[2012] TASWRCT 35

WORKERS REHABILITATION AND COMPENSATION TRIBUNAL

CATCHWORDS: Entitlement to compensation - Various possible causative factors.

Workers Rehabilitation and Compensation Act 1988 (Tas), s81A

DETERMINATION: Reasonably arguable case exists.

Worker: C Bartlett (Bartletts - Barristers & Solicitors)

Employer: K Rainbird (Allianz Australian Insurance Ltd)

[2012] TASWRCT 35

1 The worker made a claim for compensation dated 15 June 2012 in which she alleges that she suffered a mental health illness as a result of an incident that occurred at the workplace on 31 May 2012 where she;

"Informed my Manager that I was pregnant that resulted in a personal attack."

2 The employer disputed that claim for compensation and at the hearing of the referral of that dispute evidence was adduced and submissions made by both parties.

3 On behalf of the employer it is submitted that the comments made by the Manager were inappropriate, however they were not in the form of a personal attack upon the worker. The worker alleges that the Manager said;

"You idiot, you dickhead, why would you want to ruin your life like that."

4 On behalf of the employer it is conceded that those words may have been used, however the Manager may have said words to the effect that this was a;

The employer submits that this was an off the cuff comment. The employer also asserts that there was no repeat of those comments throughout the day as asserted by the worker. The employer also says that providing information that the worker was pregnant to the State headquarters of the employer organisation was not a breach of privacy of the worker but rather a necessary requirement in order to plan for the replacement of the worker when she took maternity leave.

5 On behalf of the worker counsel submitted that there was clear evidence that the Manager made some form of inappropriate comment to the worker on 31 May concerning her advice to him that she was pregnant. This inappropriate comment is the basis of the initial workers compensation medical certificate in support of the worker's incapacity which details that such incapacity occurred in the following circumstances;

"Told boss she was pregnant that triggered an inappropriate response."

6 Counsel submitted that the extensive factual investigation conducted by the employer confirmed the fact that an inappropriate comment was made by the Manager to the worker, and in fact both the Manager and the Chief Executive Officer had provided letters of apology to the worker concerning that incident. Counsel submitted therefore that there was no basis upon which the Tribunal could be satisfied that a reasonably arguable case existed.

7 Although the worker's claim for compensation is apparently confined to the one statement by the Manager, her detailed statement made to the factual investigator discloses other aspects that are arguably causative of her condition. These are clearly relevant as although the initial incident occurred on 31 May 2012 the worker in fact was not certified as incapacitated for work until 7 June 2012. In her statement the worker identifies the following matters;

• "The comments David made, saying I was an idiot and a dickhead is what upset me."
• "David continued making the comments when he passed my office, he was going to the printer or reception, things like that.

This would have happened 20 or 30 times during the day.

Even though David continued to make the comments throughout the day, I just let them go. They still upset me but not to the point that I was visibly upset."

• On 5 June 2012 there was a teleconference involving the organisation's Chief Executive Officer Ms Roxy Cowie. Apparently the worker's Manager had advised her prior to this meeting that the worker was pregnant. As to this the worker asserts;

"Roxy said what's this I hear about you being pregnant.

I was shocked because I did not know that she was aware of my pregnancy.

Roxy made the same sort of comments that David had made. She said why would you want to ruin your life like that. Roxy did not swear at me. I cannot remember everything she said to me.

I was upset because the call was on Hobart's speaker phone and I did not know who else was there in Hobart office with her.

I've never had comments like that made to me before in the workplace.

When I got back to my office I was really upset by the way I was questioned by Roxy and the shock that Roxy knew that I was pregnant and the response I got from David and I started crying."

• There was also evidence that the worker had a bleed on Tuesday 5 June and she states as to this;

"I had a bleed on Tuesday 5th June 2012 and that had caused me more stress. It was not enough to make me go to the hospital or doctor.

On Thursday 7th June 2012, I was dressed ready to go to work. The bleeding had gotten worse and I was feeling very stressed.

I got in the car, put the key in the ignition and had an emotional breakdown."

8 In so far as those other matters listed above are concerned the employer, in the evidence provided to the Tribunal, disputes that the conversation between the worker and Ms Roxy Cowie was in the nature described by the worker. Additionally, the employer asserts that it was reasonable administrative action for the worker's Manager to advise others in the organisation as to the worker's pregnancy as steps were required to be taken to plan for her absence from work. Finally, there is the personal issue as to the worker's pregnancy and the apparent "bleed" on 5 and 7 June 2012 which apparently caused the worker concern and which precipitated the visit to her general practitioner. As to what caused that occurrence, the worker says in her statement;

"The doctor would not rule out that the bleed was caused by stress, because bleeds can happen during pregnancy he would not confirm either it was or was not the cause."

9 It is clear therefore that there are more aspects to this claim than the initial exchange between the worker and her Manager on 31 May 2012. There are other arguably causative factors, some of which are denied by the employer or are matters of which the employer would assert fell within s25(1A) of the Act. The above circumstances therefore fall clearly within what His Honour Evans J described in St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90 at paragraph 14 as follows;

"It is notorious that the genesis for conditions such as stress, anxiety and depression may be multi-faceted. The causes may be many and varied and it can be very difficult to identify the most significant causative factor. In the context of litigation, a final determination as to the existence of such a condition and the causative role of any factor, almost invariably turns upon the adjudicator's assessment of the veracity and reliability of the complainant. Accordingly, when a worker claims to suffer from a condition of this nature in circumstances where there are a variety of potential causes for the condition, an employer may show a reasonably arguable case concerning liability by providing evidence of plausible potential causes which are inconsistent with liability."

10 Accordingly I am satisfied that a reasonably arguable case exists and order accordingly.