Workers Rehabilitation and Compensation Act 1988; ss 3, 25(1A), 42, 81A.

Racial Discrimination Act 1975.

Vos Construction & Joinery Pty Ltd v Norton-Smith [2016] TASSC 38;

St Helen's Oysters Pty Ltd v Coatsworth [2007] TASSC 90;

Bradshaw v Tasmania Networks Pty Ltd [2020] TASFC 2;

Tassal Operations Pty Ltd v Lese [2021] TASSC 22;

The State of Tasmania (Department of Natural Resources and Environment) v R [2024] TASCAT 84;

Wiegand v Comcare Australia [2002] FCA 1464;

State Transport Authority of New South Wales v Fritzi Chemlar [2007] NSWCA 249;

Vodafone Hutchinson Australia Pty Ltd v G [2016] TASWRCT 6;

Headway Support Services v Wickham [2009] TASSC 99;

The State of Tasmanian (Department for Education, Children and Young People v ENX [2025] TASCAT 124;

M v Allianz Australia Services Pty Ltd No. 2 [2019] TASWRCT 35;

Kean v Workers Rehabilitation and Compensation Corporation 1998 71 SASR 42;

Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16.

The decision has been anonymised for the purpose of publication.

1. The worker made a claim for compensation on 28 March 2025 for an alleged workplace injury occurring on 20 March 2025. The employer has disputed liability to pay compensation to the worker pursuant to s 81A of the Workers Rehabilitation and Compensation Act 1988 (the WRC Act).
2. Where an employer disputes liability for a claim pursuant to s 81A of the WRC Act, the employer must establish that it has a reasonably arguable case to do so. If the Tribunal finds that a reasonably arguable case exists, it must make orders under s 81A(3)(c) and (d) of the WRC Act to the effect that compensation is not to be paid to the worker.
3. The issue to be determined in this s 81A referral is whether the employer has discharged its onus to prove a reasonably arguable case to dispute its liability to pay compensation to the worker.

1. Subsequent to the worker's lodgement of his worker's compensation claim, pursuant to s 81A of the WRC Act, the employer disputed its liability to pay compensation to the worker.
2. In a referral filed with the Tribunal on 15 May 2025, the employer pleaded five grounds of dispute asserting that there was sufficient evidence before the Tribunal for it to find a reasonably arguable case to dispute its liability to pay compensation to the worker.
3. These five grounds were:

(i) the worker has not suffered an injury, not being a disease, arising out of or in the course of his employment with the employer, as required by s. 25(1)(a) of the Act ('Ground One'); and further

(ii) the worker has not suffered an injury, which is a disease and to which his employment has contributed to a substantial degree within the meaning of s. 3(2A) of the Act (s. 25(1)(b) of the Act) ('Ground Two'); and further

(iii) the worker has not suffered a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where his employment was the major or most significant contributing factor to that recurrence, aggravation, acceleration, exacerbation, or deterioration (s. 3(1), Act) ('Ground Three'); and further or in the alternative

(iv) the worker has suffered a disease which is an illness of the mind or a disorder of the mind, and which arose substantially from reasonable action taken in a reasonable manner by the employer to discipline or counsel the worker (s. 25(1A)(a) of the Act) ('Ground Four'); and further or in the alternative

(v) the worker has suffered a disease which is an illness of the mind or a disorder of the mind and which arose substantially from reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment (s. 25(1A)(c) of the Act) ('Ground Five').

1. In support of Grounds One, Two, Three, Four, and Five, the employer relied on the following:

(a) Claim form dated 28 March 2025;

(b) Initial workers compensation medical certificate dated 25 March 2025;

(c) Statement from TT (CEO) dated 7 April 2025;

(d) Statement from SG (Crew Chief) dated 7 April 2025; and

(e) Statement from EW (Head of Flying Operations) dated 7 April 2025.

1. In support of Grounds One, Two and Three the employer asserted:

(a) The workers compensation claim form was received by the employer on 28 March 2025, and says the worker suffered "psychological stress and anxiety" due to "...been subject to work place bullying and unfair discrimination based on a protected attribute that being my family status. I have been the subject of repeated bullying in the form of unlawful practices including but not limited to the following. Unlawful leave practices, unlawful wage underpayments, threatening conversations based on my protected attribute, vexatious complaints, isolation from workplace colleagues, breaches in company HR practices. These acts were carried out by the company CEO, the head of flight operations and the chief crewman."

(b) The employer denies that the worker's injury has been caused by his employment as alleged above, on the basis that either:

(c) The events referred to never occurred, and therefore could not be the cause of the worker's injury; or

(d) The events occurred but not as alleged by the worker, and therefore could not be the cause of his injury.

(e) The evidence in support of paragraph 4(c) above is contained in the statements from:

(f) TT (CEO) dated 7 April 2025, specifically paragraphs [16] to [22], [43] to [53], and [63] to [64]; and

(g) EW (Head of Flying Operations) dated 7 April 2025, specifically paragraphs [3] to [12].

(h) Based on the above, there is a factual dispute, and if the employer's evidence is accepted at a hearing on this issue, the Tribunal must accept that the employer has a reasonably arguable case.

(i) Accordingly, the Tribunal can be satisfied that the employer has a reasonably arguable case in respect of these grounds of dispute.

1. In support of Grounds Four and Five the employer asserted:

(a) If the worker has suffered a disease which is an illness of the mind or a disorder of the mind (which is denied), then it is the employer's case that the injury has arisen substantially from the Employer counselling the worker, disciplining the worker and/or taking reasonable administrative action in a reasonable manner in connection with his employment, and in that regard specific reference is made to the following:

(i) the Employer denying the worker's annual leave application on the basis of employee availability;

(ii) the Employer only approving part of the worker's overtime payment;

(iii) the Employer conducting a workplace meeting with the worker on 20 March 2025;

(iv) the Employer disciplining the worker in the meeting on 20 March 2025 in relation to a safety breach incident involving the worker;

(b) It is the Employer's case that the alleged injury arose substantially from one, some, or all of the events detailed at paragraph 5(a) above due to the proximity of these events to the date of initial incapacity.

(c) These actions taken by the employer qualify as either:

(i) reasonable action taken in a reasonable manner to counsel the worker;

(ii) reasonable action taken in a reasonable manner to discipline the worker; and further or in the alternative

(iii) reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment.

(d) The evidence in support of these grounds of dispute can be found in the following statements:

(i) from TT (CEO) dated 7 April 2025, specifically from paragraphs [23] to [49], [54] to [62], and [65] to [72];

(ii) from SG (Crew Chief) dated 7 April 2025, specifically from paragraphs [4] to [34];

(iii) from EW (Head of Flying Operations) dated 7 April 2025, specifically from paragraphs [3] to [20],

where justification is provided for why the above action was reasonable in the circumstances, and taken in a reasonable manner.

1. The s 81A hearing was initially listed for 2 June 2025 but was adjourned to 18 June 2025 to enable the worker to participate in the hearing process.
2. At the hearing on 18 June 2025, as the employer bore the onus of proof (re onus of proof see Vos Construction & Joinery Pty Ltd v Norton-Smith [2016] TASSC 38), the employer's solicitor tendered the documents attached to the referral and made further oral submissions in support of their case.
3. When given the opportunity to respond, the worker's solicitor made extensive oral submissions.
4. After a short reply from the employer's solicitor, I reserved my decision.
5. Later on 18 June 2025, the worker's solicitor emailed the Tribunal with a list of the authorities cited during their oral submissions during the hearing. They also indicated that they were prepared to provide their written submissions to assist the Tribunal.
6. I accepted this offer, with an offer being made to the employer's solicitor to provide any written submissions in response.
7. On the morning of 19 June 2025, the employer's solicitors provided their written submissions.
8. At the worker's solicitor's request, and with no objection from the employer's solicitor, I granted the worker's solicitor time to provide further written submissions in response to the employer's solicitor's written submissions.
9. On 25 June 2025, the worker's solicitor provided their final written submissions to the Tribunal and the employer's solicitor.

1. The worker's solicitor has conceded Grounds One and Three in the employer's referral of 20 March 2025.
2. Grounds Two, Four and Five remain to be determined.

1. The test for whether a reasonably arguable case exists is well settled, and is as detailed in St Helen's Oysters Pty Ltd v Coatsworth [2007] TASSC 90 [10] where Evans J stated:

A case will not be reasonably arguable unless the case itself is reasonable in the sense that there is a reasonable prospect of the claim being rejected following a final hearing. ... The very notion of a "reasonably arguable case", like the very notion of a "prima facie case" precludes a final determination of a disputed question of fact. ... On the face of s 81A, a reasonably arguable case will exist concerning the liability of an employer to pay a worker if it is reasonably arguable on the material available in relation to the claim or identified deficiencies or weaknesses in the claim that, following a contested hearing, it may be rejected.

2. Another formulation of this test was detailed in the Full Court decision of Bradshaw v Tasmania Networks Pty Ltd [2020] TASFC 2, where Estcourt J at [17] stated as follows:

Whilst the employer carries the onus of proof on a s 81A application, I accept the submission ... that what the employer is required to prove is not that there is no liability under s 25 of the Act, but only that there exists, on the evidentiary material that the employer relies upon in the s 81A proceedings, a reasonable chance that the worker will be unable to discharge the onus of proof that will ultimately rest with the worker by virtue of the Act, s 49(2)(a), on a final hearing of the worker's claim. As counsel for the employer put it, "the worker was certainly not required in this instance to positively prove that some specific factor other than the worker's employment was the major or most significant contributing factor".

3. As was stated in Vos Constructions (supra), the employer's case need not be strong nor compelling, but must at least be reasonably arguable.
4. In Tassal Operations Pty Ltd v Lese [2021] TASSC 22, Pearce J at [8] stated the following:

The Act does not require that the employer's case about liability be strong or compelling, but the case that the claim may ultimately be rejected must be reasonably arguable.

5. Following this reasoning, Senior Member Jack in The State of Tasmania (Department of Natural Resources and Environment) v R [2024] TASCAT 84 at [23] stated the following:

In determining whether an employer has demonstrated the existence of a reasonably arguable case to dispute a worker's claim for compensation, the Tribunal takes the evidence relied upon by the employer at its highest.

6. From these authorities, it is clear that it is not the Tribunal's role when dealing with a s 81A referral to make findings of disputed facts. That is to occur upon the hearing of any s 42 application made by the worker if a reasonably arguable case is found. The Tribunal's role in a s 81A referral is to determine on the evidentiary material before it in accordance with the formulations detailed above, whether there is a reasonably arguable case to dispute liability to pay compensation to the worker.

1. In its written submissions, the employer's solicitor indicated as follows:

1. The key questions to be answered on this s. 81A referral (re ground 2) is whether the evidence filed by the employer permits a reasonable argument that:

(a) the worker's employment was not the major or most significant factor in the causation of his injury because it is open on the evidence before the Tribunal to find that the worker was not "subject[ed] to workplace bullying and unfair discrimination based on a protected attribute that being [his] family status..." nor was he "[subjected to] repeated bullying in the form of unlawful practices including but not limited to the following: unlawful leave practices; unlawful wage underpayments; threatening conversations based on [his] protected attribute; vexatious complaints; isolation from work colleagues; breaches in company HR policies"; > > and/or (re grounds 4 and 5)

(b) the worker's condition arose substantially from the s. 25(1A) events described in paragraph 5(a) of the s. 81A referral filed by the employer, noting that the worker only takes issue with the employer characterising those s. 25(1A) events as reasonable action, taken in a reasonable manner, and concedes that those events qualify as:

(i) counselling;

(ii) discipline; and/or

(iii) administrative action.

1. The employer denied that the worker's injury had been caused by his employment as was alleged in his worker's compensation claim form received by the employer on 28 March 2025 on the basis that either:

(i) The events referred to never occurred and therefore could not be the cause of the worker's injury; or

(ii) The events occurred but not as alleged by the worker and therefore could not be the cause of his injury.

1. In support of its case in this regard, the employer referred to specific paragraphs in the statements of TT (employer's CEO) dated 7 April 2025, the statement of EW (Head of Flying Operations) dated 7 April 2025, and SG (Crew Chief) dated 7 April 2025.
2. The employer's solicitor asserted that there were a range of factual disputes arising from this evidence which the Tribunal must accept as discharging the employer's onus to establish a reasonably arguable case.
3. With regard to the dispute on the basis of s 25(1A)(a) - Ground Four, and s 25(1A)(c) - Ground Five, the employer's solicitor alleged that if the worker had suffered a disease which is an illness of the mind or a disorder of the mind (which was denied), then it was their case that the injury had arisen substantially from the employer counselling the worker, disciplining the worker and/or taking reasonable administrative action in a reasonable manner in connection with his employment and in that regard, they referenced the following specific matters:

(i) The employer denying annual leave application on the basis of employee availability;

(ii) The employer approving part of the worker's overtime payment;

(iii) The employer conducting a workplace meeting with the worker on 20 March 2025;

(iv) The employer disciplining the worker in a meeting on 20 March 2025 in relation to a safety breach involving a worker.

1. It was the employer's case the alleged injury arose substantially from one, some or all of the matters detailed above due to:

(i) The proximity of these events to the date of initial incapacity;

(ii) The employer's evidence that goes to support how frustrated the worker was after:

(a) being denied annual leave;

(b) not having all his overtime approved;

(c) the meeting that took place on 20 March 2025 with respect to the safety issue.

1. The employer's solicitor also asserted that all of these actions taken by the employer qualified as either:

(i) Reasonable action taken in a reasonable manner to counsel the worker;

(ii) Reasonable action taken in a reasonable manner to discipline the worker; and further or in the alternative

(iii) Reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment.

1. The evidentiary support for this aspect of the employer's case were various paragraphs within the statement of TT, SG and EW.

1. In its written submissions the worker's solicitor indicated that in short, there is no basis for a finding of a reasonably arguable case because:

(i) The worker has suffered an injury which is a disease;

(ii) His employment was the major or most significant contributing factor to that disease;

(iii) The s 25(1A) defences outlined in Ground Five of the s 81A referral do not apply because:

(a) The employer has incorrectly identified the cause of the worker's injury and/or failed to identify and address all of the causes;

(b) While some of the actions taken by the employer might be administrative actions and/or actions to discipline or counsel the worker, they were not reasonable actions taken in a reasonable manner.

1. With regard to Ground Two, the worker's solicitor asserted that the only evidence before the Tribunal was in the worker's claim form of 28 March 2025 and in the initial workers compensation medical certificate dated 25 March 2025 which assert the worker suffered psychological stress and anxiety, and anxiety respectively.
2. Both the claim form and the initial workers compensation medical certificate described work causes detailed on page three of the claim and point two of the certificate.
3. The worker's solicitor asserted there is no evidence, medical or otherwise, to indicate that the worker's injury was not work caused.
4. The worker's solicitor alleged that the worker's injury was caused by the following actions as per his claim form:

(i) Workplace bullying;

(ii) Unfair discrimination based on a protected attribute, namely his family status;

(iii) Repeated bullying in the form of:

(a) Unlawful leave practices;

(b) Unlawful wage underpayment;

(c) Threatening conversations based on his protected attribute;

(d) Vexatious complaints;

(e) Isolation from workplace colleagues;

(f) Breaches in company HR practices.

1. The worker's solicitor asserted that the above acts were committed by TT, SG and/or EW.
2. It is further asserted by the worker's solicitor that the appropriate question is not whether it is open for the Tribunal to find that the worker was not subject to the alleged behaviour as described above, but rather referencing a decision of Von Dousa J in Wiegand v Comcare Australia [2002] FCA 1464 at [31], the appropriate question is whether:

...the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of the others) and the perception contributed in a material degree to an aggravation of the employee's ailment.

1. They further cited comments by Basten JA in State Transport Authority of New South Wales v Fritzi Chemlar [2007] NSWCA 249 at [69], and importantly for the present purposes, the comments of Spiegleman CJ (to which Bryson AJA agreed), noted in Chemlar (supra) that the purpose of the New South Wales provision (equivalent to s 25(1) of the WRC Act) is "to establish the requisite connection between the injury and the work performed for the employer" at [38]. His Honour then went on to say "plainly, perception by the person affected is normally required before there can be psychological injury" at [39].
2. The worker's solicitor asserted that there was conduct or incidents in the workplace corresponding to each of the alleged causes of injury the worker identifies in his claim form, save for the allegation regarding isolation from workplace colleagues.
3. With regard to the worker's allegation that he was isolated from his colleagues, the worker's solicitor asserted that the employer's evidence consisted solely of a bold assertion that this did not occur, and that without evidence upon which the Tribunal can assess the reasonableness of this assertion. In support of this, they referenced Vodafone Hutchinson Australia Pty Ltd v G [2016] TASWRCT 6.
4. It is the worker's case that based on an uncontested series of incidents or state of affairs, the worker developed a perception that he had been subject to workplace bullying, harassment and discrimination. These perceptions, based on actual conduct, caused the worker's injury.
5. The worker's solicitor stated that it was not necessary for the Tribunal to determine whether it is reasonably arguable that the worker misperceived the actions or intentions of the employer. The Tribunal only needs to consider whether conduct occurred in the workplace, the conduct created a perception in the mind of the worker, and the worker's perception caused this injury.
6. Based on this reasoning, the worker's solicitor asserts that the only finding open to the Tribunal is that the worker suffered a disease and that his employment was the major or most significant contributing factor.
7. In response to Grounds Four and Five of the employer's referral (referencing s 25(1A)(a) and (c), the worker's solicitor asserted that the employer had selectively chosen certain alleged causes and discounted others such as the application for parental leave (including how that was handled by TT), and isolation from workplace colleagues. Thereafter, in relation to the reasons as to why not all of the worker's overtime claim was approved and then go on to dispute the evidence of EW as to what had occurred with regard to this issue.
8. In response to the employer's assertion that the worker was asking the Tribunal to "draw inferences", the worker's solicitor reminded the Tribunal, of the following passage from the judgment of Estcourt J in Bradshaw (supra) at [15]:

...it is clear that the relevant assessment must be carried out on the basis of the evidence available at the time of the referral and not on the basis of additional evidence that might be adduced on a final hearing, which might establish another possible cause as the major or most significant factor." However, that does not mean that the contested nature of a final hearing and the inevitable testing on that hearing of the evidence available at the time of the referral, must be ignored. (emphasis added)

1. Whilst the worker's solicitor may have correctly stated the law when dealing with the perception in the mind of a worker and its contribution in a material degree to an aggravation (or occurrence) of an employee's ailment - refer Weigand v Comcare Australia (supra) and State Transit Authority of New South Wales v Fritzi Chemlar (supra) per Bastian JA at [69] - their reliance on these principles in this s 81A referral is misconceived as the fundamental aspect of these decisions is "if conduct which actually occurred in the workplace", (Bastian JA at [69] in Chemlar) and "if the incident or state of affairs actually occurred", (Von Dousa J in Weigand at [31]).
2. Thus, before perception in the mind of a worker and its contribution in a material degree to the worker's injury can be considered, the state of affairs upon which the perception is based must be determined, which requires findings of fact.
3. The employer's solicitor has put this in a different way but with the same effect where they state at [17] of their submissions:

...you don't just adopt a label being used by the worker and automatically have to accept that it is correct because that is what he allegedly perceived. You need to examine the evidence before you, which is precisely what the employer has filed in support of the s 81A referral, and determine whether it demonstrates that 'workplace bullying and unfair discrimination' took place - clearly it did not, and this creates a factual dispute that can only be determined at a final hearing.

4. Taking the employer's case at its highest, there are numerous factual disputes as between the worker's claim form indications concerning his allegations of workplace bullying and unfair discrimination. Disputes occur in relation to the employer's basis for denying annual leave to the worker, the employer approving part of the worker's overtime payment, the employer conducting a workplace meeting with the worker on 20 March 2025, and the employer disciplining the worker in that meeting in relation to a safety breach involving the worker. There are thus many contested series of incidents and states of affair.

1. These grounds of disputes respectively involve the application of s 25(1A)(a) and (c) of the WRC Act.
2. On the submissions before me, the employer's assertion that the worker only takes issue with the employer characterising the events described in 5(a) of the s 81A referral filed by the employer, as reasonable action and taken in a reasonable manner, and that otherwise these events qualify as counselling/disciplining and/or administrative action.
3. As was stated by Blow J in Headway Support Services v Wickham [2009] TASSC 99 at [13]:

For s 25(1A)(c) to apply in relation to administrative action, it is only necessary that the action be reasonable and that it be taken in a reasonable manner. It is not necessary for the action to worker friendly, or that it be taken with the utmost sensitivity and delicacy.

4. The phrase 'taken in a reasonable manner', was dealt with in the Tribunal's recent decision of The State of Tasmanian (Department for Education, Children and Young People v ENX [2025] TASCAT 124 where the decision in M v Allianz Australia Services Pty Ltd No. 2 [2019] TASWRCT 35, a decision of Chief Commissioner Webster (as he then was) was referenced.
5. In M v Allianz Australia Services Pty Ltd No. 2 (supra), Chief Commissions Webster cited the following passage of Bleby J in Kean v Workers Rehabilitation and Compensation Corporation 1998 71 SASR 42 where at page 63 his Honour stated the following:

In this case, whether administrative action is taken in a reasonable manner is very much a question of objective fact, and is to be determined against the ordinary standards of reasonable employers in all the circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented. > > Although it is a finding of fact as to whether the action was taken in a reasonable manner, that fact depends in part on inferences to be drawn from the primary facts, on the weight to be given to particular primary facts and on the fact finder's assessment of what is reasonable in all those circumstances. > > (Emphasis added.)

6. Thus, there is a need for findings of fact to be made in a determination of whether action in relation to the worker was reasonable which on the authorities previously cited, is not a matter for the Tribunal to determine in a s 81A referral hearing, but rather at a fully contested hearing following an application pursuant to s 42 of the WRC Act.
7. Additionally, authorities cited in The State of Tasmania (Department for Education, Children and Young People) v ENX (supra) support the proposition that a determination of whether administrative action is taken in a reasonable manner is a question of objective fact and not subjective assessment; see Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 where, when dealing with the interpretation of s 18D of the Racial Discrimination Act 1975, French J stated at [79]:

In this context that means a judgment independent of that which the actor thinks is reasonable.

8. On numerous occasions during her oral submissions, the worker's solicitor invited me to draw inferences as to what the employer's solicitors have stated was to "try to erode any sense of reasonableness in what the employer actually did", in the meeting of 20 March 2025.
9. For inferences to be drawn, facts upon which those inferences are based must be found.
10. Again, on the evidence of the employer taken at its highest, there are significant disputes with the worker's evidence as to this aspect, particularly with regard to the events occurring in that meeting.
11. The factual disputes clearly apparent on this evidence are not appropriate to be reconciled and determined in a s 81A referral. Again, this is for a s 42 application.

1. Having carefully considered all of the evidence before me, including both the documentary and oral submissions of counsel for both the employer and worker, and applying the legal tests authoritatively stated as applying to a s 81A referral, I am comfortably satisfied that there is sufficient evidence for me to find that a reasonably arguable case does exist and consequently I make the orders pursuant to s 81A(3)(c) and (d) of the WRC Act.

1. Pursuant to s 81A(3)(c) and (d) of the Workers Rehabilitation and Compensation Act 1988, compensation by way of weekly payments and the costs of benefits payable under Division 2 of Part VI of the Act are not to be paid by the employer to the worker.