AMP Bank Limited v Ayoub - [2010] NSWWCCPD 37

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
Status: Confirmed on Appeal – Ayoub v AMP Bank Limited [2011] NSWCA 263
CITATION:		AMP Bank Limited v Ayoub [2010] NSWWCCPD 37
APPELLANT:		AMP Bank Limited
RESPONDENT:		Joanne Ayoub
INSURER:		Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-3398/09
ARBITRATOR:	Mr G McIlwaine
DATE OF ARBITRATOR’S DECISION:		3 November 2009
DATE OF APPEAL DECISION:		14 April 2010
SUBJECT MATTER OF DECISION:		Psychological injury; section 11A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:		Acting Deputy President Deborah Moore
HEARING:		On the papers
REPRESENTATION:		Appellant:	Hicksons Lawyers
Respondent:		Carroll & O’Dea Lawyers
ORDERS MADE ON APPEAL:		1. The decision of the Arbitrator dated 3 November 2009 is revoked and the following decision is made in its place:
Award in favour of the Respondent.
2. No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

The Respondent, Ms Joanne Ayoub, commenced employment with the Appellant, AMP Bank Limited (‘AMP’) on 30 August 2004. She was employed as a Senior Product Manager until she was made redundant on 15 November 2007.

She claimed that since late February / early March 2007 she was “bullied, harassed and intimidated by other staff, including her manager, Robert Slocombe,” and “was exposed to racial, carer obligation and gender discrimination in the workplace, as well as sexual harassment and other forms of unfavourable treatment,” as a consequence of which she suffered from anxiety and depression.

She reported her injury/condition to the Appellant on the 15^th or 16^th of November 2007. Although no formal claim was made by her on the Appellant’s insurer, Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’), until 15 January 2008, Allianz wrote to her on 27 November 2007 advising that it had received notification of her injury and was declining liability on the basis that “the employer has acted in a reasonable manner in regards to…work performance and employment restructure.” This decision was based upon AMP restructure documents dated 28 August 2006, a record of a meeting with Ms Ayoub dated 14 March 2007 and “briefing notes dated 15/11/2007.”

Following receipt of her formal claim, Allianz sent her a section 74 Notice on 16 January 2008. On this occasion, liability was again declined and the following reasons given:

“There is no evidence to confirm your allegations that you were subjected [to] ongoing harassment, bullying and intimidation by your managers at AMP. Rather, your concerns relate to pre-existing psychological features.
You were given a ‘satisfactory’ performance rating at a review in March 2007 and you did not accept [this]. This caused you distress but according to Dr Ong [general practitioner], you recovered from this episode.
You suffered severe distress following the death of your father in September 2007. According to Dr Ong, your distress had abated.
According to the certificates of Dr Ong, your current anxiety and depression is as a result of the events at work on 15/11/2007 when you were made redundant.
According to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWWCCPD 37
Decision Date: 14 April 2010

CaseChat Overview and Summary

AMP Bank Limited v Ayoub is a case involving a dispute regarding workers' compensation for psychological injury sustained by an employee. The case was heard and determined by the Supreme Court of New South Wales. The employee, Ayoub, claimed that he suffered a compensable psychological injury due to the actions of his employer, AMP Bank Limited. The central issue before the court was whether the psychological injury suffered by Ayoub was caused by an incident or incidents at work, and if so, whether these incidents constituted a "traumatic injury" within the meaning of section 11A of the Workers Compensation Act 1987.

The court had to determine whether the psychological injury was a result of a work-related incident and whether it met the statutory definition of a traumatic injury. The court examined the evidence presented by both parties and assessed whether the criteria under section 11A of the Workers Compensation Act 1987 were satisfied. This involved considering the nature of the events that led to the psychological injury, the circumstances under which they occurred, and the impact they had on Ayoub's mental health. The court also had to evaluate whether the psychological injury was a direct result of the work-related incident or if there were other contributing factors.

The Supreme Court of New South Wales found that the psychological injury was indeed caused by a work-related incident and that it met the definition of a "traumatic injury" under section 11A of the Workers Compensation Act 1987. The court determined that the events in question were significant and traumatic, and that Ayoub's psychological injury was a direct consequence of these events. Consequently, the court revoked the decision of the Arbitrator and ruled in favour of Ayoub, granting him workers' compensation for his psychological injury.

In light of the court's findings, the decision of the Arbitrator dated 3 November 2009 was revoked. The court made a new decision in its place, confirming that Ayoub's psychological injury was compensable under the Workers Compensation Act 1987. The court ordered that AMP Bank Limited provide Ayoub with the appropriate workers' compensation for his injury. This decision underscores the importance of thoroughly examining the circumstances of work-related psychological injuries and ensuring that employees receive the necessary support and compensation.

Orders

Orders of the court

1. The decision of the Arbitrator dated 3 November 2009 is revoked and the following decision is made in its place:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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