Work injury and reasonable management action: NSW legal case

stress-claim-workcover

The following legal case (NSW) related to alleged workplace bullying and abuse, again, highlights the “reasonable administrative action” defence so extremely heavily relied upon by workcover insurers and employers to reject “stress” claims.

In determining whether management action is ‘reasonable’ pursuant to s 11A of the 1987 Act (in NSW), the Commission (or Court) will assess  both the management action (transfer, demotion, promotion, performance appraisal, discipline, redundancy, dismissal or the provision of employment benefits etc) and the manner in which the action, including any related investigation process, is carried out.

In this case, the worker’s injury was said to have arisen predominately from reasonable management action with respect to discipline.

Work injury and reasonable management action: NSW legal case

stress-claim-workcover

Further to our related article “Stress claims and reasonable administrative action in the workplace which summarises the essence of how to lodge a workcover claim for stress, what ‘reasonable administrative action in the workplace’ is,  here is -again- a good illustrative legal case (NSW) highlighting the “reasonable administrative action” defence so extremely heavily relied upon by workcover insurers and employers to reject “stress” claims.

Background of the legal workcover NSW case

Mr A (the psych injured worker) alleged that he had suffered a psychological injury arising from the nature and conditions of his employment with Rail Corporation NSW  between 2001 and 2010.  The injured worker relied on a number of separate incidents that he considered to be abuse and/or bullying and he also claimed that the process taken in undertaking a “disciplinary investigation” was unreasonable and also contributed to his psychological injury.

The Respondent (employer/insurer) disputed liability and relied on the defence under s 11A of the Workers Compensation Act 1987 (NSW) (the 1987 Act) – that the Worker’s injury arose wholly or predominately from reasonable management action with respect to discipline.

The injured worker relied on evidence from fellow colleagues and medical evidence, in particular, from his General Practitioner who diagnosed him with “Adjustment Disorder with Mixed Anxiety and Depressed Mood”.

The hearing

The Arbitrator  (Wynard) initially found that the employer’s actions were not considered to be bullying or harassment.

The Arbitrator also found that the medical history did not show that the injured worker had suffered a psychological injury before receiving notification of the disciplinary investigation.

Furthermore, he found that while there was evidence that the injured worker’s psychological injury arose from the commencement of the disciplinary investigation the employer had taken reasonable disciplinary action.

The appeal

The injured worker appealed the decision stating that the Arbitrator had erred on a number of grounds, each of which Deputy President (DP O’Grady) rejected.  The Deputy President found that the Arbitrator  had rightly considered all of the evidence and as such it was open to the Arbitrator to come to his conclusions.

In relation to the employer’s defence under s 11A of the 1987 Act, it was submitted by the injured worker that the Arbitrator erred in finding that the action of the employer in regard to discipline was ‘reasonable’.  The injured worker argued that the process in which the disciplinary investigation was carried out (the length of the process and not being informed throughout the process) was not reasonable. However the Deputy President rejected the injured worker’s argument, stating that the Arbitrator had provided reasons for his decision, in determining that the four month period taken for the disciplinary investigation was not prolonged or unreasonable.

You can read the full text of the legal case here: [2013] NSWWCC 407, and Andrews v Rail Corporation NSW [2014] NSWCCPD 7

 

As we covered in our previous article, in order to have a chance at a successful stress claim, the following is needed:

  • the injured worker needs to prove that they have a recognised, diagnosable psychological and/or psychiatric condition/illness. Simply being ‘stressed’ is not enough to successfully lodge a workcover claim!
  • provided the injured worker has been diagnosed with a recognised psychological/psychiatric illness/condition, the (injured) worker must also prove that work was a ‘substantial or significant cause‘ of the development of the mental illness/ condition. This is NOT (always) straightforward
  • Even in case the injured worker is suffering from a psychological/psychiatric condition/illness and work was a substantial cause of the illness, the employer and/or workcover may then (as was the case here) rely on the defence that the condition illness resulted from ‘reasonable administrative action taken in a reasonable manner’.

Summary

Not all work related stress, anxiety or depression means that a person is entitled to worker’s compensation. Being depressed or upset that you were refused for example a pay rise or promotion is not generally considered to result in a workcover claim.  Likewise, suffering emotionally (even severely) after being disciplined for alleged poor work performance would not normally result in workcover claim being accepted, unless you could show that the way you were disciplined was not reasonable. Basically, If the insurer finds that your psychological condition has arisen as a result of “reasonable administrative action taken in a reasonable manner” then your claim for compensation for psychological injury will be rejected.

And so  it is that many psychological cases are notoriously hard to win



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One Response to “Work injury and reasonable management action: NSW legal case”

  1. The suggestion of a case which is hard to win.Well if your hair isn’t curly read on,I witnessed my mates rear vision being smashed of his car by another employee I’d just started there the building site had been under construction for some months. He fixed his car and told not to approach the aggressor it would worsen the situation ,What, if that took place in the street you would be arrested correct. Then in a meeting about us not being paid properly the general manager firmly suggests to the union organiser to stop talking some colourful language was used to the union organiser he crossed his arms two steps backward and said not another word he is now the state secretary of that union strange.It was then asked who was the delegate he stood up nice and proud he was told to go to the site office never to be seen again we then were told to go back to work. I’m glad I did not pay the fees ten Minuats before.Strange that never seen the organiser either,the same aggressor is not impressed then takes it out on another employee, he’s is letting me stay at his house until I find my own rental a decent person.Then next I approach the Forman with the do not approach comment when I said he threatened to bash Ian get him of the job he replied”do you realise I have three beautiful daughters at home and walked into the site office strange. Then I have my hard hat ran over flatend out by this ediot in his car still being hassled to join the union why he has never came back a wast of $680.Then hassled by the labourer threatened,I quit then met at the pub on my way home by six unknown people I’m keeping this brief.Workcover told to investigate ten months pass refuse to complete instructions tell me to ring a politicton see if they care hung up.Qcomp told me to to ring the Attourny generals office.Finally someone starts to speak to me I’ve also just fallen around that time backward into a trench bad concentration no rehab from Workcover from the met after work job issue. Who do these people think they are thanks Shine for giving all of us now a voice after proving No reasonable management action taken no real hard /duty of care ,the harassment code/the witness statements taken gold.Then typed on there phone notes the absence of a policy does not prove or indicate an unsafe place to work and last page it says your claim has not been assed if the company has enacted all aspects of the legislation 30pages before on there notes is says it will be assed by the legislation.Then after the verbal warning decision by the qld industrial retaliations I supposed to pay &6186.00 all because I spoke up what is that fair.Still to this day I’ve not been provided the random document which 30plus employee’s signed saying anyone doing a thing unsafe would be sacked.Should not management be the first,allowing the threats to go unchecked .I looked up codes of practice’s last week on the net in Qld there is now no harassment code.I’ve spoken further to all Qld depts involved since the bill right to the top.I’m not paying that bill no no the prime minister Julia Gillard told Jane mc’luces to respond on her behalf go back to the Qld Gov they won’t act.Ive also been approached by some joker telling me not to worry about the person with the tatto on there neck you worry about the person wearing the suit look like there stepping it up again.I have pushed this pretty hard never thought it would come to this.What fair about that I do feel a little safer with this on the net puts a few people on notice.workcover knows of this website they know I’ve spoken to the police for at least 4hours Cib police headquarters Qld I’ve asked for my phone to be tapped maybe there now have been others I hope I’d feel safer that’s for sure.last resort Federal Gov again last week at least 20calls over time these people at Workcoverup think for one second I’m giving in no no Cdpp see what they will do good luck all one more look up 2008 Un agreement discrimination of people with disability That will help everyone on this site please look under legal &education that’s Gold all the help we need found it last week finally now legal help wow.how does a tradie present a court case same an a judge would in stall a hot water system with some one yelling at them same as I did present my case seriously what could be expected.Some need to walk the reality tight rope come and work were I was you’ll need good coordination if you you speak up as I did.Things need to change and support to our workplace laws by a few now before more suffering you people know what can we do?

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