Psychological injury claims – the importance of weighing up all the evidence
Over the last decade workers compensation claims for psychological injuries have almost doubled[1], and more than ever these matters are making their way to the Personal Injury Commission for determination.
The events which led to the injury in question are viewed differently by the parties involved, and in some cases it is denied the events occurred at all. In these cases, it is important to weigh all of the evidence from a witness when determining the claim.
Success Ventures Pty Ltd v Gacayan [2022] NSWPICPD 50
This issue was key in the recent presidential decision in the matter of Success Ventures Pty Ltd v Gacayan [2022] NSWPICPD 50.
The worker in this case was employed as the Assistant Chief Engineer at the Park Royal Hotel Darling Harbour.
On 15 August 2018, the worker engaged a contractor for work at the hotel, but his manager, the Chief Engineer, disapproved and told him not to call any contractors or suppliers in what he said was in a loud and disrespectful manner in front of the engineering team.
The worker claimed after this incident, his manager made daily public insults and humiliated him, making him feel unwelcome, harassed, and bullied. He was excluded from work meetings and activities and was excluded from normal activities in favour of less experienced personnel.
After discovering irregularities in the employer’s procurement and management systems, the worker reported the matter to the head office, and a subsequent audit revealed procurement irregularities existed within the hotel.
The manager resigned shortly after this and the worker submitted an Expression of Interest for the Chief Engineer role. He was interviewed for the role but claimed he was victimised, ambushed, and belittled during the interview. He believed the interviewers ‘took revenge’ for his raising and reporting irregularities in procurement. He also claimed that he was threatened and that he felt intimidated, humiliated, and discriminated against because of his Filipino background.
After the interview, the worker withdrew his application and wrote two letters to the CEO of the company in Singapore. The first letter repeated his earlier allegations about the manager and procurement improprieties. The second letter detailed his claims of bullying.
The worker’s employment was terminated on 10 January 2019 due to significant discrepancies and inconsistencies found in his claimed work history during the interview process for Chief Engineer role.
The worker claimed he suffered a psychological injury due to the conduct of his manager and the staff involved in the interview.
The claim was disputed in part on the basis of section 11A(1) of the Workers Compensation Act 1987 on the grounds the injury was due to reasonable action taken by the employer with respect to promotion, discipline and/or performance appraisal. There was also a dispute about whether the injury arose in the course of the worker’s employment.
After an arbitration, Member Burge found the worker suffered a psychological injury in the course of his employment and that it was not caused by reasonable action by the employer with respect to performance appraisal, discipline, or promotion.
The employer appealed this decision on six grounds, including that
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The Member erred in law in concluding the worker’s evidence regarding the hostility and intimidation by the worker’s manager should be accepted because it was uncontradicted.
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The Member committed a jurisdictional error or otherwise engaged in conduct constituting a constructive failure to exercise jurisdiction by failing to assess the worker’s credibility and further erred in failing to find that the worker had engaged in deliberate acts of dishonesty.
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The Member erred on the test of causation pursuant to s 11A(1) of the 1987 Act and also failed to properly determine the s 11A(1) defence.
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The Member erred in law by failing to take into account and make findings in respect of the evidence adduced by the employer and alternatively denied the employer procedural fairness.
The Acting Deputy President Parker SC found the Member failed to provide procedural fairness to the employer by not engaging with and determining a major part of its case and by ignoring the evidence of two of its witnesses.
The Member had accepted the evidence of the worker which he claimed was “uncontradicted” but did so without referring to the evidence of the other witnesses.
The Acting Deputy President found an absence of reference to the evidence provided by witnesses and in his reasons indicated, the Member did not engage with the employer’s case.
The employer’s appeal was successful and the dispute proceedings were remitted for re-determination by another Member due to the failure to provide procedural fairness to the employer.
Takeaways
This case is a reminder that all evidence needs to be considered in making a determination in a dispute between parties, and the weight given to evidence needs to be explained by the Member.
Failure to do so may give rise to criticism that procedural fairness has not been afforded to one of the parties in proceedings before the Personal Injury Commission, and may constitute an error of law.
Authors: Kate Ralph & Reece Nuttall*
Supporting partner: Mick Franco
*Reece interned at Bartier Perry as part of the CareerTrackers program, which supports pre-professional Indigenous university students and links them with employers to participate in internships.