Savage v Eco Septic Pty Ltd - [2021] NSWPIC 515

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Savage v ECO Septic Pty Ltd [2021] NSWPIC 515
APPLICANT:	Kenneth Savage
RESPONDENT:	ECO Septic Pty Ltd
MEMBER:	Glenn Capel
DATE OF DECISION:	9 December 2021
CATCHWORDS:	WORKERS COMPENSATION - Accepted psychological injury, but dispute as to the cause and whether injury wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to dismissal; worker alleged bullying and harassment during course of employment before termination during probation period; Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd, Department of Education and Training v Sinclair; Hamad v Q Catering Limited, Irwin v Director-General of School Education, Ivanisevic v Laudet Pty Ltd, Northern NSW Local Health Network v Heggie and Attorney General’s Department v K discussed and applied; Held -worker’s injury caused by all events at work, not merely termination; in the alternative, respondent’s actions were not reasonable; award for applicant for weekly compensation and medical expenses, referral to a Medical Assessor.
DETERMINATIONS MADE:	1. The applicant sustained a psychological injury arising out of or in the course of his employment on 1 October 2019 (deemed). 2. The applicant’s employment was the main contributing factor to his injury. 3. The applicant was paid weekly compensation from 3 November 2019 to 5 September 2020. 4. The applicant has had the capacity to work for 12 hours per week since 6 September 2020. 5. The applicant requires medical treatment as a consequence of his injury. 6. The applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to dismissal.
ORDERS MADE:	7. The respondent to pay the applicant $1,007.68 per week as adjusted from 6 September 2020 to date and continuing pursuant to section 37(3)(a) of the Workers Compensation Act 1987. 8. The respondent to pay the applicant’s reasonably necessary medical expenses pursuant to section 60 of the Workers Compensation Act 1987. 9. I remit the matter to the President for referral to a Medical Assessor for assessment of the whole person impairment as follows: Date of injury: 1 October 2019 (deemed)– disease. Body systems / parts: Psychological/psychiatric disorder. 10. The medical examination can proceed face to face or via a video assessment and the parties are directed to be aware of the requirements contained in the Commission’s e-bulletin 101. 11. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents; (c) Application to Admit Late Documents received on 9 November 2021, and (d) Application to Admit Late Documents received on 9 December 2021.

STATEMENT OF REASONS

BACKGROUND

Kenneth Savage (the applicant) is 59 years old and commenced employment with ECO Septic Pty Ltd (the respondent) as a product manager on 20 May 2019. He was dismissed on 1 October 2019.
There is no dispute that the applicant suffered a psychological injury arising out of or in the course of his employment…

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: [2021] NSWPIC 515
Decision Date: 9 December 2021

CaseChat Overview and Summary

In the case of Savage v Eco Septic Pty Ltd, the applicant, Mr. Savage, sought compensation for a psychological injury he claimed to have suffered during his employment with the respondent. The matter was heard in the Workers Compensation Court of New South Wales. Mr. Savage alleged that he was subjected to bullying and harassment by his employer, which culminated in his termination during the probationary period of his employment. The primary dispute centred on whether the psychological injury was caused by the reasonable actions taken by the employer or whether the injury was wholly or predominantly caused by events at work, separate from the termination.

The court had to determine whether the psychological injury sustained by Mr. Savage was caused by the reasonable actions taken by the employer, specifically his termination, or whether it was caused by other events during his employment, such as the alleged bullying and harassment. The court referred to various precedents, including Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd, Department of Education and Training v Sinclair, Hamad v Q Catering Limited, Irwin v Director-General of School Education, Ivanisevic v Laudet Pty Ltd, Northern NSW Local Health Network v Heggie, and Attorney General’s Department v K, to assist in its decision. The court examined whether the actions of the employer were reasonable in light of the circumstances, and whether these actions could be considered a predominant cause of the injury.

After considering the evidence and legal precedents, the court concluded that Mr. Savage's psychological injury was caused by events during his employment, not merely by his termination. Alternatively, the court found that the actions of the employer were not reasonable. Consequently, the court determined that Mr. Savage was entitled to compensation for his weekly loss and medical expenses. Additionally, the court ordered that Mr. Savage be referred to a Medical Assessor for further evaluation.

Orders