How to get around an employer’s defence in a work psychological injury claim? What is considered reasonable administrative action?


Elmiski was employed by Dnata Airport Services Pty Limited as a baggage handler and supervisor. He suffered a psychological injury on 25 June 2019 as a result of dismissal from his employment. There was no dispute that the injury arose as a result of the dismissal. The only issue that needed to be determined was whether the injury resulted from reasonable action taken by the employer with respect to that dismissal.

If the employer was able to argue that the action leading up to the dismissal was reasonable then the employer would not have to pay any compensation despite having caused the injury.

Circumstances surrounding the dismissal

Another baggage handler employed by Dnata, was arrested on 6 March 2019 and charged with offences relating to the importation of 32 kg of methamphetamine on an inbound flight. The baggage handler had contacted his supervisor, Mr Elmiski, and changed his shift to be at work that day.

A month later Mr Elmiski was issued a letter regarding the investigation that was being conducted and then another month later was issued a letter from his employer with respect to allegations of breach of process regarding shift swaps. Shortly after Mr Elmiski was issued with a show cause letter from his employer and was later dismissed from his employment for roster irregularities.

Because of the process, Mr Elmiski suffered a psychological injury.

Mr Elmiski submitted that the three reasons given in the termination letter all related to roster irregularities and could not form the basis for dismissal. At best they should have given rise to a warning and corrective action to assist with future compliance with procedures. While there was no evidence that Mr Elmiski was involved in any criminal conduct, the focus of the disciplinary process was an endeavour to link Mr Elmiski with the conduct of Mr Tolutau. In doing so, it made him a scapegoat.

Was it reasonable conduct from Dnata?

The Arbitrator , when deciding whether Dnata’s conduct was reasonable to dismiss Mr Elmiski from his employment, considered the evidence and various witness statements from Dnata. The Arbitrator formed the view that she was unable to determine the issue of reasonableness of Dnata’s conduct in terminating Mr Elmiski’s employment. Consequently, this led to the Arbitrator determining that Dnata had not satisfied its requirement to prove that Mr Elmiski’s injury was caused by reasonable action with respect to dismissal.

Arbitrator McDonald went on to suggest that if there was a “written document which set out the investigation Dnata undertook, it might provide an explanation for the protracted nature of the process and its outcome. In the absence of an explanation, I have formed the view that the disciplinary process was unreasonably drawn out”.

As a result, the Arbitrator determined that Mr Elmiski’s injury was caused by unreasonable action with respect to his dismissal and ordered the employer to pay him weekly compensation payments on an ongoing basis.

What this means for Section 11A defences

This case has emphasised the fact that the Section 11A defence often used by insurers and employers is quite a high threshold to satisfy. The onus is on the employer to prove that their actions are reasonable and as illustrated in this case, that test will require the employer to produce detailed evidence and a clear process that was undertaken to prove that their actions were in fact reasonable.