Westpac Banking Corporation v Dinning

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Westpac Banking Corporation v Dinning [2019] NSWWCCPD 33
APPELLANT:	Westpac Banking Corporation
RESPONDENT:	Karen Dinning
INSURER:	Self-insured
FILE NUMBER:	A1-5410/18
ARBITRATOR:	Mr J Isaksen
DATE OF ARBITRATOR’S DECISION:	25 January 2019
DATE OF APPEAL DECISION:	11 July 2019
SUBJECT MATTER OF DECISION:	Monetary threshold required by s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; Re Alcan Australia Limited; Ex parte Federation of Industrial Manufacturing and Engineering Employees [1994] HCA 34; 181 CLR 96; 68 ALJR 626; 123 ALR 193, Grimson v Integral Energy [2003] NSWWCCPD 29, Hawke v Stanyer & ors t/as Stanyer Partnership [2007] NSWWCCPD 208, Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7, O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1 applied; Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3, Anderson v Secretary, Department of Education [2018] NSWWCCPD 32, Lambropoulosv Qantas Airways Limited [2019] NSWWCCPD 17 discussed and applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	HWL Ebsworth Lawyers
Respondent:	Turner Freeman Lawyers
ORDERS MADE ON APPEAL:	1. The monetary threshold in s 352(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 is not satisfied, and there is no right of appeal.

INTRODUCTION AND BACKGROUND

1. Ms Karen Dinning (the respondent) claimed that she suffered psychological injury as a result of alleged ongoing work stressors culminating in meetings with two of her superiors in February, March and April 2017. The respondent ceased work on or about 21 April 2017.

2. In a notice of dispute (dispute notice) dated 23 November 2017, which was issued pursuant to the former s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the appellant declined the claim. The basis of the declinature was said to be that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the appellant in respect of “performance appraisal, informal/formal performance management for the purposes of subsection 11A(1)” of the Workers Compensation Act 1987 (the 1987 Act).[1]

   [1] Appellant’s dispute notice dated 23 November 2017; Application to Resolve a Dispute (ARD) pp 198–210, at p 199, [1].

3. A further dispute notice was issued by the appellant dated 28 March 2018. That dispute notice amended the issues in dispute to allege that the respondent’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the appellant in respect of “performance appraisal or discipline” pursuant to s 11A of the 1987 Act.[2]    

   [2] Appellant’s dispute notice dated 26 March 2018; ARD pp 213–217, at p 213.

4. The respondent lodged an ARD in the Commission, seeking a continuing claim for weekly payments of compensation at the rate of $1,500 per week from 21 April 2017, and ongoing treatment expenses pursuant to s 60 of…