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September 2025 Newsletter & Cases Update

Welcome to our latest Newsletter and Case Update for 2025, where we aim to keep you up to date with all that is happening in the law affecting workplaces, and with what we have been doing here at KJK Legal.

In this edition, you can expect to read about:

Firm News

KJK Legal client seminar and IAG3

Last month, we held a breakfast seminar for our clients and contacts and were delighted to welcome Dr Boris Fedoric of Workgain/Career Bug as our guest speaker. Dr Fedoric presented on a number of issues which are relevant to determining an injured worker’s functional capacity and why this is necessary.  He shed light on the challenges in measuring real function (e.g. artificial environment, short duration vs a real workday, task simulation and predictive validity).  Dr Fedoric also spoke about biopsychosocial factors and illustrated a number of case studies he has dealt with firsthand.

Our team presented on section 18 of the Return to Work Act 2014 (SA) and the Impairment Assessment Guidelines Third Edition (IAG3) which comes into effect as of 1 October 2025. You can now watch the entire client seminar on our Youtube page.  However, here are some key factors to bear in mind with respect to the new IAG3:

If you need further information or would like us to present on the IAG3 to your team, then please contact us.

KJK Legal recognised in Doyle’s Guide Rankings

Doyle’s Guide is an independent, nationally recognised publication listing firms and lawyers who have been identified by the legal profession and clients for their expertise. We are proud to announce that our firm and solicitors have once again been recognised in several prestigious categories by Doyle’s Guide this year, which include:

Firm Awards
Individual Awards

Pawgust

Kylie Kerrigan and KJK Legal’s mascot, Candy participated in Pawgust this year walking 50kms with their team ‘Puppacinos’ to raise much needed funds for Guide Dogs. Here are some photos of the Smiling Sammy.

Sponsorships

SISA – Closing the Loop Conference, 18 September 2025

Congratulations to Rachel Webber and the team from SISA for another sensational Conference at Morphettville this year.

Participants were lucky to hear from Martin Campbell, Co-founder of Human Global and Mark Butler in the morning about building psychologically safe workplaces that support both worker wellbeing and business outcomes and how AI is reshaping psychological dynamics in teams and leadership.

Our own Claire Eagle was part of a fantastic panel discussion which considered how work health and safety psychosocial regulations line up with RTW laws and how it is that employers can comply with both.

While all speakers were informative and knowledgeable, the standout for us was Kate Munari, Australia’s only female navy helicopter pilot to fly in Afghanistan. An inspiring talk encouraging the audience to meet challenges head on and to transform obstacles into opportunities for success.

The KJK Legal team had a great day catching up with so many of you and we look forward to seeing you all again soon, perhaps at Both Sides of the Fence, on 21 November 2025.

Recent Decisions of the South Australian Employment Tribunal

Stewart v Return to Work Corporation of South Australia & Anor [2025] SAET 61

Topic: Video surveillance evidence
Commentator: Chrissy Psevdos
Background

The worker was mistakenly provided with surveillance evidence taken of her by the respondent, Return to Work SA, which it obtained as a consequence of a claim for consequential injuries and medical and like expenses being claimed.

The respondent sought to claim legal professional privilege in respect of all of the surveillance evidence and denies that it has waived privilege by providing some of that evidence to the worker. The respondent relies on s180(15) of the Return to Work Act (RTW Act) which provides:

“If the Corporation or a delegate of the Corporation mistakenly provides material to a worker to which the worker is not entitled, the worker must return the material within a reasonable time after requested to do so by the Corporation or the delegate.”

Issues

The worker does not accept that privilege applies to any of the surveillance evidence and submitted that until that issue was resolved, it would be improper for her or her solicitors to “use or have regard to the content of material over which legal professional privilege is claimed, including to the extent of addressing actions or activities as refreshed by the contents of the surveillance material.”

Furthermore, the worker argued that she should not be in a position of providing an affidavit which is either less than complete or which addresses or has regard to the content of the material over which there was a concurrent claim of privilege being maintained.

Held

Noting that the worker had the advantage of knowing about the existence of the surveillance, she had also viewed most of it. On that basis, Calligeros DPJ found that it was not realistic to assume that the worker could or would disregard what she had seen in the surveillance evidence when preparing her affidavit or giving oral evidence. While s180(15) of the RTW Act may require that she return her copy of the surveillance evidence, it did not preclude her from relying on what she has seen when presenting her case to the Tribunal.

Key Takeaway

The RTW Act and the SAET Rules both address the subject of video surveillance evidence, how it is to be disclosed and how it is to be used in proceedings. As such, it is unlikely, if the evidence is dealt with appropriately that it can be used as a means to delay proceedings.

A link to the full text of the case can be found here.

Howell v Return to Work Corporation of South Australia & Victoria Hotel Port MacDonnell [2025] SAET 62

Topic: Application for lengthy adjournment and issues of prejudice
Commentator: Suzana Jovanovic
Background

The worker had been employed by Victoria Hotel (Other Party) as a gaming and beverage attendant. On 2 May 2024, the Hotel reported a theft from its premises and discovered that the worker’s employee code was used to disarm the hotel’s security system and gain entry at the relevant time. The worker’s employment was suspended that day pending the outcome of police investigations. The worker asserts that police had raided her home on 3 May 2024 and accused her of being involved in the break-in of the hotel. On 22 May 2024, the hotel wrote to the worker requiring her to attend a meeting in June for the purpose of discussing the break in. On 31 May 2024, the worker’s husband advised that she would not be attending this meeting. That day, the worker submitted a claim for compensation alleging to have suffered a psychological injury on the day that police raided her home.

Even though the police investigation was still ongoing, the hotel formed the view that the worker did not exercise care to ensure her employee code was kept safe and secure per her employment contract and the hotel’s policies and procedures, which ultimately led to someone breaking in. On this basis, the hotel wrote to the worker advising that her employment would be terminated.

The Respondent issued a determination on 13 June 2024 rejecting the worker’s claim as amongst other things, the worker had not discharged the onus upon her to prove that the alleged injury did not arise from the disentitling ss7(4)(a) and (c) of the RTW Act.

The worker disputed the decision and in October 2024 applied for a lengthy adjournment of the proceedings to allow police to conclude their investigation. At that stage the Respondent and Other Party agreed. However, in January 2025, the worker made a further application to adjourn the proceedings for a few more months to allow police to conclude their investigation and to determine whether they would press charges against the worker for the break in. This time the Other Party (Victoria Hotel) opposed the adjournment.

Issues
Submissions

The worker’s claim for compensation relates to the police raid and her assertion that she was falsely accused of the breaking, entry and robbery. The police had referred to the worker as the “prime suspect”, and she declined to provide police with a statement. In light of this and given that the police investigation was still ongoing, the worker did not wish to provide an affidavit with respect to the workers compensation claim and to be cross examined at trial on the basis that she would be exposed to the risk of self-incrimination in a potential offence. She feared that her evidence could be used by prosecution to charge her which she claimed is very likely.

The worker also pleaded by innuendo that the hotel accused her of being involved in or facilitating the theft and that she became distressed and tearful after receiving a phone call from the hotel. 

The hotel however, submitted that it did not accuse the worker of theft, but rather made a decision to terminate her employment on the basis that she failed to exercise care to ensure that her employee code was kept safe and that this failure enabled someone to gain entry and caused the hotel to suffer a significant loss. The Hotel’s position was that it would be significantly prejudiced by a further lengthy adjournment as the directors were seeking to leave the license of the Hotel to someone else which may be complicated by the workers compensation proceedings.

Held

The judge was satisfied that the worker being charged with a criminal offence was “on the cards”. His Honour noted that if the worker was to provide an affidavit and be cross examined in the subject proceedings, she would have to tell the whole truth and it is likely her evidence would need to canvass whether she accepts that her employee code was used during the break in and how that may have occurred. So, there is a real risk of self-incrimination whilst the police investigation is still ongoing. His Honour also noted that the worker has a rejected claim and is not in receipt of weekly payments or recovering costs of medical expenses which would ordinarily make workers anxious to have their claims determined by the SAET as soon as possible. His Honour therefore found that whilst a lengthy adjournment would be inconvenient to the hotel, the potential prejudice to the worker is more serious/substantial. The matter was therefore adjourned to a Directions Hearing in December 2025.

Key Takeaway

The potential prejudice to each party is evaluated through a balancing test. In this particular case, I do query whether an order to stay the proceedings should have been requested, rather than a further lengthy adjournment.

A link to the full text of the case can be found here.

Kristyn Wensley v Catholic Church Endowment Society Inc. [2025] SAET 63

Topic: Requirement to attend an independent medical examination
Commentator: Tracey Kerrigan
Background

The compensating authority sought an order under Rule 224 of the SAET Rules that the worker attend an indepedent medical examination (IME) with Dr C Brown, an orthopaedic surgeon.

The applicant had accepted claims for injury to her right hand, wrist and shoulder. In 2023 she was diagnosed with CRPS. She was examined by Dr Champion for an IME at the request of the compensating authority.

She made a request for a determination to be assessed as a seriously injured worker on an interim basis. A further IME with Dr Champion was arranged and a report obtained. Some months later the worker pursued the application again and a further IME with Dr Kapur arranged. The worker refused to attend that IME and the application for interim SIW was rejected. Part of the rejection was based on the refusal to attend the IME. The compensating authority, as part of the dispute resolution process, arranged an IME with Dr Brown (Dr Kapur was no longer available). The worker again refused to attend, and an application was made requiring her attendance under Rule 224.

Held

Due to the nature of CRPS it is possible that the worker’s condition may have changed. Current medical evidence is preferable.

Although it appeared that the compensating authority may have been doctor shopping, once the judge found that a review appointment should be permitted, the Tribunal could not dictate which doctor was to undertake the IME. Dr Brown was accredited and could undertake the assessment.

Key Takeaway

The SAET is prepared to accept further medical evidence may be required in a situation involving a condition such as CRPS which can continue to evolve (and in some cases, improve) but there is no guarantee it will take the same view with other conditions which may be less ‘changeable’ in nature. 

A link to the full text of the case can be found here.

Return to Work Corporation of South Australia v O’Donoghue [2025] SAET 66

Topic: Video surveillance evidence
Commentator: Chrissy Psevdos
Background

Ms O’Donoghue is involved in multiple disputes with ReturnToWork SA (RTWSA). Once one of these disputes was referred to the South Australian Employment Tribunal, RTWSA obtained some surveillance film of Ms O’Donoghue. Under s104(3) of the Return To Work Act (RTW Act), parties must disclose evidentiary material to the Tribunal and, upon request, to the other party during conciliation. RTWSA informed the Commissioner of the existence of the film but argued it was not obliged to disclose it to Ms O’Donoghue. The Commissioner indicated an intention via email to notify Ms O’Donoghue, reasoning that disclosure of existence was required. RTWSA sought review, arguing the Commissioner had in fact made a “decision” capable of review under s66(1) of the SAET Act 2014.

Issues
Held

The Tribunal found that the Commissioners email was a reviewable “decision” on the basis that the email materially affected RTWSA’s rights.

Obligations of disclosure under the RTW Act is qualified by the South Australian Employment Tribunal Rules; in this instance specifically Rule 56(8) which governs surveillance evidence. Under this rule, disclosure of production of surveillance material is only required in limited circumstances. It was ultimately found that the Commissioner misunderstood the law in concluding disclosure of existence was mandatory.

Key Takeaway

In SAET proceedings, the obligation to disclose surveillance material is not automatic under s104(3) of the RTW Act; it is qualified and governed by Rule 56(8) of the SAET Rules 2024. Disclosure or production is only required in limited circumstances, and Commissioners’ directions on such matters can be reviewed.

A link to the full text of the case can be found here.

Andrew Barrett v Department of Treasury and Finance [2025] SAET 69

Topic: Psychiatric injuries arising from administrative actions
Commentator: Lauren Knappstein
Background

The worker was employed as a TAFE SA Adelaide Campus lecturer in the Adult Migrant English Program (AMEP). An application for review followed a determination rejecting the applicant’s claim for a psychological injury as a result of “bullying, victimisation, and harassment over an extended period”.

The worker nominated the date of injury as 21 October 2021, which was the commencement date of his Mental Health Care Plan. When an injury develops over time, it is taken to have occurred when the worker “first becomes totally or partially incapacitated for work” (s188(1) of the Return to Work Act 2014 (SA) (RTW Act)). Conflict with another colleague and the applicant arose in 2020 when they were a part of a co-teaching arrangement. In May 2021 this was formally alleged. After being separated and investigations taking place, the employer found that there were no grounds for any bullying claims.

After some complaints and a reassignment, the applicant angrily confronted his colleague at the workplace in an aggressive and inappropriate manner, resulting in a suspension. He was presented with a “Show Cause” letter requesting a response to the allegations made.

Issues
Held

The Tribunal accepted that the applicant had suffered from an adjustment disorder (the date of injury being March 2022) but also, that such disorder was caused wholly or predominately by reasonable administrative action namely the disciplinary processes, teaching reallocation and the “show cause” letter. The application for review was dismissed and the decision to reject the applicant’s claim was confirmed.

Key Takeaway

Psychological injuries that arise from an employer’s disciplinary or administrative actions will not be compensable under the Return to Work Act 2014 (SA) if those actions are reasonable and carried out in a reasonable manner, even if the worker subjectively perceives them as bullying or harassment.

It will be a factual issue as to whether or not the employer acts reasonably in any particular case.

A link to the full text of the case can be found here.

Duryea v Electrolux Home Products Pty Ltd [2025] SAET 78

Topic: Noise induced hearing loss
Commentator: Claire Eagle
Background

This recent decision is in respect of a disputed claim for noise induced hearing loss and tinnitus.  Very relevant to a lot of employers. The only issue by the end of the trial was whether the Applicant was entitled to a lump sum for non-economic loss and whether the assessment in respect of tinnitus was in accordance with the Impairment Assessment Guidelines and the Act.

The case involved a worker, Mr Duryea, who claimed compensation for noise induced hearing loss (NIHL), including hearing aids and a lump sum.  There was a dispute between medical assessors about the extent of hearing impairment, and importantly whether and how to account for tinnitus in the impairment rating.  One assessor (Dr Diamantis) gave a binaural hearing loss of 3.6 % (not factoring in tinnitus) whereas the other assessor (Dr Fagan) assessed total binaural hearing impairment of 7.4 %, which was then increased to 10.4 % after factoring in tinnitus.

In the final analysis, the Applicant’s affidavit and oral evidence as to his symptoms of tinnitus was accepted. Whilst the assessments of tinnitus were at the generous end of the possible range at 3%, an assessment at 2%, the top end of the range of the Respondent’s expert based on the same symptoms, it was found that the difference in the opinions of the experts would not alter the overall outcome. Her Honour Judge Kelly made the observation that care needs to be taken by assessors in circumstances where assessment is close to the threshold 5% whole person impairment required in section 58(2). 

Key Takeaway

The case reinforces that assessors must carefully balance objective test results with the claimant’s reported symptoms (e.g. severity of tinnitus) and provide reasoned justification. The reliability of self-reported symptoms is relevant.

A link to the full text of the case can be found here.

Ludlow v Return to Work Corporation of South Australia [2025] SAET 83

Topic: Noise induced hearing loss
Commentator: Tracey Kerrigan
Background

The applicant was employed at Uniting SA as a maintenance person from 24 June 2013 to 17 October 2022 when he retired. Prior to that employment he had a history of exposure to noise in jobs which he described as very “noisy”. Despite that, when he commenced at Uniting SA he was assessed as having a relatively minor loss of between 1.5% and 3.7%. When assessed in 2024 he had a binaural hearing impairment of 12.7% which is a significant progression in his hearing loss over a relatively short space of time.

Evidence was given that the work at Uniting SA involved some exposure to noise but this was considered to be intermittent. The worker was adamant that the work he performed was noisy.

However, that was not borne out by a noise survey from Mr Dewing, who gave evidence which was relied upon and accepted on the issue as to the level of noise and whether it was capable of causing noise induced hearing loss. Medical evidence indicated that the deterioration over the period of employment was atypical for noise induced hearing loss, where Dr Hains indicated that hearing loss is a decelerating injury where earlier exposure is more likely to cause significant loss as compared to exposure in later life. The experts could not identify what else may have caused the loss sustained.

Issue

The most relevant issue was whether the worker had proven that he had sustained a noise induced hearing loss and if so, whether the onus of proof then reverted to the compensating authority to disprove the presumption in s188(2) and s9(2).

Held

Judge Gilchrist found that he was not satisfied that the worker had sustained a hearing loss as a result of exposure to noise and therefore the worker did not get the benefit of the presumption in s9(2). The rejection of the claim was upheld.

In a somewhat surprising result, it is important to consider the factual and expert evidence. Although the worker was found to be credible, the expert opinion of Mr Dewing seems to have held sway.

Key Takeaway

Judges are prepared to consider whether or not a worker has met the initial burden that rests on them and if not satisfied about the cause of the hearing loss will find that the onus does not revert to the employer.

It is important to carefully consider the factual and medical evidence to be led and the mere fact that a worker considers work to be “noisy” is not sufficient to persuade a judge to ignore the scientific/objective evidence as to whether or not that is the case.

A link to the full text of the case can be found here.

Ramamoorthy v Return to Work Corporation of South Australia [2025] SAET 88

Topic: Covid-19 – relevant of evidence and costs
Commentator: Oliver Fragnito
Background

The substantive proceedings relate to the worker’s claim for compensation for loss of wages and medical expenses for a claimed work injury for complex dysphagia, “difficulty swallowing”. The worker alleges it has arisen as a complication of COVID-19 vaccinations. The claim was rejected by the Corporation on the basis that the vaccinations were not required under the contract of employment. The trial is listed to begin later this year.

Issue

The worker has sought to rely on an affidavit of a ‘long-time friend’, Ms Ledson. The Corporation made an application to strike out the affidavit in its entirety on the basis that it was filed without leave, without prior notice and contains hearsay and opinion evidence where Ms Ledson is not a qualified expert and the affidavit addresses matters not in issue between the parties.

Held

The affidavit was struck out and the worker was held to have acted unreasonably and therefore unable to recover its costs from the Corporation for the application.

Deputy President Judge Rossi set out the paragraphs of the affidavit and held that the subject matter sought to be addressed by Ms Ledson is either not in dispute, vague, irrelevant, or opinion evidence without the foundation, and thereby inadmissible. It was held that the affidavit would not assist in the determination of the issues in dispute between the parties at Trial.

An order was sought by the Corporation that the worker not recover any of her costs of the related application to strike out the affidavit. It was sought on the basis the worker acted unreasonably in the conduct of the proceedings persisting in their reliance upon the affidavit after being put on notice that it was inadmissible.

Key Takeaway

Affidavit evidence should always be filed with the leave of the Tribunal. When preparing an affidavit, the focus should be on whether the contents will assist the parties and Tribunal in determining the issues in dispute. 

A link to the full text of the case can be found here.

Wastell v Return to Work Corporation of South Australia (No. 2) [2025] SAET 94

Topic: Journey accident
Commentator: Claire Eagle
Background

The recently finalised matter of Wastell was a long time coming.

The worker made a belated claim after she was involved in a single vehicle collision on the Southern Expressway on 12 October 2018.

She was a lawyer, and she argued that as a part of her duties and/or at the direction of her employer, she was carrying files and some stationary items which she had been transferring from the city office of her employer to the Christies Beach office. The key fact being that she took the items to her home overnight.

Held

The South Australian Employment Tribunal held that there was no prejudice in the delay but ultimately, His Honour Judge Gilchrist decided that there was not a substantial enough connection to employment to override the journey accident provisions.

The matter was appealed to the Full Bench of the Tribunal, which found that there was an error of law and that the issue of the transportation of the files had not been properly considered. Was the worker acting as a courier?

There was a further appeal to the Court of Appeal who remitted the matter to the Trial Judge. He decided that the worker was not in the course of her employment and the rejection was upheld.

Key Takeaway

The Tribunal had very clear objectives to enforce the objective of Parliament in removing journey accidents from the scheme. Essentially, if every person with a file or a laptop or tools of trade in their vehicle could claim that they were in the course of their employment, the disputation and costs to the scheme would be significant.

A link to the full text of the case can be found here.

Summary of Practice Directions 2025

Commentator: Suzana Jovanovic

The Honourable Justice Steven Dolphin has introduced a number of new Practice Directions which are designed to improve the Tribunal’s practices and procedures. Below is a summary of those Practice Directions:

A link to download the Practice Directions can be found here.

As always, should you have any queries, feedback or comments on anything we have discussed above, or advice on any workplace legal needs, then please do not hesitate to reach out to one of us. If you wish to undertake further reading in relation to any of the decisions discussed above, they can be found at austlii.edu.au.