BFX v Ashfield Baptist Homes Ltd - [2023] NSWPIC 302

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	BFX v Ashfield Baptist Homes Ltd [2023] NSWPIC 302
APPLICANT:	BFX
RESPONDENT:	Ashfield Baptist Homes Ltd
Member:	Jill Toohey
DATE OF DECISION:	27 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; claim for weekly payments and lump sum compensation; applicant was accused by co-worker of inappropriate touching; internal and external investigations failed to substantiate the allegation; no dispute that the applicant had a psychological report injury; whether the injury was wholly or predominantly caused by action taken or proposed to be taken with respect to discipline; whether the respondent’s action in conducting the investigation constituted discipline; whether it was the whole or predominant cause of the injury Held – the section 11A defence fails; applicant entitled to weekly payments and medical expenses; matter to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.
determinations made:	The Commission determines: 1. The applicant suffered a psychological injury arising out of or in the course of her employment with the respondent deemed to have occurred on 5 May 2021. 2. The injury was not wholly or predominantly caused by reasonable action with respect to discipline pursuant to s 11A of the Workers Compensation Act 1987. 3. The respondent is to pay the applicant weekly compensation pursuant to s 36 of the Workers Compensation Act 1987 for the first 13 weeks at the rate of $957.58 per week and at the rate of $806.38 thereafter pursuant to s 37 of the Workers Compensation Act 1987, with ongoing payments subject to indexation. 4. The respondent is to pay the applicant’s reasonably necessary treatment expenses pursuant to s 60 of the Workers Compensation Act 1987. 5. The claim for lump sum compensation is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of the degree of whole person impairment as a result of the applicant’s psychological injury. 6. The documents to be referred to the Medical Assessor are: a. Application to Resolve a Dispute and attached documents. b. Reply and attached documents, and c. Application to Admit Late Documents lodged by the respondent on 20 April 2023 and attachments.

STATEMENT OF REASONS

BACKGROUND

BFX, the applicant in this matter, was employed as a recreational activities officer by the respondent, Ashfield Baptist Homes Ltd, when a co-worker alleged she had inappropriately touched him on the bottom.
The incident was alleged to have occurred on 30 March 2021 while BFX and the co-worker, Luke Chioatto, were on an outing with residents of the respondent’s aged care home. BFX denies the allegation.
On 5 May 2021, BFX was given a “Stand Down” letter after Mr Chioatto lodged a complaint about what he said had occurred on the outing. She was told to leave work immediately.
Following interviews with BFX and Mr Chioatto, the respondent concluded there was insufficient information to sustain…

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: [2023] NSWPIC 302
Decision Date: 27 June 2023

CaseChat Overview and Summary

In the case of BFX v Ashfield Baptist Homes Ltd, the applicant, BFX, sought weekly payments and lump sum compensation for a psychological injury sustained at work. The dispute arose from an accusation by a co-worker of inappropriate touching, which was investigated internally and externally without substantiation. There was no dispute that the applicant suffered a psychological injury; however, the central issue was whether this injury was wholly or predominantly caused by actions taken or proposed in relation to discipline, which would invoke a defence under the Workers Compensation Act 1987. Specifically, the court had to determine if the respondent’s conduct of the investigation constituted disciplinary action and if this was the whole or predominant cause of the injury.

The court analysed the definition of 'discipline' under the Workers Compensation Act 1987 and concluded that the investigation did not amount to disciplinary action as it was not punitive or intended to penalise the applicant. The act of conducting an investigation in response to an allegation was not inherently disciplinary, but rather an administrative procedure aimed at ascertaining the truth. The court found that the investigation was conducted in good faith and without an intention to discipline or punish, thus it did not constitute the predominant cause of the psychological injury. The court held that the defence under section 11A of the Act failed, and the applicant was entitled to weekly payments and medical expenses. The matter was remitted to the President for a referral to a Medical Assessor to determine the whole person impairment.

The final orders of the court mandated that the respondent was to pay the applicant weekly compensation and medical expenses, and the matter was to be referred back to the President for further assessment of the whole person impairment by a Medical Assessor. This decision underscores the importance of distinguishing between administrative investigations and disciplinary actions under workers compensation law, and highlights the necessity for clear definitions and careful consideration of the circumstances surrounding workplace investigations.

Orders