Tareen v TAL Services Limited - [2024] NSWPIC 129

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tareen v TAL Services Limited [2024] NSWPIC 129
APPLICANT:	Arish Tareen
RESPONDENT:	TAL Services Limited
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	18 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation in relation to psychological injury sustained in the course of employment with the respondent; “injury” not in dispute however the respondent raised a defence under section 11A in relation to performance appraisal; Irwin v Director General of Education, Dunn v Department of Education and Training, Smyth v Charles Stuart University, Attorney General v K, and Hamad v Q Catering Limited discussed and applied; Held – findings made that the meetings with the applicant were not performance appraisal and section 11A defence not established; the meetings were not the whole or predominant cause of the injury.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent has not established a defence under s 11A of the Workers Compensation Act 1987. 2. The applicant has no current work capacity from 23 March 2023. 3. The respondent is to pay the applicant weekly benefits compensation pursuant to s 37(1) of the Workers Compensation Act 1987 from 23 March 2023 to date and continuing at the rate of $1,573.32 per week. 4. The respondent is to pay the applicant’s treatment expenses on production of accounts, receipts and /or Medicare Notice of Charge pursuant to s 60 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Arish Tareen, the applicant, was employed as a as a claims consultant with the respondent, TAL Services Limited. He alleges that throughout his employment, between the period June 2022 to November 2022, he was exposed to interpersonal conflicts with a colleague in the form of discrimination, bullying and harassment and as a result he developed a psychological injury.
The Application to Resolve a Dispute (ARD) was amended to change the date of injury to 27 November 2022 and the weekly compensation claim to commence on 23 March 2023. The pre-injury average weekly earnings (PIAWE) were agreed at $1,966.95. It was also agreed that if Mr Tareen is successful, then a “general order” can be made for his claim for treatment expenses under s 60 of the Workers Compensation Act 1987 (the 1987 Act).
The respondent’s counsel confirmed that “injury” is not in dispute, that the issue relates to the application of s 11A of the 1987 Act in relation to performance appraisal, and if the respondent is unsuccessful in establishing a defence under s 11A, then an issue arises in relation to the entitlement to weekly compensation and Mr Tareen’s capacity for employment.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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…

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.

Continue reading Tareen v TAL Services Limited

Details

AGLC: Tareen v TAL Services Limited [2024] NSWPIC 129
Case: [2024] NSWPIC 129
Decision Date: 18 March 2024

CaseChat Overview and Summary

Tareen v TAL Services Limited involved a claim for weekly compensation in relation to a psychological injury sustained by the applicant in the course of employment with the respondent, TAL Services Limited. The primary issue in the case was whether the meetings between the applicant and the respondent, which were held to review the applicant's performance, constituted a performance appraisal under section 11A of the Workers Compensation Act 1987, which could potentially negate the employer's liability for compensation.

The court was required to decide whether the meetings were performance appraisals and, if so, whether these meetings were the whole or predominant cause of the applicant's psychological injury. The court considered relevant case law, including Irwin v Director General of Education, Dunn v Department of Education and Training, Smyth v Charles Stuart University, Attorney General v K, and Hamad v Q Catering Limited, to assist in determining the nature of the meetings and their impact on the applicant's mental health. The court found that the meetings were not performance appraisals under section 11A as they did not fit the statutory definition provided by the case law. The court also found that even if the meetings were considered performance appraisals, they were not the whole or predominant cause of the applicant's psychological injury.

The court concluded that the respondent's defence under section 11A was not established. The applicant's claim for weekly compensation was not negated by the statutory provision, as the meetings in question did not meet the criteria of a performance appraisal. The court determined that the applicant was entitled to compensation for the psychological injury sustained during their employment. As a result, the court ordered the respondent to provide the applicant with weekly compensation for their injury.

Orders