Berhane v Woolworths: Causation Where an Employee Has a Pre-existing Injury

In Berhane v Woolworths Ltd [2017] QCA 166, the plaintiff appealed a decision from the District Court in Brisbane, claiming damages for personal injuries. At first instance, the claim was dismissed on the basis that he had not proved that his injury was caused by any breach of duty on the part of his employer. The central issue for the appeal was the finding on causation.

Berhane was a casual employee who worked as a picker in Woolworth’s warehouse, which involved lifting and stacking cartons of various weights and sizes at various heights. In the course of the day, he would perform repetitive lifting, stretching, twisting, reaching and squatting movements up to 1500 times a day.

Berhane had a preexisting shoulder condition called rotator cuff tendinopathy, which was aggravated and accelerated by the performance of his work. Following that, he developed a further injury called a rotator cuff bursitis. At the time he undertook his initial fit for work asessment, he was not aware that he had a pre-existing condition, and did not have a special vulnerability to the injury he suffered.
Berhane continued to experience pain 2 years following the initial diagnosis.

Breach of duty
The primary judge found the system of work in place gave rise to a risk in injury for the following reasons:

  • Employees were given a job completion time, and were asessed on the number of tasks completed and their daily average. Employees with the least impressive percentage would not be given work and be sent home. The plaintiff and fellow workers would often take shortcuts which risked their safety for the sake of keeping up their daily percentage.
  • Employees were given a worksafe induction and received training, however these practices were not followed nor enforced.
  • There were few managers, with limited capacity to observe up to 100 workers at a time.
  • If an employee considered it unsafe to stack a carton, the pallet would be reassigned to someone else.

Therefore, Woolworths had breached a duty to implement a safe system of work.

Woolworths submitted that it had no duty of care to the plaintiff, as he had not made his condition foreseeable to them. However, Morrrison JA rejected this argument, stating:

  • The plaintiff had a condition that was a foreseeable risk affecting 10-15% of the general population;
  • Therefore, Woolworths had a duty of care that should have been broad enough to accommodate employees with that condition.

Woolworths contended that the breach of duty did not cause the injury, as:

  • If measures such as closer supervision had been implemented, they could not have prevented the plaintiff’s injury
  • It was inevitable that given the plaintiff’s preexisting condition that performing manual work would cause injury
  • Evidence did not support the finding that the condition was aggravated and accelerated by the work activities

Morrison JA did not accept Woolworth’s contention on causation, finding:

  • That medical evidence supported the conclusion that repetitive workplace activities aggravated the preexisting condition that the plaintiff suffered.
  • That proper supervision would have ensured that the acceleration of the plaintiff’s condition would not have occurred (the medical evidence was that the plaintiff’s condition had been accelerated by years), and he would not have developed a further condition of bursitis.

General Challenge
Woolworths made a general challenge to the plaintiff’s claim, contending that Berhane was not a credible witness as he displayed overprotective behaviour throughout the examination of his arm, and was considered to not exhibit a true range of motion during examinations.

Morrison JA did not accept the general challenge, considering the plaintiff’s case nonetheless was supported by the evidence of medical experts.

The Order
Morrison JA, Dalton J agreeing, ordered $231, 200 and costs to the plaintiff, asessing the plaintiff’s potential fututure earnings.

Takeaways from this case

Where an employer has breached their duty to provide a safe standard of work, it will be difficult to establish an employee’s work-related injury was not caused by a breach of duty, even where:

  • The employee did not give the employer notice that they had a pre-existing condition,
  • The employee had passed an initial fit for work asessment; and
  • It was likely the employee’s condition would worsen with time.

Employers should strive to employ a safe system of work broad enough to capture as many risks as possible. This might include:

  • Ensuring higher levels of supervision,
  • Not only providing safety training and policies, but enforcing them,
  • Having systems in place that cater for segments of the population that may be at greater risk of injury than others; and
  • Encouraging a workplace culture where safety comes first.

This case demonstrates it is not enough to argue an employee had a pre-existing condition that was not known to the employer, as it is not likely to be enough to absolve the employer of their duty of care, nor enough to break the chain of causation.

All material is provided for general information purposes. Appropriate advice should be obtained for your particular situation. None of the content reflect the views of, or are endorsed by affiliates, employers, colleagues, or associates.

This article is entirely my own opinion. If you have comments or critiques, please comment below or email me. You can also keep up with me on Instagram



Working Hard or Hardly Working: Bore Out and Underemployment

“I took a few days off because I couldn’t handle it any more. I had even gotten ready in the morning and I was ready to start work at 9. I pulled into the parking lot and the thought of just sitting there all day doing absolutely nothing-” My friend paused and shuddered visibly “-I basically had a mental break down.”

My friend’s story was no stranger to me. I had experienced something similar, having worked in a company which was largely overstaffed with a culture of inefficiency, resulting in hours of my day wasted, quietly staring at my computer screen. Just like my friend, I felt like I was on the verge of a mental breakdown and dreaded going to work. The only thing that kept me in the role was the fact that I was being paid to be there, and a sense of guilt knowing that other comparable graduates would have been grateful to be in my position. Being underworked brought with it a whole suite of mental health stressors. I struggled with feelings of guilt, inadequacy and uselessness. Being underworked exhausted me in ways being overworked could not due to the combined pressures of the swirling negative emotions and the lack of stimulation I experienced five days a week.

Bore out and its links to underemployment

Little did we know at the time, my friend and I were contributing to Australia’s underemployment statistic of 8.5% as of February 2015 (the ABS is due to release further, updated labour statistics later on in the year, which I will update on once that is released). The concept of “underemployment” can refer to situations where:

  • Employees are engaged in work but have the capacity and desire to work further hours;
  • Employees perform roles they are vastly overqualified for, and, most relevantly to this article:
  • Employees are engaged by an organisation in a “labour hoarding” situation, where workers are employed but are not utilised to an extent where they are economically productive.

My friend and I were being “labour hoarded”, working in organisations that were overstaffed and could afford to be, or had become too complacent to trim the fat. As miserable as we were, my friend and I were in an advantageous position compared to some other underemployed workers- we were working full time and were paid as such. We may have been dissatisfied in our roles, but at least we did not have a wealth of leisure time with no means of funding it, and therefore experienced little financial stress.

Underemployment represents the level of slack that has accumulated in our labour market and represents two problems:

  1. That the Australian economy is sitting on a large source of untapped potential in the form of underutilised employees, and
  2. Low wage growth- that is, Australian wages are falling in real terms.

I am not an economist, but it is commonly accepted that some wage growth is correlated with economic growth and a higher standard of living (please don’t quote me on this). Aside from the overall economic impact of underemployment, being engaged to be in an unproductive role can be one of the most dissatisfying things you could ever experience.

Combatting the detrimental effects of bore out

In May 2016, 44 year-old Parisian Frédéric Desnard sued his former employer, claiming they had placed him in a bore out situation he described as a “descent into hell” (article by Kim Willsher here: Oh dear. Before calling your lawyer, take a deep breath. I have some tips on how to handle it, as someone who’s been there and done that.

  1. Are you sure there’s nothing to do?

An obvious question that can be overlooked, it is possible that there is work available, but you simply haven’t been informed of it. Ask your supervisor for more tasks for you to do, and if he or she says no, don’t be scared to say that you’re “here to help in any way I can”. Depending on the office culture and your supervisor’s preferences, it may be possible to pick up tasks from other departments, so ask around.

  1. Are you sure that you’re being labour hoarded?

Gulp. A hard question that can be overlooked is to consider whether you’re actually being underutilised for reasons outside of your control (due to legislative, economic, or organisational structures and limits), or because you’ve been underperforming. Asking for feedback from your supervisor may give you some insights into whether you have been performing your role effectively, and if you haven’t, there may be a chance that you’re being overlooked for projects and tasks due to mistakes you’ve made or your performance in the past.

Arrange for some time with your supervisor to discuss your performance. If there are some issues in particular you’re concerned with, write a list. Before going into the meeting, try your best to remain professional: don’t get defensive, emotional or aggressive if your supervisor’s assessment is not positive. Ask for clarity on any critique and for examples of how you could have done better.

After the meeting, take some time to reflect. Evaluate the comments you received and come up with some ideas on how you plan to take in any criticism you received and how you plan to address those issues. Discuss this plan with your supervisor. An active approach to addressing performance issues may help your supervisor become more open to issuing you with further tasks, or placing you onto new projects.

What if the feedback is positive?

If the feedback you receive is positive, you can use this as an indication that you are meeting your company’s expectations. What you glean from that information (whether it be pride, satisfaction or sheer surprise) is up to you.

  1. What is your next step?

You may have received some feedback that’s helped you to realise you have room for improvement and to grow in the organisation. That’s great and I wish you all the best. However, if you’ve come to the decision that you’d like to move on, it’s time to decide your next step, taking into consideration your career goals, financial situation, and personal situation.

In my friend’s case, she jumped ship the moment she was hired by her new employer, a firm that was more than happy to give her challenging work.

In my case, I stuck around for a while. I knew that I was making more than the market rate of that position at the time, and wanted to strengthen my financial situation before moving on. In the meantime, I made the most of (the few) tasks that were given me, proactively chased new projects where I could and got to know my co-workers a bit better. While that did make my situation more bearable, I knew that every day I spent in the role was bringing me backwards in terms of my career development. I was unfulfilled and felt like I wasn’t being challenged: I had decided some time ago that it wasn’t the right fit for me and I knew the longer I waited, the longer I would remain stagnant.

Once I was able to dedicate myself to a different role, my mental health improved considerably. I had a more positive outlook overall, and felt stimulated and challenged by my work. I found myself finally looking forward to going to work, and lingering at my desk to finish a task rather than watch the minutes trickle by. My experience in being underworked and “bored out” is the reason for why prefer being overworked and stressed to a level. I will never complain about new challenges and high-pressure situations again, knowing how the alternative feels. Like my friend, I shudder to even think about it.


Thank you to my friend for allowing me to share her story. 

Why you should be reading cases

When I was at law school I was able to cruise by without reading cases. And in fact, that’s a great way to describe my attitude towards my studies: cruise. I wasn’t particularly interested in what I was studying and found it difficult to see how the concepts I was studying translated to real life. That was until I started gaining work experience and I saw first hand how cases and legislation had real world implications on real people. And this is when I began to learn that being able to read case law is so, so important because when you’re going ahead with a matter one of the first things you’ll be asked to do is to find analogous cases.

Being able to read a case and to pick out the most relevant points to you is a skill learned over time. It can’t really be taught and takes a fair amount of practice. Every time I read a case, I learn something new.

Here are the reasons for why you should set aside some time to read cases:

It helps you learn how to communicate like a lawyer

This was the greatest benefit that I gained from reading cases. Every time I read a case, I pick up words to add to my vocabulary, new ideas on how to convey a particular message, and examples on how I should structure my work so my work can be better understood.

It helps you develop your analytical skills

Reading cases means you gain a first-hand insight into the way a judge would analyse a set of facts and apply the law to them. No cheat sheet can do this for you! An added bonus when reading cases is you will also be able to read the dissenting judgment (something study guides and charts often leave out), which can help you gain a more rounded exposure to the issues of the case and give you an idea of the alternative ways you could think about a particular issue.

It’s fun

I’m sensing some scepticism here. But see for yourself: next time you’re at work or just doing some browsing at home and you come across a law news story that’s interesting to you, plug in the party names into a legal database (Austlii is my go-to) and see what you can dig up.

You will never regret extending yourself and learning something new. Personally, I’ve enjoyed the process of learning how to read cases and then applying the knowledge I’ve gained from that process to my work and personal life. You’ll be surprised how often something you’ve learned from a case will just come up in conversation!
I understand you might not have studied law, or just need a refresher on how to approach the task of reading cases: my next blog post will be called “How to Read Cases” and will give you some pointers on where to get started.

Looking forward to seeing you again here on the Workplace Space.


Employees and Social Media

In an increasingly connected world, social media blunders committed by employees can have a real impact on the employment relationship. There are situations where an employee’s conduct on social media could constitute a breach of the employment contract and warrant dismissal. The breach must be a breach of the express or implied terms of the employment contract, and must be serious enough to affect the employment relationship in a way that the employer cannot reasonably be expected to have confidence in their employee.

NB: Australian jurisdiction

Connection to work

Relevant to the issue of social media misuse by employees is the issue of out of hours conduct. The test for when an employee’s out of hours conduct is so unacceptable it could give a valid reason for dismissal is set out by Ross VP in Rose v Telstra Corporation Ltd (U No. 20564 of 1998).

The conduct must be, when viewed objectively:

  • likely to cause serious damage to the relationship between the employer and employee; or
  • the conduct damages the employer’s interests; or
  • the conduct is incompatible with the employee’s duty as an employee.

Even where the circumstances fit within the test in Rose, employers must remember the wording of s 385 of the Fair Work Act 2009 (Cth), which states:

A person has been unfairly dismissed if the Fair Work Commission (FWC) is satisfied that the dismissal was harsh, unjust or unreasonable.

In many of the cases I looked into, the FWC determined that the employer had a valid reason for dismissal, but due to a defect in procedure, and/or the harshness of the dismissal all things considered, the dismissal was still considered an unfair dismissal.

Case examples

Cases where employee made outrageous, hurtful or inappropriate comments or posts on social media but dismissal was still unfair:

Case Why dismissal was unfair
Somogyi v LED Technologies [2017] FWC 1966


Procedurally unfair: No reasons given for dismissal/ no opportunity to respond
Linfox Australia Pty Ltd v Stutsel [2012] FWAFB 7097


Dismissal was harsh: previous good employment record and employee’s lack of awareness on social media privacy settings
Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186 No valid reason: employee gave an acceptable explanation of the posts, and other posts did not breach SM policy
Remmert v Broken Hill Operations Pty Ltd [2016] FWC 6036


Procedurally unfair: other matters influenced the decision maker and were not made known to the employee
Renton v Bendigo Health Care Group [2016] FWC 9089


Dismissal was harsh: disproportionate to the conduct
Fitzgerald v Dianna Smith T/A Escape Hair Design [2011] FWAFB 1422


No valid reason, no procedural fairness. However, harshness not a consideration as the employee was not able to work as she was incapacitated (psychological harm not related to work). Compensation awarded was therefore limited.


Cases where dismissal was not unfair:

Case Why dismissal was not unfair
O’Keefe v William Muir Pty Ltd t/as The Good Guys [2011] FWA 5311


The words were a clear threat to other employees constituting repudiation
Dover- Ray v Real Insurance Pty Ltd [2010] FWA 8544


Employee refused to follow reasonable direction to remove social media posts


After-hours conduct cases

In most of the after-hours conduct cases, dismissal was found to be unfair, even if there was a valid reason for dismissal:

  • Rose v Telstra Corporation Limited (U No. 20564 of 1998
  • Clarkin v Bechtel Construction (Australia) Pty Ltd [2017] FWC 1871
  • Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156
  • Deeth v Milly Hill Pty Ltd [2015] FWC 6422

The only case in relation to out of work conduct where dismissal was not unfair was Kathuria v The Commonwealth [2015] FWC 8553, where largely the employee demonstrated an unwillingness to comply with lawful and reasonable directions.


Employers must be careful when terminating an employee for misconduct on social media. No matter how outrageous, offensive or potentially damaging to the employer or fellow employees an employee’s social media post may be, an employer must consider:

  • Whether they have a SM policy (Linfox)
  • Whether the SM policy was provided to the employee, and its purpose and application explained (Remmert)
  • Whether the posts could be linked back to the employer and have an adverse affect (Fitzgerald v Escape Hair Design)
  • Whether the employee was afforded procedural fairness (Singh v Aerocare, Somogyi)
  • Whether fellow employees were adversely affected (Renton v Bendigo Health Care, Keenan); and
  • Whether other options to discipline were open to the employer.

Each case turns upon its facts and there is no hard and fast rule on when it is OK to dismiss an employee for a social media post. It is clear, however, that if an employer avoids being hasty, ensures that they have a clear social media policy in place, and the employer follows the principles of procedural fairness they are halfway there to defending an unfair dismissal claim should one arise.

All material is provided for general information and educative purposes. Appropriate legal advice should be obtained for your particular situation. None of the content reflect the views of, or are endorsed by affiliates, employers, colleagues, or associates.

This article is entirely my own opinion, and the first I’ve ever published. If you have comments or critiques, please comment below or email me.


My first vlog!

It has been an extremely busy couple of weeks and sadly I let The Workplace Space slide as a priority in my life. I realised last night that I NEED to make it a priority and reminded myself of why I wanted to found WS in the first place: because I love employment law, I love developing my understanding of it, and I would love to share my thoughts with you.

So I threw myself into the deep end and recorded a vlog- I’ve never done one before- just to introduce myself and the Workplace Space and to make myself accountable to my goals.

The next post will be on social media use in the employment relationship. I’ll be looking into some cases where things have gone bottoms up. I’ll coming up with ideas on how I think employers should handle social media, and how employees can keep themselves out of hot water if they’ve made a social media faux pas!

Looking forward to seeing you all again on The Workplace Space!- WS


Dear Reader,

Welcome to The Workplace Space! Stay tuned for content on industrial/ workplace/ employment relations, HR issues, management, and employment law. I’m looking forward to sharing my thoughts with you and can’t wait to get a dialogue going on all things employment!

See you soon,