Westpac Banking Corporation v Mani

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Westpac Banking Corporation v Mani [2019] NSWWCCPD 41
APPELLANT:	Westpac Banking Corporation
RESPONDENT:	Shailendra Mani
INSURER:	Self-insured
FILE NUMBER:	A1-6136/18
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	22 February 2019
DATE OF APPEAL DECISION:	9 August 2019
SUBJECT MATTER OF DECISION:	Section 11A(1) of the Workers Compensation Act 1987 (the 1987 Act) – factors to be considered in an assessment of whether action with respect to discipline was reasonable; Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, Irwin v Director General of School Education (Compensation Court of NSW, Geraghty CCJ, 18 June 1998, no 14068 of 1997, unreported), Melder v Ausbowl Pty Ltd (1997) 15 NSWCCR 454, Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 considered and applied; s 32A of the 1987 Act – “suitable employment” – Cronje v Leighton Contractors Pty Ltd [2015] NSWWCCPD 16 discussed, Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 applied; s 37 of the 1987 Act – calculation of the ability to earn
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 Certificate of Determination dated 22 February 2019 is confirmed.

INTRODUCTION

1. Shailendra Mani (the respondent) brought proceedings in the Commission alleging that he suffered psychological injury as a result of “bullying, harassment, mistreatment, misleading, disingenuous, and capricious conduct”[1] by his managers, culminating in psychological injury on or about 8 February 2018.

   [1] Application to Resolve a Dispute (ARD), Part 4 – Injury Details.

2. The Westpac Banking Corporation (the appellant) accepted that the respondent suffered a psychological injury, but declined liability on the basis that the injury was wholly or predominantly caused by reasonable action taken by or on behalf of the appellant in respect of performance appraisal, discipline, or the termination of the respondent’s employment, in accordance with s 11A of the Workers Compensation Act 1987 (the 1987 Act).[2] The appellant also disputed the claim made by the respondent that he had no capacity for work.

   [2] Review Decision and Notice of Dispute issued pursuant to ss 74 and 287A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

3. The matter proceeded to arbitration. The Arbitrator determined that the respondent suffered psychological injury on 7 February 2018 and that the appellant had failed to prove that its actions were reasonable, as required by s11A of the 1987 Act. He entered an award in favour of the respondent in respect of weekly payments of compensation pursuant to ss 36 and 37 of the 1987 Act, and treatment expenses pursuant to s 60 of the 1987 Act.

4. The appellant appeals that decision.

BACKGROUND

1. The respondent was born in Fiji and was employed by the appellant in Fiji, before moving to Australia in 1993. The respondent was again employed by the appellant from 1999, ultimately working in the role of a…