Abbott v Brefni Corporate Pty Ltd
[2021] NSWPIC 59
•6 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Abbott v Brefni Corporate Pty Ltd [2021] NSWPIC 59 |
| APPLICANT: | Gregg Abbott |
| RESPONDENT: | Brefni Corporate Pty Ltd |
| MEMBER: | Mr Cameron Burge |
| DATE OF DECISION: | 6 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological injury; claim for weekly benefits; fact of workplace injury not in issue; respondent raises defence pursuant to section 11A(1) in respect of performance appraisal; Held- the applicant’s perception of real events is sufficient to cause psychological injury; Attorney General’s Department v K [2010] NSWWCCPD 76 followed; in this matter, there were real issues in the workplace regarding overwork, long hours, interpersonal issues and performance appraisal over a lengthy period of time; the evidence does not disclose the respondent’s actions with respect to performance appraisal wholly or predominantly caused the applicant’s injury; rather, there were multiple work-related factors which caused the injury in question; the defence pursuant to section 11A(1) fails, and the respondent is ordered to pay the applicant weekly compensation as claimed, given there is no issue as to the preinjury earnings, and the evidence discloses on balance that the applicant remains totally incapacitated. |
| DETERMINATIONS MADE: | 1. The applicant suffered a psychological injury in the course of his employment with the respondent, with a deemed date of injury of 2 December 2019, to which his employment was the main contributing factor. 2. The respondent’s reasonable actions with respect to performance appraisal and/ or discipline did not wholly or predominantly cause the injury referred to in paragraph 1 above. 3. At the date of injury, the applicant’s preinjury average weekly earnings were $2,195.70 per week. 4. As a result of the injury referred to at paragraph 1 above, the applicant has been wholly incapacitated for employment from 29 April 2020 to date and continuing. 5. The respondent is to pay the applicant weekly compensation from 29 April 2020 to date and continuing pursuant to section 37 of the Workers Compensation Act 1987 at the rate of $1,756.56 per week. |
STATEMENT OF REASONS
BACKGROUND
In 2015, Greg Abbott (the applicant) was employed by Brefni Corporate Pty Ltd (the respondent) as an estimating manager. He later reverted to the role of estimator. The respondent at all material times carried on business as an Excavation and Earthmoving Company.
The applicant’s role was to discuss tenders with potential clients, provide them with additional information, with feedback and to answer any questions they may have in order to secure work for the respondent.
There is no issue that the applicant suffered a psychological injury in the course of his employment, which he alleges resulted from bullying and harassment by his manager together with an unrealistic workload.
The applicant seeks weekly compensation from 29 April 2020 to date and continuing. There was no issue as to his pre-injury earnings, nor were there any substantive submissions at hearing disputing that he remains totally incapacitated for employment.
By dispute notice dated 6 April 2020, the respondent disputed liability for the applicant's injury on the grounds it was wholly or predominantly caused by the respondent's reasonable actions with regards to performance appraisal and/or discipline, in accordance with section 11A(1) of the Workers Compensation Act 1987 (1987 Act).
ISSUES FOR DETERMINATION
The only issue in dispute is whether the respondent has made out a defence pursuant to section 11A(1) of the 1987 Act.
PROCEDURE BEFORE THE COMMISSION
The matter proceeded to hearing on 29 January 2021. It was then adjourned for a further conciliation/arbitration hearing before me on 3 March 2021. On that occasion, the parties were given an opportunity to explore settlement negotiations, however, they were unable to reach a resolution to their dispute.
At the hearing, Mr P Perry of counsel appeared for the applicant instructed by Ms N Najjar, while Mr J Callaway of counsel appeared for the respondent instructed by Ms N Tancred.
At the hearing, the respondent relied on the section 11A defence in relation only to matters of performance appraisal.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and take it into consideration in reaching this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attached documents;
(c) The applicant's Application to Admit Late Documents (AALD) and attached documents dated 23 February 2021;
(d) The respondent's AALD dated 25 January 2021; and
(e) Respondent's second AALD dated 5 February 2021.
Oral Evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
The Section 11A (1) Defense
Section 11A (1) of the 1987 Act relevantly provides:
"No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to…performance appraisal…"
An employer which seeks to make out a defence pursuant to section 11A carries the onus of establishing that defence: see Pirie v Franklins Ltd [2001] NSWCC 167 and Department of Education and Training v Sinclair [2005] NSWCA 465.
“Wholly” and “predominantly" are separate concepts. In Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130 (Smith) the Arbitrator made a finding that the subject injury was “wholly and predominantly” caused by the action taken by the respondent employer. Snell ADP (as he then was) said at [62] the concepts of “wholly” and “predominantly" are different and if such findings were to be made, “it needed to be one or the other.”
The phrase "wholly or predominantly caused" has been held to mean “mainly or principally caused". The test of causation to be applied is that described in Kooragang Cement Pty Ltd v Bates [1994] 35 NSWLR 452 (Kooragang).
In Hamad v Q Catering Ltd [2017] NSWWCCPD 6 (Hamad), the respondent employer was unable, on the available evidence and in the absence of any medical evidence dealing appropriately with the topic, to discharge its onus in proving the worker’s psychological injury resulted “wholly or predominantly" from its reasonable action taken or proposed to be taken with respect to discipline.
The effect of the decision in Hamad is that reliance on factual material alone will not always be sufficient to make out a section 11A defence. Where factual evidence is adequate, it is often in cases where there is an allegation of a single event which has given rise to a psychological injury, unlike this matter where there has been an alleged chain of events which have caused the injury (see Hamad at [88]).
In order to successfully raise a defence under section 11A, the respondent must not only show the requisite cause or connection between its actions and the applicant's injury, it must also satisfy the Commission that its actions were reasonable.
Considering the meaning of reasonableness, Geraghty J in Irwin v Director General of Education NSWCC 14068/97, 18 June 1998 said:
"…the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding on the test of convenience. The test of 'reasonableness' is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness."
In Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998), Truss CCJ said:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was affected.”
These passages were quoted with approval by Foster AJA (Sheller and Santow JJA agreeing) Commissioner of Police v Minahan [2003] NSWCA 239, where his Honour said:
"I prefer the construction which has been accorded to it in the decisions in the Compensation Court referred to in this judgement and in his Honour's judgement. The words 'reasonable action', in a statute dealing with the workers compensation rights of employees should be given a broad construction, unfettered by considerations as to whether the employee can or cannot also bring an action at Common Law against the employer, founded upon a breach of duty of care." (At [42]).
Reasonableness is therefore judged having regard to the fairness appropriate in the circumstances of each case, including what went before or after a particular action (see Burke J Melder v Ausbowl Pty Ltd [1997] 15 NSWCCR 454). Similarly, Armitage J Jackson v Work Directions Australia Pty Ltd [1998] NSWCC 45 stated “only if the employer’s action in all the circumstances was fair could it be said to be reasonable."
Taking into account the principles set out in the above authorities, for the following reasons, I am of the view the respondent has not made out the defence under section 11A.
Mr Callaway took the Commission through the lay evidence surrounding the applicant's performance, and the steps taken by the respondent to deal with problems arising with it. He referred to the statements of Mr Garrido and Ms Rodionova. He submitted the respondent had at all times dealt with problems with the applicant's work performance appropriately and in a timely manner. He noted the applicant had been provided with previous letters and correspondence concerning aspects of his performance as long ago as December 2015.
Mr Callaway also noted that in March 2017, the applicant had received a written warning owing to concerns over his communications with clients.
Mr Callaway submitted that the respondent was well within its rights to bring to the applicant's attention its efforts to appraise his performance and tried to assist him with improving certain aspects of it. He noted that each of Mr Brady and Mr Garrido refuted the applicant's allegations of bullying.
The respondent relied upon the report of independent medical examiner (IME) Dr Vickery. In his report dated 2 March 2020, Dr Vickery took the following history:
"Mr Abbott is employed as a senior estimator with Brefni Corporate and reported that in 2015 ‘I joined the company expecting a big bonus and pay increase and I worked up to 28 days straight and up to 90 hour a week and I have achieved the goal of increasing the output of the company however I haven’t been rewarded for all my hard work.’
In October 2019 ‘there was a very negative performance review and I was told I was shit of my job and the owner had appointed an estimating manager as he said my quantities were shit and gobbledegook and then I began to doubt myself and I would start scratching myself because I felt so negative and I knew which way the wind was blowing at that stage.’
Mr Abbott reported ‘I was feeling like I was going to vomit before I went to work and I had the headaches in the back of my head and I had stiffness in the shoulders and into my neck and there were times when I could not turn my head.’
Mr Abbott had consulted his general practitioner on 2 December 2019 ‘I did a mental health check and on 7 January 2020 I was seeing a psychologist Anne Mills who informed me I was suffering from workplace bullying and I was placed on WorkCover leave by my general practitioner.’"
Dr Vickery diagnosed the applicant as meeting the criteria for adjustment disorder and noted that there were no non-work contributing factors. Dr Vickery opined that the “whole and predominant cause” for cause for the applicant's psychological injury were the ongoing performance appraisal meetings which had been undertaken over the course of several years.
There is a particular difficulty with Dr Vickery's opinion. He was appraised by the applicant of various workplace stressors in the history provided to him, including but not limited to long hours worked over many years. In providing an opinion to the effect the applicant's condition was wholly or predominantly caused by performance appraisal, Dr Vickery has not dealt with the other aspects which the applicant told him contributed to his problems. That is to say, Dr Vickery did not substantively deal with those matters, despite listing them as issues raised by the applicant in the history given.
There is also contemporaneous evidence provided by treating practitioners to the effect that the hours worked by the applicant have contributed to and caused his condition. The applicant's general practitioner recorded a history of not only alleged bullying by way of undermining, putdowns, and being overly criticised but also the applicant working more than 55 hours per week. Treating psychologist Ms Mills provided a report to the applicant's general practitioner on 7 January 2020 in which she said “he is suffering from workplace bullying and should be referred to Workers Compensation. Greg is showing signs of significant burnout as a result of working over 55 hours per week." In a further report dated 5 March 2020, Ms Mills also noted “Greg is suffering from burnout after working more than 60 hours per week and was bullied into keeping his workload." Ms Mills reiterated that opinion in a report to the general practitioner dated 19 May 2020.
Mr Callaway criticised the views of Ms Mills in terms of their accuracy, as the history provided to her was after the fact of the applicant having suffered his injury following performance appraisal. While that may be the case from a temporal point of view, Ms Mills opinion as a treating practitioner is provided in the context of not being retained as a medicolegal expert by either party. As such, I placed significant weight upon it.
For the applicant, Mr Perry submitted that the causative factors of the applicant's injury are multifactorial. Dr Dinnen, IME for the applicant provided a report dated 12 August 2020 in which he noted the following history:
“The patient told me that in December 2019 he became ill. He was vomiting and had nausea and felt anxious and stressed. He thought it may be due to a tooth extraction that he had a week earlier. He took a couple of days off work. He was worried about his job and his health and he was not sleeping.…
He told me that the firm he worked for was civil contractors and now involved doing drainage, rail work, digging ditches and so forth and he was the senior estimator from the time he started there in March 2015.
When asked if he had any problems like this before he told me he had suffered from sleep apnoea and had worries in the past but that had not led to any form of diagnosis or treatment.
He was subject to performance reviews each year, and these “less than memorable". He was working up to 90 hours per week.
He described his problems as arising from a series of negative events requiring adjustment over the period of five years. In particular that involved the refusal pay rises and being told repeatedly that he was not worth the money and that he was “not the estimator he (his boss) thought I was". Negative comments were made throughout in this fashion."
Dr Dinnen recounted the applicant feeling isolated working long hours, including working 34 shifts in a row and having a request for leave refused.
Dr Dinnen agreed with Dr Vickery that the applicant's condition was brought about by his employment, however, he disagreed concerning the whole or predominant cause of the condition. He concluded:
"In my view even if the patient's performance was not what was expected, the management throughout those five years according to the patient's detailed account was not appropriate and was likely to cause harm with constant negativity, leading to loss of self-worth and the self-confidence of his professional abilities."
The detailed statement to which Dr Dinnen referred is attached to the Application and is over 40 pages long. It sets out a number of concerns of the applicant during the course of his employment with the respondent. As Mr Perry noted, many of these concerns did not relate to either performance appraisal or discipline and could not therefore be said to be the subject of any section 11A defence.
I note the respondent’s lay witnesses provide versions of events which contradict those of the applicant, particularly when dealing with allegations of bullying and harassment. It is important to set out, in the context of a claim concerning psychological injury, that there is no requirement to find fault in an employer for a worker to succeed. In Attorney General’s Department v K [2010] NSWWCCPD 76 Roche DP, in considering the issue of establishing psychological injury in circumstances of the worker’s perception of real events at work, provided the following useful summary of the relevant authorities on this issue:
“(a) employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b) a perception of real events, which are not external events, can satisfy the
test of injury arising out of or in the course of employment (Spigelman
CJ in Chemler at [54]);(c) if events which actually occurred in the workplace were perceived as
creating an offensive or hostile working environment, and a
psychological injury followed, it is open to the Commission to conclude
that causation is established (Basten JA in Chemler at [69]);(d) so long as the events within the workplace were real, rather than
imaginary, it does not matter that they affected the worker’s psyche
because of a flawed perception of events because of a disordered mind
(President Hall in Sheridan);(e) there is no requirement at law that the worker’s perception of the events
must have been one that passed some qualitative test based on an
‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and(f) it is not necessary that the worker’s reaction to the events must have
been ‘rational, reasonable and proportionate’ before compensation can
be recovered.” (at [52])
As Mr Perry noted, it follows from the Deputy President’s decision that the applicant's perceptions of real events may be sufficient to ground a claim for psychological injury. Several of the matters which are set out from page 28 of the applicant’s statement (which I do not propose to repeat verbatim here) deal with questions of treatment for stress-related symptoms which was undertaken over time from 2016 onwards. Such treatment is, in my view, suggestive of the applicant suffering the effects of psychological injury over a lengthy period.
Whilst I have little doubt that the actions taken by the respondent with respect to performance appraisal were a causative factor in the development of the applicant’s condition, elements of over-work, allocation of a workload which was onerous and unlikely to result in viable outcomes for the company together with interpersonal difficulties were all factors which gave rise to the applicant’s condition.
In making that finding, I have taken into account the lay evidence of the respondent’s witnesses. That evidence materially disputes the applicant’s version of many events; however, it is apparent there were interpersonal difficulties within the workplace to which the applicant was subjected, and which were also causative in the development of his injury. It is not, in my opinion, necessary to determine whether those matters constituted bullying and/ or harassment. It is enough that the applicant’s perception of real events has given rise to the injury at issue, subject of course to the defence under section 11A regarding performance appraisal.
The question of what constitutes performance appraisal was dealt with by his Honour Gerathy J in Irwin v Director General of School Education (No. 14608/97, unreported 18 June 1998). In that decision, his Honour described performance appraisal as “more like a limited discreet process, with a recognised procedure to which the parties move in order to establish an employee’s efficiency and performance.” His Honour’s characterisation of performance appraisal has been cited with approval in matters such as Bottle v Wieland Consumables Pty Ltd [1999] NSWCC 32; (1999) 19 NSWCCR 135. Accepting his Honour’s characterisation of performance appraisal, it would be necessary in this matter for the respondent to prove on balance that the discreet process which the applicant underwent at various times throughout his employment was the whole or predominant cause of his psychological injury.
In my view, the evidence does not support such a finding. Instead, it discloses a number of causative factors which have contributed to the applicant’s injury. Whilst the respondent noted the applicant did not specifically seek psychological treatment until after his final performance appraisal, the authorities are clear that in a civil matter, corroboration through contemporaneous medical records is not necessary, particularly in the context of a psychological injury: see for example Baker v Southern Metropolitan Cemeteries Trust [2015] NSW WCCPD56. In that matter, Deputy President Roche made it clear that the absence of complaint to a treating practitioner is not itself the sole factor in determining whether an applicant has suffered a psychological injury. The Deputy President noted:
“80. It was correct that Mr Baker did not complain to his general practitioner of bullying until 26 September 2013. However, that fact was not determinative of whether Mr Baker suffered a psychological injury as a result of events that were up to and including that date. The lack of complaint to a general practitioner is a factor an Arbitrator is entitled to take into account in considering whether to accept a worker’s assertion that certain events occurred and that they affected the worker in a certain way.
81. However, on its own, the absence of such a complaint to Mr Baker’s general practitioner until 26 September 2013 was not decisive of whether the events complained of caused a psychological injury and the arbitrator erred in treating it as if it was. That is especially so in circumstances where there is evidence not referred to by the Arbitrator, that Mr Baker had complained to the respondent’s representatives of bullying and harassment from as early as July 2012.
82. Whether Mr Baker suffered a psychological injury as a result of the events at work up to 26 September 2013 depended on an assessment of all the evidence. This included the evidence of the co-workers that there were significant issues between them and Mr Baker that created conflicts at work, … and the evidence from Dr Stevens. In the circumstances, it was not appropriate to conclude that Mr Baker suffered no injury solely because he did not complain of bullying to a general practitioner until 26 September 2013.
83. The Arbitrator’s conclusion, on this issue, really amounts to a finding that he did not accept Mr Baker suffered a psychological injury because there was no corroboration of his complaints, from a general practitioner, until 26 September 2013. There is no requirement for corroboration in a civil case (Chanaa v Zarour [2011] NSWCA199 at [86]) and, to the extent that the Arbitrator thought that such corroboration was necessary, he erred.
84. Moreover, as Beazley JA (as her Honour then was) (Campbell and Macfarlan JJA agreeing) explained in Patrech v State of New South Wales [2009] NSWCA 118 at [77], [91] and [105], it is unlikely that it is necessary (or even a relevant consideration) that a person must identify themselves as psychologically ill (that is, to have understood or believed his or her symptoms to constitute a mental illness) to find a psychological illness. The true question is whether the person was suffering symptoms, which properly diagnosed, constitute an illness.”
Although the Deputy President’s comments were directed to the question of whether an injury had been suffered, in my opinion they are equally relevant to the question of causation, particularly when a party seeks to rely on an absence of complaint to a treating practitioner to establish a whole or predominant cause of injury.
In any event, Mr Perry took the Commission to some clinical entries from the general practitioner notes, including at page 123 of the Application, which established the applicant suffered from symptoms of exhaustion from an entry recorded on 17 December 2018. That entry refers to the applicant being "still exhausted", and Mr Perry relied upon it as evidence of matters not linked to performance appraisal contributing to the workplace injury.
Mr Perry submitted, and I accept, that the contemporaneous history taken by the applicant's general practitioner as early as 7 January 2020 reveal a number of factors causative of his psychological injury. They included the following:
(a) Undermining, putdowns, overly criticised;
(b) Manager gossiping about him to his underlings;
(c) Working more than 55 hours per week;
(d) Not being considered for management job in which he had been acting for 12 months;
(e) Humiliating him in meetings;
(f) Demanding that he work harder and longer hours, using additional hours as required in the contract as a reasonable direction;
(g) Cannot stop thinking of workplace dynamics;
(h) Performance review also negative yet expected to do higher responsibilities;
(i) After five years he has got pay rise;
(j) Working 60 to 70 hours per week, and
(k) Recognising that the 50 hours plus per week work hours burnt him out.
Whilst it is the case, as Mr Callaway submitted, that those complaints post-date the last performance appraisal, they are nevertheless evidence of matters which were plainly exercising the applicant’s mind at the time of his visit to his general practitioner. The factors recorded are many and varied, and in my opinion do not support a finding of the injury having been wholly or predominantly caused by the respondent’s actions with respect to performance appraisal.
As Mr Perry noted, a number of these factors may be related to performance appraisal, however, they certainly do not wholly or predominantly relate to the matters relied on by the respondent in its section 11A defence.
Mr Perry noted that the respondent's position was the applicant had not been asked to work for too many hours, however, he submitted this was no defence given that the applicant's perception was of real events. He noted Mr Brady did not dispute the applicant was working long hours and that he had encouraged him to do so.
In relation to the applicant's capacity for employment, Mr Perry noted that Dr Vickery anticipated in his report that the applicant would return to work within three to six months, however, that was a prognosis rather than a diagnosis, and the fact is the applicant has not returned to work, and that is because of the ongoing work-related stressors.
I accept that submission from Mr Perry, and note that there has been nothing substantive put by the respondent to suggest that the applicant has any capacity for employment at the present time, other than those comments by Dr Vickery which fly in the face of the evidence from the applicant’s treating medical practitioners.
SUMMARY
For the above reasons, the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
Cameron Burge
MEMBER
6 April 2021
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