Middleton v University of Sydney Business School - [2023] NSWPIC 285

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Middleton v University of Sydney Business School [2023] NSWPIC 285
APPLICANT:	Heather Middleton
RESPONDENT:	University of Sydney Business School
Member:	Lea Drake
DATE OF DECISION:	19 June 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for whole person impairment arising from alleged psychological injury due to adverse employment conditions encountered by the applicant in the course of her employment with the respondent; a multitude of causative factors including performance appraisal, intensive performance management, intensive supervision, negative feedback and criticism and a number of workplace incidents; whether real events; whether the employer’s actions were reasonable in all the circumstances surrounding the applicant’s employment; the breadth of the definition of discipline considered; section 11A(1); Held – psychological injury sustained in the course of or arising out of employment; employment the main contributing factor to injury; respondent failed to discharge its onus with respect to the section 11A(1) defence; matter to be relisted for referral by the Member for referral to the President of the Personal Injury Commission for assessment by a medical assessor.
determinations made:	The Commission determines: 1. The applicant was a worker employed by the respondent when she sustained a psychological injury in the course of her employment. 2. The course of the applicant’s employment with the respondent was the main contributing factor to the applicant contracting the disease. 3. The injury was not wholly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal or discipline either together or separately. 4. The injury was not predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal or discipline either together or separately. 5. The respondent has failed to establish a defence pursuant to s 11A (1) of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant commenced employment with the Business Codesign Unit of the University of Sydney Business School (the respondent) as a Research Assistant in April 2011. The applicant’s prior work history was in higher education teaching, education, evaluation and research. She has a PhD. She later obtained the more senior position of Research Associate. She was employed pursuant to a fixed term (3 year) contract of the type of rolling employment contract common in the higher education sector. The applicant had two probationary reviews. The first related to the continuation of her employment after the first year. Following that review her employment was extended for a further six month probationary period. Her permanent employment was confirmed following the second review. Her employment could have been terminated by the respondent without the applicant having access to an unfair dismissal remedy, at the end of the first period of probation, and again at the end of the six months extension of probation. Her employment was not terminated at the conclusion of either of the probationary periods on any other occasion for failure 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.

Continue reading Middleton v University of Sydney Business School

Details

AGLC: Middleton v University of Sydney Business School [2023] NSWPIC 285
Case: [2023] NSWPIC 285
Decision Date: 19 June 2023

CaseChat Overview and Summary

The matter of Middleton v University of Sydney Business School was heard in the Workers Compensation Commission of New South Wales. The applicant, Middleton, sought compensation for a whole person impairment she alleged arose from psychological injury due to adverse employment conditions she encountered during her employment with the respondent, the University of Sydney Business School. The claimed causative factors included performance appraisal, intensive performance management, intensive supervision, negative feedback and criticism, and a number of workplace incidents.

The court was required to determine whether the alleged events were real, and if the employer's actions were reasonable under the circumstances. Additionally, the court had to consider the breadth of the definition of discipline as per section 11A(1) of the Workers Compensation Act 1987. Specifically, the court needed to assess if the employer could successfully argue that the psychological injury was not compensable due to the nature of the employment conditions.

In its reasoning, the court found that the psychological injury Middleton sustained was indeed in the course of or arising out of her employment. The court also found that her employment was the main contributing factor to the injury. The respondent failed to meet its burden of proof with respect to the section 11A(1) defence, which would have potentially exempted the employer from liability for the injury. The court's analysis focused on the cumulative effect of the various adverse employment conditions, concluding that they were a significant factor in Middleton's psychological injury.

Accordingly, the matter was to be relisted for referral by the Member for referral to the President of the Personal Injury Commission for assessment by a medical assessor. This assessment will determine the extent of Middleton's impairment and the appropriate compensation.

Orders