BCL v K & W Haulage Pty Ltd - [2022] NSWPIC 552

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	BCL v K & W Haulage Pty Ltd [2022] NSWPIC 552
APPLICANT:	BCL
RESPONDENT:	K & W Haulage Pty Ltd
Member:	Michael McGrowdie
DATE OF DECISION:	6 July 2022
CATCHWORDS:	WORKERS COMPENSATION - The applicant was employed by the respondent as a truck driver; he alleged psychological injury said to have resulted from alleged comments made to him in the workplace by fellow employees about his sexuality; a psychological condition was not in dispute; the respondent raised a section 11A of the Workers Compensation Act 1987 defence saying that the applicant’s condition arose out of his termination; Held - whilst his dismissal was a contributing factor his condition was not wholly or predominantly caused by the action taken by the respondent in dismissing the applicant as required by the section; accepting that comments had been made to the applicant over a period about his sexuality and that such comments led to the applicant developing a psychological condition the applicant was entitled to compensation.
determinations made:	1. The respondent is to pay the applicant, in accordance with the legislation, weekly and as claimed by the in the Application for Determination, 2. The respondent is to pay the applicant’s medical expenses pursuant to section 60 of the Workers Compensation Act1987. 3. The matter is remitted to the President to refer the matter to a Medical Assessor to assess any whole person impairment as a result of psychological injury on 5 November 2020 (deemed date). The documents to be furnished to the Medical Assessor are: (1) the ARD, (2) the Reply, and (3) any late documents already filed.

STATEMENT OF REASONS

A brief statement is attached setting out the Commission’s reasons for the determination.

The applicant, BCL, aged 33 years, brings this claim for weekly compensation, medical expenses and lump sum compensation alleged for psychological injury as a result of incidents in the workplace whilst employed by the respondent.

The applicant was employed by the respondent as a truck driver between March and November 2020.

BACKGROUND

The applicant has asserted that he was subjected to distressing comments about his sexuality by fellow workers. The Applicant is of homosexual orientation and is HIV positive, which is controlled by medication.
The applicant has generally had a good work history. Whilst with the respondent he took some time off work due to an ankle injury which occurred outside of work. During his time with the respondent, he had two truck accidents deemed to be his fault. His pay was docked to pay for the damage. The respondent considered that the applicant was often aggressive in his attitude at work.

Upon his return to work following the ankle injury, the Applicant was called into the office and given notice that his employment was terminated. The Applicant took the matter to the Fair Work Commission and these proceedings were subsequently finalised.

That the applicant has a psychological condition is not in issue. The respondent argues that any psychological condition suffered by…

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: [2022] NSWPIC 552
Decision Date: 6 July 2022

CaseChat Overview and Summary

The case of BCL v K & W Haulage Pty Ltd involved the applicant, who was employed as a truck driver by the respondent, seeking compensation for a psychological injury allegedly resulting from comments made by fellow employees regarding his sexuality. The applicant argued that the psychological condition was exacerbated by his dismissal, while the respondent claimed that the applicant’s condition arose out of his termination, invoking section 11A of the Workers Compensation Act 1987 as a defence. The court was required to determine whether the applicant’s psychological condition was caused by the comments made by fellow employees and whether the dismissal was the predominant cause of the condition.

The court held that while the applicant’s dismissal was a contributing factor, it was not the predominant cause of the psychological condition. The court found that the applicant had been subjected to derogatory comments over a period of time, which led to the development of a psychological condition. Despite the dismissal, the court concluded that the applicant’s psychological injury was not wholly or predominantly caused by the termination as required by section 11A of the Workers Compensation Act. Therefore, the applicant was entitled to compensation for the psychological condition.

The court emphasised that the psychological condition was a result of the applicant’s exposure to derogatory comments about his sexuality, which were made over an extended period by fellow employees. The court found that the applicant’s dismissal did not wholly or predominantly cause the condition, and thus, the respondent’s defence under section 11A of the Workers Compensation Act failed. Consequently, the applicant was granted compensation for the psychological injury.

The final orders of the court were that the applicant was entitled to compensation for the psychological condition, and the respondent’s defence under section 11A of the Workers Compensation Act was dismissed.

Orders