Forsstrom v Southern Cross University - [2024] NSWPIC 137

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Forsstrom v Southern Cross University [2024] NSWPIC 137
APPLICANT:	Aimee Forsstrom
RESPONDENT:	Southern Cross University
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	21 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation in relation to psychological injury sustained in the course of employment with the respondent; “injury” not in dispute however the respondent raised a defence under section 11A in relation to performance appraisal and dismissal; Held – findings made that section 11A defence not established as the performance appraisal and dismissal were not the whole or predominant cause of the injury, and even if they were, the respondent employer’s actions were not reasonable.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent has not established a defence under s11A of the Workers Compensation Act 1987. 2. The applicant has no current work capacity from 7 July 2022 to date and continuing. 3. The respondent is to pay the applicant weekly benefits compensation as follows: a. pursuant to s 36(1) of the Workers Compensation Act 1987 from 7 July 2022 to 6 October 2022 at the rate of 95% of the agreed pre-injury average weekly earnings (PIAWE) figure of $1,841.52, as indexed from time to time, and b. pursuant to s 37(1) of the Workers Compensation Act 1987 from 7 October 2022 to date and continuing at the rate the rate of 80% of the agreed PIAWE figure of $1,841.52, as indexed from time to time. 4. The respondent is to have credit for any compensation payments made under the Workers Compensation Act 1987. 5. The respondent is to pay the applicant’s treatment expenses on production of accounts, receipts and/or Medicare Notice of Charge pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Aimee Forsstrom, the applicant, was employed as a Senior Project Business Analyst with the respondent, Southern Cross University. She alleges that she developed a psychological injury with a date of injury 27 May 2022. In her Application to Resolve a Dispute (ARD) she describes the injury as a psychological injury and/or disease and /or aggravation, exacerbation, acceleration or deterioration of disease. The cause of injury is stated as follows:
“Applicant was called a 'moron' by a colleague, Mr. Siva Thaivarayan, and then spoken to in an intimidating manner. Despite raising a grievance with the Respondent, the Applicant was directed to continue working with Mr. Siva Thaivarayan. The Applicant was then informed by Management that her communications with Mr. Siva Thaivarayan on 27 May 2023 were 'robust interactions' and should be expected. The Applicant felt unsupported, ignored and dismissed by the Respondent when they invalidated her concerns. Please refer to the Applicant's statement for further particulars.”
Ms Forsstrom makes a claim for weekly compensation pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act) commencing on 7 July 2022 to date and continuing. The pre-injury average weekly earnings (PIAWE) figure is agreed at $1,841.52, with…

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: [2024] NSWPIC 137
Decision Date: 21 March 2024

CaseChat Overview and Summary

Forsstrom brought a claim against Southern Cross University for weekly compensation in relation to a psychological injury sustained during her employment with the university. The university raised a defence under section 11A of the Workers Compensation Act 1987, arguing that the performance appraisal and subsequent dismissal were the whole or predominant cause of the psychological injury, and that the university's actions were reasonable. The primary issue before the court was whether the university could rely on section 11A to limit its liability for compensation. The court had to determine whether the performance appraisal and dismissal were the whole or predominant cause of the psychological injury, and if so, whether the university's actions were reasonable.

The court examined the evidence and found that the performance appraisal and dismissal were not the whole or predominant cause of Forsstrom's psychological injury. Even if they were, the court held that the university's actions were not reasonable. The court considered the timing of the performance appraisal and the dismissal, and whether the university had acted in good faith. The court found that the university had not acted reasonably, and therefore could not rely on section 11A to limit its liability for compensation.

The court ordered that the university pay Forsstrom weekly compensation for her psychological injury, and that the university bear its own costs of the proceedings. The court held that the university was liable for compensation for the full extent of Forsstrom's injury, and that the defence under section 11A did not apply in this case. The court emphasised the importance of employers acting reasonably and in good faith when conducting performance appraisals and dismissing employees, and the need for employers to take steps to prevent psychological injury in the workplace.

Orders