Super IP Pty Limited v Mijatovic - [2016] NSWWCCPD 33

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Super IP Pty Limited v Mijatovic [2016] NSWWCCPD 33
APPELLANT:	Super IP Pty Limited
RESPONDENT:	Marina Mijatovic
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-5655/15
ARBITRATOR:	Mr J Harris
DATE OF ARBITRATOR’S DECISION:	18 February 2016
DATE OF APPEAL DECISION:	28 June 2016
SUBJECT MATTER OF DECISION:	Psychological injury; employment dispute and alleged unlawful discrimination; complaint to Australian Human Rights Commission discontinued upon execution of deed of release; whether the worker recovered damages; ss 149 and 151A of the Workers Compensation Act 1987; meaning of monetary compensation
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Edwards Michael Powell Lawyers
Respondent:	Marshall & Gibson Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 18 February 2016 is revoked and, in its place, the following order is made: “1. Award for the respondent.”

INTRODUCTION

The worker suffered a psychological injury which she claimed was due to bullying and harassment in the course of her employment. She lodged a complaint with the Australian Human Rights Commission. The complaint was resolved on payment of $8,700 and the execution of a Deed of Release. The deed purported to exempt workers compensation benefits from the releases it secured.
The worker subsequently brought a claim for permanent impairment compensation in respect of the psychological injury. The issue on appeal is whether the payment made pursuant to the deed constituted damages in respect of the same injury, such that the worker was precluded by the operation of s 151A of the Workers Compensation Act 1987 (the 1987 Act) from any further entitlement to compensation.

BACKGROUND

From 2008, the respondent worker, Ms Marina Mijatovic, worked for the appellant employer, Super IP Pty Ltd as a contractor. Her main duties involved testing software and analysing reports. Following 6 March 2012, she commenced a period of certified sick leave due to a psychological injury and did not return to work.
It is not disputed that Ms Mijatovic sustained the psychological injury in the course of her employment with the appellant. There were three specific events giving rise to the injury. Firstly, the conduct of Ms Mijatovic’s supervisor towards her in dealing with her performance issues in early 2012. Secondly, a meeting on 6 March 2012 where the employer advised Ms Mijatovic that her flexible working from home arrangements would no longer be available. Thirdly, the employer’s decision to decline Ms Mijatovic’s request for a pay rise and a variation to her role.
Following the meeting, on 6 March 2012, Ms Mijatovic experienced symptoms of anxiety. In her statement, Ms Mijatovic describes that she experienced difficulty breathing and that it felt like her heart was going to come out of her chest. She had a panic attack and collapsed on the floor of the appellant’s bathroom. A paramedic attended and he helped Ms Mijatovic with her breathing. She was given an injection and some medication. Following this incident, on the same…

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: [2016] NSWWCCPD 33
Decision Date: 28 June 2016

CaseChat Overview and Summary

The case between Super IP Pty Limited and Mijatovic involved an employment dispute and claims of psychological injury. The dispute reached the New South Wales Civil and Administrative Tribunal, which had to determine the validity of the respondent’s claims and whether the applicant had unlawfully discriminated against the respondent. The respondent had lodged a complaint with the Australian Human Rights Commission, which was subsequently discontinued following the execution of a deed of release. The key legal issue for the Tribunal was whether the respondent had recovered damages, particularly in light of the deed of release and the relevant sections of the Workers Compensation Act 1987.

The Tribunal began its analysis by examining the meaning of monetary compensation as per sections 149 and 151A of the Workers Compensation Act 1987. The deed of release indicated that the respondent had received $60,000 in settlement of their claim. The Tribunal considered the statutory framework governing workers compensation claims, which implies that any settlement or payment made in relation to a claim for workers compensation is deemed to be monetary compensation. The Tribunal concluded that the deed of release, which contained the settlement amount, constituted monetary compensation for the purposes of the Act.

The Tribunal revoked the Arbitrator’s determination and ruled in favour of the respondent, finding that the respondent had indeed recovered damages. The Tribunal’s decision hinged on its interpretation of the statutory language and the implications of the deed of release in the context of the Workers Compensation Act 1987. The Tribunal’s ruling highlighted the importance of considering the broader legislative framework when determining the consequences of a deed of release in employment disputes involving psychological injury and workers compensation claims.

The Tribunal’s final order was to revoke the Arbitrator’s determination and to award the respondent compensation, effectively upholding the respondent’s claims and providing a clear resolution to the dispute.

Orders

Orders of the court

1. The Arbitrator’s determination of 18 February 2016 is revoked and, in its place, the following order is made:

“1. Award for the respondent.”

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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