Dapto Leagues Club Ltd v Thomas

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Dapto Leagues Club Ltd v Thomas [2008] NSWWCCPD 107
APPELLANT:		Dapto Leagues Club Ltd
RESPONDENT:		Nigel Thomas
INSURER:		Cambridge Integrated Services Pty Ltd
FILE NUMBER:		WCC2049-08
DATE OF ARBITRATOR’S DECISION:		21 May 2008
DATE OF APPEAL DECISION:		26 September 2008
SUBJECT MATTER OF DECISION:		Psychological injury; section 11A Workers Compensation Act 1987; whether the cause of injury was multi-factorial or wholly or predominantly due to performance appraisal or discipline of the Worker; notice, incapacity, the effect of pre-existing intellectual impairment on work related psychological injury.
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Workplace Law
Respondent:	Carroll & O’Dea Lawyers
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 21 May 2008 is confirmed.

BACKGROUND TO THE APPEAL

1. On 12 June 2008 Dapto Leagues Club Ltd (‘the Appellant / Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 21 May 2008.

1. The Respondent to the Appeal is Nigel Thomas (‘the Respondent / Worker’).

1. Mr Thomas is 36 years of age.  He suffers from a mild congenital intellectual disability, which was diagnosed at the age of 3.  He attended special education classes, leaving school at age 18, without the School Certificate or Higher School Certificate.  After leaving school he was awarded a disability pension for intellectual disability.

1. For several years after leaving school, the Worker was employed by companies specialising in employment of people with disabilities before finally securing employment with Dapto Leagues Club where he worked for 13 years, until he ceased employment on 11 October 2007. 

1. The Worker was employed for the first ten years of his employment as a kitchen hand, before transferring to his current role as a floor person, which involves responsibility for cleaning tables, clearing glasses and general cleaning of designated areas.

1. The Worker claims that over a ten year period he was harassed by certain employees including Mary Conroy (Kitchen Supervisor), Judy Dubois (Cook) and Mira Gilly.

1. The Worker claims that he suffered a chronic adjustment disorder with mixed anxiety and depression due to the long period of harassment by management and staff.

1. The Worker’s employment records disclose that there were a series of verbal warnings, “recorded discussions”, counselling and/or discipline records and file memoranda concerning various aspects of the Worker’s employment. 

1. An incident occurred on 11 October 2007.  On that occasion the Worker was told by the duty manager to stay in the lobby bar and clean tables, pick up glasses and not to move from there. The Worker did leave the bar area, contrary to instructions, in order to speak to a patron celebrating a birthday.  The Worker was stood down pending an investigation into his actions. The Worker was interviewed and was told he was to be issued with a ‘Final Formal Written Warning’ on his return to duties. The Worker did not return to duties with…