Miller v Westpac Banking Corporation

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Miller v Westpac Banking Corporation [2023] NSWPIC 356

APPLICANT:

Deborah Lee Miller

RESPONDENT:

Westpac Banking Corporation

Member:

Michael Moore

DATE OF DECISION:

20 July 2023

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for a psychological injury; respondent admits that the applicant suffered a primary psychological injury arising out of or in the course of the applicant’s employment; the respondent’s defence to the claim was under section 11A on the basis that the injury was sustained wholly or predominantly as a consequence of reasonable action taken by the respondent with respect to performance appraisal or proposed transfer; the pleaded date of injury predated the proposed transfer so claim was limited to a defence based on reasonable actions taken or proposed to be taken with respect to performance appraisal; Held – the identified actions of the respondent did not constitute a process of performance appraisal and were more accurately viewed as management of one aspect of the applicant’s work performance; the actions were not a limited discrete process as held in Irwin v Director-General of School Education per Geraghty J; further held that in any event the identified actions by the respondent as constituting “performance appraisal” were not shown on the balance of probabilities to be the whole or predominant cause of the applicant’s injury; award for the applicant with referral to the matter for assessment of whole of person impairment by a Medical Assessor.

determinations made:

The Commission determines:

1.     The applicant suffered a psychological injury arising out of or in the course of her employment.

2. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:

(a)    Date of Injury: 25 February 2020 (deemed).

(b)    Body systems/ parts: psychological /psychiatric.

(c)    Method of Assessment: whole person impairment.

3.   The following additional documents to be reviewed by the Medical Assessor are:

(a)    Amended Application to Resolve a Dispute and attachments;

(b)    Reply and attachments;

(c)    Application to Admit Late Documents dated 6 April 2023, and

(d)    Application to Admit Late Documents dated 17 March 2023.

STATEMENT OF REASONS

BACKGROUND

1. Deborah Lee Miller (the applicant) was born in 1971 and is presently 52 years of age.

2. The applicant commenced employment with St George Bank in approximately May 2001 working in the personal lending division based in Kogarah New South Wales.

3. It is not in issue that St George Bank was eventually acquired by Westpac Banking Corporation (the respondent) and it appears that the applicant continued working in the same role post the acquisition.

4. In the statement attached to the Application to Resolve a Dispute (the application) the applicant described her duties as follows;

   “usual duties involved the following:

   Incoming call centre lending banker, roll was to receiving calls up to 70 calls a day, regarding all banking, financial, Internet banking, Change in Interest rates, calculating and changing repayments…