Shen v National Australia Bank Ltd [2026] VSCA 65

Under proposed ground 1, the applicant submitted that the judge was wrong to hold that s 44 of the SRC Act prevented her from maintaining the Wrongs Act proceeding. In support of that submission, the applicant made the following points.
First, notwithstanding her pleas in paragraphs 1 and 2 of the ASC that at all relevant times between 7 February 2006 and 30 September 2020 the applicant was employed by the respondent, and notwithstanding the way in which the case was argued by the applicant before the primary judge, the applicant contends in this Court that she was not an employee of the respondent after she ceased work in July 2013; alternatively, she was not an employee (nor a 'deemed employee') of the respondent for the purposes of the SRC Act, either after she ceased work in July 2013, or after 22 December 2015.
Secondly, by the operation of s 84 of the Work Health and Safety Act 2011 (Cth) (which provides that a worker 'may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard'), the applicant ceased to be employed by the respondent and/or a worker within the meaning of the SRC Act, after the respondent refused to resolve her employment‑related complaints (i.e. on and/or from 22 December 2015).
Thirdly, the injury suffered by the applicant as a result of acts or omissions of the respondent after July 2013 were not caused by the performance of the applicant's real work duties - those duties having been performed prior to the applicant ceasing their performance in July 2013.
Fourthly, there being no temporal connection between the performance of the applicant's normal work duties (i.e., the duties she performed before she ceased work in July 2013) and the injuries claimed in the Wrongs Act proceeding, it could not be said that those injuries were sustained by the applicant in the course of her employment with the respondent.
Fifthly, the injury pleaded in the Wrongs Act proceeding is not an injury within the meaning of s 5A(1) of the SRC Act because, by the terms of the section, such an injury 'does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment'.

Shen v National Australia Bank Ltd [2026] VSCA 65 | Case summary | Zoe

Under proposed ground 1, the applicant submitted that the judge was wrong to hold that s 44 of the SRC Act prevented her from maintaining the Wrongs Act proceeding. In support of that submission, the applicant made the following points.
First, notwithstanding her pleas in paragraphs 1 and 2 of the ASC that at all relevant times between 7 February 2006 and 30 September 2020 the applicant was employed by the respondent, and notwithstanding the way in which the case was argued by the applicant before the primary judge, the applicant contends in this Court that she was not an employee of the respondent after she ceased work in July 2013; alternatively, she was not an employee (nor a 'deemed employee') of the respondent for the purposes of the SRC Act, either after she ceased work in July 2013, or after 22 December 2015.
Secondly, by the operation of s 84 of the Work Health and Safety Act 2011 (Cth) (which provides that a worker 'may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard'), the applicant ceased to be employed by the respondent and/or a worker within the meaning of the SRC Act, after the respondent refused to resolve her employment‑related complaints (i.e. on and/or from 22 December 2015).
Thirdly, the injury suffered by the applicant as a result of acts or omissions of the respondent after July 2013 were not caused by the performance of the applicant's real work duties - those duties having been performed prior to the applicant ceasing their performance in July 2013.
Fourthly, there being no temporal connection between the performance of the applicant's normal work duties (i.e., the duties she performed before she ceased work in July 2013) and the injuries claimed in the Wrongs Act proceeding, it could not be said that those injuries were sustained by the applicant in the course of her employment with the respondent.
Fifthly, the injury pleaded in the Wrongs Act proceeding is not an injury within the meaning of s 5A(1) of the SRC Act because, by the terms of the section, such an injury 'does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment'.

[5]

There is no substance in any of the applicant's proposed grounds of appeal. For the reasons given by the judge, his Honour was correct in ordering the dismissal of the Wrongs Act proceeding.
First, the applicant was an employee of the respondent between 2006 and 2020 as pleaded by the applicant in the ASC and admitted by the respondent in its defence. More specifically, on those admitted facts, the applicant plainly remained an employee within the meaning of the SRC Act at the time when she alleges she suffered injury as a result of acts and omissions of the respondent which occurred after she ceased performing work duties in July 2013.
Secondly, nothing in s 84 of the Work Health and Safety Act 2011 (or any other provision in that Act) has any bearing upon whether the applicant was at all relevant times an employee of the respondent within the meaning of the SRC Act.
Thirdly, the fact that the applicant was not performing any of the usual duties for which she was employed at the time she suffered injury as alleged in the ASC does not require the conclusion that such an injury was not sustained in the course of her employment. As the decisions to which we have already referred show, the course of employment covers not only the actual work undertaken by a worker, but also activity which is incidental to that work. The authorities demonstrate that an injury may be sustained by an employee in the course of his or her employment even when the employee is not carrying out work at all (including, as in Mills, when the employee is injured while on leave), at least where the injury is sustained as a result of some incident or state of affairs to which the employee was exposed in the performance of their duties and to which they would not otherwise have been exposed. The application of that test involves a question of degree, in which time, place, practice and circumstance must be considered. In practice, that test has been held to be satisfied in cases where an injury was sustained in connection with an employee's complaints about the behaviour of co-workers (as in Trevarrow) or as a result of an investigation of possible misconduct (as in Mills).
In our opinion, the primary judge was correct when he concluded that the matters pleaded by the applicant in the ASC, as causing the injury for which she claims damages in the Wrongs Act proceeding, were incidental to the applicant's employment in the sense just explained. Her claimed injuries all concern matters with a clear connection to her employment, because they concern either the respondent's response to things that happened to the applicant at work (eg the alleged refusal to provide a safe work system by resolving her bullying and safety concerns, or to conduct a fair internal investigation of her bullying complaint), or the applicant's ongoing status as an employee (eg her claims concerning the respondent's alleged refusal to support her recovery and return to work, or its failure to consult her in relation to her redundancy).
Fourthly, the injury pleaded by the applicant in the Wrongs Act proceeding was not alleged to be an injury 'suffered as a result of reasonable administrative action taken in a reasonable manner in respect of [the applicant's] employment' within the terms of the exception contained in the definition of 'injury' in s 5A(1) of the SRC Act. Moreover, it is difficult (if not impossible) to see how a tenable claim for damages could arise in respect of an injury suffered as a result of 'reasonable administrative action taken in a reasonable manner in respect of the employee's employment'.[33]
Fifthly, the primary judge did not dismiss the Wrongs Act proceeding because of any inadequacy in the applicant's plea of a cause of action in negligence. The proceeding was dismissed because the bringing of it was precluded by s 44 of the SRC Act, which applies whether the claim made by the worker is in tort or contract.
Sixthly, while the judge was correct to conclude that the ASC does not make any claim in contract, even if that were not the case, again, the bar in s 44 of the SRC Act precludes any such claim.

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Shen v National Australia Bank Ltd [2026] VSCA 65 (16 April 2026)