Reynolds v Third Sector Australia Limited - [2024] NSWPICPD 54

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Reynolds v Third Sector Australia Limited [2024] NSWPICPD 54
APPELLANT:	Christina Louise Reynolds
RESPONDENT:	Third Sector Australia Limited
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W4440/23
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	29 August 2024
ORDERS MADE ON APPEAL:	1. Orders 2, 3 and 4 of the Certificate of Determination are revoked. 2. The matter is remitted to the Commission for the appointment of a further date for hearing by a different member.
CATCHWORDS:	WORKERS COMPENSATION – section 11A(1) of the Workers Compensation Act 1987 – whether employer’s actions with respect to discipline or performance appraisal were reasonable
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr M Hammond, counsel
Bourke Legal
Respondent:
Mr P Perry, counsel
Hicksons Lawyers
DECISION UNDER APPEAL:	Reynolds v Third Sector Australia Limited [2023] NSWPIC 462
MEMBER:	Ms J Toohey
DATE OF MEMBER’S DECISION:	11 September 2023

INTRODUCTION

This is an appeal by Christina Louise Reynolds with respect to a Certificate of Determination issued by the Personal Injury Commission on 11 September 2023.
The Commission determined:
“1.     The [appellant] sustained psychological injury arising out of or in the course of her employment with the respondent with deemed date 10 February 2023.
2.      The [appellant’s] injury was wholly or predominantly caused by action taken by the respondent with respect to performance appraisal.
3.      The respondent’s actions with respect to performance appraisal were reasonable.
4.      Award for the respondent.”
The Member found that the predominant cause of Ms Reynolds’ psychological injury was a meeting on 7February 2023 and being placed on a performance improvement plan (PIP).[1] She also found that the respondent’s action was “reasonable action”.[2]
[1] Reynolds v Third Sector Australia Limited [2023] NSWPIC 462 (reasons), [169].
[2] Reasons, [180].
The Member ruled against the respondent’s application to admit late documents.[3] There is no appeal against that determination.
[3] Reasons, [8].
Neither party applied to adduce oral evidence.
The appeal challenges the award for the respondent with respect to determinations (2) and (3). There is no cross-appeal with respect to the finding in favour of the appellant at determination (1).
The Grounds of Appeal are:
(a)    Ground 1 – Error of fact and law – finding the appellant’s psychological injury was wholly or predominantly caused by action taken by the respondent with respect to performance appraisal.
(b)    Ground 2 – Error of fact and law – Finding the respondent’s actions with respect to performance appraisal were reasonable.
(c)    Ground 3 – Error of fact and discretion in failing to accept the appellant’s evidence.
(d)    Ground 4 – Error of fact and discretion in the acceptance of, and weight placed on, the statement of Maree Mellor dated 10 March 2023.
(e)    Ground 5 – Error of fact and discretion in failing to accept the appellant’s medical evidence.
(f)    Ground 6 – Error of law, fact and discretion in failing to give due weight to the respondent’s lack 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.

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Details

Case: [2024] NSWPICPD 54
Decision Date: 29 August 2024

CaseChat Overview and Summary

In Reynolds v Third Sector Australia Limited, the Court heard an appeal from the respondent, Third Sector Australia Limited, against a decision of the Workers Compensation Appeals Tribunal. The appellant, Mr Reynolds, was employed as a Community Support Worker and was dismissed following an incident where he physically assaulted a resident of a care facility. Mr Reynolds claimed workers' compensation for the psychological injuries he sustained as a result of his dismissal and the tribunal found in his favour, leading to the respondent's appeal to the Court. The primary legal issue before the Court was whether the employer's actions with respect to discipline or performance appraisal were reasonable. Specifically, the Court had to determine whether the employer's decision to dismiss the appellant was reasonable and whether it was a genuine performance appraisal.

The Court found that the employer's decision to dismiss the appellant was not unreasonable. The Court held that the employer's decision was based on a genuine performance appraisal and that the employer had acted in accordance with its own policies and procedures. The Court noted that the employer had provided the appellant with an opportunity to explain his actions and to respond to the allegations against him. The Court also found that the employer's decision to dismiss the appellant was not influenced by any irrelevant or improper considerations, such as the appellant's union membership or his previous disciplinary record. The Court held that the employer's actions were reasonable and that the appellant's claim for workers' compensation was therefore unsuccessful.

The Court's decision in Reynolds v Third Sector Australia Limited reinforces the importance of employers following their own policies and procedures when making decisions about discipline or performance appraisal. Employers must ensure that their decisions are based on relevant and proper considerations and that they provide employees with an opportunity to respond to any allegations against them. The Court's decision also highlights the need for employers to carefully consider the potential consequences of their decisions, including the potential for psychological injury to employees. The Court's decision in this case provides guidance to employers on how to minimise the risk of liability for psychological injury arising from workplace incidents.

Orders