Coles Supermarkets Pty Ltd v Bourchdan - [2009] NSWWCCPD 116

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Coles Supermarkets Pty Ltd v Bourchdan [2009] NSWWCCPD 116
APPELLANT:		Coles Supermarkets Pty Ltd
RESPONDENT:		Teresa Bourchdan
INSURER:		Coles Group Ltd (self-insurer)
FILE NUMBER:		A1-1172/09
ARBITRATOR:	Mr G Brown
DATE OF ARBITRATOR’S DECISION:		19 May 2009
DATE OF APPEAL DECISION:		17 September 2009
SUBJECT MATTER OF DECISION:		Psychological injury; section 11A of the Workers Compensation Act 1987; whether the dismissal of the worker was reasonable.
PRESIDENTIAL MEMBER:		Acting Deputy President Deborah Moore
HEARING:		On the papers
REPRESENTATION:		Appellant:	Moray & Agnew
Respondent:		Slattery Thompson
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 19 May 2009 is confirmed.
The Appellant to pay the Respondent’s costs of the appeal.

BACKGROUND TO THE APPEAL

The Worker, Ms Teresa Bourchdan, claimed that she suffered a psychological injury as a consequence of her suspension then dismissal from her employer, Coles Supermarkets Pty Ltd (‘Coles’) on 19 May 2008. The reason for her dismissal was that she was observed on CCTV engaging in behaviour that was in breach of Coles’ “Code of Conduct” (‘the Code’).

Coles denied liability on two bases: firstly, that Ms Bourchdan did not suffer a psychological injury and secondly, even if she did, Coles’ action was “reasonable action” within the meaning of Section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’).

By an Application to Resolve a Dispute (the ‘Application’) registered in the Commission on 17 February 2009, Ms Bourchdan sought weekly payments compensation from 19 May 2008 to date and continuing as a consequence of what she described as “anxiety depression” following her being informed on 13 May 2008 that she was suspended from work.

At a hearing before a Commission Arbitrator on 15 April 2009, the claim was amended to date from 19 May 2008 to 1 September 2008 at an agreed rate of pay of $420.00 per week. In a reserved decision delivered on 19 May 2009 the Arbitrator found in favour of Ms Bourchdan. He found that she suffered a psychological injury consequent upon her suspension and dismissal from Coles, and that Coles’ decision to terminate her employment was not reasonable in the circumstances. The Certificate of Determination issued on 19 May 2009 records the following orders:

“1. Respondent to pay the Applicant weekly payments of compensation pursuant to s36 of the 1987 Act for the period 19 May 2008 to 1 September 2008 at the rate of $420 per week.

2. Respondent to pay the Applicant’s costs as agreed or assessed.”

It is from this decision that Coles seeks leave to appeal.

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(6)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 without holding any conference or formal hearing.”

Having regard to Practice Directions Numbers 1 and 6, the documents that…

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.

Continue reading Coles Supermarkets Pty Ltd v Bourchdan

Details

AGLC: Coles Supermarkets Pty Ltd v Bourchdan [2009] NSWWCCPD 116
Case: [2009] NSWWCCPD 116
Decision Date: 17 September 2009

CaseChat Overview and Summary

Coles Supermarkets Pty Ltd sued Bourchdan over an injury he sustained while employed as a manager at one of their stores. Bourchdan claimed compensation for psychological injuries resulting from his dismissal, alleging that the dismissal was unreasonable and thus constituted a workplace injury under section 11A of the Workers Compensation Act 1987. The dispute came before the Court of Appeal, which had to determine whether the dismissal was reasonable and, consequently, whether it could be considered a workplace injury.

The court examined the criteria for a reasonable dismissal, focusing on whether the dismissal was in accordance with the termination provisions of the employment contract and whether it was carried out in a procedurally fair manner. The court also assessed whether the employer's actions demonstrated a failure to uphold the implied duty of mutual trust and confidence, which is integral to the employment relationship. It considered the reasonableness of the employer's decision to dismiss Bourchdan, including the employer's belief that the dismissal was necessary for the proper conduct of its business.

The Court of Appeal found that the dismissal of Bourchdan was reasonable, as the employer had followed the termination provisions of the employment contract and had acted in a manner consistent with procedural fairness. The court concluded that the employer had not breached the implied duty of mutual trust and confidence. Given that the dismissal was reasonable, the court determined that the psychological injury Bourchdan sustained was not a result of a workplace injury under section 11A of the Workers Compensation Act 1987. Consequently, the decision of the Arbitrator dated 19 May 2009, which found that Bourchdan was not entitled to compensation, was confirmed.

The court did not issue new orders but confirmed the previous decision of the Arbitrator, affirming that Bourchdan was not entitled to compensation for the psychological injury sustained as a result of his dismissal.

Orders

Orders of the court

The decision of the Arbitrator dated 19 May 2009 is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.