Chisholm v Thakral Finance Pty Ltd t/as Novotel Brighton Beach

Chisholm brought an appeal against the decision of an Arbitrator who found that Chisholm’s psychological injury was not due to reasonable action with respect to discipline, performance appraisal and or dismissal within the meaning of section 11A of the Workers Compensation Act 1987. The appeal was heard in the Workers Compensation and Rehabilitation Commission of Victoria. The Arbitrator had found that Chisholm’s psychological injury was due to a combination of workplace bullying and his own poor decision-making. The Arbitrator found that Chisholm’s employer, Thakral Finance Pty Ltd t/as Novotel Brighton Beach, was not liable for the psychological injury.

The legal issue before the court was whether Chisholm’s psychological injury was caused by reasonable action taken with respect to discipline, performance appraisal and or dismissal. The court noted that the meaning of “dismissal” in section 11A of the Act was not limited to a termination of employment, but also included any action that resulted in a significant change in the worker’s employment status or conditions. The court found that the Arbitrator had erred in law by not considering whether Chisholm’s psychological injury was caused by reasonable action taken with respect to discipline, performance appraisal and or dismissal.

The court found that Chisholm’s psychological injury was caused by a combination of workplace bullying and his own poor decision-making, and that this was not due to reasonable action taken with respect to discipline, performance appraisal and or dismissal. The court revoked the Arbitrator’s decision and remitted the matter to a different Arbitrator for determination of Chisholm’s entitlement to weekly and other compensation. The court also ordered that the employer pay Chisholm’s costs of the appeal, assessed at $2,200 plus GST.