//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
austlii:tas/TASWRCT/2019/30
defendant. No reasonably arguable case established. Orders made under s81A(3)(a) and (b) for weekly payments from 11 June 2019 (subject to medical certificates) and medical expenses from same date.
An employer tried to dispute a worker's compensation claim for psychological injury by arguing that the injury resulted from reasonable counselling or administrative action by a co-worker. The Tribunal found that while the co-worker's actions might have been reasonable counselling, there was no evidence that the co-worker had authority to act on behalf of the employer. Both the worker and the co-worker had the same job title (swimming instructor), and the co-worker's statement did not indicate she had management authority. Therefore, the employer failed to prove it had a reasonably arguable case to dispute the claim.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1 cited instrument linked from this judgment.
JURISDICTION: WORKERS REHABILITATION AND COMPENSATION TRIBUNAL
CITATION: Talbot Holdings (Tas) Pty Ltd T/As Kingston Pool and Wellness Centre v P. [2019] TASWRCT 30
PARTIES: TALBOT HOLDINGS (TAS) PTY LTD T/AS KINGSTON POOL AND WELLNESS CENTRE
HEARING DATE(S): 23 July 2019 and written submissions 30 July 2019
CATCHWORDS: Entitlement to compensation - reasonably arguable case.
Workers Rehabilitation and Compensation Act 1988 (Tas), s81A; St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90; (2007) 17 Tas R 43; Vos Construction and Joinery Pty Ltd v Norton-Smith [2016] TASSC 38; Vodafone Hutchinson Australia Pty Ltd v Gee [2016] TASWRCT 6; Burrage v Rural Press Ltd [2013] TASSC 43; Wynyard Seafoods on the Wharf v N. [2019] TASWRCT 21
**1. The worker made a claim for compensation dated 14 June 2019 which was supported by an initial workers compensation medical certificate dated 11 June 2019.
2. The claim was disputed by the employer pursuant to s81A of the Workers Rehabilitation and Compensation Act 1988 ("the Act"), with a referral being filed in the Tribunal on 8 July 2019.
3. Notice of the dispute that the employer is required to provide to the worker pursuant to s81A was forwarded by correspondence to the worker from the employer's solicitors dated 8 July 2019.
4. Prior to the time that the s81A referral was listed for hearing before the Tribunal the worker contacted the Tribunal to advise that she did not intend to participate in the hearing. At the time the referral came before the Tribunal I was satisfied it was appropriate for the s81A referral to proceed in the worker's absence, and it is this referral that falls to be determined.**
5. In paragraph 13(i) of the Injured Worker's Details in the claim for compensation, the worker wrote:
"Ongoing negative, ostracizing and bullying over 5 month period. Climax occurred 22/5, 30/5 & 31/5. Verbally abusive; defamatory to bystanders; isolation from rest of team; owner notified on all occasions including 22/5, 30/5 & 31/5."
6. The initial workers compensation medical certificate recorded that the worker stated her condition to be caused by an incident which occurred on 14 May 2019 as a result of "working stress and inter work difficulties".
**7. The claim was disputed on the basis that the worker had suffered a disease which is an illness of the mind or a disorder of the mind which arises substantially either from reasonable action taken in a reasonable manner by the employer to discipline or counsel the worker (s25(1A)(a)); or reasonable administrative action taken in a reasonable manner by the employer in connection with the worker's employment (s25(1A)(c)).
8. In addition to the claim for compensation and the initial medical certificate, the employer relied upon a statement from Ms Amanda Slyp. There was no other statement relied upon.
9. Relevantly, Ms Slyp's statement was as follows:**
"2. I am employed by Kingston Pool & Wellness Centre ('KPWC') as a swimming instructor. It will be 3 years in September 2019 since I commenced employment with KPWC. I have been a swimming instructor for 15 years.
5. [The worker] is employed by KPWC as a swimming instructor.
15. I later discovered that [the worker] never contacted the other teacher.
10. It is well established that the test to determine whether a reasonably arguable case exists was enunciated by Evans J in St Helens Oysters Pty Ltd v Coatsworth [2007] TASSC 90; (2007) 17 Tas R 43 at paragraph 10, where His Honour said:
"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 s81A, 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."
11. It is also clear from a number of decisions, including GIO Australia Ltd v Lovell [2000] TASSC 75 and Lamont v MRD Supermarkets Pty Ltd [2016] TASSC 16 that the onus of proof in establishing a reasonably arguable case rests upon the employer. Pearce J in Vos Construction and Joinery Pty Ltd v Norton-Smith [2016] TASSC 38 observed at paragraph 5:
"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."
12. It is worth noting the further observation of Evans J in St Helens Oysters v Coatsworth at paragraph 14 when His Honour made some observations about disputes in situations where the worker has suffered a psychological injury:
""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 factors. 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 where the 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 that are inconsistent with liability."
**13. Ms Slyp's statement did not refer to events which might have taken place on either 14 or 22 May 2019, nor did she specifically refer in her statement to the allegations contained in the claim form of 'negative' or 'ostracizing' behaviour, or of behaviour referred to as being 'verbally abusive, defamatory to bystanders' or causing 'isolation from the rest of the team'. The employer's position is that the matters that Ms Slyp does deal with in her statement, being the events on 30 and 31 May 2019, are matters that the employer says are arguably causative of the worker's condition and amount to a "plausible potential cause" of the condition for which the claim has been made. The employer says that the "plausible potential cause" is action that might arguably amount to action within s25(1A)(a) of the Act, being reasonable action to discipline or counsel the worker; or action under s25(1A)(c) of the Act, being reasonable administrative action. It is the employer's case that either or both of the interactions between Ms Slyp and the worker which are relied upon are sufficient to ground a reasonable argument that the provisions of s25(1A)(a) and/or (c) might apply to enable the employer to avoid liability at a contested hearing if the employer's evidence and argument were accepted.
14. In relation to s25(1A)(a), it was acknowledged that the events as related by Ms Slyp in her statement could best be characterised as counselling for the purposes of s25(1A)(a), rather than being disciplinary in nature. Counsel for the employer referred to the Macquarie Dictionary definitions of the word "counsel", noting that the term itself is not defined in the Act. Counsel submitted that the "feedback" referred to by Ms Slyp on 30 May 2019 was synonymous with "counsel, instruction or advice" as per the Macquarie Dictionary definition, and further that in relation to the interactions between Ms Slyp and the worker on 30 May 2019, I could be satisfied that the feedback was taken in a reasonable manner because Ms Slyp indicated that the worker "appeared to take it well".
15. In relation to the interaction between Ms Slyp and the worker on 31 May 2019, in the context of s25(1A)(a), it was submitted that questioning the worker about why she was teaching a particular student who had recently been taught be another employee would qualify as counselling because it fell within the scope of offering "advice, opinion or instruction given in directing the judgement or conduct of another and/or interchange of opinions as to future procedure", again as per the Macquarie Dictionary definition. Counsel further submitted that I could be satisfied that the actions of Ms Slyp on 31 May 2018 were undertaken in a reasonable manner from the content of the discussion as related by Ms Slyp in her statement, and the fact that at the end of the conversation the worker accepted her advice because she agreed to call the other teacher.
16. In relation to s25(1A)(c), counsel for the employer referred to Wood J's discussion of the term "administrative action" in Burrage v Rural Press Ltd [2013] TASSC 43, and referred to Her Honour's consideration of the decisions of Workcover Corporation of South Australia v Summers [1995] SASR 243 and Commonwealth Bank of Australia v Reeve [2012] FCAFC 21. Counsel noted that Her Honour had no need to determine which line of authority was appropriate in considering the term "administrative action" in the context of a s81A referral, and in relation to the present matter for consideration by the Tribunal, counsel submitted that the interactions between the worker and Ms Slyp on 30 May 2019 and 31 May 2019 would qualify as administrative action as contemplated by Doyle CJ in Workcover Corporation of South Australia v Summers as being "decisions or actions by the employer which are in some way related to the workings or functionings of the workplace".
17. In relation to the issue of whether action was undertaken in a reasonable manner for the purposes of s25(1A)(c), counsel referred to his previous submissions regarding Ms Slyp's actions in the context of s25(1A)(a).
18. In response to a specific invitation to make submission as to whether the Tribunal could be satisfied that there was sufficient evidence that the actions undertaken by Ms Slyp on 30 May 2019 and 31 May 2019 amounted to action by the employer for the purposes of s25(1A)(a) and (c), counsel for the employer made submissions both orally and subsequently in writing.
19. In oral submissions, counsel referred to parts of Ms Slyp's statements for which he submitted I could safely infer that Ms Slyp had the authority to manage, counsel and/or discipline the worker. I will refer to these in more detail.
20. Counsel also submitted orally that in a multitude of employment situations employees would have the authority to counsel other employees in appropriate circumstances. He expanded upon this submission in later written submissions that within the workplace employees who do not hold a managerial position, or a role that includes management like duties, would still be expected to counsel fellow employees in circumstances including safety related matters; direction as to how another employee is to correctly carry out a certain task; or feedback on observations in the workplace.**
**21. It is clear from the claim for compensation and the accompanying initial workers compensation medical certificate that the injury for which the claim has been made is a disease which is an illness of the mind or a disorder of the mind within the meaning of s25(1A) of the Act. For the employer to rely upon either sub-section (a) or sub-section (c) of that section the employer must provide evidence to support its contentions that either or both of those sub-sections may be relied upon to support a reasonably arguable case that is inconsistent with its potential liability for the claim. See the decision of the former Chief Commissioner in Vodafone Hutchinson Australia Pty Ltd v G. [2016] TASWRCT 6, referred to and relied upon by Chief Commissioner Webster in Max Solutions v S. [2018] TASWRCT 27 at paragraph 31.
22. Counsel for the employer conceded that insofar as s25(1A)(a) was concerned, the action by Ms Slyp which was relied upon to enliven that sub-section was better characterised as counselling rather than action which was disciplinary in its nature. I agree with counsel's submission the term "counselling" is the best potential "fit" for the actions of Ms Slyp on 30 and 31 May 2019 in the context of the actions contemplated by s25(1A)(a).
23. The verb "counsel" is defined in the Macquarie Dictionary as follows:**
• To urge the doing or adoption of; recommend (a plan, etc.)
• To give official notice to (an employee) of shortcomings in the performance of their duties._
24. I do not consider the discussions between the worker and Ms Slyp on 30 May 2019 and 31 May 2019 could be characterised as action to discipline the worker. "Discipline", like "counsel", is not defined in the Act. The Macquarie Dictionary defines the verb "discipline" as:
• To bring to a state of order and obedience by training and control.
• To subject to discipline or punishment, correct, chastise._
**25. Could the discussions between Ms Slyp and the worker on 30 May 2019 and 31 May 2019 be characterised as counselling of the worker? Although there is little evidence before the Tribunal as to the content of the discussion between Ms Slyp and the worker on 30 May 2019, I am of the view that it is at least arguable that Ms Slyp's discussion with the worker providing feedback, both positive and negative, could fall within the concept of the worker being provided with advice, opinion or instruction from Ms Slyp given in directing her future conduct in teaching swimming, or teaming up with another instructor.
26. Similarly, it is at least arguable that the interactions between Ms Slyp and the worker on 31 May 2019 amounted to action undertaken by Ms Slyp to counsel the worker, particularly in the sense of the definition of counsel "to urge the doing or adoption of; recommend (a plan, etc)" in asking her to contact the other (unhappy) employee and apparently have a discussion to clear the air with her.
27. In relation to those same actions by Ms Slyp, could they be characterised as administrative action for the purposes of s25(1A)(c) of the Act? In Burrage v Rural Press Ltd (supra), Wood J, in considering the meaning of the term "administrative action", referred to the dicta of Doyle CJ in Workcover Corporation of South Australia v Summers (supra) at page 248 of His Honour's decision:**
".....the expression 'administrative action' is probably intended to apply to decisions or actions by the employer which are in some way related to the workings or functioning of the workplace, rather than to the actual task performed by the worker. I recognise, of course, that there will be a relationship between the two things."
28. Wood J also referred to the observation of Gray J in Commonwealth Bank of Australia v Reeve at paragraphs 30 and 31:
"[30] It is not action with respect to the duties that an employee is employed to carry out that is the subject of the exclusion, but action with respect to the employee as employee and his or her employment relationship with the employer.
[31] Such action that is not 'administrative' could be operational in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed. Thus, an instruction to perform work at a particular location, to drive on a particular route, or to perform particular duties would not be regarded as 'administrative' action, but as operational action with respect to the employee's employment."
As has been noted above, Wood J observed that the question of the preferred line of authority as regards the meaning of "administrative action" has not been determined, and for the purposes of a s81A hearing does not need to be determined.
**29. In relation to the present referral before the Tribunal, arguably the action by Ms Slyp in providing feedback to the worker and the other employee with whom she was teaching, including "positives and negatives" could arguably relate to the workings or functionings of the workplace because, on the face of Ms Slyp's statement, it appears to relate not only to the worker's performance in the lesson immediately preceding the discussion, but also the interaction between the worker and the other employee with whom she had "buddied up" as a new swimming teacher.
30. Similarly, an argument could be put forward that Ms Slyp's actions of 31 May 2019 were administrative action relating to the workings or functionings of the workplace in that they appear to be capable of being characterised as actions taken to maintain harmonious working relationships between two co-workers arising from the distribution of particular teaching classes or clients.
31. The final matter for me to determine is whether or not the action which has been undertaken by Ms Slyp, and upon which the employer relies to enliven s25(1A) of the Act in dispute of the worker's claim, was action "by the employer".
"the person with whom a worker has entered into a contract of service or training contract and may include -
(b) the employer of any person or class of persons taken to be a worker for the purposes of this Act; and
(c) the legal personal representative of a deceased employer"
**33. It is clear that certain employees in a workplace may be authorised to undertake certain actions on behalf of the employer, including actions which might be those contemplated by s25(1A) of the Act. In some circumstances it may be obvious from a person's role in a particular organisation that they are entitled (or, indeed, expected) to take certain actions on behalf of the employer, for example in giving a statement of evidence for the purposes of a dispute under s81A, an employee might describe themselves as "Manager, Human Resources for the employer". In other circumstances, there may be evidence provided that the employee has specifically been authorised to undertake particular tasks, which may be the tasks the employer relies upon in calling upon s25(1A).
34. In this matter, the statement of Ms Slyp does not contain any specific evidence that she was authorised to undertake on the employer's behalf, or as part of her usual duty, the action which is relied upon to enliven s25(1A), nor does her role as "Swimming Instructor" enable me to infer that that is the case when the worker is similarly described as a "Swimming Instructor".
35. Counsel for the employer submitted that the evidence contained in paragraphs 9, 12 and 13 of Ms Slyp's statement would enable me to infer that Ms Slyp had the employer's authority to manage, counsel and/or discipline the worker.
36. Paragraph 9 of Ms Slyp's statement states that at the end of a swimming session, the worker and the new teacher met Ms Slyp in the kiosk to seek some feedback, which Ms Slyp provided, including positives and negatives. I do not know if this was pre-arranged, or whether it was a more casual incidence (as one might suppose, given the venue) where Ms Slyp was asked for her opinion about how the lesson had gone.
37. Paragraph 12 of Ms Slyp's statement says that the owner of the employer, at a time subsequent to the date in question, that is 31 May 2019, has advised Ms Slyp why a particular swimming lesson unfolded as it did. Counsel submitted that the owner of the employer would not have shared such information with just any employee, and I could infer from that that Ms Slyp had the appropriate authority to provide the worker with direction.
38. Paragraph 13 of Ms Slyp's statement indicates that Ms Slyp asked the worker to call one of her colleagues to explain why the client was having a private session with the worker, and the worker agreed to do so. Counsel for the employer submitted that I could be satisfied from this evidence that Ms Slyp had authority to direct the worker in such a way, because the worker would not have agreed to call the other teacher if Ms Slyp had not been so authorised.
39. I agree with counsel for the employer that there are circumstances where it would be expected that co-workers might engage in action that would potentially fall within the definition of "counselling", and one could easily conceive of a situation, particularly at a swim centre where there might be safety issues involving young or inexperienced swimming students, where one co-worker might need to immediately alert another co-worker to a problem. Similarly, one could conceive of situations generally where a more experienced co-worker might counsel the less experienced in day to day matters such as, for example, a safe lifting technique or advise about the most efficient way of carrying out a particular task.
40. However, one could also conceive of circumstances where a worker might attempt to direct or manage a co-worker in tasks where he or she had no authority to do so, which could quite rightly lead to feelings of resentment or anxiety.
41. The fact that Ms Slyp's evidence shows that she gave feedback to the worker and asked her to call another worker to, apparently, smooth things over, in the absence of anything else does not in my view enable me to draw a conclusion that there is an argument the activity was action undertaken by the employer for the purposes of either s25(1A)(a) or (c). Similarly, whatever the owner of the employer may have told Ms Slyp subsequent to 31 May about a particular client is no evidence that action she undertook prior to that time was action by or with the authority of the employer.
42. To dispute the worker's claim for compensation by calling upon s25(1A)(a) and/or (c) the onus rests upon the employer to provide evidence to the Tribunal that it is reasonably arguable that all of the requirements of either sub-section are satisfied, and in relation to each of those I am not satisfied that there is evidence from which I can infer the action which is said to have caused the worker's condition was action taken by the employer. It follows, therefore, that I am not satisfied the employer has a reasonably arguable case to dispute the worker's claim for compensation, and I am therefore required to make orders under s81A(3)(a) and (b).
43. The s81A referral indicated that weekly payments were being made to the worker. I note the approach of the Chief Commissioner where he has determined that there is no reasonably arguable case, most recently in Wynyard Seafoods on the Wharf v N. [2019] TASWRCT 21. The Chief Commissioner noted that although he might assume that payments in accordance with the provisions of the Act had been maintained since the date of the worker's first certified incapacity, if that assumption was wrong the worker would need to seek a variation of the order that had been made on that assumption. To avoid such a circumstance, I will adopt the same course as that followed by the Chief Commissioner, and make an order under s81A(3)(a) from 11 June 2019, being the date the worker was first certified incapacitated, on condition that the worker has served workers compensation medical certificates on her employer which certify an incapacity for work from that date. There will also be an order pursuant to s81A(3)(b) from the date the worker first received treatment for her compensable injury, which appears to have been 11 June 2019 also.**
Talbot Holdings (Tas) Pty Ltd T/As Kingston Pool and Wellness Centre
P. [2019] TASWRCT 30
(2007) 17 Tas R 43
No reasonably arguable case established. Orders made under s81A(3)(a) and (b) for weekly payments from 11 June 2019 (subject to medical certificates) and medical expenses from same date.