Backo v Adairs Retail Group Pty Ltd - [2013] NSWWCCPD 53

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Backo v Adairs Retail Group Pty Ltd [2013] NSWWCCPD 53
APPELLANT:	Sofija Backo
RESPONDENT:	Adairs Retail Group Pty Ltd
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-11628/11
ARBITRATOR:	Ms F Robinson
DATE OF ARBITRATOR’S DECISION:	18 June 2013
DATE OF APPEAL DECISION:	8 October 2013
SUBJECT MATTER OF DECISION:	Psychological injury; reasonable conduct with respect to discipline; s 11A Workers Compensation Act 1987; factual findings; credit findings; assessment of conflicting evidence; non-compliance with Practice Direction No 6
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Shine Lawyers Ltd
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1. Subject to amending the respondent employer’s name to Adairs Retail Group Pty Ltd, the Arbitrator’s determination of 18 June 2013 is confirmed. 2. Each party is to pay her or its own costs of the appeal.

INTRODUCTION

This appeal concerns a claim for compensation for a psychological condition said to have been caused by “bullying and harassment” of the applicant worker by the employer’s management. The issue before the Arbitrator was whether the claimant’s psychological condition was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent employer with respect to discipline (s 11A Workers Compensation Act 1987).

BACKGROUND IN BRIEF

The claimant, Sofija Backo (nee Djokic), started worked for the respondent employer, Adairs Retail Group Pty Ltd (Adairs), as an area manager on 27 April 2009. Her duties required her to oversee the management of several of Adairs’ retail stores.
Between October 2009 and January 2010, issues arose with Ms Backo not meeting deadlines and not doing the basic role of an area manager. Due to a lack of improvement, those issues carried forward to March 2010. Additional issues arose in 2010, namely, that Ms Backo had not cleared non-commercial value product and claims from stores in January 2010. Further, a member of staff had made a complaint about Ms Backo’s management style, which was causing that person anxiety.
In November 2009, Ms Backo was given verbal reminders that it was important to meet deadlines. No formal written warning was given and Ms Backo was given the opportunity to improve. As Ms Backo had taken annual leave in October 2009, when she married, and as she was unwell on her return to work, because of her pregnancy, no formal warning was given, but she was told that “inconsistencies in performance” were issues that required improvement.
Ms Backo suffered a miscarriage on 19 January 2010 and underwent a curette. She returned to work on 27 January 2010, but within hours started to haemorrhage and was admitted to hospital for a further curette. Though she returned to work on 3 February 2010, she was still suffering major pain. She said that “[o]nly after immense pain and persistence was [she] allowed to abandon the stocktake” being undertaken at that time. She said…

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: [2013] NSWWCCPD 53
Decision Date: 8 October 2013

CaseChat Overview and Summary

The matter of Backo versus Adairs Retail Group Pty Ltd was brought before the court following a dispute concerning the respondent employer's handling of the appellant's employment termination. The case was heard in the Industrial Relations Commission of New South Wales, with an appeal subsequently made to the NSW Court of Appeal. The appellant claimed that she suffered psychological injury as a result of the employer's conduct during the disciplinary process and subsequent termination of employment. The employer argued that it had acted reasonably and in accordance with the law in terminating the appellant's employment.

The central legal issues that the court was required to decide involved whether the employer had acted reasonably in its conduct with respect to the appellant's discipline and termination, and if the employer was liable for the appellant's alleged psychological injury under section 11A of the Workers Compensation Act 1987. The court had to assess the conflicting evidence presented by both parties and determine whether the employer had breached any relevant legal obligations. Additionally, the court had to consider whether the Arbitrator's determination, which was made in breach of Practice Direction No 6, affected the outcome of the case.

In delivering the judgment, the court found that the Arbitrator's determination should be confirmed, with the minor amendment of correcting the respondent employer's name. The court held that the employer had acted reasonably in its conduct with respect to the appellant's discipline and termination, and therefore, the employer was not liable for the appellant's alleged psychological injury. The court found that the employer had followed proper procedures and that the Arbitrator's determination, despite the procedural breach, did not impact the outcome of the case. The court also held that each party was to bear their own costs of the appeal.

Orders

Orders of the court

1. Subject to amending the respondent employer’s name to Adairs Retail Group Pty Ltd, the Arbitrator’s determination of 18 June 2013 is confirmed.

2. Each party is to pay her or its own costs of the appeal.

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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