Muliana v Nestle Australia Ltd - [2023] NSWPIC 315

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Muliana v Nestle Australia Ltd [2023] NSWPIC 315
APPLICANT:	Nyoman Muliana
RESPONDENT:	Nestle Australia Limited
Member:	John Isaksen
DATE OF DECISION:	3 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments of compensation and medical expenses for psychological injury; respondent relies on defences of the worker’s injury being solely attributable to serious and wilful misconduct and reasonable action being taken with respect to discipline; reference to Clyde v State of NSW on whether worker’s injury was solely attributable to serious and wilful misconduct; reference to Irwin v Director General of School Education on the test of reasonable action taken by the respondent with respect to discipline; Held – there was a combination of causes for the injury sustained by the worker in the course of his employment; the worker’s injury was not solely attributable to serious and wilful misconduct; discipline was not the whole or predominant cause of the worker’s injury and the action taken by the respondent with respect to discipline was not reasonable; award of weekly payments of compensation for the worker having no current work capacity since the date of the injury; respondent to pay the worker’s reasonably necessary medical expenses for psychological injury.
determinations made:	The Commission determines: 1. The applicant sustained a psychological injury in the course of his employment with the respondent on 7 October 2022. 2. The respondent has failed to establish a defence pursuant to s 14 (2) of the Workers Compensation Act 1987 (1987 Act). 3. The respondent has failed to establish a defence pursuant to s 11A of the 1987 Act. 4. The applicant has had no current work capacity since 12 October 2022. The Commission orders: 1. The respondent is to pay weekly payments of compensation to the applicant as follows: (a) $1,901 per week from 12 October 2022 to 11 January 2023 pursuant to s 36 (1) of the 1987 Act, and (b) $1,601 per week from 12 January 2023 to date and continuing pursuant to s 37 (1) of the 1987 Act. 2. The respondent is to have credit for any weekly payments of compensation already made to the applicant. 3. The respondent is to pay the applicant’s reasonably necessary medical expenses for treatment for his psychological injury pursuant to section 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

The applicant in these proceedings, Nyoman Muliana, claims that he sustained a psychological injury in the course of his employment with the respondent, Nestle Australia Limited, on 7 October 2022 as a result of a physical assault in the workplace and subsequent events wherein the applicant claims that he was not supported, not believed, not valued and was neglected by the respondent.
The applicant ceased work due to his psychological injury on 12 October 2022. He claims that he has had no current work capacity since 12 October 2022.
Icare has issued dispute notices on behalf of the respondent dated 22 December 2022 and 6 January 2023 wherein…

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 315
Decision Date: 3 July 2023

CaseChat Overview and Summary

Muliana brought a claim against Nestle Australia Ltd for weekly payments of compensation and medical expenses following a psychological injury sustained during employment. The employer argued that the injury was solely due to the worker’s serious and wilful misconduct and that it had taken reasonable disciplinary action. The case was determined in the Workers Compensation Court of Victoria, which needed to resolve whether the worker’s injury was caused by the employer’s actions or solely by the worker’s misconduct.

The court considered the relevant legal tests for attributing the injury to misconduct and for determining reasonable disciplinary action. In examining the first issue, the court referenced the case of Clyde v State of NSW, which outlined the criteria for determining if an injury was solely attributable to serious and wilful misconduct. The court found that the worker's injury was not solely attributable to misconduct, as there was a combination of causes. For the second issue, the court relied on Irwin v Director General of School Education, which provided guidance on what constitutes reasonable disciplinary action. The court determined that the disciplinary action taken by Nestle was not reasonable and did not predominantly cause the worker's injury.

As a result, the court found that the worker was entitled to weekly compensation payments since the date of the injury, given his current lack of work capacity. Additionally, the employer was ordered to pay for the worker's reasonably necessary medical expenses related to the psychological injury. This comprehensive ruling ensures that the worker receives the compensation and medical support necessary for his recovery and future needs.

Orders