Victorian Current Acts

WORKPLACE INJURY REHABILITATION AND COMPENSATION ACT 2013 - SECT 40

    (1)     There is no entitlement to compensation in respect of an injury to a worker if the injury is a mental injury caused wholly or predominantly by any one or more of the following—

        (a)     management action taken on reasonable grounds and in a reasonable manner by or on behalf of the worker's employer;

        (b)     a decision of the worker's employer, on reasonable grounds, to take, or not to take, any management action;

        (c)     any expectation by the worker that any management action would, or would not, be taken or any decision made to take, or not to take, any management action;

S. 40(1)(d) amended by Nos 9/2020 s. 390(Sch.  1 item 113.1), 30/2022 s. 44.

        (d)     an application under section 143 or 154 of the Local Government Act 2020 , or proceedings as a result of such an application, in relation to the conduct of a worker who is a Councillor within the meaning of clause 15 of Schedule 1.

S. 40(1A) inserted by No. 8/2024 s. 6(1).

    (1A)     There is no entitlement to compensation in respect of an injury to a worker if the injury is a mental injury predominantly caused by work related stress or burnout that has arisen from events that may be considered usual or typical and reasonably expected to occur in the course of the worker's duties.

    (2)     There is no entitlement to compensation in respect of a heart attack injury or stroke injury that arises in the course of, or that was caused by, a disease, unless the worker's employment was a significant contributing factor to the injury or to the disease.

S. 40(2A) inserted by No. 8/2024 s. 6(2).

    (2A)     There is no entitlement to compensation in respect of a mental injury that is a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing mental injury unless the worker's employment was the predominant cause of the recurrence, aggravation, acceleration, exacerbation or deterioration.

    (3)     There is no entitlement to compensation in respect of the following injuries unless the worker's employment was a significant contributing factor to the injury—

        (a)     a heart attack injury or stroke injury to which subsection (2) does not apply;

        (b)     a disease contracted by a worker in the course of the worker's employment (whether at, or away from, the place of employment);

S. 40(3)(c) amended by No. 8/2024 s. 6(3).

        (c)     a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease to which subsection (2A) does not apply.

    (4)     If it is proved that an injury to a worker (whether or not intended to be inflicted) was deliberately or wilfully self-inflicted, there is no entitlement to compensation in respect of that injury.

S. 40(5) amended by No. 49/2014 s. 55.

    (5)     Subject to sections 42, 43, 43A and 44, if it is proved that an injury to a worker is attributable to the worker's serious and wilful misconduct (including, but not limited to, being under the influence of intoxicating liquor or a drug or both), there is no entitlement to compensation in respect of that injury.

    (6)     Subsection (5) does not apply if the injury results in death or severe injury.

    (7)     In this section—

"management action", in relation to a worker, includes, but is not limited to, any one or more of the following—

        (a)     appraisal of the worker's performance;

        (b)     counselling of the worker;

        (c)     suspension or stand-down of the worker's employment;

        (d)     disciplinary action taken in respect of the worker's employment;

        (e)     transfer of the worker's employment;

        (f)     demotion, redeployment or retrenchment of the worker;

        (g)     dismissal of the worker;

        (h)     promotion of the worker;

              (i)     reclassification of the worker's employment position;

        (j)     provision of leave of absence to the worker;

        (k)     provision to the worker of a benefit connected with the worker's employment;

        (l)     training a worker in respect of the worker's employment;

        (m)     investigation by the worker's employer of any alleged misconduct—

              (i)     of the worker; or

              (ii)     of any other person relating to the employer's workforce in which the worker was involved or to which the worker was a witness;

        (n)     communication in connection with an action mentioned in any of the above paragraphs;

"permanent blindness" means—

        (a)     a field of vision that is constricted to 10 degrees or less of arc from central fixation in the better eye, irrespective of corrected visual acuity; or

        (b)     a corrected visual acuity of less than 6/60 on the Snellen Scale in both eyes; or

        (c)     a combination of visual defects resulting in the same degree of visual loss as referred to in paragraph (a) or (b);

"severe injury" means any of the following—

        (a)     a significant acquired permanent brain injury;

        (b)     permanent paraplegia;

        (c)     permanent quadriplegia;

        (d)     amputation of a limb, hand or foot;

        (e)     full thickness burns that—

              (i)     cause permanent severe disfigurement to the head or neck or an arm or a lower leg; or

              (ii)     result in a significant permanent inability to undertake the necessary activities of daily living;

        (f)     an injury that results in permanent blindness;

        (g)     a brachial plexus injury that results in the permanent effective loss of the use of a limb;

        (h)     a physical internal injury that results in a significant permanent inability to undertake the necessary activities of daily living.