Abdul-Rahman v Allied Pickfords Pty Ltd
[2005] NSWWCCPD 107
•9 September 2005
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Abdul-Rahman v Allied Pickfords Pty Ltd [2005] NSWWCCPD 107
APPELLANT: Merwhen Abdul-Rahman
RESPONDENT: Allied Pickfords Pty Ltd
INSURER:MMI Workers Compensation (NSW) Limited
FILE NUMBER: WCC482-04
DATE OF ARBITRATOR’S DECISION: 5 July 2004
DATE OF APPEAL DECISION: 9 September 2005
SUBJECT MATTER OF DECISION: Findings of fact; ‘reasonable action’ of employer; section 11A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: Turner Freeman Lawyers
Respondent: A.O. Ellison & Co Solicitors.
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 5 July 2004 is confirmed.
No order as to costs of the appeal.
Background to the Appeal
Merwhen Abdul-Rahman worked for Allied Pickfords Pty Ltd (‘Pickfords’) as a clerical worker. He claims he incurred a psychological injury as a result of harassment and racial discrimination he received from fellow workers. This is alleged to have occurred in the days leading up to and including 16 October 1998. On that day Mr Abdul-Rahman was advised by management that an investigation was to be instigated into a complaint of sexual harassment made against him by a fellow worker. Pickfords imposed disciplinary action on him at the conclusion of the investigation. As a consequence Mr Abdul-Rahman’s employment was terminated under a voluntary redundancy package on 10 December 1998.
Mr Abdul-Rahman claimed weekly benefits compensation and medical expenses from Pickfords. It denied liability for the claim. He lodged an application for determination of the dispute in the Compensation Court on 27 March 2002 and this application was transferred to the Commission in January 2004. The application concerns a claim for workers compensation benefits made against his employer, Pickfords, whose Insurer is MMI Workers Compensation (NSW) Limited. The Insurer acted for and on behalf of the employer in the Commission proceedings.
The dispute was referred to an Arbitrator, and a teleconference was held on 24 May 2004. The dispute was not resolved and the matter proceeded to arbitration on 24 June 2004. The parties did not reach an agreed settlement of their dispute, so the Arbitrator made a determination. He dismissed Mr Abdul-Rahman’s application and made no order as to costs. A ‘Certificate of Determination’ evidencing these orders, and a ‘Statement of Reasons’ were issued on 5 July 2004.
On 3 August 2004, Mr Abdul-Rahman lodged an appeal against the Arbitrator’s decision on the basis that the Arbitrator made errors of law and fact in concluding that the injury was not compensable. He wants the matter to be re-listed for an Arbitration hearing. His appeal documents were incomplete, and were re-lodged with the defects addressed on 2 September 2004.
Pickfords submits that the Arbitrator has not erred and that the decision should be affirmed.
The amount of compensation in dispute is in excess of $5,000 and no amount was awarded in the decision appealed against, therefore section 352(2) of the Workplace Injury Management & Workers Compensation Act 1998 (‘the 1998 Act’) is satisfied. Leave to appeal is granted.
Mr Abdul-Rahman gave oral evidence and was cross-examined at the arbitration hearing. Although the arbitration was sound recorded, the transcript is incomplete, as it does not contain the entire hearing. The Commission file also does not contain the Arbitrator’s copy file. I have before me the Commission file including the documentary evidence that was before the Arbitrator, the partial transcript and the submissions made on appeal.
I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
Issues in Dispute
The issues in dispute in the appeal may be summarised as follows:
· Did the Arbitrator make an incorrect finding of fact?
· Did the Arbitrator err in finding that Mr Abdul-Rahman’s injury was caused by the ‘reasonable action’ of his employer?
· Did the Arbitrator err in finding that Mr Abdul-Rahman’s psychological injury had ceased by 10 December 1998?
This matter turns on the application of section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’) which provides as follows:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1)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 transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
(3)A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
(4)This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
(5)(Repealed)
(6)This section does not extend the definition of injury in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
(7)In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker’s condition, accepted medical terminology and not only terminology such as “stress” or “stress condition”.
(8)If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement):
(a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and
(b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.”
Consideration
Did the Arbitrator make an incorrect finding of fact?
The background to this matter is as follows:
·Mr Abdul-Rahman was a clerical worker with Pickfords from 1995-1998.
·He claims that he was the peer appointed ‘workplace negotiator’ in respect of work conditions and the enterprise bargaining agreement between the workers and the company.
·He claims that as a result of his position he was threatened and bullied by management of the company.
·He was described by his co-workers as, in summary, difficult to work with.
·He had ongoing conflicts with Ms Pat Hendricks, a fellow employee.
·On 16 October 1998 Ms Hendricks filed a formal written complaint against Mr Abdul-Rahman citing alleged incidents of intimidation in the preceding days and claiming that she would, amongst other things be “no longer allowing Merwhen to intimidate or harass me as a female”.
·Pickford’s Managers then instituted an investigation into Ms Hendricks allegations, by way of taking statements from all parties involved.
·The results of the investigation were given to management.
·Mr Abdul-Rahman claims that his colleagues (Reg in particular) began “looking at him in a funny way” as the allegations against him became widely known.
·Mr Abdul-Rahman suffered an anxiety reaction to these events and he left work on 16 October 1998.
The Arbitrator found that:
“. . . Perhaps other employees did look at him in a funny way, and that Reg did challenge him. But there is no evidence that this occurred as a result of any action by management…The Respondent’s response to the formal complaint by Ms Hendricks was entirely appropriate. McKenzie took the complaint extremely seriously. He consulted senior management and the HR manager, who gave appropriate advice as to the process to be followed, and that was what was done. The investigation was appropriately and promptly conducted and documented, and the [sic] all involved were treated fairly and impartially… I therefore find that the defence under section 11A(1) has been made out”(at paragraphs 63-66 of the reasons).”
Mr Abdul-Rahman submits the Arbitrator misapplied section 11A of the 1987 Act. It alleges the Arbitrator erred in concluding that as the injury was caused by the actions of other employees in spreading rumours, rather than by any actions of the employer, the injury is not compensable. He argues that the Arbitrator had considered all of the evidence and was unable to find whether the employer’s actions regarding the investigation of the complaint were reasonable or not. The Arbitrator also accepted that the complainant and Mr Abdul-Rahman had experienced friction in their working relationship prior to the present complaint. The Arbitrator also accepted that Mr Abdul-Rahman suffered a psychological injury arising out of or in the course of employment for which employment was a substantial contributing factor. Further the Arbitrator accepted that other workers may have looked at Mr Abdul-Rahman in a funny way and that one fellow worker asked him if he had sexually assaulted the complainant. The Arbitrator erred however, in finding that the actions of other workers were not relevant because there was no evidence that their actions occurred as a result of any action taken by management. After having accepted that Mr Abdul-Rahman’s injury occurred as a result of the actions of co-workers, the Arbitrator should have found that section 11A of the 1987 Act was not applicable, and therefore could not exclude the claim. The Arbitrator misinterpreted and misapplied section 11A of the 1987 Act.
Mr Abdul-Rahman submits that the Arbitrator’s misinterpretation of sections 9A and 11A of the 1987 Act has “adversely affected the consideration of the evidence put forward by the applicant and has coloured the interpretation of all the evidence throughout the arbitration hearing. A fresh arbitration hearing should be held.”
Pickfords submits that after an examination of the evidence, the Arbitrator made a finding contrary to Mr Abdul-Rahman’s contention that the comments and stares from co-workers caused his condition. The Arbitrator made no error of fact in his decision as he considered the evidence presented by both parties and preferred that of Pickfords. The Arbitrator has not erred in making findings contrary to the contentions of Mr Abdul-Rahman, as he has based his decisions on evidence, has articulated the preferred evidence and any in opposition to it, and has preferred Pickfords’ contemporaneous written notes over Mr Abdul-Rahman’s own recollections five years post event. The Arbitrator was entitled to find as he did.
Pickfords submits the Arbitrator did not conclude that the injury was not caused by the employer’s actions, as Mr Abdul-Rahman suggests. Rather, the Arbitrator found that Mr Abdul-Rahman suffered a psychological injury as a result of being informed of the complaint against him; but that the cause of the injury was part of the disciplinary process and that the disciplinary action was reasonable.
Mr Abdul-Rahman is correct in submitting that the determination of whether an employer’s actions are reasonable involves a question of fact. The determination of this question of fact is to be made by the Arbitrator. The term ‘reasonable action’ should be given a broad construction, and “. . . simply depends upon the intrinsic reasonableness of the employer's action, taking into account relevant matters pertaining to the employee and known to the employer”, Commissioner of Police v Minahan [2003] NSWCA 239 at [6]; see also Dunn v Firth [2003] NSWCA 280.
In my view it was open to the Arbitrator, on the evidence before him to find that the conduct of the employer amounted to ‘reasonable action’ as that term is understood in the context of section 11A. The Arbitrator in his reasons has set out the relevant facts that were before him. He made a number of findings that were critical to his ultimate finding that the employer had taken ‘reasonable action’, these were;
·The Arbitrator preferred the Respondent’s account of the interview on 16 October 1998,
·Mr Abdul-Rahman’s anxiety reaction was a direct result of the ‘disciplinary process’ instigated by the complaint against him,
·Mr Abdul-Rahman suffered a psychological injury that arose out of and in the course of his employment and his employment was a ‘substantial contributing factor’ to that injury.
·Mr Abdul-Rahman was totally incapacitated for work as a result of the injury from 16 October 1998 to 10 December 1998.
·The events of 10 December 1998 were not relevant to the claim and the issues raised,
·Mr Abdul-Rahman was not “harassed or bullied by management”, or treated any differently from other employees.
·There is no evidence that other employees treated Mr Abdul-Rahman differently because of the action by management on the complaint against him.
·The Respondent’s response to the formal complaint was appropriate and properly conducted and treated all parties fairly and impartially.
These findings, open to the Arbitrator on the evidence before him, clearly support his ultimate finding that the action taken against Mr Abdul-Rahman was ‘reasonable action’. Specifically, returning to Mr Abdul-Rahman’s claims on the appeal, the Arbitrator did not err in finding that the actions of other workers to the management investigation of the complaint against Mr Abdul-Rahman must lead to a finding of unreasonableness on the part of the employer. Ultimately it will be a question of fact in each case, but the fact that an employee who is the subject of a disciplinary investigation may be harmed in some way by that investigation (in this case by the perceived treatment of fellow workers) is not the criterion on which the reasonableness of that action is to be judged (Commissioner of Police v Minahan [2003] NSWCA 239).
Did the Arbitrator err in finding that Mr Abdul-Rahman’s injury was caused by the ‘reasonable action’ of his employer?
This ground of appeal has been partly addressed above. The Arbitrator found, among other things, that “…the disciplinary action taken was reasonable. I am not satisfied that it was improperly motivated or conducted in a way that was prejudicial to the Applicant, or denied him procedural fairness.”
Mr Abdul-Rahman submits that the actions of Pickfords in investigating the complaints were not fair and reasonable. He submits “the totality of the investigation focused on getting rid of [Mr Abdul-Rahman] from the workplace, rather than a fair and unbiased investigation as to the substance of the complaints.” Mr Abdul-Rahman maintains that the file note of 16 October 1998 indicates that the substance of the allegations were not put to him, thus depriving him of the opportunity to respond. This was unreasonable behaviour by Pickfords, as was their proceeding to interview other workers on the basis of those allegations.
Mr Abdul-Rahman also submits that the unreasonableness of Pickfords’ actions are demonstrated by the minutes of the meeting on 10 December 1998, at the end of which Pickfords read a pre-prepared response, as a fait accompli, informing him that he would be punished, made redundant or redeployed. Mr Abdul-Rahman submits that the response of Pickfords did not involve a deliberation over either the evidence given at the meeting, or his own response, although the evidence included interviews with other workers, none of whom supported the allegations.
Mr Abdul-Rahman relies on Buxton v Bi-Lo Pty Ltd (1998) 16 NSWCCR 234 (‘Buxton’), as he argues that the facts are similar and demonstrate the actions of Pickfords in respect of the allegations against Mr Abdul-Rahman could not be said to be reasonable under any examination. This submission is curious in that the facts of this case are entirely different to the current matter. In Buxton, the worker, a butcher employed in a Bi-Lo supermarket, experienced a chain of job transfers, counselling, lowering of salary and additional job responsibilities and ultimately suffered a psychological injury. The legal principle to be extracted from the case is relevant, namely that ‘reasonable action’ is to be considered objectively, as the “reasonable observer” may view it, but the facts are completely distinguishable from Mr Abdul-Rahman’s claim.
Pickfords submits that its actions in investigating the complaint were not unreasonable and that it did not fail to put the allegations to Mr Abdul-Rahman. It argues the evidence submitted and the Arbitrator’s Reasons indicate that on 16 October 1998, Mr Abdul-Rahman was informed of the complaint made against him and that an investigation was to commence. The evidence indicated that he knew this was a preliminary notification, that he had been informed of the accusation before any interviews took place, and that attempts were made by Pickfords to interview Mr Abdul-Rahman and to complete the investigation.
Pickfords also submits that it was not unreasonable for it to use the term “sexual harassment”, as it was clear from the notes of the meeting between the complainant, Mr McKenzie, and Mr Taylor that sexual harassment was the complaint. When the complaint was notified to Mr Abdul-Rahman, it was a complaint of sexual harassment.
Having made proper findings of fact, which were reasonably open to the Arbitrator on the evidence before him, he did not err in finding that Pickfords could rely upon section 11A of the 1987 Act to deny liability to pay Mr Abdul-Rahman compensation. I accept Pickfords’ submissions. In my view Mr Abdul-Rahman’s submissions on the appeal are little more than a challenge to the Arbitrator’s fact finding. He has not demonstrated any error by way of a finding of fact not supported by evidence before the Arbitrator. Nor has he, on appeal, pointed to any error in the Arbitrator’s discretionary judgement on the relevance and persuasiveness of the evidence. He also failed to identified an ‘error of law’ in the interpretation and application of section 11A of the 1987 Act.
Did the Arbitrator err in finding that Mr Abdul-Rahman’s psychological injury had ceased by 10 December 1998?
The Arbitrator found that “The Applicant did not return to work until 10 December 1998, and it was not possible for the disciplinary process to be completed until then. An interview took place on that day with the Applicant, and the allegations were put to him and he had an opportunity to respond…It is clear that he was at that time fit to resume work. The only reason he did not continue working from that date was through personal choice” (at paragraphs 69-74).
As the actions of Pickfords were neither fair nor reasonable, Mr Abdul-Rahman submits that he is entitled to succeed in his claim for weekly compensation from 16 October 1998 to date at the award rate for 26 weeks at $600, then the statutory rate for a single worker with three dependents thereafter.
Mr Abdul-Rahman disputes the Arbitrator’s finding that any incapacity he had, had ceased by 10 December 1998. Mr Abdul-Rahman submits that he gave extensive evidence of his continuing symptoms, as supported by the medical evidence. He therefore contends that the Arbitrator erred in failing to consider the medical evidence supporting his claim for ongoing incapacity. The Arbitrator failed to mention the debilitating headaches, anxiety and depression Mr Abdul-Rahman suffers as a result of the injury. Mr Abdul-Rahman has continued to obtain medical certificates indicating his unfitness for work, and submits that the Arbitrator has merely picked an arbitrary date not supported by any medical evidence, as to when he considers Mr Abdul-Rahman became fit for work.
Pickfords submit the Arbitrator did not err in finding Mr Abdul-Rahman fit for work from 10 December 1998 because there was no appropriate medical evidence to support a finding of continued unfitness from that date. After 9 December 1998, the only certificates provided by Mr Abdul-Rahman were issued by psychologists without medical qualifications, which were not in the WorkCover Approved form. Neither Dr Lum in his report of 30 July 2001, nor Doctors Lance or Westmore in their reports expressed any opinion as to Mr Abdul-Rahman’s fitness for work. Therefore the Arbitrator did not err, on the basis of the medical evidence.
This ground of appeal is essentially superfluous given that I have found the Arbitrator did not err in finding that Mr Abdul-Rahman’s psychological injury was caused by the reasonable actions of his employer. The Arbitrator’s finding, upheld on appeal, prevents the recovery of compensation in any event.
However, for completeness I note that it is not supportable on the evidence and submissions in any event. It was for Mr Abdul-Rahman to prove, on the balance of probabilities, that he continued to be incapacitated due to his psychological injury. The report of Jill Farrelly, Clinical Psychologist, submitted by Pickfords, opined that Mr Abdul-Rahman’s psychological condition was not a bar to his employment. Dr Westmore, Forensic Psychiatrist, while expressly finding Ms Farrelly’s opinion of Mr Abdul-Rahman “inconsistent”, did not express a view on his level of incapacity for work. Professor Lance is a Neurologist, however he has opined that Mr Abdul-Rahman has a psychological condition, which, as at 26 April 2001, the date of the report, renders him “not fit to return to any employment at this stage”. The evidence he put before the Arbitrator on the incapacity was poor and did not discharge the onus on the worker.
On the basis of this evidence the Arbitrator has not erred in finding that Mr Abdul-Rahman was fit for his pre-injury duties on and from 10 December 1998.
DECISION
The decision of the Arbitrator, dated 5 July 2004 is confirmed.
COSTS
The appropriate order is ‘No Order as to Costs of the Appeal’.
Dr Gabriel Fleming
Deputy President
9 September 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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