Australia: Psychological injuries and the section 11A(1) defence – does the evidence pass the test?

A common defence relied upon by employers in psychological injury cases is the section 11A(1)[1] defence.

To make out this defence, an employer must establish the worker's psychological injury was "wholly or predominantly" caused by action taken by an employer with respect to one of the following factors: transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits.

However, it is not enough that one of the employer actions is a cause of the worker's psychological injury. The employer needs to prove one of these actions was the main or principal cause2 of the worker's psychological injury.

As is often the case with psychological injury claims, there can be a number of potential causes of a worker's injury.

So how does one determine whether the worker's psychological injury was wholly or predominantly caused by one of the employer actions listed above?

This was recently considered in the decision of a Presidential member of the NSW Workers Compensation Commission in Hamad v Q Catering Limited [2017] NSWWCCPD 6.

The facts

The worker was employed as a leading hand, a role which involved the assembly of aircraft meals.

In 2013, the worker's job classification was changed to take on extra duties, without offering a pay increase. In February 2015, the worker took part in industrial action with other leading hands by refusing to do the extra duties required in the new role.

On 19 February 2015, the employer gave the worker a letter of direction to perform the combined role. The worker refused to take the letter and it was sent to his home.

The following day, on 20 February 2015, the worker again declined to carry out his new role and was allocated duties which were below his job classification. On the same day, he attended a meeting where he was given a letter of warning for failure to follow the direction of the employer. He continued working the remainder of his shift.

The worker made a claim for psychological injury resulting from 'mistreatment, bullying and intimidation' by the employer. He relied on various incidents as being causative of his injury, including the failure of the employer to increase his pay and directing him to perform duties below his classification.

The employer relied on a section 11A(1) defence, asserting the 'whole or predominant cause' of the worker's injury was reasonable employer action with respect to discipline. The employer did not file any medical evidence in support of the defence.

The Arbitrator determined the employer's section 11A(1) defence was made out with respect to 'discipline.'

The worker appealed against the decision to a Presidential member of the Commission on the basis there was no medical evidence to support the section 11A(1) defence.

Consideration by the Presidential member

Deputy President Snell considered the medical evidence relied on by the worker suggested there were other potential causes for the worker's psychological injury, not just the disciplinary action taken against the worker in February 2015.

Therefore, Deputy President Snell did not think the medical evidence supported a finding the disciplinary process was the 'whole or predominant' cause of injury.

He felt the question of whether the employer action was the whole or predominant cause of the worker's psychological injury required medical evidence addressing the issue. He did not consider it could be decided based solely on the Arbitrator's common knowledge and experience, particularly as there were competing causes for the psychological injury.

The section 11A(1) defence was therefore not made out and the worker's appeal was upheld.

Take away points

The causation test under section 11A(1) is a difficult one for an employer to establish.

There are times where it is not as important for an employer to have supporting medical evidence in making out this type of defence. For example, where there is one obvious cause of a worker's psychological injury, and no other competing factors.

However, where there are a number of potentially causative factors for a worker's psychological injury, medical evidence is necessary to establish that one of the section 11A(1) employer actions was the whole or predominant cause of the injury.

Of course, even if an employer establishes this particular element, they still have to prove the action taken or proposed to be taken was "reasonable" in the circumstances.

Footnotes

1 Workers Compensation Act 1987 (NSW)

2Ponnan v George Weston Foods Ltd (2007) NSWWCCPD 92.

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