Pemberton v Woolstar Pty Ltd
[2024] NSWPIC 241
•9 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Pemberton v Woolstar Pty Ltd [2024] NSWPIC 241 |
| APPLICANT: | Lee Pemberton |
| RESPONDENT: | Woolstar Pty Ltd |
| MEMBER: | Lea Drake |
| DATE OF DECISION: | 9 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant’s injury and resultant incapacity was found to be as a result of his failure to follow a reasonable management direction; Held – the respondent’s 11A defence was upheld. |
| DETERMINATIONS MADE: | The Commission determines: 1. The respondent has established a defence pursuant to s 11A (1) of the Workers Compensation Act 1987. 2. Any injury and incapacity suffered by the applicant was wholly caused by the applicant’s failure to follow the respondent’s reasonable action with respect to discipline and dismissal, being a direction that he follow the respondent’s policy in relation to COVID-19 vaccinations. The Commission orders: 3. There will be an award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
Lee Pemberton (the applicant) was employed by Woolstar Pty Ltd (the respondent) from 2006 in a variety of roles. His employment was terminated on 8 April 2022 for failure to follow the respondent’s reasonable action with respect to discipline and dismissal, being a direction that he follow the respondent’s policy in relation to COVID-19 vaccinations.
MATTERS IN DISPUTE
The issue in dispute is whether the respondent has established a defence pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act). Is the condition suffered by the applicant wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal? The respondent relies on reasonable management action with respect to discipline and dismissal.
PROCEEDINGS BEFORE THE PERSONAL INJURY COMMISSION
Mr John Dodd of counsel, instructed by Mr McCabe of McCabe Partners Lawyers appeared for the applicant. Mr Brendan Jones of counsel, instructed by Ms Dunn of BBW Lawyers, appeared for the respondent.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
RELEVANT LEGISLATIVE PROVISIONS
Section 4 and s 11A of 1987 Act are as follows:
“S.4 Definition of ‘injury’ (cf former s 6 (1))
In this Act—
injury—
means personal injury arising out of or in the course of employment,
includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.
Regarding allegation 11
S11A. No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
(3) A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
(4) This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
(5) (Repealed)
(6) This section does not extend the definition of injury in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
(7) In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker’s condition, accepted medical terminology and not only terminology such as ‘stress’ or ‘stress condition’.
(8) If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement)—
(a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and
(b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.”
EVIDENCE BEFORE THE PERSONAL INJURY COMMISSION
There was no application to adduce oral evidence or cross examine the applicant or any other witnesses as to any factual dispute before Personal Injury Commission (Commission).
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply to ARD (Reply) and attached documents, and
(c) Application to Admit Late Documents filed on 25 March 2023.
The applicant’s evidence
The applicant stated that on 4 September 2020 he experienced difficulties wearing a face mask. He obtained a medical exemption on the basis of a sinus infection which he presented to the respondent on 8 September 2020. The applicant did not provide consent for his medical practitioner to disclose the basis of his exemption. He continued to work without a mask until he returned to work on 5 January 2021 after the Christmas break. He was told to wear the mask or go home and access his annual leave. He did so. He returned to work after the public health order regarding masks was removed except for public facing employees. This did not include distribution centre/warehouse employees.
The applicant dealt with the Fair Work Ombudsman but was very dissatisfied with the response he received. He felt that he was spiralling into a state of depression and did not have the strength to continue the dispute. He was also involved in a notification to the Fair Work Commission which had an unsatisfactory outcome. He felt his union was not supporting him.
When public health measures regarding the wearing of masks on the Central Coast were reinstated on 24 June 2021 he was forced to take leave. He did not return to work after that date.
He stated:[1]
“25.…I was extremely stressed as my leave was running out. I was asking to be relocated to a different area in the warehouse away from other staff. I was offered to be relocated to a supermarket as mask wearing was not a mandatory PPE and the company was excepting medical exemptions. I replied by telling them that it was mandatory in all public facing roles and the company replied with they could afford to close a supermarket if they needed to but couldn't afford to close a warehouse. I explained at that time that there had been an employee attacked in a Woolworths supermarket by a member of the public because they weren't wearing a mask and I felt that my safety was being put at risk. they said that was the best they could offer. My mental health wasn't up to facing the public in that environment.
26.My leave was exhausted in early August 2021 and for the first time in my life I was forced to access government payments. I was entitled to the Coronavirus payment. This was far less then I was being paid on a weekly basis and besides the feeling of shame I was now experiencing financial stress. I started to smoke more and my weight was increasing due to eating from depression. I felt unmotivated and was having trouble sleeping.”
[1] ARD page16.
The applicant had some further contact during January 2022 which is not directly relevant.
The applicant was informed on 25 February 2022 that Woolworths were implementing a COVID-19 vaccination policy which required employees to be double vaccinated by
28 February 2022 or show satisfactory proof of exemption. The applicant could not comply with the policy because he had not been informed of its developmental or commencement.What followed is the crux of the circumstances surrounding the termination of employment of the applicant. The applicant’s statement evidence is set out below:
“28.… I received phone call later that afternoon from Jon Parsons another manager. following up from the call earlier from Andrew. Jon informed me that I had received a number of emails from Woolworths regarding their vaccination policy. I enquired about the email address that had been used and he confirmed that all communication had been sent to my work email. I told him that email address hadn't been actioned since I had ben stood down in June 2021. I provided him with an alternative email and reminded him that they have of my personal contact information on their portal. Jon told me that he would send me the policy however I have no record of receiving anything from them until 1st of April 2022. told him I would not be getting vaccinated I was given an extension of aprox 4 weeks as they had failed to notify me of the policy correct timeframe. It was now apparent to me that I wasn't going to be returning to my employment at Woolworths. I was really struggling with my mental health and the thought of having to find another job after being employed by Woolworths for 16 years is overwhelming. By this time, I was barely leaving my house to interact with anyone outside of my immediate family.
29.I received a phone call from Jon Parsons on 1st April 2022 I received a phone call from Jon Parsons asking me if my positioned had changed regarding my vaccination status. I told Jon that it hadn't. Jon then informed me that he was setting up a meeting to review my employment and would send me the information regarding the meeting. I received an email with a date to lodge any information to them by the 5th of April. I was now so distraught that I didn't know what to do. I declined their invitation to upload any information as I didn't know what to do and felt it was hopeless. It was only once I received formal email communication from he [sic] 1st of April was I offered access to the 24/7 employee support program known as Sonder to spite me previously mentioning that I wasn't ok and I was struggling being at home without pay.
30. 7th of April 2022 at 4.07pm outside if my normal scheduled work day I received an email from Jon Parsons confirming that they hadn't received a response from me by 5th April 2022 and outlining the next steps for the final conference meeting on 8th of April 2022 to discuss the review of my employment.
31. 8th of April 2022 Jon had set up a meeting with management for review of my
employment. I declined to join the meeting as I was extremely anxious and distraught. I phoned Jon just prior to the meeting starting and told him I wasn't logging in and to please just get on with my termination as this is causing me distress. At no time was it a government directive for Woolworths to mandate the COVID 19 Vaccination. I was physically shaking. and my voice was strained. That phone call resulted in my termination which was later followed up by an email. I was informed that as part of my termination I would receive 5 weeks' pay. I had to chase my termination pay up for months until it was finally discovered that the payment hadn't been finalised and was processed in June 2022.”
The applicant’s submissions
The applicant does not claim any of his absences from the implementation of the policy to termination of his employment.
The applicant submitted that the respondent’s actions were not reasonable because:
(a) it did not consider that in May 2022 the government relaxed restrictions regarding vaccination;
(b) his termination of employment denied his fundamental right to work;
(c) his termination of employment affected his ability to provide for his family;
(d) his termination of employment caused him stress and depression;
(e) the respondent could have suspended him on full or reduced pay from
5 January 2021 until May 2022 instead of terminating his employment;(f) the respondent could have offered him special leave for the six-month period;
(g) the applicant objected to the respondent’s offer to relocate him to a supermarket located outside the public health order restrictions, and
(h) the respondent did not give any consideration to how it could accommodate the applicant throughout the pandemic during mask mandates.
The respondent’s submissions
The respondent relies on its defence pursuant to s 11A as a complete defence to the applicant’s claim.
CONSIDERATION
I have summarised below the established relevant jurisprudence of this Tribunal as I understand it:
(a) the onus is on the respondent to establish a defence pursuant to s 11(A) of the 1987 Act;[2]
(b) the words reasonable action should be given a broad construction; [3]
(c) the question of reasonableness is a matter to be determined in all the circumstances of the case. It is an objective test, weighing the rights of the employer against the objects of the employment;[4]
(d) the consequences of the respondent’s actions must be considered against the reasons given for it; [5] or
(e) consideration also needs to be given to the manner by which events were implemented;[6]
(f) reasonableness is judged having regard to the fairness appropriate in the circumstances, including what went before or after a particular action;[7]
(g) if there has been disciplinary action it is necessary, when considering the reasonableness of that action, to have regard to all relevant circumstances, including the seriousness of the conduct that has led to the disciplinary action, the nature of the employer’s business, and the worker’s position in that business; [8]
(h) although an employer may be in strict compliance with its enterprise agreement or award requirements, its HR policy directives in relation to a Disciplinary Procedure or a Grievance Procedure, but compliance with those procedures is not sufficient to establish fairness if the objective circumstances of the case do not establish fairness. Compliance with those procedures and policies of the employer are relevant but compliance cannot establish reasonableness in the absence of fairness in all the circumstances of the case or, in any event, if those processes were not reasonable in all the circumstances of the case;[9]
(i) when considering s 11(A) the question of causation must be addressed by medical evidence. This will depend on all the circumstances of the case. There may be numerous factors contributing to causation of the injury to the applicant and medical evidence is necessary to establish the causation of a psychological injury,[10] and
(j) when determining whether the applicant’s medical condition was caused by the respondent’s reasonable actions, as identified in s 11(A), the question of wholly causative or predominantly causative must be considered separately. It must be one or the other.[11]
[2] Pirie v Franklins Ltd [2001] NSWCC 167.
[3] Foster AJA (Sheller and Santow JJA agreeing) Commissioner of Police v Minahan [2003] NSWCA 239; 1 DDCR 57.
[4] Geraghty J Irwin v Director-General of Education NSWCC 14068/97, 18 June 1998.
[5] Armitage J Ritchie v Department of Community Services [1998] 16 NSWCCR 727.
[6] Truss CCJ Ivanisevic v Laudet Pty Ltd unreported, 24 November 1998.
[7] Burke J Melder v Ausbowl Pty Ltd [1997] 15 NSWCCR 454,
Bottle v WeilandConsumablesPty Ltd [1999] NSWCC 135.
[8] Roche DP Baldwin v Greater Building Society Ltd [2011] NSWWCCPD 18.
[9] Rail Corporation NSW v Aravanopules [2019] NSWWCCPD 65 at [81], referring to Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v Broad [2008] NSWWCCPD 139.
[10] Snell ADP Smith v Roads and Traffic Authority of NSW [2008] NSWCCPD 130.
[11] Snell ADP Smith v Roads and Traffic Authority of NSW [2008] NSWCCPD 130.
I have considered the reasonableness of the respondent’s decision to discipline and terminate the applicant’s employment in the context of the party’s dealings with each other regarding the application of the respondent’s COVID-19 policy, over time and at termination of employment, and have made the following findings.
The applicant’s refusal to wear a mask whilst in the respondent’s employ was initially based on medical support that was short lived and flimsy. He was obdurate. The applicant was entitled to his own view. He did not want to do what he was asked to do for his own reasons and he therefore refused to comply to his detriment.
During this period the respondent allowed the applicant to take leave without pay. This was a patient response in a situation where the respondent had no industrial obligation to provide that concession.
The respondent offered the applicant alternate employment in a supermarket which would have avoided any obligation on him to wear a mask. This was a reasonable offer in the face of the applicant’s continued refusal to wear a mask in his usual place of work. Again, the respondent was not obliged to make this offer.
The respondent’s conduct in extending the time for the applicant to respond to the respondent’s demand that he vaccinate, given that he had not received proper notice of the policy, was appropriate and reasonable.
The applicant was given ample opportunity to comply with the respondent’s policy and follow what I am satisfied was a reasonable management direction to return to work after vaccination.
The applicant’s persistence in opposing his wearing of a mask and becoming vaccinated was a personal choice which he clung to in the face of his acknowledgement that it would cause him to be disciplined by termination of employment.
The respondent’s policy was reasonable in the context of the pandemic and taking into account the health and well-being of its workforce.
The respondent has established its defence pursuant to s 11A.
SUMMARY
For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
0
4
0