Employer has to justify cessation of payment

This appeal concerned the question of whether it is the employer or the worker who bears the onus of proof in relation to the justification for cessation of compensation payments.

Justice Estcourt of the Tasmanian Supreme Court noted that given the statutory entitlement to make such a reference was bestowed by s81A(5) upon an employer who wishes to dispute liability to continue to pay compensation to a worker in respect of an injury, one would have thought that it was quite clear that the onus would lie with the employer who seeks to establish facts justifying the cessation of payments, but “obviously, to the appellant at least, who on this appeal contends to the contrary, the matter is not so clear”.

The court rejected the employer’s arguments. Even though the employer may dispute a continuing liability to pay by disputing the employee’s foundational entitlement to compensation, it remains that the employer is seeking to prove that the employee is “no longer entitled” to the payment of compensation and so carries the onus to establish this.

On any view, the worker did not bear the onus of proof upon the hearing of the employer’s reference to the tribunal by reason of the operation of the principle of common law that “he who seeks must prove”.

Skilled Group Limited v A [2015] TASSC 18 (14 May 2015) 

Worker’s inaccurate view of email – reasonable employer action

The Workers Rehabilitation and Compensation Tribunal reached the conclusion that, although some issues – in particular the meal allowance and time off in lieu of overtime – may have in some way conditioned the worker to form an inaccurate view as to the nature and intent of a work email, it was the receipt of an email and her interpretation of it that caused the worker to suffer her injury (disease) in circumstances.

The email from her manager informed her that he was not, at that stage, prepared to complete a mentoring report on her. He then went back over her employment history noting all events that had occurred which she believed reflected poorly on the employer and may have concerned her at the time at which they occurred.

The worker’s evidence gave the impression of someone significantly affected by the receipt of this email.

This email was part of the completion of a mentoring component of the training course undertaken by the worker. The reason for the email, the content of the email and the actual intention expressed in that email were all reasonable actions that were administrative in nature and were taken in a reasonable manner in respect of the worker’s employment. Her injury (disease) which was an illness of the mind arose substantially from this aspect of her employment and as such compensation was not payable.

C v Community & Public Sector Union (Ref No. 125/2014) [2015] TASWRCT 16 (12 May 2015)

Actual communication of injury by worker required for notice

the Workers Rehabilitation and Compensation Tribunal noted case authority stating that a worker who merely expresses dissatisfaction, dismay or even distress to an employer concerning her working conditions or the behaviour of her employer or co-workers, does not thereby put her employer on notice of a potential claim for compensation and does not provide the requisite statutory notice of injury or disease.

On the day of the assault in issue here the worker consulted Dr A. The evidence indicated that she was diagnosed to be suffering a stress condition which had resulted from Mr B’s misconduct.

On 2 December, the employer, via Ms K, was aware of the assault within 30 minutes of its occurrence. Shortly afterwards it was aware, again via Ms K, that the worker had absented herself from the workplace and was emotionally distressed. It agreed that she should remain off work for that day. That afternoon the employer received Dr A’s first certificate which indicated the worker to be in need of medical treatment for an unidentified condition.

These matters together, in the tribunal’s view, should have made it plain to the employer that the worker was suffering from a medical condition attributable to the assault: “In the circumstances Ms K’s assertion to the contrary defies belief.”

However, those authorities cited did not make it arguable that the employer did not receive actual notice of the worker’s stress condition until 8 December when it received the workers compensation medical certificate. Although prior to that time the employer was aware that the worker was distressed, such observations “cannot form part of a notice . . . nor can observations that the employer ought to have made but did not make . . .”, quoting Friends’ School Inc v Edmiston [2014] TASSC 68, where Chief Justice Alan Blow found observations an employer made or ought to have made of a worker’s injury “cannot form part of a notice given to the employer”.

In the result, the tribunal came to the view, for the reasons stated, that the employer may arguably be able to avoid liability for the worker’s claim on the basis that it did not receive proper notice of the worker’s injury as soon as practicable; and the tribunal concluded: “I determine accordingly.”

Steel-line Garage Doors Pty Ltd v C (Ref No. 188/2015) [2015] TASWRCT 10 (18 March 2015)