Lawyer - CWS Lawyers
Mark is a lawyer with CWS Lawyers who specialises in workers’ compensation claims/ litigation and has been advising LGIS on workers’ compensation matters since 2001 and regularly appears on behalf of local government employers in dispute resolution proceedings at WorkCover WA.
The importance of employers following internal policies and procedures and keeping accurate records can’t be emphasised enough when effectively managing a worker’s compensation claim.
Our first case explores the need to follow one’s own internal polices in the context of a worker’s compensation work related stress claim. While the second case highlights the importance of keeping and maintaining records in the context of an employee common law negligence claim.
At its core, LGIS is all about local governments working together to achieve best outcomes for their organisations, people
and community. LGSAG is one such initiative where we have collaborated with member representatives to ensure they can create a safe and healthy work environment for their workforce when it comes into effect sometime next year.
The Workers’ Compensation & Injury Management Bill 2023, currently before Parliament in Western Australia, will enact major changes to WA’s workers’ compensation scheme
when it comes into effect sometime next year.
The importance of employers following internal policies and procedures and keeping accurate records can’t be emphasised enough when effectively managing a worker’s compensation claim. Our first case explores the need to follow one’s own internal polices in the context of a worker’s compensation work related stress claim.
Like most employing entities, local governments have many internal policies and procedures that are designed to help manage the ongoing employment relationship with their employees.
Although the terminology can vary, policies generally address employment issues such as how to:
A relevant example of where an employer’s own internal policies/ procedures can impact on a potential workers’ compensation claim is with regard to workplace stress claims.
It is an undeniable fact that work related stress claims are on the rise. This trend has been evident in recent years, especially during and after the pandemic.
It is also common for an alleged work-related stress claim to have arisen from circumstances which bring into play one or more of the internal policy areas mentioned above.
One of the more common claims would be a scenario arising from an employee being placed on a performance improvement program. This is closely followed by an employee being subject to a formal disciplinary process (such as for a breach of his/her employment contract).
Even though the WA workers’ compensation legislation allows for a defence to a claim for work related stress where the whole or pre-dominant cause is discipline or dismissal, there is still
a requirement for the employer to have not acted harshly or unreasonably (in the case of actual discipline or dismissal rather than a worker’s expectation of discipline/dismissal).
This is where the employer’s own internal policy/procedure becomes critical as any noticeable failure to follow the policy/ procedure may impact on the employer’s ability to successfully defend a claim.
In the context of an employer instituting a performance management process with an employee, the District Court of
WA has said that it ‘would normally involve construction of
any written contract of employment, any industrial agreement and any internal policies and guidelines or protocol regulating work performance and dealing with discipline would clearly be relevant.’ Pilbara Iron Company (Services) Pty Ltd v Suleski [2017] WADC 114.
Although local government employers should not be deterred from following their own internal policies/procedures whenever managing employee work performance and behaviour, they should be prepared to justify any action taken should the internal policy/procedure they have followed come under the microscope in the context of a workers’ compensation claim.
Recently, I was investigating a serious work accident that had happened a few years before and had resulted in an employee making a common law claim against the employer alleging negligence.
I was speaking with an employer representative, and I was asking them about a safety procedure that had applied at a particular point in time (when the work accident had occurred). The safety procedure was relevant as the employee had alleged that there had been a failure on the part of the employer to follow it, thus exposing that employee to a serious risk of injury.
The response from the employer representative was that the safety procedure in question was reviewed internally ‘every so often’ to keep up with changing circumstances and that the usual practice was that the procedure that existed before was ‘written over’ by the new procedure, the effect of which was that given the passage of time, the policy that existed at the time of the work accident might be difficult to find.
The failure to keep and maintain records is fertile ground when it comes to common law claims against employers in negligence. Common law claims against an employer alleging negligence or breach of contract have two things in common.
First, they can take a long time to be finalised from the date of accident/injury – years rather than months. Secondly, like all legal proceedings, common law claims are costly to defend.
The relationship between the keeping of records and common law claims of negligence can be highlighted when one considers some of the more common allegations of workplace negligence that are levied against employers in legal proceedings.
Some common allegations of negligence are that the employer:
There are other allegations of negligence that can be levied against an employer (like a lack of supervision) but these three examples illustrate the fact that the keeping of accurate records is still an important tool in defending a common law claim and reducing the employer’s risk in any subsequent litigation.
In the first case, keeping accurate records that show whether a piece of machinery/equipment was regularly serviced or there was a schedule of regular inspections would be useful.
Although allegations of mechanical or other failures bring into play expert opinion evidence (like an engineer), keeping of accurate records will assist that expert when it comes to offering up an opinion.
As for the last area, training attendance records and registers should be maintained. Another area to consider is whether the content of a training course can be preserved in some permanent form as that may well offer an insight into exactly what took place at the training course (like the course slides, a copy of the video presentation or photographs of the practical demonstrations).
The downside to a failure to keep and maintain accurate records is that one may have to solely rely on a person’s recollection. Given the passage of time between when an accident occurs and when a case comes to trial, memories will often fade. Further,
a witness may have left the employer and cannot be found. A person’s memory may not be refreshed if there is no document to refer them to.
In the end, and in the case of a conflict in the evidence, the court will have to make findings of fact based on the credibility of witnesses and whose recollection of the events is more accurate.
Welcome to our last edition of Risk Matters for 2023. We always enjoy an opportunity to catch up with members, and in the last quarter of 2023 there’s been plenty.
It’s summer! That time of the year when everyone is ready to celebrate and go on holidays. Tourists all across the country and within Western Australia flock to popular spots to relax and enjoy our beautiful state.
A woman in her 50s lost her balance and fell while stepping up over a concrete mound within a popular caravan park. She fractured her ankle and held one of our regional members liable for the injury and loss suffered, alleged to have been $190k.
LGIS is the unifying name for the dedicated suite of risk financing and management services for WA local governments, established by the WA Local Government Association in conjunction with JLT Public Sector (part of the Marsh group of companies). LGIS is managed by JLT Public Sector (ABN 69 009 098 864 AFS Licence 226827).
Risk Matters, via this website, is designed to keep members, their staff and elected members informed on topical risk management and insurance issues and LGIS programs and services.
