Establishing a successful Section 11A defence with respect to performance appraisal

Fichera v State of New South Wales Police Force [2024] NSWPIC 255 (16 May 2024) (‘Fichera’)

Under Section 11A of the Workers Compensation Act 1987 (WC Act), establishing a defence under this section involves proving the following elements:-

1. That the actions of the employer were the whole or predominant cause of the injury;
2. That the actions of the employer fell within the categories under Section 11A; and
3. That the actions were reasonable.

In the recent decision of Fichera, Member Benk summarised the leading case law in relation to establishing a Section 11A defence with respect to performance appraisal.

Element 1: ‘Whole or Predominant’ Cause

Member Benk noted that the term “wholly or predominantly” is not defined by WC Act. Instead, she considered that a review of the authorities establishes the following:-

1. “Wholly” and “predominantly” are separate concepts and only one of the definitions needs to be satisfied. The words are independent of each other;
2. It is generally accepted that it means “mainly or principally caused”; Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 (Ponnan).
3. The question of causation must be addressed by medical evidence (Hamad v Q Catering Limited [2017] NSWWCCPD 6); and
4. Causation is a question of fact to be determined on the evidence in each case (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.)

Element 2: Actions with respect to performance appraisal

Member Benk compiled a list of the following authorities in relation to actions with respect to performance appraisal:-

(a)  An extended and continuing assessment process may not be a performance appraisal. The process and the time taken to engage in it must be objectively reasonable in all of the circumstances of the case. – Dunn v Department of Education and Training [2000] NSWCC 11.

(b) “[Performance appraisal] is not a vague, continuing, informal process. It is defined to be somewhat like an examination, not a continuing assessment. Performance appraisal is more like a limited discreet process, with a recognised procedure to which the parties move in order to establish employee’s efficiency and performance” – Irwin v Director General of School Education NSWCC 14068/97 Unreported.

Element 3: Reasonable action

Member Benk extracted the following key principles from the authorities in relation to “reasonable action”:

1. In determining whether conduct was reasonable, all relevant factors must be taken into consideration including the rights of both employee and employer – Aristocrat Technologies Australia Pty Ltd v Rashov [2005] NSWCCPD 66 at [82].
2. The test is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all circumstances, by questions of fairness – Irwin v Director General of School Education (NSWCC, Geraghty J No 14068/97, 18 June 1998, unreported).
3. When considering the concept of reasonable action, the Court is required to have regard not only to the end result but to the manner in which it was effected – Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998).
4. The reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time the action is taken – Northern NSW Local Health Network v Heggie [2013] NSWCA 225.
5. Reasonableness is judged having regard to the fairness appropriate in the circumstances, including what went before or after a particular action – Melder v Ausbowl Pty Ltd [1997] 15 NSWCCR 454.
6. Procedural and policy documents of the employer will be relevant evidence to consider. However, reasonableness will not be established simply because the employer complied with their own protocols if those protocols were not reasonable – Rail Corporation NSW v Aravanopules [2019] NSWWCCPD 65 at [81]; and
7. The concept of reasonableness does not require a counsel of perfection. It requires, that all of the circumstances of the case are considered and that the action then be considered in an objective sense to be reasonable or not.

Implications:

This decision provides a very useful summary of the leading case law for establishing a successful Section 11A defence with respect to performance appraisal.

Should you have any queries concerning a workers compensation matter, please contact our team on either (02) 4929 9333 or (02) 8297 5900.