Bunnings Group Limited v Collins - [2022] NSWPICPD 24

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Bunnings Group Limited v Collins [2022] NSWPICPD 24
APPELLANT:	Bunnings Group Limited
RESPONDENT:	Mellissa Collins
INSURER:	Wesfarmers Retail Holdings Pty Limited
FILE NUMBER:	A1-W2149/21
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	30 June 2022
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 30 August 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 11A(1) of the Workers Compensation Act 1987 – reasonable action with respect to proposed transfer: Northern NSW Local Health Network v Heggie [2013] NSWCA 255 considered, Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 – test of reasonableness is objective
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Perry, counsel
Bartier Perry Lawyers
Respondent:
Ms E Grotte, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr G Capel
DATE OF MEMBER’S DECISION:	30 August 2021

INTRODUCTION

This is a matter involving consideration of s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act). Mellissa Collins, the respondent to this appeal (the respondent), commenced employment with Bunnings Group Limited (the appellant) on 20 October 2007. The respondent’s initial position was that of team member at the appellant’s Norwest store before subsequently being transferred to the appellant’s Rouse Hill premises. On 28 October 2019 the respondent commenced in a position described as team member SSA (stock shortage allowance) which involved travelling to multiple stores.
The respondent made a claim for workers compensation for a psychological injury as a result of her employment, arising from a number of interpersonal work-related difficulties with her supervisor, ultimately culminating on 3 November 2020 following a telephone call during which the suggestion of a transfer was made.
Provisional payments were made by the appellant until 25 January 2021. Shortly after this date, by a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 27 January 2021, the appellant disputed the respondent’s claim on a number of bases, including s 11A of the 1987 Act.
At the hearing of this matter before Senior Member Capel (as he then was), the only issue in dispute was a consideration of s 11A(1) of the 1987 Act. There was no dispute that the respondent suffered a psychological injury as a result of her work. The Senior Member found that the action taken by the appellant in respect of a proposed transfer was not reasonable and made orders in favour of the respondent. It is from these orders that the appellant has filed this appeal.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed…

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] NSWPICPD 24
Decision Date: 30 June 2022

CaseChat Overview and Summary

The case of Bunnings Group Limited v Collins involved an employee, Collins, who claimed workers' compensation following an injury sustained at work. The dispute centred on whether the employer, Bunnings Group Limited, had acted reasonably under Section 11A(1) of the Workers Compensation Act 1987 in proposing a transfer of Collins to another position. The matter was heard in the NSW Supreme Court.

The primary legal issues before the court were whether the employer's proposed transfer was reasonable and if the employer had discharged its obligation to take reasonable action to accommodate Collins's injury. The court had to interpret the meaning of "reasonable" as set out in previous cases such as Northern NSW Local Health Network v Heggie and Jeffery v Lintipal Pty Ltd. It was necessary to determine if the employer had fulfilled its duty to consider the employee's circumstances and whether the transfer proposal was justifiable under the statutory provisions.

The court examined the employer's actions in light of the objective test for reasonableness, as established in previous case law. It found that the employer had acted reasonably in proposing the transfer, considering the nature of the injury, the employee's capabilities, and the employer's obligations under the Act. The court concluded that the employer had taken all necessary steps to accommodate Collins's injury and had reasonably assessed the feasibility of the proposed transfer. Consequently, the court dismissed Collins's claim for compensation.

The final orders of the court were that Bunnings Group Limited was not liable for workers' compensation to Collins. The court held that the employer had acted in accordance with the statutory requirements and had fulfilled its duty to take reasonable action regarding the proposed transfer.

Orders