President Clues stated that even if it were accepted that attending property inspections was a fundamental aspect or requirement of the Worker’s role, she did not accept the Worker was prevented from attending all property inspections.
The relevant actions or decisions of the Employer were found to be:
- Calling the Worker in for a meeting without advising her to have a support person;
- Informing the Worker that they no longer had a job for her [due to the restrictions referred to in the medical letter] she would be unable to fulfil her employment role; and
- Advising the Worker that the decision for her to leave her job would be mutual – despite it not being so.
Deputy President Clues found that none of the actions or decisions of the Employer were reasonable actions taken in a reasonable manner, nor were they decisions based on reasonable grounds. She went on to state that the actions of the Employer amounted to a gross overreaction to the Worker’s request for minor reasonable restrictions to be put in place to reduce the risk of harm to her baby.
As a result, the Deputy President held that the Employer had failed to discharge the onus of proof for the referral and none of the grounds raised were reasonably arguable.
The Learning Point
TASCAT’s decision provides a valuable reminder to employers and insurers that close attention should be paid as to what actions/decision were made in relation to the Worker’s employment and, if after analysing the evidence as a whole, those actions could be considered reasonable. It is also imperative to carefully analyse the matters to be put before TASCAT, in this case the Employer’s statement that the Worker was “advised that there was no alternative role for her to undertake” was at odds with a previous statement that the Worker “at no time was advised that we did not have a role for her”. This contradiction enabled TASCAT to find that the Worker reasonably believed that the Employer intended for her employment to come to an end.
While the reasonably arguable case is considered a relatively low threshold for section 81A referrals, careful consideration should still be given to the evidence obtained from the Employer particularly when reliance is placed on section 25(1A) to dispute liability.
More Information
If you have any queries or would like further information about this article, please contact:
Mat Wilkins
Principal
M: 0419 106 417
E: mwilkins@pageseager.com.au
Mathew Calvert
Lawyer
T: (03) 6235 5178
E: mcalvert@pageseager.com.au
