Australia: Workers compensation injury and dismissal

Workplace Directions August 2011
Last Updated: 2 September 2011
Article by Marco Nesbeth

Richard Plunkett v Silverbrook Research Pty Ltd [2011] NSWIRComm 1031

Dr Plunkett was employed on a permanent basis by Silverbrook Research Pty Ltd in 2002. Silverbrook undertook advanced engineering and research, employing some 460 employees.

Dr Plunkett suffered work-related 'tennis elbow' to initially his right arm and subsequently bilaterally. He made a workers compensation claim during 2005 which was accepted. He was able to return to work on restricted duties.

Subsequently, Dr Plunkett was performance managed and the areas needing improvement were identified as communication and interaction with other employees.

Once the performance management process had begun, there were incidents involving Dr Plunkett which concerned Silverbrook. These included Dr Plunkett kicking and breaking a glass door, apparently in frustration over a performance review, refusing to communicate in anything but handwritten notes, attending work after hours at a time when he had been suspended, inspecting confidential files, and allegedly acting in a threatening and harassing manner.

As a result of Dr Plunkett's behaviour, Silverbrook sought to have him reviewed by a psychiatrist to assess his ability to carry out his employment which Dr Plunkett refused.

Following a Notification of an Industrial Dispute brought by Silverbrook pursuant to Section 130 of the Industrial Relations Act 1996, Dr Plunkett agreed to attend a psychiatric assessment. Dr Plunkett was assessed by Dr Lewin, psychiatrist, whose opinion was inconclusive.

Silverbrook dismissed Dr Plunkett on 26 August 2008. In the letter of termination, the reasons cited were:

  • Failure to comply with a number of directions, including continuing to attend the workplace after being directed not to
  • Failure to complete a professional coaching program, and initial failure to attend the psychiatric assessment
  • The report of Dr Lewin failed to 'give directors of Silverbrook Research sufficient comfort that they would be able to discharge their statutory obligations to ensure health and safety of all employees ...'
  • The operational requirements of the business were incompatible with the injuries sustained in relation to the workers compensation matter
  • Dr Plunkett's apparent failure to accept Silverbrook's findings following complaints against a supervisor.

In July 2010, Dr Plunkett emailed Silverbrook and produced a medical certificate confirming that he was fit to return to pre-injury duties. He sought reinstatement of his employment pursuant to s241 of the Workers Compensation Act 1987 (NSW) ('the Act'). That section provides that if an injured worker is dismissed because he is not fit for employment as a result of the injury received, the worker may apply to the employer for reinstatement to employment of a kind specified in the application.

Reinstatement was rejected by Silverbrook on the basis that there was no position available.


Dr Plunkett applied to the Workers Compensation Commission seeking an order for reinstatement of employment with Silverbrook pursuant to Section 242 of the Act. That section provides that if an employer does not reinstate a worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for a reinstatement order.

Concurrently, Dr Plunkett had proceedings on foot in the Federal Magistrates Court claiming substantial damages.

The Commission noted that the onus of proof that the dismissal was caused by the injury was reversed by Section 244 of the Act. It was therefore for Silverbrook to satisfy the Commission that Dr Plunkett's injury was not either wholly or substantially a part of the reasoning.

The person who made the decision to terminate Dr Plunkett's services (not the same person as who signed the termination letter) in her evidence gave three reasons for the decision. These were an unreasonable failure to accept the outcome of the complaint investigations, attendance at the premises afterhours against directions, and conduct towards his colleagues. No mention was made of the workers compensation injuries.

The requirements for an employer handling complaints

The Commission took the opportunity to outline what it considered was required of an employer when investigating complaints such as those raised by Dr Plunkett. It was not necessary that the employer '...act judicially or quasi-judicially, only to act fairly and impartially'. The issue was one of natural justice. It was further a requirement that the employer or person investigating '... act in good faith and fairly listen to all sides in dispute before reaching a decision'. However, there was no requirement that such investigation be treated as though it were a trial. Accordingly, the employer could obtain information in whatever way they considered appropriate and give all parties a fair opportunity to be heard.


Despite the letter terminating Dr Plunkett's services referring to the workers compensation injuries, it was not found to be a substantial reason for the termination of services. The Commission found that the substantial reasons for the termination of services were Dr Plunkett's relationship with his colleagues as well as the other issues raised in the letter of termination. As such, Silverbrook, in the Commission's view, had satisfied Section 244 of the Act. The dismissal was 'not due – wholly or even substantially – because of his workers compensation injury'.

Arguments before the Commission with regards to alleged emotional difficulties problems forming part of the workers compensation injuries were rejected. The application was confined to the injury to Dr Plunkett's forearms alone. The Commission accepted Silverbrook's submissions that Section 244 only required the Commission be satisfied that the workers compensation injury was not the reason, or the substantial reason for the dismissal. There was no obligation to show that the reason for the dismissal was valid or even fair in the circumstances.


In this case, there were clearly a number of potent factors which gave rise to Dr Plunkett's dismissal. It is apparent that the Commission was prepared to look into the full circumstances of the application, notwithstanding what was said on the face of the termination letter. Indeed, the decision maker's oral evidence in that regard carried more weight.

It is also noteworthy that the Commission rejected submissions that Dr Plunkett's emotional difficulties were injury related. This was on the basis that they were not originally indicated in the workers compensation claim. Had the issue specifically been pleaded it would be of interest how the issue would have been approached by the Commission. If Dr Plunkett had successfully argued that behaviour which largely constituted the basis of the termination of his employment were due to psychological injuries forming part of his workers compensation claim, it may have been open to the Commission to find that the dismissal was injury related. However, the difficulty in Dr Plunkett establishing a sufficient recovery such that he could have returned to work would have remained. His medical certificate as required by Section 241(3) made no reference to psychological injuries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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