Browne v Anixter Australia Pty Ltd - [2021] NSWPIC 110

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Browne v Anixter Australia Pty Ltd [2021] NSWPIC 110
APPLICANT:	Renee Leigh Browne
RESPONDENT:	Anixter Australia Pty Ltd
PRINCIPAL MEMBER:	Ms Josephine Bamber
DATE OF DECISION:	10 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Agreed work related psychological injury; claim for weekly compensation and medical expenses; respondent disputed liability to pay compensation pursuant to section 11A of the 1987 Act, capacity for employment and treatment expenses also disputed; Held- respondent has not discharged its onus of proof to establish the employer’s conduct in relation to dismissal was reasonable, notwithstanding applicant was dismissed in probation period; award for applicant made for weekly compensation during period in which it was found she had no current work capacity, thereafter award for the respondent; award for applicant pursuant to section 60 of the 1987 Act.
DETERMINATIONS MADE:	1. The respondent has not established a defence under section 11A of the Workers Compensation Act 1987. 2. The respondent is to pay the applicant’s reasonably necessary treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or Medicare Notice of Charge. 3. The respondent is to pay Ms Browne weekly compensation from 31 March 2020 to 20 July 2020 pursuant to sections 36 and 37 of the Workers Compensation Act 1987 on the basis that the applicant had no current capacity for employment in this period. 4. Award for the respondent in relation to the claim for weekly compensation from 21 July 2020 to date and continuing. 5. The parties have liberty to apply in relation to calculation of the weekly compensation award or they can file consent orders if they agree as to the mathematical calculation of the award.

STATEMENT OF REASONS

BACKGROUND

Renee Browne, the applicant, was employed by the respondent, Anixter Australia Pty Ltd as an internal sales account manager from late 2019. She alleges she sustained a psychological injury because of bullying, harassment, overwork, unfair management and isolation tactics at work. In these proceedings she seeks weekly compensation from 30 March 2020 to date and continuing pursuant to sections 36 and 37 of the Workers Compensation Act1987 (the 1987 Act) and incurred treatment expenses in the amount of $6,024.64.
On 6 April 2020 the insurer issued a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing that Ms Browne had received a psychological injury, relying on sections 4 and 11A(3) of the 1987 Act[1]. It also disputed liability under sections 9A and 4(b) of the 1987 Act. The respondent also relied upon a defence under section 11A because it said the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the employer with respect to performance appraisal, discipline and dismissal. It also disputed that Ms Browne had a total or partial incapacity for work and asserted that the medical or related treatment expenses were not reasonably necessary as result…

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: [2021] NSWPIC 110
Decision Date: 10 May 2021

CaseChat Overview and Summary

The applicant, Browne, sought compensation and expenses following a dismissal by the respondent, Anixter Australia Pty Ltd. The dispute arose from an agreed work-related psychological injury, with the respondent contesting liability for compensation and expenses. The case was heard in the Workers Compensation Court. Browne argued that she was entitled to weekly compensation and medical expenses due to her psychological injury, which was a result of her employment. Anixter Australia disputed this claim, contending that the dismissal occurred during the probation period and that Browne's capacity for employment and the reasonableness of the expenses were questionable.

The central legal issues addressed by the court were whether Anixter Australia was liable for compensation and expenses under the relevant workers compensation legislation and whether the dismissal was reasonable. The court had to determine if the employer's conduct during the dismissal was justified and if the psychological injury was work-related, which would entitle Browne to compensation. Additionally, the court examined the extent of Browne's capacity for employment and the necessity and reasonableness of the claimed medical expenses.

The court found that Anixter Australia had not successfully demonstrated that its conduct during the dismissal was reasonable, despite the dismissal occurring during the probationary period. The court determined that Browne was entitled to weekly compensation for the period in which she was found to have no capacity for work, and thereafter, the liability shifted to the respondent. The court also ruled in favour of Browne for medical expenses pursuant to the applicable legislation. Consequently, the court awarded Browne compensation and expenses, with the liability shifting to Anixter Australia after the initial period.

The final orders of the court included an award of weekly compensation for Browne during the period of no capacity for work, with the liability shifting to Anixter Australia thereafter. Additionally, the court awarded Browne the medical expenses as per the legislation, establishing the basis for the respondent's liability in these matters.

Orders