Summary of JudgementNick Boag | |
Ms Attanayake's lodged a WorkCover claim for anxiety and depression caused by sexual harassment, bullying and threats during her work. The claim was rejected by the employer and denied by Magistrate Ginnane (as his Honour then was) in the Magistrates' Court.
The appeal was heard in the Supreme Court of Victoria before Justice Richards. The grounds of appeal were:
- whether the Magistrate erred in concluding that an incident of sexual harassment that took place at Ascot Vale train station was not work-related;
- whether the Magistrate erred in subsequently finding that Ms Attanayake did not suffer an injury as a result of the train station incident and other work stressors that he found had occurred;
- whether the Magistrate provided adequate reasons for his decision.
On the first ground of appeal, Her Honour held that the Magistrate did not apply the correct test under s 39(1) of the WIRC Act. While the Magistrate made detailed findings on whether the alleged sexual harassment, bullying and threats occurred, he did not make any finding on whether Ms Attanayake had suffered any injury, what that injury was and when she first suffered it. Having found that the incident at the train station did occur, Her Honour held that the Magistrate should then have considered whether Ms Attanayake suffered the claimed injury, whether the train station incident was the cause of that injury and, if so, whether the injury rose out of her employment. The statutory test, which requires causal connection between injury and employment was not applied. Had the test been applied, it was open for the Magistrate to find that the injury arose out of Ms Attanayake's employment.
On the second ground, Her Honour also held that the Magistrate did not refer to the medical reports in explaining why he concluded that the proved incidents of harassment did not cause injury. The Magistrate was required to examine the whole of the evidence including medical opinions given on the basis of facts that differed from those proved at trial. The medical opinions were part of the evidence and parts of the history on which they were based had been proved. Had the Magistrate considered all of the medical evidence, it would have been open to find that Ms Attanayake had suffered an injury that arose out of her employment.
Richards J found that the Magistrate did give adequate reasons for his decision.
The matter was remitted back to the Magistrates' Court with costs awarded to the appellant.