Van Vliet v Landscape Enterprises Pty Ltd - [2022] NSWPIC 14

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Van Vliet v Landscape Enterprises Pty Ltd [2022] NSWPIC 14
APPLICANT:	Markus Van Vliet
RESPONDENT:	Landscape Enterprises Pty Ltd
MEMBER:	Paul Sweeney
DATE OF DECISION:	10 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments and permanent impairment compensation by a worker with an accepted psychiatric injury; dispute as to whether applicant’s injury was wholly or predominantly caused by his dismissal, and, if so, whether the respondent’s actions with respect to dismissal were reasonable within section 11A(1) of the Workers Compensation Act 1987; finding that worker’s evidence not reliable; employer’s lay evidence preferred; discussion of what constitutes “reasonable action” in the case of a small employer; BlueScope Steel Ltd v Markovski considered; Held - in all the circumstances employer’s conduct was reasonable; award for the respondent.
DETERMINATIONS MADE:	1. Award for the respondent

STATEMENT OF REASONS

INTRODUCTION

Markus Van Vliet (the applicant) commenced employment with Landscape Enterprises Pty Ltd (the respondent) as a landscape gardener in 2018. Shortly after the commencement of his employment, he was appointed as a team leader responsible for the gardening/ landscaping at a number of commercial and industrial sites in Sydney.
On 31 January 2020, the applicant was required to attend a meeting with Paul Quinn, the proprietor of the respondent company. During the meeting his employment was terminated by Mr Quinn.
The applicant has not returned to work since that time. It is common ground that he has developed a psychological condition which precludes him from engaging in employment.
The applicant alleges that his psychological condition was caused by bullying and harassment and by exposure to unsafe work practices in the course of his employment.
The respondent concedes that the applicant suffered a psychological injury as a result of his dismissal on 31 January 2020 but denies that any other aspect of his employment caused or materially contributed to the development of a psychiatric illness. The applicant’s dismissal was reasonable action within s11A(1) of the Workers Compensation Act 1987 (1987 Act).
The respondent also concedes that the applicant is incapacitated for his pre-injury employment but argues that he has a residual capacity to perform selected employment at reduced hours.

PROCEDURE BEFORE THE COMMISSION

By these proceedings, the applicant claims weekly payments of compensation from the date of the termination of his employment and permanent impairment compensation in respect of a psychological injury pursuant to s 66 of the 1987 Act.
When the matter came on for conciliation and arbitration in the Commission on 4 November 2021 Mr Tanner of counsel represented the applicant and Mr Gaitanis of counsel represented the respondent. The matter was heard audio visually. Following a brief conciliation, I was informed by counsel that the parties were unable to reach a mutually satisfactory resolution of the threshold issue of the applicant’s entitlement to compensation. I have used my best endeavours to bring the parties to an agreement and I am satisfied that they had ample opportunity to consider settlement before and at 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.

Keep reading for free

Create a free CaseChat account to read Van Vliet v Landscape Enterprises Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWPIC 14
Decision Date: 10 January 2022

CaseChat Overview and Summary

In the case of Van Vliet v Landscape Enterprises Pty Ltd, the applicant, Mr Van Vliet, sought weekly payments and compensation for permanent impairment resulting from a psychiatric injury. The primary dispute centred around whether the injury was wholly or predominantly caused by his dismissal and, if so, whether the respondent’s actions during the dismissal were reasonable under section 11A(1) of the Workers Compensation Act 1987. The court was required to evaluate the reliability of Mr Van Vliet’s evidence against the employer’s lay testimony and determine whether the employer’s actions were reasonable in the context of a small business.

The court found that Mr Van Vliet’s evidence was not reliable, leading to a preference for the employer’s lay evidence. In examining the reasonableness of the employer’s actions, the court referenced BlueScope Steel Ltd v Markovski, emphasising that in the context of a small employer, the actions taken must be evaluated in light of the employer's capacity and resources. The court concluded that, considering all circumstances, the employer’s conduct during the dismissal was reasonable. Consequently, the court found in favour of the respondent.

The court’s decision hinged on the employer’s ability to act reasonably given the constraints of being a small business. The court found that the employer’s actions were proportionate to the circumstances and aligned with what a small business could reasonably be expected to do. The court also noted the importance of the employer's credibility and the lack of reliability in Mr Van Vliet’s evidence. Given these findings, the court awarded costs to the respondent.

Orders