State of Tasmania v Munting [2024] TASSC 36 is a case dealing with Ambulance Tasmania and the application of the Workers Rehabilitation and Compensation Act 1988 (Tas). Section 25 of the Workers Rehabilitation and Compensation Act  says:

(1) If in any employment – 

(a) …

(b) a worker suffers an injury, which is a disease and to which his employment contributed to a substantial degree … his employer is, except as is otherwise provided by this Act, liable to pay compensation in accordance with this Act –

(1A)        Compensation is not payable under this Act in respect of a disease which is an illness of the mind or a disorder of the mind and which arises substantially from–

(a)            reasonable action taken in a reasonable manner by an employer to transfer, demote, discipline or counsel a worker or to bring about the cessation of a worker’s employment; or

(b)           a decision of an employer, based on reasonable grounds, not to award or provide a promotion, transfer or benefit in connection with a worker’s employment; or

(c)            reasonable administrative action taken in a reasonable manner by an employer in connection with a worker’s employment; or

(d)           the failure of an employer to take action of a type referred to in paragraph (a), (b) or (c) in relation to a worker in connection with the worker’s employment if there are reasonable grounds for not taking that action; or

(e)            reasonable action taken by an employer under this Act in a reasonable manner affecting a worker.

For the purpose of the Act, the term ‘disease means any ailment, disorder, defect, or morbid condition, whether of sudden or gradual development’ (s 3) and includes a mental illness or disorder.   The effect of s 25(1A) is that where a mental illness or disorder can be attributed to the reasonable actions of the employer there is no entitlement to compensation.

Mr Munting is a paramedic employed by Ambulance Tasmania.  He made an application for compensation for a ‘stress disorder’ triggered, he said by ‘the ‘… on going [sic] investigation into breach of code of conduct’([4]).   Ambulance Tasmania agreed that Mr Munting had a relevant disease so that they would be liable to pay compensation but for s 25(1A). They argued that it was up to Mr Munting to prove that s 25(1A) did not apply.   Mr Munting, on the other hand, argued that the burden was on Ambulance Tasmania to prove that s 25(1A) did apply.

The matter was resolved in Mr Munting’s favour in the Tasmanian Civil and Administrative Tribunal.  Ambulance Tasmania appealed to the Supreme Court.   They relied on s 49(2) which says:

(a)            the onus of proving an initial entitlement to a payment of compensation to a worker or the dependants of a worker lies on the worker or those dependants; and

(b)           the onus of proving that a worker is no longer entitled to the payment of compensation lies on the employer.

The ambulance service, having never accepted liability to pay compensation, argued that Mr Munting was still at the stage of ‘proving an initial entitlement to a payment of compensation’ and so the burden lay on him to show that s 25(1A) did not apply ([6]-[7]).

Chief Justice Blow disagreed. After reviewing relevant legal authorities he held (at [8]; emphasis added):

… s 25(1A) creates exceptions in relation to an employer’s liability to pay compensation; that a common law rule places the onus of proof in relation to those exceptions on the employer; and that s 49(2) should not be interpreted as requiring a worker to disprove the applicability of those exceptions.

Discussion

Workers compensation legislation in most, if not all, jurisdictions have a similar clause. They are designed to avoid the dilemma for employers where they may have to discipline workers but then have to pay them compensation because the disciplinary process is necessarily stressful particularly if it leads to outcomes such as termination or demotion. It would be perverse to dismiss a person because of poor performance and then have to pay them ongoing salary because of the reasonable processes followed.  Of course a section like s 25(1A) does not apply if the employer’s conduct is not reasonable in all the circumstances.

The effect of this decision is that s 25(1A) is not something that the applicant has to disprove as part of his or her application. Rather if the employer wishes to rely on it as an exception to their liability to pay compensation that would otherwise be payable, then it is up to the employer to prove that the relevant illness was caused by their reasonable action.  No doubt it will assist the employer if the employee in their application attributes the cause of their disease to ongoing disciplinary proceedings rather than some other cause but it still requires the employer to prove that their actions were reasonable and inordinate delays in the process or other factors may defeat their defence.

This case does not determine whether Mr Munting is entitled to compensation. That will be a decision for the Civil and Administrative Tribunal following these directions from the Supreme Court on the issue of burden of proof.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.