It is well known that mental health claims are an increasing in workers compensation in New South Wales.
Depending on your situation, the following scenarios may give rise to a psychological injury:
- excessive workload;
- insufficient resources;
- a confrontational workplace;
- exclusion by colleagues;
- encounter with traumatic incidents;
- unjust treatment at work.
Whilst it is evident that situations of this nature can transpire, the test for a psychological injury is contingent on several factors, such as eligibility, evidence, and time limits. For further information, refer to our article “How do you prove psychological injury at work?”
Section 11A
In the context of psychological injuries, s 11A of the Workers Compensation Act 1987 (NSW) (“The Act”) operates as a defence for employers.
In BFZ v Inner West Council, Principal Member John Harris succinctly summarises the requirements as follows:
‘The three elements in s 11A which the respondent must prove on the balance of probabilities to establish the defence pursuant to s 11A are whether the psychological injury was:
(a) wholly or predominantly caused;
(b) by reasonable action taken by or on behalf of the employer, and
(c) with respect to one of the matters set out in the section.
It is imperative that all of which must be established for the defence to apply. The matters listed in the section are transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
The recent matter of Brennan v BWP was determined by Member Diana Benk on 4 April 2024. This is a significant case that illustrates how the Personal Injury Commission considers situations where an insurer tries to argue s 11A should apply.
Background
The worker had sought weekly compensation and medical expenses after sustaining a psychological injury at work. The claim was originally accepted, however, the insurer disputed the claim on the grounds that the injury was wholly or predominantly caused by reasonable action taken by the employer with respect to discipline.
On 11 November 2022, the worker became ill with flu-like symptoms. On the same day, the employer contacted the worker to address a work-related complaint. As a result of the conversation, the employer unilaterally decided to remove a case from the worker’s caseload.
Following the conversation, the worker took the view that they were not afforded an adequate opportunity to respond to the complaint. Regardless, the worker advised that a medical certificate would be provided for their absence.
Whilst on sick leave, the worker’s mental health deteriorated due to the employer constantly contacting the worker via email and mobile in relation to work related matters. On 14 November 2022, the worker developed anxiety-like symptoms that arose from the conversation that occurred on 11 November 2022.
The employer maintained that the communications (‘seven telephone contacts and several email contacts over a period of four working days’) were solely to inquire into the ‘genuine welfare’ of the worker. Whereas the worker held that these communications amounted to numerous incidents of harassment.
The intricacies of discipline
With respect to discipline, the term is not defined in the Workers Compensation Act. Case law such as Kushwaha v Queanbeyan City Council (Kushwaha) has traditionally provided guidance in defining the term.
Member Benk commented on the complexities of defining ‘discipline’ and provided an extremely interesting analysis and perspective on the well-known case of Kushwaha.
In Kushwaha it is suggested:
‘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’
Member Benk’s commentary from paragraph 23 - 33 is a fascinating and valuable read on the relationship between ‘discipline’ and the modern workforce.
Whilst all of the discussion is of assistance, we note paragraph 25 which ventilates the perspective of the Member thoroughly:
- “The Kushwaha discipline definition is broad and suggests that “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”. In today’s workforce, “learning or instruction, maintenance with training or repetition” would most likely at first instance be labelled/defined a development plan, performance plan or coaching improvement plan designed to remedy shortfalls in performance or behaviour. Should desired outcomes of the plans not be met, punitive measures such as “discipline” are then generally invoked, resulting (once certain procedural steps are taken) in reprimand or punishment with defined consequences on the contractual employment relationship. This differs to performance management which is another kettle of fish. No doubt given the evolution of the workplace landscape including changes in workplace practices/culture and behaviour, the desire to retain staff due to costs of recruitment and turnover, increasing expectations of employees and employers, greater awareness of neurodiversity and personality types of the workforce, technological advancement and adaptions to remote work, my views on this definition are likely to be considered outdated before the ink on this decision dries! Simply put workplace expectations and culture in 2002 when Kushwaha defined “discipline” differ significantly to the current work environment, and whilst I long for yesterday once more, asking me to apply Kushwaha uncritically is like asking me to commit to working on a dial up platform in a 5G world!"
Ultimately the Member found the s 11A defence did not apply.
The Member found that the actions did not amount to ‘discipline.’ In addition to this conclusion, Member Benk maintained that even if discipline could be found ‘by some stretch of the most broadest definition and imagination…’ the actions of the respondent were not “reasonable.”
This commentary is very insightful as it sheds light on the possible trajectory of s 11A cases. While this case was in the injured workers’ favour, it gives a fresh perspective on the notion of discipline, and this could potentially change the approach for future mental health claims.
Whilst this is not directly relevant to the current case, we do note the recent media interest in the ‘right to disconnect.’ This is a protection for employees that provides them with a right to refuse contact outside their working hours. For further information please refer to: https://7news.com.au/sunrise/aussie-firm-ordered-to-pay-workers-compensation-for-contacting-employee-on-sick-leave--c-14586703
If you or anyone you know are challenged with a s11A please do not hesitate to contact our firm for legal assistance or further information.
