Workers Rehabilitation and Compensation Act 1988; ss 80A, 81A.

The State of Tasmania (Department of Health) v O [2024] TASCAT 80;

Hindle v Elliot [2024] TASCAT 45;

Neil v Legal Profession Complaints Committee [2011] WASCA 48;

Swan v Miller [2001] TASSC 15;

Thornton v Apollo Nominees Pty Ltd [2003] TASSC 134;

State of Tasmania v Cane [2024] TASSC 56.

The decision has been anonymised for the purpose of publication.

1. On 12 August 2025, the employer lodged a referral under s 81A of the Workers Rehabilitation and Compensation Act 1988 (the WRC Act) disputing the employer's liability to pay compensation to the worker in relation to an injury the worker claimed to have occurred at work on 7 July 2025.
2. In its referral, the employer indicated that on the evidence, s 80A of the WRC Act applied such that the worker's claim for compensation for his injury of 7 July 2025 was a claim for compensation in respect of an injury previously made against the employer.
3. For the reasons which follow, I have determined that I have no jurisdiction to hear this referral and it will be dismissed.

1. The worker made a claim for compensation on 9 April 2025 for stress and anxiety said to have occurred on 20 March 2025 (the first claim).
2. In his claim form for this injury, the worker stated:

On the 19th March 2025 at 1pm I sat down with KD for a meeting regarding some allegations made against me from an incident on the 19th February 2025 (Alleged Misconduct - Aggressive [sic] customer practices). I was given until COB Friday 21st March 2025 to have my response to these allegations to KD by email. These were sent to KD at 1.51pm on the 21st March 2025. I had then reached out to KD on Wednesday 26th March 2025 at 1.02pm to enquire if he had a time frame as to when the outcome of the investigation may conclude.(no response) I then reached out again on Friday 28th March 2025 at 3.03pm as the only response i had received was a "I am currently travelling with limited access to emails" email since i had responded to the allegations, I had also submitted a medical certificate via email to KD. I had also sent BN a sms on the 25th March 2025 at 11.17am with a copy of my medical certificate (no acknowledgement from BN). KD did respond at 4.12pm on 28 March 2025 advising he should be able to confirm outcomes on Monday 31 March 2025. Tuesday 1st April 2025 at 1.06pm i had sent KD another email asking for a status update as i had not received anyhting [sic]. I had attended my GP on Wednesday 2nd April at 4pm as i had not been sleeping and anxiety had been through the roof and i had been unable to function. my GP then provided me a medical certificate covering me to the 16th April 2025 for Stress and Anxiety related illness. I had then sent this through to KD and BN via email at 4.48p after i had sent BN a sms 4.19pm as soon as i left my GP (to this day 9th April 2025 still no acknowledgement or response from BN). > > On Thursday 3rd April 2025 at 3.53pm i finally received an outcome for the Alleged Allegations of Misconduct - Agressive [sic] Customer Practices. The response is a "Formal Warning". and i am in current negotiations with my Financial Sector Union representative to dispute this result. (unable to discuss particulars of allegations)

3. A referral pursuant to s 81A of the WRC Act was filed with the Tribunal disputing the worker's first claim for compensation.
4. After a hearing on 19 June 2025, the Tribunal found a reasonably arguable case existed to dispute the employer's liability to pay compensation to the worker in relation to the first claim and made orders ceasing the payment of compensation to the worker pursuant to s 81A(3)(c) and (d) of the WRC Act.
5. On 16 July 2025, the worker made another claim for compensation (the second claim) for stress and anxiety said to have occurred on 30 June 2025. The nature of that claim as set out in the worker's claim form dated 16 July 2025 was:

On June 30th at 10.03am I received an email from KD titled "meeting for tomorrow" this email requested a formal meeting to discuss some new allegations made against me. I ignored the email as my right to do so as I was on a current medical certificate and the right to disconnect applies. I then received an SMS message on 02/07/2025 @ 9.15am from [mobile number] being KD's work mobile number following up in relation to the email he sent on June 30. Again I chose to ignore this as I am on a valid medical certificate and my right to disconnect applies. On 03/07/2025 @ 11.43am I received an email from KD titled "Final Opportunity to Respond". In this email I was given until COB Monday the 7th July 2025 to respond to some allegations made by Westpac. > > The allegations are that I failed to comply with the terms of my employment around me failing to disclose me being investigated by Tasmania Police for criminal matters. The basis for these allegations is Tasmania Police made a deposit into the Police bank account held with Westpac on 26/03/2025 at Westpac Glenorchy. In that Deposit was a Tasmania Police Evidence bag containing $335 AUD with my name and address on the evidence bag. KD/Westpac has then made the assumption I am involved in criminal matters/being investigated by Tasmania Police. They have asked me to provide multiple documents showing my innocence in any wrong doing and confirm I am not being investigated by Tasmania Police for any wrong doing or criminal matters. My mental health took a nose dive after receiving this allegation as I am innocent. But I was given until COB on 7 July 2025 to respond. I have not been able to sleep, depressed, stressed, panic attacks and all that goes along with being falsely accused of wrong doing. > > I attended my GP on the 7/7/2025 and shown him the allegation letter and the evidence I submitted initially to clear my name. My GP was concern [sic] over my metal state and filled out documentation for a workers compensation claim. since lodging this I have received an email from DQ on 14/07/2025 advising the information I submitted was insufficient and they required more information to make a decision on my innocence by COB 16/07/2025. All whilst on a valid medical certificate for stress and anxiety related illness. Again not given an option to disconnect as per the law. But made to respond to clear my name for something I have not done or been involved in. I have attached the emails and allegation letter and you can see where sensitive police information was used to make the accusation with zero grounds.

6. Further, in his claim form the worker stated in response to the question "Is this injury only related to this occurrence?" the worker ticked "No" and in response to the question "Have you had any similar injuries before?" after indicating "Yes" he stated, "Back in March when allegations were made against me".
7. In an initial prescribed medical certificate for the second claim authored by Dr NO on 7 July 2025, after indicating the date of injury for when the worker became totally or partially incapacitated as at 3 July 2025 Dr NO stated as follows:

Received an inaccurate email from his direct manager on the 3/7 alleging that [the worker] is currently undergoing crimnial [sic] proceedings without substantiated evidence and that his employer is possibly subject to dismissal. The unsubstatniated [sic] evidence came about during an alleged breach of confidentiality laws relating to an [sic] break in at [the worker's] mother's house where tamper proof evidence bags were deposited at Glenrohcy [sic] Westpac. [The worker] has not been charged nor involved with this issue where another party has been charged. > > [The worker] formally replied on the 3/07/2025 to which he received a reponse [sic] that they would non urgently look into the allegation which has worsened [the worker's] emotional distress. > > Had been making good progress from previous emotional distress, this incident has significantly set back [the worker's] recovery for his mental health. (emphasis added)

1. The issue before the Tribunal is whether it has jurisdiction to determine the employer's referral made pursuant to s 81A of the WRC Act in relation to the second claim. If the Tribunal determines that it does not have jurisdiction, then the referral must be dismissed. If the Tribunal determines that it does have jurisdiction, it must proceed to determine the employer's s 81A referral.
2. Section 80A of the WRC Act provides:

For the purposes of this Division, a claim for compensation is a claim for compensation by a worker against an employer in respect of an injury for which the worker has not previously made a claim for compensation against that or any other employer.

3. As was indicated by Deputy President Clues (as she then was) in The State of Tasmania (Department of Health) v O [2024] TASCAT 80 at [12], once the issue of jurisdiction is raised, the Tribunal is required to determine its jurisdiction; see Hindle v Elliot [2024] TASCAT 45 at [21]. The parties are unable by agreement to vest in the Tribunal a jurisdiction that the Tribunal does not have; see Neil v Legal Profession Complaints Committee [2011] WASCA 48 at [7]. If the Tribunal purports to exercise a statutory power it does not have, its jurisdiction will be ultra vires and invalid; see Swan v Miller [2001] TASSC 15 at [13].
4. Accordingly, the jurisdictional issue arising under s 80A must be determined before any valid orders can be made pursuant to s 81A. It was therefore appropriate for the employer's solicitors to raise this issue with the Tribunal.

1. At the commencement of the hearing of the employer's s 81A referral on the afternoon of 27 August 2025, I raised with the parties the need for me to determine the s 80A matter as this was a preliminary jurisdictional matter necessary to be resolved before there could be any further proceedings on the employer's s 81A referral in relation to the second claim.
2. After explaining this in some detail to the worker, the worker indicated that he did not consider his second claim to be for an injury for which he had previously made a claim for compensation with the employer, and as a consequence it was agreed that I would reserve my decision on this preliminary jurisdiction issue and publish reasons as soon as possible.
3. Counsel for the employer indicated she did not wish to provide any further submissions and relied upon the material already filed with the Tribunal.
4. As a consequence of the worker's indications that he disputed the employer's assertions of the second claim being for an injury for which he had already made a claim (the first claim), no further information was sought from the worker and I reserved my decision.

1. The employer's submissions in relation to the s 80A issue were detailed in paragraphs 15 to 24 of the referral filed with the Tribunal on 12 August 2025. These were as follows:

1. If it is found that the Worker suffered a psychiatric injury on 19 March 2025, such injury arose as a result of an investigation for misconduct on behalf of the Worker. 2. The misconduct was in part substantiated and the Worker received a formal warning. 3. The Worker has remained incapacitated for work since this time providing ongoing workers compensation medical certificates citing ongoing symptoms attributed to his claimed adjustment disorder. 4. It is otherwise relevant that the Worker's symptoms have remained consistent between the April 2025 claim and the July 2025 claim. Further, there is no diagnosis listed on the initial workers compensation medical certificate from July 2025, and the general practitioner has referred to the previous workers compensation claim that has been disputed for workplace harassment. 5. Therefore, the Employer's position is that it is reasonable to infer that the condition to which the Worker claims to be suffering as set out in the July 2025 claim, is the same condition/injury from April 2025. 6. In that respect, we note the continuing workers compensation medical certificate of 16 June 2025 (relating to the April 2025 claim) which says other factors affecting capacity are current workplace allegations and behaviour from the manager. 7. The Employer relies on the position set out in Thornton v Apollo Nominees Pty Ltd that said s 80A refers to an injury originally suffered by the worker and upon which his or her claim for compensation is based its foundation. The April 2025 injury relates to an adjustment disorder which arose as a result of reasonable administrative action. The symptoms of that injury were low mood, anxiety, nausea, light headedness and insomnia. 8. The injury subject to the July 2025 claim is not set out. However, the initial workers compensation medical certificate refers to the first injury and sets out symptoms of low mood, insomnia, dermatitis.

1. Absent a diagnosis having been provided, but reference to the April 2025 claim having been made, it is reasonable to imply the Worker continues to suffer from the same injury; and
2. The symptoms set out in the July 2025 claim for compensation are consistent with the April 2025 claim for compensation; and
3. The Worker has remained incapacitated for employment since 20 March 2025.

1. Therefore, the Employer's position is the Worker is suffering from the same injury and is barred from making a further claim for compensation pursuant to s 80A of the Act.

1. As indicated, the worker indicated that he disputed that the second claim was for an injury for which he had already made a claim for compensation with the employer (the first claim), and did not desire to make any further submissions, being content for my decision to be based on the material before me.

1. The law with regard to the application of s 80A of the WRC Act has been discussed most recently in the authoritative and binding decision of Brett J in State of Tasmania v Cane [2024] TASSC 56.
2. In that decision at [27] referencing the decision of Crawford J in Thornton v Apollo Nominees Pty Ltd [2003] TASSC 134, Brett J stated:

As his Honour notes, the critical question under s 80A will depend on the nature of the claim communicated to the employer. As was explained in State of Tasmania v Parsons [2002] TASSC 59, this will depend on information concerning "the particular injury upon which the claim is based" derived from the claim form, the accompanying certificate, the circumstances in which that information is communicated to the respondent and any other contemporaneous communication to the employer as to the nature of the claim. The injury to which the claim relates, and hence the application of s 80A will depend on the evidence concerning this question, not on whether the evidence establishes, as a matter of objective reality, a causal link between an earlier injury and the injury which is the subject of the claim. (emphasis added)

The critical question was the nature of the respondent's [worker's] claim, as communicated to the appellant [employer], not its validity.

Of course, the claimed link between the original injury and the development of a psychological condition was not in issue in Thornton, as it is in this case. The actual text of the provision defines the requisite link as a claim "in respect of an injury for which the worker" has not previously made a claim. Because this question was not in issue in Thornton, care must be exercised in defining "in respect of" by use of the term "based for its foundation". In Thornton, the psychological injury was clearly and without challenge based for its foundation on the original injury. However, it cannot therefore be concluded that the causal link must always meet that description in order to establish the injury which is the subject of the claim for the purposes of s 80A. Ultimately, the question is to identify the injury in respect of which the claim for compensation is made, and s 80A will only apply if that injury is not one which has been previously made by the worker. (emphasis added)

1. On the evidence before me, and applying the reasoning process indicated by Brett J in Cane, I am satisfied that the injury in respect of the worker's second claim for compensation is one for which he has previously made a claim for compensation.
2. On the evidence, the worker has remained incapacitated for work since 19 March 2025, and has continued to provide ongoing workers compensation medical certificates citing ongoing symptoms attributed to his claimed adjustment disorder. The worker's symptoms have remained consistent between the first claim and this second claim.
3. Support for my finding in this regard is also found in the lack of diagnosis by the worker's GP in the initial prescribed medical certificate for the second claim dated 7 July 2025. Additionally, in that certificate, the worker's GP has noted that the events of 3 July 2025 have significantly set the worker back in recovery for his mental health.
4. Although the worker's GP has indicated in that initial certificate for the second claim that this is a "new injury", the nature of the injury and the circumstances of the worker's claim as indicated to the employer, persuade me that the worker's claim the subject of this s 81A referral is for an injury for which he has previously made a claim for compensation, that being his injury indicated in his first claim.
5. For these reasons, I do not have jurisdiction to hear and determine the employer's s 81A referral for this second claim, and it is dismissed.
6. As a consequence of this decision, I do not need to determine the employer's s 81A referral and whether or not it establishes a reasonably arguable case to dispute liability to pay the worker's claim.
7. Although currently in dispute, the worker is not significantly prejudice by this decision as he is able to bring the first claim back for determination by the Tribunal through the contested hearing processes available pursuant to s 42 of the WRC Act.