Viney v Burwood Council

The case of Viney v Burwood Council involved a claim for weekly payments of compensation and medical expenses due to a psychological injury sustained by the applicant in the course of her employment. The dispute was heard by the Commission under the Workers Compensation Act 1987. The respondent, Burwood Council, attempted to defend the claim by invoking section 11A of the Act, which allows for a defence if the injury was wholly or predominantly caused by reasonable action taken with respect to the applicant's performance appraisal and discipline. The respondent argued that a Restorative Practice Process was part of the disciplinary action and thus the defence applied.

The key legal issues before the court were whether the Restorative Practice Process was part of the disciplinary action and if this action was reasonable, and whether the injury was wholly or predominantly caused by this action. The court referenced the case of Northern NSW Local Health Network v Heggie to determine if the action was reasonable and whether the worker had any current work capacity or a partial incapacity for work. Additionally, the court considered Kirkbride v State of NSW and Roads & Traffic Authority of NSW v Smith to determine if there was a statutory power to re-credit the respondent for salary payments made during the applicant's suspension.

The court found that the action of the respondent did not relate to performance appraisal but did meet the criteria for action with respect to discipline. However, the section 11A defence was not established because the injury was not wholly or predominantly caused by the disciplinary action. The court also determined that the Restorative Practice Process was not reasonable. The applicant had no current work capacity from 11 November 2019 to 28 February 2020 and has had a partial incapacity for work since 29 February 2020. The court awarded weekly payments of compensation and rejected the claim for re-credit for salary payments made during the applicant's suspension. The respondent was ordered to pay the applicant's medical expenses.