Reynolds v Third Sector Australia Limited - [2023] NSWPIC 462

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Reynolds v Third Sector Australia Limited [2023] NSWPIC 462
APPLICANT:	Christina Louise Reynolds
RESPONDENT:	Third Sector Australia Limited
MEMBER:	Jill Toohey
DATE OF DECISION:	11 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Psychological injury; claim for weekly payments and medical expenses; whether injury wholly or predominantly caused by reasonable action with respect to performance appraisal; Held – finding that the applicant’s injury was predominantly caused by action with respect to performance appraisal; finding that action was reasonable; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained psychological injury arising out of or in the course of her employment with the respondent with deemed date 10 February 2023. 2. The applicant’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.

STATEMENT OF REASONS

BACKGROUND

Christina Reynolds, the applicant, commenced full-time employment with the respondent, Third Sector Australia Limited, on 14 March 2016. She worked in the Ballina office. Over time, she was employed in various roles, all involving working with clients who had been subject to domestic violence. In May 2022, she was promoted to the role of Service Manager and was responsible for managing three refuges and domestic violence outreach programs in northern New South Wales.
Ms Reynolds claims compensation for a psychological injury as a result of excessive workload and lack of support from her employer throughout 2022. In particular, she claims lack of support in January 2023 when a woman who was known to the service was murdered by her partner close to the office.
Ms Reynolds claims weekly payments from 10 February 2023 to date and continuing, and medical expenses. The medical expenses claimed in the Application to Resolve a Dispute (ARD) have increased since it was lodged and parties agree that, if Ms Reynolds’ claim succeeds, she is entitled to a general order for reasonably necessary medical expenses pursuant to s 60 of the Workers Compensation Act 1987 (1987 Act).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether Ms Reynolds’ psychological injury was wholly or predominantly caused by action taken by the respondent with respect to performance appraisal;
(b)    if so, whether that action was reasonable, and
(c)    whether Ms Reynolds is entitled to weekly payments and medical expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

Parties attended a conciliation and arbitration hearing by MS Teams on 18 August 2023.
Ms Reynolds was represented by Mr Mischa Hammond of counsel, instructed by Ms Pania Watt. The respondent was represented by Mr Phillip Perry of counsel, instructed by
Ms Jaclyn Dooley. Parties were unable to reach agreement and the matter proceeded to a hearing.
At the hearing, Mr Hammond objected to an Application to Admit Late Documents (AALD) lodged by the respondent on 17 August 2023 attaching copies of the respondent’s Managing Underperformance Procedure dated 1 December 2020…

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 462
Decision Date: 11 September 2023

CaseChat Overview and Summary

Reynolds brought an action against Third Sector Australia Limited in the workers compensation jurisdiction, seeking weekly payments and medical expenses following an alleged psychological injury sustained during employment. The injury in question arose from a performance appraisal process, and the primary issue for the court was whether the injury was wholly or predominantly caused by the employer's reasonable actions during the appraisal. The court had to determine whether the injury was a direct result of the employer's actions or if other factors played a significant role in causing the injury.

The court examined the evidence provided by both parties, including the performance appraisal process and the events leading up to the injury. The applicant argued that the employer's actions during the appraisal were unreasonable and contributed significantly to the psychological injury. The respondent, on the other hand, contended that the appraisal was a reasonable process and that other factors, such as the applicant's pre-existing mental health issues, played a more significant role in causing the injury. After considering the evidence, the court found that the injury was predominantly caused by the employer's reasonable actions during the performance appraisal. The court held that the respondent's actions were reasonable, and the applicant's injury was not wholly attributable to the employer's conduct. Consequently, the court dismissed the applicant's claim for weekly payments and medical expenses, awarding the respondent.

The court's reasoning hinged on the balance of causation, with the majority of the injury stemming from the employer's actions during the appraisal process, albeit reasonable ones. The court found that the employer had acted appropriately and within the bounds of reasonableness in conducting the performance appraisal, and therefore, the applicant's claim for compensation was denied. The court ordered that the respondent was not liable for weekly payments or medical expenses related to the applicant's psychological injury.

Orders