Kaur v Westpac Group Limited - [2023] NSWPIC 124

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Kaur v Westpac Group Limited [2023] NSWPIC 124
APPLICANT:	Kulwinder Kaur
RESPONDENT:	Westpac Group Limited
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	27 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits, medical expenses and permanent impairment compensation as a result of accepted psychological injury; respondent conceded that the applicant has no capacity for work; respondent relied on section 11A, specifically its actions with respect to performance appraisal and/or discipline; applicant had concurrent physical injuries; clinical records prior to disciplinary meeting contained no reference to the “bullying and harassment” relied on by the applicant; reference to “stress” was in the context of physical injuries and pain; applicant was responsible for a major breach of customer privacy, which was brought to the attention of the respondent by a third party; Consideration of Department of Education and Training v Sinclair, Ponnan v George Weston Foods Ltd, Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd, Davis v Council of the City of Wagga Wagga, Mason v Demasi and Northern NSW Local Health Network v Heggie; Held – award for the respondent.
determinations made:	1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, Kulwinder Kaur (Ms Kaur) was employed by the respondent, Westpac Group Limited (Westpac) as a customer service adviser/teller.
Ms Kaur sustained an accepted psychological injury, which is deemed to have occurred on 31 March 2020, arising out of or in the course of her employment with the respondent.
It is not clear when the applicant made the claim, but on 21 May 2020, Westpac, which is self-insured, issued her with a notice pursuant to s 78 of the Workplace Injury and Workers Compensation Act 1998 (the 1998 Act).
Westpac advised the applicant that it had determined that, although she may have sustained an injury in the course of her employment, with employment being the main contributing factor, any such injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to performance appraisal and/or discipline. Therefore, no compensation was payable.
By letter dated 21 October 2020, the applicant’s solicitors sought on her behalf a review of Westpac’s decision.
On 4 November 2020, Westpac advised that it maintained its decision to dispute liability.
There is a further review notice dated 16 November 2020, which also appears to be in response to the request for review dated 21 October 2020. This notice, however, added that Westpac maintained that any injury the applicant may have sustained was caused by reasonable action taken or proposed to be taken with respect to transfer. It also relied on its actions with respect to performance appraisal and/or discipline.
On 13 May 2022, Westpac issued the applicant with a further notice pursuant to s 78 of the 1998 Act. It advised that it maintained its decision, but reference to “transfer” was deleted. It still relied on its actions 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: [2023] NSWPIC 124
Decision Date: 27 March 2023

CaseChat Overview and Summary

In the case of Kaur v Westpac Group Limited, the applicant sought workers compensation for a psychological injury she sustained during her employment. Kaur claimed weekly benefits, medical expenses, and permanent impairment compensation. Westpac Group Limited, the respondent, conceded that Kaur had no capacity for work but argued that the applicant's psychological injury was not caused by the employer's actions and was instead attributable to the applicant's own actions and the concurrent physical injuries she sustained. The case was heard and determined in the Industrial Relations Commission of New South Wales.

The primary legal issue for the court to decide was whether the employer's actions, specifically its performance appraisal and disciplinary process, contributed to Kaur's psychological injury. The court had to examine the relevant provisions of the Workers Compensation Act 1987, particularly section 11A, which pertains to psychological injuries arising from work-related incidents. The court also needed to consider the relevant case law, including Department of Education and Training v Sinclair, Ponnan v George Weston Foods Ltd, Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd, Davis v Council of the City of Wagga Wagga, Mason v Demasi, and Northern NSW Local Health Network v Heggie.

The court found that the clinical records from before the disciplinary meeting did not mention the "bullying and harassment" that Kaur claimed contributed to her psychological injury. The references to "stress" in the records were in the context of her physical injuries and pain. The court further noted that Kaur was responsible for a significant breach of customer privacy, which was brought to the respondent's attention by a third party. Given these findings, the court held that Kaur's psychological injury was not caused by the employer's actions but rather by the applicant's own conduct and the physical injuries she sustained. Consequently, the court dismissed Kaur's claim for workers compensation.

The final orders of the court were that Kaur's claim for workers compensation was dismissed, and the respondent was awarded its costs of the proceeding.

Orders