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Hatherall v TOGA Group

Hatherall v TOGA Group

Case [2024] NSWPIC 707 17 December 2024

Workers Compensation Act 1987

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CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hatherall v TOGA Group [2024] NSWPIC 707
APPLICANT:	Jodie Hatherall
RESPONDENT:	TOGA Group
MEMBER:	Jacqueline Snell
DATE OF DECISION:	17 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987 (1987 Act); the applicant claims weekly benefits and medical or related treatment expenses payable under the 1987 Act resulting from primary psychological injury sustained in the course of her employment with the respondent; the applicant’s claim is declined with defence raised under section 11A(1) with respect to performance appraisal, discipline and/or dismissal; the respondent does not dispute the applicant has no current work capacity resulting from the injury; the respondent does not dispute the applicant requires reasonably necessary medical or related treatment for her injury; Held – the applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal, discipline and/or dismissal; the applicant has entitlement to weekly compensation and medical or related treatment expenses payable under the 1987 Act.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal, discipline and or dismissal. 2. The parties agree any entitlement the applicant has to weekly compensation is to be paid at the maximum weekly compensation amount payable under s 34 of the Workers Compensation Act 1987. The parties agree the applicant has had no current capacity for work since 6 November 2023 resulting from the injury. The applicant has entitlement to weekly compensation payable under the Workers Compensation Act 1987 Act as a result of the injury. 3. The parties agree the applicant requires medical or related treatment for the injury. The applicant has entitlement to medical or related treatment expenses payable under s 60 of the Workers Compensation Act 1987 for the injury.

STATEMENT OF REASONS

BACKGROUND

Jodie Hatherall (Ms Hatherall) commenced employment with TOGA Group (TOGA) in September 2017 and at the time she sustained injury the subject of these proceedings, Ms Hatherall was employed in the role of Group General Manager for Risk and Compliance. Ms Hatherall’s employment with TOGA was terminated on 17 November 2023. Ms Hatherall is currently 35 years of age.
In these proceedings, Ms Hatherall alleges she sustained primary psychological injury arising out of or in the course of her employment with TOGA. She alleges a deemed date of injury of 6 November 2023. The circumstances of injury are described in the following terms:
“The applicant whilst in the course of her employment was bullied and harassed, sexually harassed and unreasonably terminated thereby causing aggravating, accelerating and precipitating injury described above.”
Ms Hatherall claims weekly compensation payable under the Workers Compensation Act 1987 (1987 Act). Ms Hatherall also claims medical or related treatment expenses payable under the 1987 Act.
TOGA Group has declined Ms Hatherall’s claim for compensation payable under the 1987 Act.

ISSUES FOR DETERMINATION

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 Hatherall v TOGA Group

Details

AGLC: Hatherall v TOGA Group [2024] NSWPIC 707
Case: [2024] NSWPIC 707
Decision Date: 17 December 2024

CaseChat Overview and Summary

The case of Hatherall v TOGA Group involved an application by the applicant for weekly benefits and medical or related treatment expenses under the Workers Compensation Act 1987 (1987 Act) following a primary psychological injury sustained during her employment with the respondent. The respondent declined the applicant's claim invoking section 11A(1) of the 1987 Act, which pertains to performance appraisal, discipline, and/or dismissal. Despite the respondent's defence, it was not disputed that the applicant had no current work capacity due to the injury, nor that she required reasonably necessary medical or related treatment for her condition.

The court was required to determine whether the applicant's injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal, discipline, or dismissal. This determination was crucial under section 11A(1) of the 1987 Act, which precludes compensation if the injury is found to be caused by such actions. The court's analysis involved assessing the evidence and the nature of the actions taken by the respondent in relation to the applicant's employment.

The court concluded that the applicant's injury was not wholly or predominantly caused by reasonable action taken by the respondent regarding performance appraisal, discipline, or dismissal. The evidence did not support the contention that the respondent's actions were the predominant cause of the applicant's psychological injury. Consequently, the court ruled that the applicant was entitled to weekly compensation and medical or related treatment expenses under the 1987 Act. This decision highlighted the importance of distinguishing between injuries that are work-related and those that are a result of employment management practices, as per the statutory provisions.

In summary, the court's decision recognised the applicant's entitlement to compensation, notwithstanding the respondent's invocation of section 11A(1) of the 1987 Act. The court's ruling underscored the need for a careful examination of the causal link between the injury and any employment management actions taken by the respondent.

Orders