2 Shores Pty Ltd v Workers Compensation Nominal Insurer (iCare)
[2024] NSWPIC 721
•20 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | 2 Shores Pty Ltd v Workers Compensation Nominal Insurer (iCare) [2024] NSWPIC 721 |
| APPLICANT: | 2 Shores Pty Ltd |
| RESPONDENT: | Workers Compensation Nominal Insurer (iCare) |
| PRINCIPAL MEMBER: | Josephine Bamber |
| DATE OF DECISION: | 20 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; application by uninsured employer pursuant to section 145(3); findings made that “injury” under section 4 had not been established, or if it had been, the employer had a defence under section 11A in relation to its reasonable conduct in respect of discipline and dismissal; Held – the applicant (employer) has no liability in respect of the payment concerned in the notice issued by the respondent seeking recovery of payments made in respect of the worker; award in favour of the applicant. |
| DETERMINATIONS MADE: | The Commission determines: 1. Pursuant to s145 (3) of the Workers Compensation Act 1987 : 2. The applicant has no liability in respect of the payment concerned in the notice. 3. Award in favour of the applicant. |
STATEMENT OF REASONS
BACKGROUND
2 Shores Pty Ltd, the applicant, did not have a policy for workers compensation insurance at the relevant time. It has brought this Application seeking a determination under s145(3) of the Workers Compensation Act 1987 (the 1987 Act) as to its liability in respect to the payment set out in the notice dated 7 August 2023 issued by the Workers Compensation Nominal Insurer (WCNI) for payments totalling $48,018.47 made to Lisa Arnold relating to an adjustment disorder she allegedly sustained in the course of her employment with the applicant.
The payments in the notice are comprised of weekly compensation payments in the period 21 October 2022 to 23 August 2023 and s 60 expenses. The parties agree that the pre-injury average weekly earnings figure is $1,249.82.
The applicant does not dispute that Lisa Arnold was employed by 2 Shores Pty Ltd but it disputes she suffered injury. If injury is found, it raises a defence under s 11A of the 1987 Act in relation to performance appraisal, discipline and dismissal. It also disputes the payment of the compensation as there is an issue in relation to incapacity and the s 60 expenses.
Mr Matthew Hindman and Mr John Hindman are the directors of the applicant company which bought the 2 Shores Holiday Village at North Entrance, New South Wales. Lisa Arnold was employed as the Manager of the village. Her employment was terminated by the applicant on 21 October 2021 late in the afternoon.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
Mr Paul Macken, solicitor, instructed by Mr Matthew Hindman and Mr John Hindman for the applicant. The respondent was represented by Mr Daniel Stiles, counsel, instructed by
Ms Miriam Browne, solicitor, and Mr Michael Butcher from WCNI. The matter proceeded to arbitration hearing. The worker apparently resides in Queensland and both parties requested she not be joined to the proceedings as there were concerns at the time regarding whether such a joinder would then involve Federal jurisdiction. The parties understood that there would be no estoppel in subsequent proceedings brought by Ms Arnold.I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Generic Application and attached documents;
(b) Application to Admit Late Documents filed by the applicant dated
10 January 2024 with the exception of the entry dated 28 January 2022 on page 96;(c) Application to Admit Late Documents filed by the applicant dated 21 May 2024, and
(d) Application to Admit Late Documents filed by the respondent dated
18 September 2023 attaching its Reply and attached documents.The applicant objected to the admission into evidence of the documents attached to the Application to Admit Late Documents filed by the respondent dated 24 May 2024. It submitted that about the first 50 pages of the bundle are already in evidence, many documents go beyond the date of the notice issued by WCNI and many of the documents were available to WCNI for some time but they were only served about a week before the hearing. Furthermore, it is argued that there are records from medical practitioners about whom the applicant had no knowledge of and has had no opportunity to investigate, and some of those records are incomplete.
There are 216 pages in the bundle. The WCNI did not press the admission of most of the documents but did seek to tender the Coastal Health Medical Centre records pages 5 to 96 and such of the certificates of capacity of Dr Samarinka that relate to the period covered by the s 145 Notice for which weekly compensation was paid, that is 21 October 2022 to
23 August 2023.Mr Macken maintained his objection to these documents. He argues that they were only filed a week before the hearing and he had not been put on notice earlier that the WCNI was intending to rely upon these documents. Secondly, there is no explanation for the delay in the WCNI failing to file the certificates with their Reply as they must have had the certificates available to them when they made the payments to Ms Arnold. Thirdly, both parties had access to the documents produced by Coastal Health Medical Centre and the applicant filed those records he wished to rely upon on 10 January 2024 and it submitted that if the WCNI wished to rely upon other material produced from the Medical Centre it could have, at that time, filed those records. Instead Mr Macken argues they only did so one week before the hearing. Mr Macken says he has prepared the case on the basis of the material filed earlier and if he had known the WCNI wished to rely upon this additional material he would have taken different forensic steps, such as issuing a direction for production for Ms Arnold to produce financial records, and the like, to investigate her capacity for employment.
Mr Stiles argued that the Coastal Health Medical Centre records that he seeks to tender are a complete copy of that Centre’s records whereas those filed by Mr Macken only go to
28 January 2022, and the records the WCNI seeks to tender go to 5 June 2023. He argues a complete record should be before the Commission or no records at all.However, the surgery consultation entries are comprised of a series of entries for particular days by doctors who saw Ms Arnold on a particular day. She was not seen by the same doctor each day. The situation is not the same as a party tendering a medical report and only seeking to tender page 1 of a three page document. Obviously in that situation all of the medical report should be tendered or none at all. With clinical notes not every entry will relate to the medical condition in issue. The respondent did not make a submission about the reason for the delay in applying to rely upon this material. The respondent did not assert it had notified Mr Macken earlier than a week before the hearing that the material was sought to be relied upon. The respondent, apart from arguing the whole of the records from the Medical Centre should be before the Commission, did not refer to the relevance of any particular entry.
After I ruled that the documents could not be tendered, the respondent objected to the material in the applicant’s Application to Admit Late Documents dated 10 January 2024 and argued that as the records from the Coastal Health Medical Centre pre-dated the injury they were not relevant to the payments made by WCNI. However, Mr Macken argued that the records were relevant as they revealed a psychological condition suffered by Ms Arnold before her employment with the respondent and he would be making submissions about the relevance of these documents. I accepted his submission and admitted the records attached to his Application to Admit Late Documents dated 10 Janaury 2024 excepting the entry on page 96 dated 28 January 2022 because it is self- evident from that page that it is not the complete entry from that day and I accepted that the full entry from a particular day should be in evidence.
During the course of the discussion with the parties about the admissibility of these records I advised the respondent that if I were to admit the records sought by the respondent, the inevitable conclusion would be that there would need to be an adjournment to allow the applicant further time to investigate and prepare its case. It is a relevant consideration that the applicant in these proceedings is not the beneficiary of a legal aid grant, which workers have when they are applicants in proceedings before the Commission. The applicant is self-funded and the Commission does not have the power to award costs occasioned by an adjournment because of the dilatory conduct of a respondent.
In all the circumstances of this matter, I found it was in the interests of justice for the matter to proceed.
Oral evidence
There was no oral evidence. Both parties made oral submissions which were sound recorded and a copy of the recording is available to the parties.
FINDINGS AND REASONS
Date of injury
The date of injury relied upon in the WCNI Notice dated 7 August 2023 is 21 October 2022. It is submitted by the applicant that as this is a psychological injury case the date of injury is a deemed date of injury and in such a case it is the first date of incapacity.
It is submitted that the only date that the applicant concedes it does not have a policy of insurance for is 21 October 2022. The applicant argues that based upon the first certificate of capacity the first date of incapacity is 24 October 2024.
However, the list of payments in Annexure A to the Notice records that Lisa Arnold has been paid weekly benefits from 21 October 2022.[1]
[1] Application p 8, second last column line 8.
Lack of evidence from Ms Arnold
The applicant also made an initial submission that the payments in the Notice should not be recoverable because the WCNI does not have a signed statement from Ms Arnold and they should not have commenced payments without a signed statement from her indicating she had adopted its contents.
The factual investigation report commissioned by WCNI has attached an unsigned statement from Ms Arnold dated 10 December 2022.[2] There is a copy of this statement with handwritten annotations which the investigator says was returned to him by Ms Arnold.[3] It is not signed. Some of the annotations are hard to read such as at paragraphs 31, 59 and from 112 to 114 and over the page in particular.
[2] Reply p 54.
[3] Reply p 77.
Mr Stiles submits that while these statements are unsigned the factual investigation makes it clear it was prepared based on information supplied by Ms Arnold. However, he did state that he can understand Mr Macken’s submission about the weight that can be afforded to these statements. Mr Stiles submits that the Commission does not need to even have regard to this material in order to find the issues that are raised in the claim form gave rise to her developing a psychological condition.
Medical certificates
A certificate for personal leave was issued by the Bateau Bay Wholelife Pharmacy and Healthfoods on 21 October 2022 stating that Lisa Arnold will be unfit to attend work on
21 October 2022.[4] The applicant submitted that this certificate should be given no weight because she did attend work on 21 October 2022.[4] Reply p 6.
On 24 October 2022 a SIRA Certificate of Capacity was issued by Dr Natalia Samarinka. A diagnosis of “adjustment disorder (stress reaction)” is given with date of injury being
21 October 2022. The section of the report of how the injury is related to work is not filled out. Ms Arnold was certified as having no current capacity for work from 24 October 2022 to7 November 2022 and the factors affecting recovery were “experienced panic attacks and poor sleep due to accident at work and increase anxiety at work place.”[5][5] Reply p 7.
The applicant submits this certificate has no probative weight because it is incomplete as the doctor did not fill out the section of the report of how the injury is related to work. The same criticism is levelled in relation to the certificate of capacity dated 14 December 2022.[6]
[6] Reply p 32.
On 31 October 2022 Dr Samarinka issued a referral to Les Gorcynski, Oasis Centre, in relation to Ms Arnold suffering from an “adjustment disorder due to work related stress under workers compensation. Since two weeks ago experienced bullying at work and intimidations and verbal abuse by staff members, feeling stressed and fearful to come back to work place.” Ms Arnold’s medications were listed as Diazepam 5mg and Sumatriptan 50mg.
The applicant submitted this referral states events took place two weeks earlier and that would be around 17 October 2022 and there is no evidence before the Commission about an event at that time. Mr Macken submitted that this refers to verbal abuse by “staff members” but there is no evidence of this occurring. There was an incident by a non-staff member but this is not mentioned by the general practitioner.
On 1 November 2022 the WCNI sent a letter to Matt Hindman to advise him a workers compensation claim had been made by Ms Arnold with a date of injury 21 October 2022. A further letter was sent on 7 November 2022 advising that payments of compensation would be made to Ms Arnold under provisional liability, with weekly compensation from
4 November 2022.
Claim form
An undated and unsigned claim form refers to the date of injury as “20-/21/10/2022 1pm onwards” and that she stopped work on 21 October 2022. The injury was described as “Mental abuse, intimidation, harassment/ bullying.” The following description is written on the form:
“App. Midday 20th Oct. Matt & John Hindeman [sic], owners called myself in for an unsupervised (no support person)…dressing down with regard to my sending a text message to John Hindeman [sic] the night before. I was yelled at, intimidated & abused beyond belief. I let this go, only to ending more abuse by the maintenance guys partner, 3 separate times on …the 21st Oct between 1-2pm. I had 3 witnesses whilst she verbally yelled profanities at me & refused to leave the office. She came back in three times & did this over & over, have already been physically assaulted by her in the past.”[7]
[7] Reply p 30.
Mr Macken submits the allegation that she was yelled at, intimidated and abused beyond belief is contrary to the evidence from Mr John Hindman and Mr Matthew Hindman.
Over the page, on the claim form, she has written the names of witnesses Hayden Michael Daly, a resident and employed by the applicant, Bidget Ann James and Brian Fullager both residents of the applicant’s caravan park. It is stated that “stat decs filled out by first two people.”
The applicant submits that not only is the claim form unsigned, it refers to Ms Arnold being at work on 21 October 2022, which is at odds with the pharmacy certificate and, also that there are no statutory declarations or statements from these witnesses before the Commission.
Mr Macken submitted that WCNI should have denied the claim outright at the start due to
Ms Arnold’s failure to provide signed statements and the statutory declarations. Furthermore, the investigator Mr Hall informed WCNI that the matter likely fell within s 11A of the 1987 Act. It was submitted that the only evidence about reasonableness was from the applicant asserting she was dismissed for serious misconducted because Ms Arnold lied to them, evicted Mr Buck against specific instructions not to, leaving the park taking the keys and phone. Mr Macken submitted the WCNI should have, upon receipt of this factual, investigated whether s 11A applied and it should not have made payments to Ms Arnold.Mr Macken also submitted that a statement should have been taken from Ms Crum by WCNI before they made payments to Ms Arnold.
Mr Stiles submitted that it is the applicant that has the onus of proof in s 145 matters. He refers to the authority in A1 Granny Flats v Workers Compensation Nominal Insurer.[8] I accept this aspect of Mr Stiles’ submissions. I also accept his argument that while
Mr Macken referred to material that is not before the Commission or not having been obtained by WCNI, I can only decide the matter based on documents that are before the Commission.[8] [2023] NSWPICPD 69, A1 Granny Flats.
In relation to the claim form, Mr Stiles says the description of injury sets out Ms Arnold’s assertion as to what took place.
In reply Mr Macken submitted that not only is the claim form not signed, it is an incomplete document and that it is relevant that Ms Arnold subsequently withdrew her claim. He submits in all the circumstance the claim form cannot be relied upon.
Dr Samarkina
Dr Samarkina has answered a questionnaire on 23 January 2023 sent to her by WCNI.[9] She confirmed that the first presentation by Ms Arnold was on Monday 24 October 2022 with symptoms of poor sleep, low mood, anxiety, and panic attack after bullying and intimidation at work on 21 October 2022. She says she had follow-up consultations on 31 October 2022, 8 November 2022, 21 November 2022, 28 November 2022, 14 December 2022 and
10 January 2023. She diagnosed an adjustment disorder with anxiety. She states thatMs Arnold has no current capacity for any work and requires psychological intervention and psychiatrist’s review.[9] Reply p 188.
Alexandra Kelsall
Ms Kelsall is a psychologist with Access Psych. She has provided a report dated
21 February 2023.[10] She states she treated Ms Arnold for four sessions between
16 January 2023 and 15 February 2023 and advises:“At the initial assessment Lisa described a history of reported ongoing bullying from employer. As a result, Lisa reported experiencing heightened anxiety, regular migraines, excessive worry, difficulty initiating and maintaining sleep, increased withdrawal, fatigue and depressed mood. Lisa described brain fog, difficulty
concentrating, feelings of worthlessness, and difficulty initiating and completing tasks.Lisa has been difficult to engage at times, due to ongoing and severe migraines or technical difficulties in relation to logging on to telehealth sessions.”[10] Reply p 210.
Dr Goodison
Dr Goodison, psychiatrist, provided a medico-legal report for WCNI dated 22 May 2023.[11] The doctor expresses concern about the uncorroborated history given to her by Ms Arnold and it is at odds with that contained in the statements from the Matthew and John Hindman and other witnesses. Also, one of the complaints made to the doctor was that Matt’s girlfriend verbally abused her and that four weeks earlier she had been physically attacked by Matt’s girlfriend. There is no evidence that Matthew Hindman’s girlfriend, if he had one, visited the Holiday Village. Her account to the doctor bears a similarity to an account given by Mr Irving about a verbal dispute with his girlfriend at the time. Another allegation made to the doctor by Ms Arnold is that after the incident with the girlfriend she went off sick to see her general practitioner as she was genuinely scared and frightened. I find this does not accord with the report of Dr Samarkina who she saw for the first time on 24 October 2022. She also denied issues handing over the keys. There are SMS messages with Mr Hindman and Tony (Kim) Paine about this.[12] Ms Arnold also told Dr Goodison that the man she tried to evict was wanted by the police. I find this is not true, as Mr Buck’s statement confirms he did not have issues with the police.
[11] Reply p 224.
[12] Reply p 152.
Another inconsistency in her history to Dr Goodison is that she denies any past mental health history. I have summarised the available relevant treatment records and they reveal in 2020 she has seen a doctor about stress at work and anxiety and she attributed that to bullying at work. She also suffered from migraines which the doctor noted were triggered by stress. She was taking Diazepam for various physical complaints but her doctor was obviously concerned about her usage of this medication and at times refused to provide a prescription for it.
Dr Goodison expressed the view that she was inclined to accept Mr Hindman’s account of the facts. The doctor opined that at the time of her assessment Ms Arnold did not meet the threshold for any DSM-5 diagnosis. The doctor found she has capacity for work. She says she is functioning on a day-to-day basis. She has moved to Cairns to be closer to her family who are supportive.
Pre-injury medical records
On 5 August 2020 Dr Varsani records “stress at work +++, intimidation from CEO of company, has contacted her union, not sleeping, anxious ++, teary, no suicidal thoughts, Supportive discussion today, cert for work given”.[13]
[13] A AALD 10. P 80.
On 12 August 2020 Dr Meeran at the same practice records “experiencing bullying at work, union has been involved, feels optimistic, would like to return to work on the 17th”.
On 21 August 2020 Dr Meeran noted the reason for her visit was migraine and anxious. He recorded that work has been good and she had been working very closely with Fair trading and the union and she felt very optimistic. She sought scripts for sumatriptan and diazepam.
After this time it seems she returned to work without any issues. Ms Arnold had other health complaints and she was taking Valium for shoulder spasms.
On 2 December 2020 Dr Varsani noted she had migraines triggered by stress. On
13 October 2021 she attended the medical practice with increased anxiety for the last few days. She asked for more Diazepam which the attending doctor refused and she was advised to consult her usual doctor. On 18 October 2021 Dr Varsani noted that she gets torticollis and was due to see a physiotherapist. Ms Arnold told the doctor that she uses Valium (Diazepam) when she gets spasms. He gave her four tablets and advised her to use them sparingly.[14] On 21 December 2021 Diazepam was prescribed for shoulder pain.[14] AALD-R p 92
Matthew Hindman
Matthew Hindman provided a signed and witnessed statement dated 15 December 2022.[15] He says Lisa Arnold was engaged initially as a casual cleaner and then the manager they had appointed to run the caravan park had engaged Ms Arnold to work in the front office area. The applicant company had only just purchased the Caravan Park from a relative of Ms Arnold, her sister-in-law Ms Crum and Ms Arnold had worked there for about eight years. Because the first Park Manager did not work out, the applicant then employed Ms Arnold as the Park Manager. The applicant also employed Cherie in a support role to work in the office three days per week.
[15] Reply p 101.
Mr Hindman states at [27] around Wednesday 19 October 2022[16] he was at the Park and Ms Arnold raised a matter about a resident of one of the cabins, Sean Buck. He says Ms Arnold told him that Mr Buck was “intimidating other residents to borrow money off them”. He told her to enquire with the Caravan Camping Industry Association’s Mr Bob Brown to find out the requirements to move him on.
[16] This date seems inconsistent with the events related at [31].
He states at [31] that on “Sunday 16th” Ms Arnold called him at about 4.00pm to advise him that she had told Mr Buck to vacate the premises on Saturday as his rental agreement had expired on Friday and she was not going to renew it. But as a result of Mr Buck pleading with her she relented and showed him another cabin for $800 per week, which he agreed to take. However, Ms Arnold then told Mr Hindman that when Mr Buck moved in on the Saturday he started to send her videos of how bad the accommodation was and Ms Arnold said to
Mr Hindman that she wanted his approval to issue a trespass notice to Mr Buck to force him to leave. Mr Hindman says he told her as it was Sunday afternoon do not do anything yet and lets call the Camping Association again on Monday morning to make sure everything is being done legally.Mr Hindman states at just after 6.00pm on Sunday 16th he received an email from Mr Buck advising him what Ms Arnold was doing and pleading for him to intervene. He says at this stage he was forced to support the manager of the Park, that is Ms Arnold. At [34] he states the next morning he found out that Ms Arnold had called the police and kicked Mr Buck out of the Park that night against his instructions.
Mr Hindman says that they subsequently found out that Ms Arnold lied by advising him that the police said Mr Buck was well known to them and he had been kicked out of every accommodation in the area and she indicated that it was the police decision to come on the Sunday night as she only rang them to book them to come on the Monday to evict Mr Buck. Mr Hindman says his subsequent conversation with the police was to the effect that the police were not concerned about Mr Buck. He also says other residents told them that
Ms Arnold threatened people at the Park, such as Mr Irving their handyman.Mr Hindman says their builder told them that the cabin Ms Arnold wanted for Mr Buck was not fit habitation and they ordered it be fixed and they subsequently offered it to him.
Mr Hindman says Mr Buck has not been a problem after Ms Arnold’s termination of employment.Mr Hindman says he and his father decided to terminate Ms Arnold’s employment on Friday 21 October and Mr John Hindman, his father, was driving up to the Park to undertake this. He says while his father was driving up, Ms Arnold rang him repeatedly with complaints about Cherie, Mr Irving and also that Mr Irving’s partner swore at her. She demanded he do something about it or she would resign. He says he rang his father and they decided to accept her resignation. He says he conveyed this to Ms Arnold and she denied resigning and so he told her that her employment was to be terminated and his father would be there in a few minutes to get the keys and phone. He says Ms Arnold responded that she had not yet had a break today and so she was going for a coffee break.
He says as his father drove into the Park Ms Arnold drove out with the keys and phone and it took her 4-5 days to return them. He also relates further conversations with Ms Arnold when they were trying to resolve the matter by negotiations.
Matthew Hindman has provided a further statement dated 3 May 2024. He states that
Ms Arnold’s Application to the Fair Work Commission was dismissed. He attaches a copy of his company’s response filed in the Fair Work Commission.Mr Stiles submits that at [44] and [45] of his first statement Mr Hindman set out what occurred on 21 October 2022 and this includes the reference to Mr Irving’s partner swearing at Ms Arnold and this is consistent with what is in the claim form.
John Hindman
Mr John Hindman is the other director of the applicant. He says they purchased the Holiday Village on 12 August 2022. He said he is in charge of maintenance and Matthew is in charge of administration. He says within a week of Ms Arnold starting as manager he started getting phone calls and text messages at different times of the day and night. He was present on
16 October 2022 when he says he heard Matthew tell Ms Arnold not to do anything that night to evict Mr Buck. He said they wanted to get advice from the Caravan Camping Industry Association as they were concerned to kick someone out of a tenancy with no notice.He relates they had a meeting the following Wednesday 19 October 2022 with Ms Arnold and Matthew was there and the bookkeeper Cherie was within earshot. He said he told
Ms Arnold that she had to be civil to people and be respectful to the tenants. He said she kept interrupting and blaming everyone else. He relates a conversation a tenant Les Ross had with him about Ms Arnold’s threats to evict him and his autistic daughter from the park. Mr Ross told him other things about how Ms Arnold ran the place, set out at [39] of his statement. He said when he was driving back to Sydney, he telephoned Matthew and asked him to check with the police about some of the things Ms Arnold had told them about
Mr Buck. The police advised that Mr Buck was not a person of interest to them. Mr Hindman says he and Matthew decided on 21 October 2022 to terminate Ms Arnold’s employment. He relates arriving at the park and seeing Ms Arnold and asked for the keys to the office but she refused to give them to him and left. She did not return and a pharmacy certificate was faxed through at 5.00pm. I have read but I am not going to summarise the rest of his statement.Mr Stiles submits that this statement does refer to there being issues between Mr Irving and Ms Arnold. He argues that these statements of both the Hindmans establish that there were issues in the workplace. Also, Mr John Hindman refers to the meeting on 19 October 2022 and Mr Stiles submits that it was a heated meeting.
Anthony Richter
Mr Richter is the builder that the applicant company used to do works at the 2 Shores Holiday Village. He has provided a signed statement dated 28 December 2022.[17] While I have read the statement, he does not provide a first-hand account of dealings with Ms Arnold excepting witnessing her leaving the Holiday Village on 21 October 2022 and refusing to give John Hindman the keys. He also confirms that the cabin Ms Arnold wanted to rent to Mr Buck was not up to standard, and it has now been fixed and Mr Buck resides there and he has been a good tenant.
[17] Reply p 132.
Mr Stiles submitted that it was a toxic workplace as Mr Richter said he kept away from
Ms Arnold.
William Irving
Mr Irving is employed by the applicant as a maintenance man. He has provided a signed statement dated 28 December 2022.[18] He relates that Ms Arnold swore at him a few weeks after she had taken over as the manager, about some fencing she wanted done at her house in the grounds of the Holiday Village. He confirms there was an incident with his partner at the time, Lisa Westbrook, and Ms Arnold. Mr Irving did not witness this but understood that
Ms Arnold was screaming at Ms Westbrook and she responded by calling her a lying screaming junkie.[18] Reply p 137.
Mr Stiles submits that this is consistent with what is set out in the claim form and evidence of a toxic workplace.
Shaun Buck
Mr Buck works as a butcher and lives at the 2 Shores Holiday Village. He has provided a signed statement dated 28 December 2022.[19] He relates in a very straightforward way his dealings with Ms Arnold. He confirms that she told him she would not renew his lease and said she was not obliged to give him a reason. He found out later that she moved a couple into his van. Mr Buck confirms that Ms Arnold then offered him another van for $800 per week but he found it was in a bad condition. He said he was there for one night and he asked for a mattress and for the hot water to be fixed. He said she then served an eviction notice on him and refused to give him his money back. He relates the police attending and they said they had spoken to Sue the owner and was told to evict him. He said he told the police that Sue was not the owner and the police gave him until 11.00am to leave. He went to a motel and he subsequently received a message from Anthony that he could come back to the Holiday Village and Ms Arnold had gone.
[19] Reply p 142.
He says he was only known to the police in the past because he had called them about some domestic violence and the people concerned worked out he had called the police, so it was suggested he move accommodation.
Mr Buck has provided an email he sent to Mr Matthew Hindman on 16 October 2022 at 6.08pm which sets out in considerable detail Ms Arnold’s dealings with him. I will not summarise the email; his statement is consistent with its contents. I accept that this is powerful contemporaneous evidence of how he was treated by Ms Arnold.[20]
[20] Reply pp146-147.
At 6.21pm Mr Buck sent another email to Mr Hindman informing him he has been served with a trespassing notice and he has three hours to vacate.
Mr Stiles said Mr Buck said that Ms Arnold was a terrible manager and he submits from the medical evidence it can been seen that as a result of this toxic workplace Ms Arnold developed a psychological injury.
Police records
Mr Macken referred in detail to the police records including AVO’s in 2022 where Ms Arnold was the victim and he submitted this has not been advised to the medical practitioners. On page 11 there is the record about the eviction of Mr Buck and how the police had to get to the truth of the matter. He said the more recent records also show how Ms Arnold was arguing with the police about the definition of “park” to the point where the police terminated the call and she rang back wanting to keep arguing. He submitted that she is an argumentative and difficult person. He also referred to serious charges and convictions relating to Ms Arnold. I am not going to summarise them as many of them relate to decades ago.
Determination
I have not recounted the parties’ submissions verbatim as they have been recorded.
Mr Stiles submitted that the Commission should be satisfied that Ms Arnold did suffer an injury concerning which her employment was the main contributing factor and the payments made by WCNI are recoverable from the applicant. He submitted that the statements confirm the workplace was toxic and Dr Samarkina diagnosed an adjustment disorder. He submitted the s11A defence cannot be made out because her psychological injury is due to her perception of multiple factors arising in a toxic workplace. He submitted that Hamad v Q Catering Limited [21] applies and the applicant does not have medical evidence about whole or predominant cause and there are multiple factors in this matter. I do not accept the respondent’s submissions for the following reasons.[21] [2017] NSWWCCPD 6, Hamad.
I accept Mr Buck’s version of events because he has given a straightforward statement of those events, without embellishment and consistent with his contemporaneous emails on
16 October 2022 to Matthew Hindman. I find he is a reliable witness. I find his eviction from the 2 Shores Holiday Village by Ms Arnold occurred in circumstances where she had been expressly told to defer taking eviction action by her employer. I accept Mr Matthew Hindman’s evidence in that regard, with his instruction being relayed in Mr John Hindman’s presence.I do not accept the veracity of Ms Arnold’s account as discussed above when considering her history to Dr Goodison.
I am not satisfied that the evidence before the Commission supports a finding of psychological injury arising out of or in the course of employment of Ms Arnold with the applicant. Dr Goodison found no diagnosable condition under DSM-5. I prefer her opinion to that of Dr Samarkina because she had available a substantial amount of evidence about the events in question. Dr Samarkina was reliant totally on the veracity of Ms Arnold, which I do not accept. Ms Kelsall apparently was not informed by Ms Arnold that she regularly took Diazepam before October 2022 and suffered from migraines and anxiety. This ignorance of her history causes me to place no weight on her acceptance that the symptoms Ms Arnold advised her of were due to workplace injury. Ms Kelsall also was reliant on Ms Arnold’s veracity in providing her history.
It is well established authority that it is not enough that a worker suffers anger, frustration and upset, even of a high degree; it is necessary there be a physiological effect and not a mere emotional impulse: Thazin-Aye v Workcover Authority (NSW) (1995) 12 NSWCCR 340.
In Bhatia v State Rail Authority of NSW [1997] NSWCC 25; (1997) 14 NSWCCR 568 Burke CCJ, considering what needed to be established to comprise psychological injury, said:
“Emotion is a fact of day-to-day life. If your daughter is ill, you can tend to be anxious; if she dies, you can tend to be depressed. Neither reaction is a physiological abnormality both being emotional reactions, or impulses, appropriate to the stimulus. This type of emotional impulse is the normal reaction of a human person or organism to a particular event. If that reaction becomes excessive in degree or duration, or is inappropriate to the stimulus, then there can be a physiological problem.” (at 578).
I find that Dr Goodison’s opinion that Ms Arnold does not have a diagnosable condition, that she was concerned in recovering her pay, is a reaction that is not abnormal.
In the event that others consider “injury” to have been established, I find that the applicant, employer, acted reasonably on 21 October 2022 in their conversations with Ms Arnold and leading up to then and in terminating her employment. I find Ms Arnold’s statement to
Mr Matthew Hindman that Mr Buck was known to the police was an attempt to justify her unreasonable actions she took to have him evicted. In these circumstances, I find s 11A defence is made out that the employer’s conduct was reasonable in relation to discipline and dismissal. If injury did occur, I find it would have been wholly or predominantly due to the actions leading up to and on 21 October 2022. I do not accept that her dealings with other employees such as Mr Irving contributed to a psychological injury or even the argument with his then girlfriend, Lisa Westbrook. The fact that someone gets angry in a verbal exchange does not mean they will suffer a psychological injury. Ms Arnold did not go to the doctor after this exchange. She went straight to the Pharmacy to obtain a certificate on 21 October 2022 after she was told that Mr John Hindman was on the way and her employment would be terminated. I find this was a step designed to establish a workers compensation claim because by that time Ms Arnold knew she was going to be dismissed.I find that the evidence does not establish that Ms Arnold was bullied by the applicant or its employees. I find that she was the difficult person in the workplace and I find this seems to have been the experience of the investigator Mr Hall in his attempts to obtained signed statements and other evidence from Ms Arnold. It is also mirrored in her treatment of
Mr Buck and the fact that she did not stay on 21 October 2022 to speak with John Hindman and refused to hand over the keys and phone needed for the business. The respondent submitted the workplace was toxic. However, I accept Mr Macken’s submission and find it was not the workplace that was toxic but that it was Ms Arnold that was difficult.For all of the above reasons, I find that there should be an award for the applicant in relation to the notice issued by WCNI on 7 August 2023.
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