By Stuart Eustice, Partner

Hot on the heels of Jarvis v Salvation Army [2016] VSCA 175, Magistrate Ginnane has been asked to apply the Court of Appeals reasoning from Jarvis in determining the application of s.114(2A) Accident Compensation Act 1985. This decision illustrates further the Courts likely pathway in future decisions.

Background

Tuimaseve was a 56 year old resident of Cranbourne North who commenced employment with Wesfarmers in its Dandenong Coles supermarket from June 2001. From 2009 she was employed 25 hours per week with some overtime. Her employment was terminated on 6 January 2014 for reasons including alleged sexual harassment. Later, on 28 April 2014 and 26 March 2015, Tuimaseve lodged claims for compensation alleging aggravation of her back condition from standing over the course of employment. The claims were rejected on 21 May 2014 and 22 April 2015

Whilst ultimately the claim was determined against Tuimaseve on account of being unable to satisfy the Court employment was a significant contributing factor to the injury, Magistrate Ginnane took time to discuss the operation of 114(2A) in the context of this claim and Jarvis.

Before moving on, Magistrate Ginnane provided a useful summary of ‘contributing factor’ and ‘significant’ in the context of aggravation injuries. His honour acknowledging the legislation recognises and allows for the existence of multiple contributing factors or significant contributing factors. To satisfy the test of significant, employment may be of less import than other contributing factors, however still be significant nonetheless. The causative component needs be more than de minimus, but less than a major or dominant factor (refer Meddis v VWA CC 24 April 1996, per Rednit J), or ‘of considerable amount of effect’ (refer Allman v Major Finance Engineering Pty Ltd CC 14 March 1997 per Strong J).

In concluding the injury was not compensable, Ginnane relied upon the medical evidence of Mr Ian Jones to support a finding the injury is related to pre-existing degenerative condition, constitutional in aetiology, not employment with Wesfarmers.

s.114(2A)

As noted above, Tuimaseve’s employment was terminated following a meeting to discuss allegations of sexual harassment toward a fellow employee. Was it a requirement of the Court to be satisfied there was misconduct? Could the court revisit the employers termination? The decision of Jarvis offered guidance on this point and confirmed that indeed such level of enquiry is required of the Court – the precondition of s114(2A). Tuimaseve did not admit the alleged misconduct although admitted to having made a gesture toward another employee. This enabled His Honour to be satisfied that such gesture amounted to misconduct for which termination was available to the employer. Having been satisfied of the precondition to 114(2A), His Honour was then to determine for himself afresh the claim and accordingly whether or not to pay, or alter the amount of, compensation. It is a discretion of the Court to be exercised by reference to the object and purpose of the Act (refer Jarvis at 41). His Honour believed the decision not to pay compensation in this instance was incorrect. His Honour referenced Tuimaseve’s long period of employment with the Defendant, she was otherwise well liked and the complaint of harassment completely out of character.

Magistrate Ginnane echoing the sentiments of the Court of Appeal in Jarvis, emphasised that once the precondition is satisfied (ie. the Court is satisfied that employment was terminated for misconduct and unrelated to injury), the Court is then required to determine afresh the claim and decide for itself whether compensation should or should not be paid.

Discussion

In the context of an individual with an otherwise compensable injury, the Courts discretion as to whether or not to pay compensation will in most instances be exercised in favour of the injured party. This accords with the objects and purpose of the Act. Magistrate Ginnane referenced Tuimaseve’s long period of employment, well liked character and isolation of the incident as reasons militating against the Defendant’s determination. As cases progress through the Court with time, this list of reasons will increase and in turn the prospects of maintaining a decision not to pay compensation under s.114(2A), diminish.

We do not foresee the precondition as being a major stumbling block for Agents or Self-Insurer’s in future proceedings. The existence of misconduct is evidentially proved or not, as is the remedy of termination from employment. Most proceedings will hereon after fail through the exercise of the Courts discretion when considering the claim afresh for itself.