Abi-Khattar v Clintons Motors Pty Ltd
[2025] NSWPIC 183
•5 May 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Abi-Khattar v Clintons Motors Pty Ltd [2025] NSWPIC 183 |
| APPLICANT: | Joadie Abi-Khattar |
| RESPONDENT: | Clinton Motors Pty Ltd |
| PRINCIPAL MEMBER: | John Harris |
| DATE OF DECISION: | 5 May 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; respondent accepted injury under section 4; allegations related to variety of events including actions with respect to transfer and retrenchment; discussion of meaning of transfer; Manly Pacific International Pty Ltd v Doyle considered; reasonableness of respondent’s actions with respect to transfer and retrenchment discussed separately as distinct actions; respondent failed to lead evidence on the applicant’s performance on KPIs; no comparison with how employees were treated; transfer actions not reasonable; assessment of wholly or predominantly; psychological injury not wholly caused by section 11A action; issue of predominantly unnecessary to decide; observations in Manly Pacific International Hotel Pty Ltd v Doyle potentially inconsistent with Hamad v Q Catering Ltd; finding of no current work capacity based on preponderance of evidence and particularly treating opinion; Held – transfer actions not reasonable; retrenchment actions not reasonable; no current work capacity; respondent pay weekly compensation and medical expenses based on no current work capacity. |
| DETERMINATIONS MADE: | The Commission determines: Findings 1. The applicant sustained a psychological injury pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act) deemed to have occurred on 14 February 2024. 2. The respondent’s action with respect to transfer were not reasonable within the meaning of s 11A of the 1987 Act. 3. The respondent’s actions with respect to retrenchment were not reasonable within the meaning of s 11A of the 1987 Act. 4. The respondent’s defence pursuant to s 11A of the 1987 Act fails. 5. The applicant has no current work capacity from 12 September 2024 to date and continuing. Orders 6. The respondent pays the applicant weekly compensation pursuant to s 37 of the 1987 Act at $1,622.54 per week, from 12 September 2024 to date and continuing. This figure is to be indexed pursuant to s 82A of the 1987 Act. 7. The respondent pays the applicant’s medical expenses based on a general order pursuant to s 60 of the 1987 Act. 8. The parties have liberty to apply if they cannot agree on the appropriate indexed figure for weekly compensation. |
STATEMENT OF REASONS
BACKGROUND
Ms Joadie Abi-Khattar (the applicant) was employed by Clintons Motors Pty Ltd (the respondent) and suffered an accepted psychological injury deemed to have occurred on
14 February 2024. The date reflects the first date of incapacity although the applicant continued to work until 7 May 2024 when the respondent advised the applicant that they were considering making her role redundant.The applicant commenced employment with the respondent in July 2020 as a Sales Retention Manager. In early 2024 there were discussions involving a change to part of the applicant’s duties, hours and commission structure with a renegotiated contract commencing on 1 April 2024. It is common ground that the applicant developed psychological symptoms during the renegotiation process reflective of the first date of incapacity in February 2024. There were brief periods of incapacity in February and March 2024.
On 7 May 2024 the applicant was advised that the respondent was considering making the applicant’s position redundant. That meeting ended abruptly, and the applicant has been off work since that time.
This applicant claims weekly compensation from 12 September 2024 to date and continuing and a general order pursuant to s 60 of the Workers Compensation Act1987 (the 1987 Act).
PROCEDURE BEFORE THE COMMISSION AND ISSUES
The matter was listed before a different Member and was the subject of interlocutory decisions and a discontinued Appeal.
The matter was subsequently relisted before me on when directions were issued setting out the agreed matters in dispute and other matters (the Direction). The Direction granted leave to the respondent to file and serve summons on three witnesses and confirmed the issues in dispute in accordance with a previous direction of Member Camp dated 18 February 2025.
The direction issued by Member Camp confirmed that the issues were the defence under s 11A and the applicant’s entitlement to weekly compensation from 12 September 2024 and a general order to s 60 of the 1987 Act.
The parties agreed that the applicant’s pre-injury average weekly earnings (PIAWE) is in accordance with the work capacity decision dated 14 February 2024.
The respondent served a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) disputing the applicant’s claim for any compensation and raising a defence pursuant to s 11A of the 1987 Act.[1] Injury was not raised in that dispute notice.
[1] Application, p 533 and p 545.
The respondent pleaded the s 11A actions as:[2]
(a)discussion on or about 18 January 2024 regarding the applicant’s possible change of role;
(b)further discussion in or about February 2024 regarding the applicant’s change of role;
(c)meeting on or about 2 April 20024to discuss new contract;
(d)the request for a meeting on or about 6 May 2024, and
(e)the meeting to discuss redundancy on or about 7 May 2024.
[2] Reply, p 41.
The particularised actions were amended by consent at the hearing to delete “redundancy” and insert “change of role” in particulars (a) and (b).
The applicant admitted that particulars (d) and (e) fell within the meaning of “retrenchment” in s 11A of the 1987 Act. It was not agreed that particulars (a), (b) and (c) were with respect to “transfer”.
HEARING AND ADMISSION OF EVIDENCE
The matter was listed for hearing on 16 April 2025 when Mr Malouf of counsel appeared for the applicant and Ms Warren of counsel appeared for the respondent.
The parties had filed separate bundles which were to be the only documents accepted at the hearing.
The applicant objected to the statement of Mr Khan contained in the respondent’s bundle as it was not signed. No notice was given of the nature of this objection. The respondent, with leave, subsequently filed a signed statement from Mr Khan which cured the applicant’s objection. The signed statement is admitted as part of the material in evidence.
The parties were advised that only evidence the subject of submission would be considered. There was no objection to this course.
ORAL EVIDENCE
Summons were filed and served on Danny Abi-Khattar, Richard Valenzuela and Daisy Jane Harris to attend the hearing and give oral evidence.
It was agreed that Richard Valenzuela was not at the workplace and what he recorded in his statement as having occurred in the workplace [3] was a recount of the applicant informing him. Based on that agreement, Mr Valenzuela was excused from giving oral evidence.
[3] Application, p 45.
Ms Harris provided a statement dated 16 October 2024.[4] She gave oral evidence that:
[4] Application, p 49.
(a) commenced work with the respondent in 2022;
(b) went on maternity leave at the end of October 2023 and the child was born in
November 2023;(c) returned from maternity leave in early May 2024;
(d) on a couple of occasions during the period of maternity leave Ms Harris went to the Campbelltown office and may have gone to the Gregory Hills office on one occasion for the repair of the car;
(e) worked at the Campbelltown office both before and after maternity leave and did not work at the Gregory Hills office which was 20 minutes away from the Campbelltown office;
(f) spoke to the applicant whilst on maternity leave;
(g) only knowledge of what occurred with the applicant was from discussions with the applicant;
(h) the applicant informed Ms Harris of proposed contract changes including the changes to the applicant’s role;
(i) the applicant told Ms Harris that she was upset with the contract changes and
Ms Harris perceived that the applicant was upset with the contract changes;(j) the applicant told Ms Harris about the proposed redundancy in early May 2024 shortly after the meeting (within a couple of days). The applicant was quite upset, sad and crying;
(k) statement in paragraph 11 that the applicant was treated unfairly is not first-hand knowledge but due to what she was told by the applicant. The applicant tried to keep her initial role – sales retention manager, which was a leadership role. That involved employees looking up repeat customers such as trying to sell a new car to an existing customer, and
(l) the applicant was Ms Harris’ manager. Ms Harris was the only person who reported to the applicant. When Ms Harris returned to work in early May 2024 she reported to the sales manager and not the applicant.
Ms Harris appeared a witness of truth and I accept her evidence.
Mr Abi-Khattar is the applicant’s husband and provided a statement dated
10 September 2024.[5] He gave oral evidence that:[5] Application, p 47.
(a) he did not work at the respondent although he would pop up around and say hello;
(b) his knowledge of how the applicant was treated at work was based upon the applicant’s account to him;
(c) the applicant told her husband that the respondent wanted her to sign a new contract;
(d) the applicant’s anxiety was bad before the applicant received a car from the respondent;
(e) the car was received before the contract negotiations;
(f) the contract negotiations involved a change in role but he was unsure when this occurred;
(g) the applicant was distressed (paragraph 7 of Mr Abi-Khattar’s statement) in early 2024 and had some time off work in February 2024. The applicant was distressed both before and after the attempts to change her employment contract, and
(h) regarding the potential redundancy he did not recall those discussions with his wife. His recollection concerned the discussions with the applicant about the changes to the contract and he only had vague recollections about the redundancy.
Mr Abi-Khattar was vague as to dates and did not recall the discussion of the applicant’s retrenchment. I accept Mr Abi-Khatter was a witness of truth although his recollection about when certain events occurred was unclear.
DOCUMENTARY EVIDENCE
Applicant’s statements
The applicant’s provided a detailed statement dated 31 May 2024. I briefly summarise this statement. The applicant stated:
(a) she was fit and well prior to the workplace injury;
(b) the anxiety symptoms commenced on 17 January 2020 when the applicant had a brief informal conversation with the general sales manager, Andrew Care, about role changing;
(c) there was a follow-up conversation on 18 January 2024 with the general manager, Mohammad Khan and Mr Care;
(d) the applicant experienced anxiety at that time and made a consultation to see her doctor on 13 February 2024. She did not attend that appointment because of work;
(e) the applicant was suffering from anxiety and panic attacks in February 2024 and ongoing headaches;
(f) the new contract was provided to the applicant in early March 2024. The applicant was told that if she didn’t sign it, she would probably be made redundant;
(g) changes in the new contract included undertaking a salesperson’s role, delivering cars, starting earlier and a changed commission structure. The applicant said she would no longer be paid “on my direct report”;[6]
[6] Application, p 4, paragraph 21.
(h) the applicant suffered further panic attacks on 21 March 2024 involving shaking, crying uncontrollably and breathing weirdly. She consulted her GP, and a medical certificate was issued. At that time a co-worker sent a text to the applicant referring to her being “upset at work”;[7]
(i) the contract was signed on 2 April 2023 in a meeting with Ms Chaker and
Mr Care. The applicant advised that she did not want to sign the contract but would sign it as she did not want to lose her job;(j) the applicant suffered ongoing headaches, anxiety and panic attacks throughout April 2024;
(k) on 19 April 2024 the applicant overheard another sales manager, Sam, talking to other staff about taking the applicant’s desk. The applicant was then asked by the sales manager, Mr Singh, if she would change desks and she refused;
(l) at that time the applicant was in dispute with another salesperson (Sam) about commission on a sale. Sam was angry with the applicant at that time;
(m) on 22 April 2024 the applicant was advised by Mr Singh that Sam was now sitting at her desk, and she had been relocated to a different position;
(n) on 24 April 2024 Mr Singh removed the cable from the applicant’s desktop computer and told her to use her laptop. The applicant stated that Mr Singh “aggressively took the cable off his computer and gave it to me” and she overheard him say that the applicant would “end up like Michael Buja” who no longer worked for the respondent;[8]
(o) in early May 2024 the applicant lost the lead to a new customer to another salesperson, and
(p) there were other issues between the applicant and other salespersons about commissions from sales leads.
[7] Reply, p 244 (it was agreed that Application, p 5, paragraph 24 should refer to “upset at work” not “set up at work”.
[8] Application, p 8, paragraph 35.
On 6 May 2024 the human resources manager, Ms Chaker, sent an email requesting a catch up regarding her new role. The applicant declined the invitation and then rang the General Manager, Mr Khan. Mr Khan replied that he knew nothing about the meeting. A further conversation then happened with Ms Chaker when she replied that the meeting was just about how the applicant was settling into her new job and if everything was all good that she had no need to worry about anything.
I was advised by the respondent’s counsel in submissions that the email from Ms Chaker dated 6 May 2024 requesting the meeting is not in the tendered material. The above evidence from the applicant concerning the discussion with Ms Chaker is not contradicted.
On 7 May 2024 the applicant attended the meeting with Ms Chaker and Mr Care. She was advised that the business was restructuring, and that the retention sales manager role was one role that may be made redundant, and the meeting was to let her know.
The applicant went off work shortly after that time.
The applicant provided a further statement dated 24 October 2024.[9] Relevantly the applicant noted:
(a) she had never been advised that she was not meeting the targets in relation to the retention role and had not been performance managed in relation to that;
(b) the applicant was aware that KPIs were not being met across the business;
(c) Sam, another salesperson, had abused the applicant in relation to a particular customer, and
(d) the position of the applicant’s former desk was relevant because customers would speak to the person at that desk before speaking to the sales team.
[9] Application, p 15.
In respect of abuse by Sam, which was not contradicted by other evidence, the applicant stated:[10]
“As mentioned Sam became abusive and swore at me and Suman after Suman spoke with the customer. Suman took both myself and Sam outside to advise who the customer wanted to deal with. This, in itself, was unprofessional and this affected me greatly as I was treated in such an unreasonable way and spoken to with utter disrespect.”
[10] Application, p 16.
In respect of comments by Mr Singh, the applicant stated:[11]
“The assistant sales manager was initiating deplorable conversations with peers about me. Comments were being made such as, "She's only selling due to where her desk is, I am taking her desk." Both Clarissa and Rachel who worked within finance and delivery asked if I was okay.”
[11] Application, p 17.
In the second statement the applicant described the changes to her contract as follows:[12]
(a) online leads were given to another person which meant she no longer received that commission;
(b) Ms Harris no longer reported to her and she no longer received any commission in respect of sales made by her;
(c) there was “drastically reduced commission”;
(d) there was an earlier start time;
(e) there was more responsibility of delivery vehicles and maintenance of contact;
(f) was a requirement to work on Saturdays,[13] and
(g) the base salary did not change.
[12] Application, p 16.
[13] Application, p 21.
In the claim form dated 21 May 2024 the applicant described the causes of her injury as:[14]
“Bullied, harassed, targeted, during my course of employment by sales manager, assistant sales manager. Various complaints and concerns raised to upper management but were dismissed.”
[14] Application, p 279.
An email from the applicant to Mr Care dated 18 January 2024 referred to the recent discussions involving the proposed changes to the retention manager’s role and noted the following:[15]
(a) wages remain unchanged;
(b) commission structure changes;
(c) reporting structural change;
(d) TPRs will be given to another colleague;
(e) company car will remain;
(f) dealer portal and TEX will remain, and
(g) no longer being paid on Daisy.
[15] Application, p 235.
The reference by the applicant to not being “paid on Daisy” is probably a reference to the fact that Ms Harris was no longer reporting to the applicant and there was an associated loss of commission.
Applicant’s text messages
On 26 February 2024 the applicant text Mr Care advising that she was getting a referral for an MRI scan and stated:[16]
“I have had chronic headaches prob due to stress I want to ensure everything ok. My stress is through the roof prob caused with all the shit at work about to happen. It is stressing me out.”
[16] Application, p 287.
The applicant sent the following further text to Mr Care on or shortly before 28 February
2024.[17]“I know, I think since Friday when we had a brief chat. I just feel that I have given everything and now that I am doing well. Doing well for my family it is just like a big fuk you and we are going to take everything from you.. car, income, commission. I get it’s a business, businesses usually reward not take away. But fight me. I am prob one that sells the most and wants to screw me. It is fuked my anxiety, the dr gave me off till Thursday, I might just take tomorrow come back, just keep fuking crying.. and nothing hasn’t even happened. Please don’t repeat this I am telling you.. I’m so sorry I’m letting you down..”
[17] Application, p 288.
Text messages between Mr Singh and the applicant showed the applicant’s “stress” relating to the desk incident. On 22 April 2024 the applicant texted the following:[18]
“Yes it is suman it is acceptable but I am treated this way. It is unprofessional. My role is the same the only differences I am delivering cars and due to the I [sic] report to you and Andrew that’s it. I don’t understand how grown adults are acting this way. I am not coming to work because I am stressed, that in itself is called stress leave. By law I can take a day off due to a workplace affecting one’s mental health.”
[18] Application, p 297.
I was advised by the respondent that Mr Care is the Andy in the text messages.
Mr Valenzuela
Mr Valenzuela provided a statement dated 9 September 2024.[19] At the hearing it was agreed that Mr Valenzuela had no personal knowledge of the events at work.
[19] Application, p 45.
Mr Valenzuela stated that he noticed how the reported events at work affected the applicant. He referred to events such as “people stealing her chair” and the applicant recounting “conversations about things she would hear behind her back”.
Mr Abi-Khatter
Mr Abi-Khatter is the applicant’s husband and had no personal knowledge of the events at work recounting what his wife told him. In his statement he stated that his wife’s condition started around the time she was offered a company car and “things slowly started to become downhill from there”.[20]
[20] Application, p 47.
Mr Abi-Khattar stated:
“She would recall situations where her colleagues were rude or aggressive towards her and would do things like take her chair. She was also highly distressed by the behaviour from her employer when they attempted to change her employment contract.”
Ms Harris
Ms Harris provided a statement dated 16 October 2024.[21] Ms Harris described the environment as a “male dominated environment” and was impressed by the applicant’s straightforward approach and remarkable success noting the applicant’s strong business awareness and work ethic.
[21] Application, p 49.
Ms Harris referred to the movement of the desk “as one instance that sticks out is her describing a situation where she was not in the dealership, and her desk and personal belongings were moved to another desk by members of the sales team without consultation or consent.”[22]
[22] Application, p 50 (paragraph 10).
Ms Harris stated that it was clear that the applicant’s experience had profoundly affected the applicant and transformed her into a different person from the one she met during the initial and full conversation with the applicant in mid-January 2024 regarding a restructure of a role interview.
Mr Andrew Care
Mr Care is the General Sales Manager employed by the respondent and provided a statement dated 3 June 2024.[23] His duties included managing all the sales managers and staff at the Gregory Hills dealership.
[23] Reply, p 101.
Mr Care stated that he had an informal conversation with the applicant in mid-January 2024 about a role change as she was not achieving her KPIs, the respondent wanted to look at evolving the applicant’s role into something she could be successful in, the applicant was good in sales, and this was identified as a strength.
Mr Care noted that the applicant was on a very good remuneration package which included a car and no weekend work which was not offered to other sales managers and was difficult to continue to justify.
Mr Care noted that overall car sales had reduced over the last couple years from high sales around COVID-19 times.
In respect of the meeting on 7 May 2024 with Ms Chaker and the applicant, Mr Care stated:[24]
“On 07 May 2024 | attended a meeting with Joadie Abi-Khattar and Mya Chakar in Human Resources. Mya wanted to talk to Joadie about the thoughts of a restructure in the business and she also wanted to open discussions about the possibility that the Retention Sales Managers role may become redundant, with the duties being given to all the car sales staff to retain customers into the future. Mya presented this as a preliminary discussion only, and invited Joadie to consider the situation so further discussions could be had later. It was also said that Joadie should think about what other role she would like to move into if the redundancy did go ahead and negotiations may be organised for anything Joadie may suggest.”
[24] Reply, p 103.
Ms Chaker
Ms Chaker provided a statement dated 7 June 2024.[25] Ms Chaker provided human resources functions to the respondent who employed around 380 persons. The human resources responsibility was shared with one other human resources coordinator.
[25] Reply, p 106.
Ms Chaker stated that the contract negotiations with the applicant was initiated due to the need to consider expenses in the business and that the applicant was not achieving the KPIs of her retention sales manager role and was on a generous contract that allowed her to avoid weekend work.
Ms Chaker stated:[26]
“As a Retention Sales Manager Joadie was on a very good remuneration package that included a car and no weekend work. This was not offered to other sales managers, and it was difficult to continue to justify this.”
[26] Reply, p 102.
This paragraph is unclear as to what is meant by “this”. References elsewhere refers to the fact that the applicant was not required to work on the weekend and that aspect changed in the new contract. I infer because the requirement the new contract required the applicant to work on Saturdays, that this aspect and not the car benefit was not offered to other sales managers.
Ms Chaker stated that the employment assistance program was available to the applicant.
Ms Chaker was aware that the applicant had some anxiety during the contract negotiations and required a couple of days leave and that there was “nothing more serious happening for her at the time”. She described the contract negotiations as ideally sorted out by the managers in the business was always “open to a give-and-take style of negotiation”.
Ms Chaker described the reason for the respondent restructuring the sales team’s roles in the following terms:[27]
“In late April and early May 2024, the upper management started to undertake an analysis of the whole sales team’s roles. This analysis was considering the best way to develop ongoing relationships with our customers and the thoughts were leaning towards having each salesperson fostering an ongoing relationship with each of their customers so there was a positive point of contact for customers when they consider purchasing another vehicle. This analysis identified that under such arrangements, the retention sales managers role would become redundant. With such a scenario it would directly impact Joadie Abi-Khattar, so it was decided a preliminary meeting should be held with her to open a conversation with her about the analysis. Joadie had been in the retention role for a few years, and even though she was not achieving her KPI's in that role, her experience was invaluable, and her input would be useful in considering all sides of the sales team analysis.”
[27] Reply, p 107, paragraph 13.
Ms Chaker stated that she met with the applicant and Mr Care on 7 May 2024 and described Mr Care as the applicant’s “support person”. Ms Chaker stated that the purpose of the meeting was a preliminary step in the possible redundancy of the applicant’s role and explained the reasons for the analysis. Ms Chaker stated:[28]
“Joadie Abi-Khattar did not respond in a positive manner to the meeting on 07 May 2024. She demanded a decision be made immediately about her employment situation and | tried to explain that no decision had been made, this was very early in the analysis phase, and we were keen to get her input. Joadie said ok, and then said she was going home for the day.”
[28] Reply, p 108, paragraph 15.
Ms Chaker stated she believed that the applicant had been treated fairly in the workplace.
The document attached to Ms Chaker’s statement concerning the meeting on 7 May 2024 is on a printed document headed “Formla Discussions with Employee” and the discussion Heading is “redundancy notification”. The notes refer to the applicant’s position being “under review” and there was “no final decision although this is a notification that the retention position at Gregory Hills may be redundant”.[29]
[29] Reply, p 110.
Mr Khan
Mr Khan’s statement in the respondent’s bundle was unsigned and objection was taken to it on that basis. Leave was granted to the respondent to file and serve a signed copy of the statement within seven days of the hearing. A signed statement was filed and otherwise appears identical to the unsigned statement within the respondent’s bundle.
Mr Khan explained the reason for the contract renegotiation with the applicant in February 2024. The first half of the explanation in paragraph 11 of Mr Khan statement is identical to paragraph 10 of Ms Chaker’s statement. Mr Khan added that the applicant was on a full commission from her sales, although once the sale was made, she would hand the customer over to sales staff who would complete the remainder of the delivery process. He said this was an unfair situation for the other staff and it was decided that the applicant will be responsible for the entire sales process including delivery for all future sales.
Mr Khan was aware that the applicant experienced some anxiety during the contract negotiations in February and March 2024. Portions of Mr Khan’s statement on the contract negotiations (paragraphs 12 and 13) are identical to Ms Chaker’s evidence (paragraphs 11 and 12).
Mr Khan’s explanation for the decision to make the retention sales managers role redundant is identical to the evidence provided by Ms Chaker.[30]
[30] Mr Khan’s statement, paragraph 14; Ms Chaker, paragraph 13.
Mr Khan also advice that the applicant’s KPI targets were “minimal” without explaining what they were, and it was also necessary for the business to address the economic climate.
Mr Singh
Mr Singh is the sales manager and provided a statement dated 6 June 2024.[31] Mr Singh noted that it been alleged by the applicant that she had been bullied or harassed by himself and the assistant sales manager and noted there was no formal grievance submitted by the applicant to support the claim.
[31] Reply, p 116.
Mr Singh stated that he was not involved in the contract negotiations although he was aware that the applicant had not been reaching her targets in the retention role for some time. To the extent that he was aware he said it was due “to a changing economic environment, and we were looking at ways to improve our customer experience and to develop as many direct relationships as possible between our salespersons and the customers”.[32]
[32] Reply, p 117.
Mr Singh noted disputes between the applicant and Sam and another dispute with Marcus as who should get the commission. He described these disputes as “not uncommon”.
Mr Singh described the decision to move the claimant's desk as related to the contract changes which the applicant was now required to complete the entire sales process including delivery to the customer and not just hand the car over to other sales staff.
General practitioner’s records
On 26 February 2024 the general practitioner (GP) noted temporal headaches for the past few weeks including “work related stress”. Psychiatric symptoms include broken sleep, early morning wakening, low self-esteem, depressed mood, not anxious, no stress at work.[33]
[33] Application, p 115.
On 21 March 2024 the GP noted that the claimant had a panic attack today and had to leave work early. On 22 March 2024 the GP provided a certificate noting hypertension-anxiety.
On 26 March 2024 the GP noted that the applicant was very anxious for the last couple of days due to work-related stress and referred to a “new contract to sign”.[34] Psychiatric symptoms included broken sleep, no early morning wakening, anxious, stress at work.
[34] Application, pp 116-117.
On 13 May 2024 the GP noted stress at work with a “recently change of contract” affecting the applicant’s mental health. The GP referred to jealous colleagues with her performance and that the applicant was visibly upset.[35]
[35] Application, p 117.
On 16 May 2024 the GP noted the applicant was feeling better with rest and had taken legal advice.[36] On 21 May 2024 the applicant attended the GP having discussed the matter with her lawyer who “advised for WorkCover”.
[36] Application, p 118.
Employment contracts
The initial employment contract dated 20 July 2020 included a base salary of $50,000 per annum, a weekly car allowance of $150 and work hours from Monday to Friday 9.00am to 5.00pm.[37] Commission included $200 payable for retention deals delivered via “Jody’s referral”.
[37] Reply, p 213.
The 2022 employment contract referred to the applicant’s full-time position as a “Sales Retention Consultant” with a base salary of $55,000 per annum, a weekly car allowance of $150 and the revised commission structure. The Commission structure refers to different types of sales but, as a generalisation, provides for a commission payable on each sale between $100 and $250 per unit.[38]
[38] Reply, p 193.
A document dated 21 January 2022 indicated potential commission payments above the base salary and car allowance, depending on the number of monthly sales, of between $35,000 and $66,000 on an annualised basis.[39]
[39] Reply, p 191.
The 2024 employment contract commenced on 1 April 2024.[40] Clause 2.1 of the contract provided that the duties and responsibilities are set out in Schedule 2 “plus such other duties as the Employer may allocate to you from time to time”. Schedule 2 provided:
“Duties and responsibilities of the role are inclusive in the pre-employment paperwork sent via email and can be subject to variation as attached.”
[40] Reply, p 158.
I was not referred to the “pre-employment paperwork”.
The base salary remained at $55,000 per annum with the applicant reporting to new car sales/general car sales.
The contract specified work hours as commencing at 8.45am and “Saturdays when required”. The works differed from the 2022 contract which specified hours as Monday to Friday, 9.00am to 5.00pm.[41]
[41] Reply, p 193.
The revised commission structure is not annexed to the 2024 contract.
Other documents
An excel spreadsheet completed by the applicant corroborated the applicant’s history of events in the employ of the respondent.[42] By way of example on 8 March 2024 the spreadsheet refers to the meeting with Mr Care regarding the new contract which the applicant did not want to sign and was told that if she did not sign then she would “prob made redundant”.[43]
[42] Reply, pp 247-250.
[43] Reply, p 248.
On 25 July 2024 the insurer accepted that the applicant had no current work capacity.[44]
[44] Reply, p 25.
The applicant’s curriculum vitae shows previous experience in the employ of Westpac from 2005 to 2019 as an executive assistant, providing business advice on financial planning and as a partnership business manager.[45]
[45] Reply, p 172.
The applicant’s performance review dated 2 June 2021 and reflecting achievements in the first quarter of 2021 noted in the manger’s review that the applicant’s rating for “Targets & KPIs” “needs improvement” and wrote:
“Due to technical issues Q1 was slightly off target, however has covered a lot of ground and has been able to stay on target for Q2.”
The manager provided the applicant with a rating of 4 which is “Exceeds Expectations” in the other 12 categories reflecting an overall rating of 4. The Manager concluded:[46]
“Joadie consistently displays a high level of professional and has brought across a great deal of experience to the role. We have seen a huge improvement and am excited of the future prospects of our retention business.”
[46] Reply, p 190.
There are no subsequent performance appraisals in evidence and the applicant stated that these did not occur.
Medical evidence
Dr Nagesh
Mr Abhishek Nagesh, psychiatrist, provided a series of reports commencing on
7 June 2024.[47] The treating doctor recorded a history of onset of problems when the applicant signed a contract on 1 April 2024 and was told, on 7 May 2024, that she was made redundant. Somewhat inconsistently, Dr Nagesh also recorded a history that the applicant became depressed since 17 January 2024 when she was told by her direct manager that there was going to be a change in a role which became progressively worse because of alleged bullying and harassment and the further redundancy.[47] Application, p 65.
Dr Nagesh opined that the applicant presented with symptoms of depressed mood, anxiety, insomnia, fluctuating appetite, had gained weight, lacked energy and motivation, felt worthless and had trouble concentrating. The doctor opined that the applicant met the criteria for an episode of major depressive disorder of moderate degree with anxious distress. He also opined that the applicant had no capacity for any sort of work, both pre-injury work and suitable duties.
In a report dated 4 July 2024 Dr Nagesh noted the applicant’s symptoms had not changed and included depressed mood, anxiety, insomnia, fluctuating appetite, lack of energy and motivation, diminished ability to concentrate and feelings of worthlessness. The applicant remained on medication and had not seen a psychologist at the time which he recommended occur as soon as possible.[48]
[48] Application, p 69.
Dr Nagesh increased the dosage of sertraline and opined that the applicant had no capacity for any sort of work.
In a report dated 9 August 2024 Dr Nagesh noted the applicant presented with depressive and anxiety symptoms in the context of work-related bullying and depressive and anxiety symptoms that were unchanged. The doctor noted that treatment with a psychologist had commenced.
Dr Nagesh opined that the applicant should continue with current medications, that she remained symptomatic and had no capacity for any sort of work.[49]
[49] Application, p 70.
Dr Nagesh provided a report to the applicant’s lawyers dated 14 October 2024 when he diagnosed the applicant with a major depressive disorder of moderate degree with anxious distress and opined that the applicant was totally incapacitated for work as a result of the psychological injury.[50] He also opined that the prognosis remained guarded as symptoms had not improved with treatment.
[50] Application, pp 73-74.
Dr Nagesh express a vague opinion that the psychological injury was wholly or promptly caused by the alleged bullying and harassment at work and not due to the employer’s actions with respect to performance appraisal, discipline or transfer.
In a further report to the applicant’s solicitor dated 13 January 2025 to Dr Nagesh clarified the causes of psychological injury when he stated:[51]
“In my opinion Ms Khattar’s alleged injury was wholly or predominantly caused by the alleged bullying and harassment she sustained from her employer in January 2024 and not by being made redundant on 7th of May 2024. My rationale is Ms Khattar was bullied and harassed in January 2024 and she has been experiencing depressive and anxiety symptoms since January 2024, with further bullying and harassment since January 2024 her symptoms have become progressively worse and has given rise to her alleged injury and not by the employer’s action of being made redundant on 7th of May 2024.”
[51] Application, p 76.
I discuss the relevance of this conclusion later but note that the doctor’s opinion on causation includes the initial contractual negotiations, other unspecified issues and then the redundancy were causative of psychological injury.
Ms Gossayn
Ms Gossayn, treating psychologist provided a report dated 10 September 2024 following four consultations with the applicant.[52]
[52] Application, p 79.
The history of the causes of psychological injury were the discussions with her manager about changes in the business structure that would affect her contract and commission including being presented with a new contract that outlined an unfavourable commission structure. The applicant was advised that refusal to sign a contract could result in her redundancy leaving her to sign a contract under perceived coercion as she did not want to lose her employment.
Following the signing of the new contract, the applicant reported experiencing unreasonable treatment from the sales team as she was not releasing deals to them. This included disparaging remarks from the assistant sales manager about her to other employees and incidents when he demanded to occupy a desk, the desk been relocated without a consultation and the manager’s response to that action. Another record example of hostile conduct was the absence of a replacement chair and the redirection of customers and sales team claiming deals for themselves.
The psychologist noted the meeting on 7 May 2024 when the applicant was informed of the redundancy due to business restructuring, the timing and announcement which occurred shortly after the signing of a new contract. A justification for the redundancy was the underperformance of KPI’s which the applicant denied.
Ms Gossayn opined that the applicant displayed symptoms consistent with major depressive disorder with anxious distress and opined that the cause of the condition was:[53]
“In my opinion, Mrs Abi-Khattar’s psychological injury was not primarily caused by the reasonable actions of the employer related to performance appraisal, discipline, or transfer.
The cause of her psychological injury is rooted in chronic hostility, insufficient support, feelings of alienation, dismissal, changes to her contract, and an excessive workload. This situation was further exacerbated by coercion to sign documents, targeted harassment, and sudden termination following the offer of a new contract. Initially, the employer asserted that her position was made redundant due to restructuring; however, Mrs Abi-Khattar advised that a colleague in the same role was retained. Subsequently, the employer alleged poor performance, despite her record showing no performance issues during her employment. She stated that she consistently met her key performance indicators (KPIs) and earned commission’s which exceeded that of the sales team, which contradicts the employer’s claims of poor performance that lack substantial evidence to justify their actions.”
[53] Application, p 82.
Ms Gossayn opined that the prognosis for return to work was poor due to unresolved grievances, lack of treatment, hostile work environment, limited coping skills and a high risk of recurrence.
The clinical notes of Ms Gossayn dated 18 July 2024[54] refer to the change in contract noting the loss of commission rights. The notes also refer to other non s 11A actions such as loss of sales to other employees, the desk incident, the loss of the power cord and rudeness by Sam swearing at her and attempting to take her clients.
Medico-Legal opinions
[54] Application, p 171.
Dr Rastogi
Dr Richa Rastogi was qualified by the applicant and provided a report dated
1 September 2024.[55] The doctor recorded a history that the anxiety commenced in the context of discussions with the manager of a change in the structure of the business which would affect the commission.[55] Application p 51.
Dr Ristogi noted that the applicant became preoccupied with the possibility of change in structure causing immense fear, insomnia and was nervous. The doctor noted that the applicant was served with a new contract highlighting the new commission structure which involved doubling of the duties, a reduction in commission and the non-payment of commission on her direct reports as well as hours of work had changed. Reference was again made to the comment by Andrew that the applicant would be made redundant if she refused to sign the contract.
The doctor recorded other matters of concern such as the applicant being badmouthed by other colleagues, movement of her desk, the loss of customers, loss of chair and culminating with a meeting with HR for a catch-up meeting about the new contract when the applicant was told that she would be made redundant.
Dr Ristogi diagnosed the applicant with an adjustment disorder with anxious distress caused by hostile behaviours by the sales team, the change in contract and other hostile actions such as displacing her from the desk, causing the chair to disappear and loss of clients ultimately followed by the meeting on 7 May 2024 when the applicant was made redundant without any explanation.
Dr Rastogi opined that the prognosis was guarded as the applicant had grievances which remained unresolved, and the denial of ongoing treatment would likely hamper recovery. The doctor stated:[56]
“She is current unfit to work in any capacity due to her partially treated adjustment disorder, unresolved grievances and delay in seeking treatment due to denial with likelihood of causing further vocational impairment from progression of her mood disorder. She needs further treatment to stabilise her mood disorder before she can be assessed for her vocational functioning. Her grievances need to be addressed for her to move on. She cannot return to the same employer in foreseeable future. She may be able to seek part time graded role in a less demanding position in future with ongoing treatment. She cannot work in highly pressured roles and customer facing jobs that expose her to conflict. She has capacity to work gradually with mild restrictions due to poor conflict resolution. It has placed restrictions on her future capacity to work causing limited prospects.”
[56] Application, p 59.
In a subsequent report dated 12 October 2024 Dr Rastogi discussed the causes of injury as multifactorial including hostile behaviours by the sales team, the restructure and financial disadvantages, removal of desk belongings without explanation, loss of customers and other staff claiming deals and the claimant the applicant being badmouthed.[57]
[57] Application, p 63.
Dr Gutkin
Dr Myles Gutkin, was qualified by the respondent and provided a report dated
1 August 2024.[58] The doctor’s history of the causes of the presenting condition were:“Ms Abi-Khattar reported that she believes she was performing exceptionally well in her role and denies that she had failed to meet her KPIs although this is reported by her colleagues in the investigation statements provided to me. Ms Abi-Khattar reported that other people had claimed some of her commissions which is confirmed by the investigation statements provided to me and Ms Abi-Khattar also reported that her office and chair had both been changed without informing her. Both of which were also confirmed in the investigations and reports provided to me. Ms Abi-Khattar reported no prominent stressors in her family relationships or social circumstances and attributes her difficulties primarily to worry about changes at work and the new contract and re-explored how her father's experience of being made redundant from his high-ranking operations manager at a grocery chain was significant in his life and had a big impact on her family and this may have amplified her anxiety around a potential redundancy.”
[58] Reply, p 45.
Dr Gutkin noted that the applicant ceased work on 9 May 2024 primarily related to anxiety about the new role since discussions were made about being made redundant in mid-January 2024.
Dr Gutkin noted an occupational history that the applicant was employed by Westpac from age 22, became national manager by 24 years of age and subsequently ran the financial planning section until being made redundant voluntarily in 2019.
Dr Gutkin opined that the applicant suffered an aggravation of pre-existing vulnerability to rumination and diagnosed an adjustment disorder with a differential diagnosis of generalised anxiety disorder. The doctor opined that there was likely to be “complete resolution” of the symptoms within the next three months and that the applicant was “likely to be able to return to her preinjury level of function either immediately or gradually over the next several weeks”.[59]
[59] Reply, p 49.
Dr Gutkin recommended engagement with the psychotherapist which might assist in the return to work, and also recommended mediation “to help reduce the conflict she is currently having with her co-workers and managers in her current role”.
The doctor described the injury as one of aggravation of pre-existing vulnerability due to her sensitivity to discussions of redundancy following the experience of her father’s redundancy having a big impact on the family.
In respect of the issue of the predominant cause of the applicant’s psychological injury,
Dr Gutkin stated:[60]“Yes, I believe that the predominant cause of the aggravation of her psychological injury was caused by actions taken or proposed to be taken by the insured in relation to transfer, retrenchment of employment with the insured. This is because while Ms Abi-Khattar reported some other stressors including conflict about her commissions and about her office and chair being rearranged, these are not the subject of her ruminations or preoccupations as she did not develop symptoms sufficient to warrant her diagnosis of adjustment disorder until redundancy was the subject of discussion and this appears to be the preoccupation which has aggravated Ms Abi-Khattar’s pre-existing vulnerability to anxiety in my opinion. Overall, I believe that Ms Abi-Khattar may continue to suffer from some minor symptoms related to the psychological injury which was aggravated on 14 February 2024. This would now be largely resolved but not completely resolved as she continues to suffer from some rumination and reported labile mood and increased snacking and binging, but in her current state I do not believe she would meet the criteria for a major mental illness and really only has minor residual symptoms at this stage so whilst not completely resolved it is predominantly resolved.”
[60] Reply, p 53.
Based on his clinical examination, Dr Gutkin opined that the applicant had the capacity to return to work either immediately or in the next few weeks on a gradual return to work basis.
Dr Gutkin was asked about the causative role of the meeting on 7 May 2024 and stated:[61]
“This is because while Ms Abi-Khattar reported some other stressors including conflict about her commissions and about her office and chair being rearranged, these are not the subject of her ruminations or preoccupations as she did not develop symptoms sufficient to warrant her diagnosis of adjustment disorder until redundancy was the subject of discussion and this appears to be the preoccupation which has aggravated Ms Abi-Khattar’s pre-existing vulnerability to anxiety in my opinion.”
[61] Reply, p 53.
REASONS
The Commission is required to provide a “brief statement” of reasons: s 294(2) of the 1998 Act.
Injury
The applicant bears the onus of proof on the balance of probabilities as to the causes of psychological injury.
In a letter dated 27 February 2025 the applicant particularised the following events causative of injury:[62]
[62] Application, p 42.
“Being threatened with being made redundant if the new contract was not signed.
• Having the new contract dealt with unfairly.
• Having her role change forced upon her.
• Having her pay structure and role changed unfairly.
• Being financially disadvantaged by the role change.
• Being treated unfairly by colleagues.
• Having colleagues talk about her behind her back disparagingly.
• Having colleagues, including Sam and Marcus, trying to take her clients and commission.
• Having S Singh snatch a cable from her and talking about her no longer being employed.
• The changing of chair issue and matters and factors surrounding that
• The moving of her desk issue and matters and factors surrounding that.
• Being directed to attend a meeting without notice of what it was about.
• Being lied to by M Chaker about the purpose of the meeting.
• Being threatened that she was not meeting her KPI without any foundational basis.
• Chronic hostility, insufficient support, feelings of alienation, dismissal, changes to her contract, and an excessive workload.
Further exacerbated by coercion to sign documents, targeted harassment, and sudden termination following the offer of a new contract.”
The respondent never denied injury and never raised that these matters were not causative of injury. At the directions hearing on 27 March 2025 (after receipt of the particulars) the respondent confirmed that injury was admitted. This is confirmed in the direction dated
27 March 2025.These matters were drawn to the respondent’s attention during submissions. No action was taken to confine the admission of injury.
The applicant otherwise submitted that none of the “other events” were subject to denial. The events were otherwise corroborated by other witnesses and included in the contemporaneous record.[63]
[63] See [83] herein.
In her statement the applicant said she had been “harassed in the workplace” by Mr Singh and Sam.[64] The applicant’s counsel submitted that neither Mr Singh or Sam had anything to do with the transfer or the retrenchment.
[64] Application, p 10.
The applicant’s initial statement was a contemporaneous account otherwise not contradicted by the respondent although portions of it were explained. The applicant correctly described the responses as a “justification not a contradiction” of the applicant’s account.
The claim form is expressed in general terms describing the causative events of injury but refer to the conduct of the sales manager and assistant sales manager who were not involved in the transfer or the redundancy.
The various medical reports showed causes for the psychological injury other than the transfer and the retrenchment. Accordingly, the applicant’s proven causes of injury included both the s 11A actions (the transfer and redundancy) and other multiple incidents.
Section 11A – basic principles
Section 11A of the 1987 Act relevantly provides:
“(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.”
The three elements in s 11A which the respondent must prove on the balance of probabilities to establish the defence pursuant to s 11A are whether the psychological injury was:
(a) wholly or predominantly caused;
(b) by reasonable action taken by or on behalf of the employer, and
(c) with respect to one of the matters set out in the section.
The present defence is unusual as there is a distinct course of action with respect to transfer from January to early April 2024 and then the actions with respect to retrenchment in early May 2024. The actions were not interlinked and treated as two distinct sets of actions in the submissions.
The test of whether action is reasonable is set out in Northern NSW Local Health Network Heggie[65] where the Court approved a previous decision of the Court of Appeal in Commissioner of Police v Minahan,[66] specifically where Foster AJA[67] cited with approval the following passage from Irwin v Director-General of School Education:[68]
“This question of reasonableness is one of fact weighing all the relevant factors. The test is less demanding than the test of necessity but more demanding than the test of convenience. The test of reasonableness is objective and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended in all the circumstances by a question of fairness.”
[65] [2013] NSWCA 255 (Heggie) at [148].
[66] [2003] NSWCA 239 (Minahan).
[67] Sheller and Santow JJA agreeing.
[68] Minahan at [27] and [42]).
The Court in Heggie set out several principles in respect of the application of s 11A of the 1987 Act. Sackville JA stated:[69]
[69] At [59], Basten JA agreeing at [1] and Ward JA agreeing at [34].
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the WC Act:
(i) A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii) Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury. (emphasis in original)
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”
Individual blemishes within the process does not mean that the transfer was not “reasonable action”. This submission is in accordance with the principles discussed by Spigelman CJ in Department of Education & Training v Sinclair in the context of a disciplinary process when his Honour stated:[70]
“His Honour’s analysis, as that of the Arbitrator, appears to assume that any specific blemish in the disciplinary process, however material in a causative sense or not, was such as to deprive the whole course of conduct of the characterisation ‘reasonable action with respect to discipline’. In my opinion, a course of conduct may still be ‘reasonable action’, even if particular steps are not. If the ‘whole or predominant cause’ was the entirety of the disciplinary process, as much of the evidence suggested and his Honour appeared to assume, his Honour did not determine whether the whole process was, notwithstanding the blemishes, ‘reasonable action’. For this alternative reason the appeal should be allowed.”
[70] [2005] NSWCA 465 at 97 (Sinclair), Hodgson & Bryson JJA agreeing.
In those circumstances I am conscious that the observations of Spigelman CJ in Sinclair are particularly pertinent to these defence. Blemishes within the transfer process does not mean that the respondent’s action with respect to transfer over the entire period are not reasonable.
The way the s 11A defence was argued
Following submissions on the issue of wholly or predominantly, I indicated that the reasonableness by the respondent of the actions with respect to transfer and the reasonableness of the actions with respect to retrenchment had to be examined separately. Counsel agreed with this course.
I also advised that the respondent required the separate actions combined to establish predominantly as I was not satisfied that the respondent could establish predominantly solely based on either the separate sets of actins with respect to transfer or retrenchment. The applicant agreed with this proposition. The respondent did not directly answer this question and did not identify in submission which of the s 11A actions, either transfer or retrenchment, were, by themselves, the predominant cause of the injury.
The change in the terms of the contract (the transfer)
The applicant did not admit that the contractual changes were a transfer within the meaning of s 11A submitting that they were “unspecified”. I reject that submission.
The relevant changes to the applicant’s contract which commenced on or about 1 April 2024 were:
(a) Ms Harris no longer reported to the applicant which meant that the applicant lost commission associated with sales made by Ms Harris;
(b) additional work hours starting 15 minutes earlier each day and the requirement to work on Saturdays;
(c) increase in duties which included at least completing the delivery process to the customer and probably working with new customers as opposed to only working with returning customers;
(d) unspecified drop in the rate of commission, and
(e) applicant now reported to both the General Sales Manager and the New Car Sales Manager.
The evidence which established the changes to the contractual arrangements were:
(a) the applicant’s second statement and statements by other witnesses;
(b) the email dated 18 January 2024;[71]
(c) the 2024 contract contrasted with the 2022 contract;
(d) text messages from the applicant to Mr Care concerning the changes, and
(e) the oral evidence of Ms Harris that after the changes she no longer reported to the applicant.
[71] Reply, p 235.
The applicant’s base salary did not increase. The contracts show that the base salary increased by 10% from 2020 to 2022 and did not change from 2022 to 2024. It was raised with the parties that this was an effective drop in salary due to inflation in that period. Mr Malouf accepted that proposition. Based on common human experience I accept that there was significant inflation during this latter period.
Mr Singh stated that the changes to the duties included the applicant being involved in the entire sale process including the delivery of vehicles and she could no longer hand that aspect over to the sales team. The applicant described her change in duties as “more responsibility of delivery of vehicles and maintained contact”.[72] This statement reflected the increased work duties consistent with the requirement to work longer hours.
[72] Application, p 21.
The 2024 employment contract does not specify the change in duties. Whilst the exact changes in duties are unclear from that document, the contract shows that the applicant was required to commence work 15 minutes earlier on each weekday and work on Saturdays when directed.
The scope of the changes meant that the applicant was working more for the same remuneration set two years previously in an inflationary environment with less commission. The adverse change in the commission structure was repeatedly stated by the applicant and not addressed or contradicted by the respondent.
Transfer has been interpreted by the Court of Appeal in Manly Pacific International Hotel Pty Ltd v Doyle to be construed in the employment context and includes “a move from one position to another whether or not there is any change in location”.[73]
[73] [1999] NSWCA 465 at [3] per Fitzgerald JA Mason P agreeing at [1] and Davies AJA (in dissent) at [32].
In Smith v Roads & Traffic Authorityof NSW[74] Snell DP stated that there was considerable doubt that the worker working partly out a different office without a change in duties involved a transfer within the meaning of s 11A.
[74] [2008] NSWWCCPD 130 at [77].
Whilst there is some lack of clarity with respect to the scope of the change in the applicant’s duties particularly as the 2024 contract refers to another document not in evidence, the applicant’s direct evidence establishes that she had extra duties with respect to the sales process and Ms Harris no longer reported to her. Mr Singh’s evidence also supports this finding.
I am satisfied that the changes in the applicant’s duties involving a greater role in the overall sales process and the loss of supervision of Ms Harris. This constituted a transfer within the meaning of s 11A.
Reasonable action with respect to transfer
The question of reasonableness must be analysed in accordance with the “rights of employees against the objective of the employer”.
The respondent’s explanation for the changes to the contract are based on the applicant’s performance not meeting her KPIs, lowering business expenses generally and otherwise reducing benefits payable to the applicant as she was the only one who did not work on Saturdays. It was also noted that the applicant did not complete the sales process.
The respondent could not answer the question of whether there were changes to any other employment contracts. There is nothing in the evidence showing that other employee’s benefits were reduced in furtherance of the employer’s objective of reducing expenses.
The applicant did not accept that she did not meet her KPIs and stated that there was no performance appraisal since 2021. She stated that the matter had not been brought to her attention prior to being raised as a justification for the contract changes.
The previous performance appraisal from early 2021 is in evidence and shows a rating that the applicant was not then meeting her KPIs. The KPI criteria is only one of the performance indicators which was, otherwise, an impressive appraisal.
I am satisfied, due to the evidence from several witnesses called by the respondent, that the applicant was not meeting her KPIs although there is no evidence to what extent the criteria was not met. However, the fact that the applicant was not meeting her KPIs was not formerly addressed by the respondent prior to the contract negotiation.
There is evidence from Mr Care that car sales across the business was down since the COVID-19 days. That applicant also suggested that KPI s were not being met across the business. Accepting that evidence, this would explain the respondent’s evidence that the applicant had not met her KPIs for car sales and the applicant’s statement that these KPIs were not met by employees across the business.
I agree with the applicant’s submission that the respondent has not produced evidence to show how the applicant compared with other employees and to what extent the applicant did not meet her KPIs for car sales. The evidence is lacking on particulars and suggest an unfairness in the way the applicant was treated because, on the above finding, the extent to which the KPIs was not met is unexplained and probably affected all sales staff. The unfairness arises because it appears the applicant was treated adversely from other employees when the contract was renegotiated.
The respondent’s evidence is that there were business pressures supporting the need for lowering expenses. Accepting that explanation, the applicant correctly noted that there is no evidence that this was used against the multiple other employees in their respective contract renegotiations.
The applicant’s unchallenged evidence is that she was told by Andrew Care to sign the new contract, or she would probably be made redundant.[75] That evidence is not contradicted. Whilst I accept the applicant’s evidence, I do not accept her submission that this is fatal to the defence. The applicant’s dogmatic submission that the threat was determinative of unreasonableness is contrary to the observations in Sinclair that a particular blemish is determinative of the process.
[75] Application, p 4, paragraph 19.
The statement by Ms Chaker, who was not party to the contract negotiations, asserts that the process was a give and take. This is inconsistent with the uncontradicted evidence that the applicant was informed that she had to sign, or she would be made redundant.
Ms Chaker also downplayed the extent of the applicant’s anxiety the applicant from the renegotiations. The description by Ms Chaker that the applicant’s symptoms were “nothing more serious” than a couple of days of leave shows a lack of understanding and appreciation of the applicant’s condition when matters such as the applicant’s text messages in late February 2024 are considered.
There is clear evidence from the applicant that the restructured commission scales were to her detriment. There is no evidence as to the extent of the lower commission rates provided by the 2024 contract. There is no explanation from the respondent, other than lowering overall business expenses to explain this drop. The agreement as to PIAWE of more than $2,000 per week shows that the applicant’s overall remuneration was substantially greater than her base salary of $55,000 per annum.
I agree with the respondent that opinions from witnesses relied upon by the applicant that the action by the respondent was unreasonable are given no weight. The same conclusion also applies to the extent that the respondent’s witnesses suggested otherwise.
The applicant’s transfer involving extra duties resulted in extra work hours including Saturday work, lower commission and no pay increase in the two-year period despite inflationary pressures during that time. There is no evidence by the respondent explaining the applicant’s performance compared with other employees and how other salary packages changed at this time.
Whilst I accept that the increased Saturday work was satisfactorily explained and probably reasonable coinciding with the need for the applicant to complete the sales process such as being involved with the delivery of the vehicle, the overall terms of the transfer is not properly explained by the respondent including whether the applicant was treated differently from other employees in terms of the changes to the commission structure. The changes caused the applicant significant anxiety as shown by the text message dated 28 February 2024.
For these reasons I am not satisfied that the respondent has discharged the onus that its pleaded actions with respect to transfer were reasonable.
Reasonable action in May 2024 with respect to retrenchment (redundancy)
It is common ground that the notification on 6 May 2024 and the meeting on 7 May 2024 were actions with respect to retrenchment.
The following findings are made with respect to the actions concerning the retrenchment.
The respondent knew that the applicant was suffering anxiety following the changes to the contract. Both Mr Care and Ms Chaker state they knew about the applicant’s anxiety from those actions.
The transfer process involved an unknown but significant reduction in the applicant’s commission, increased hours and no pay increase. As part of those changes the applicant had been given extra duties involving sales outside retention and being involved in the delivery process. The respondent stated that it then made the decision on redundancy in April/May 2024, literally within weeks of the commencement of the new contract on 1 April 2024.
On any logical basis and otherwise not explained by the respondent, there was simply insufficient time to ascertain how the applicant was performing in her new role. There is certainly no evidence of the applicant’s performance in her new role. The respondent provided no performance reviews for the relevant period which was, under the new contract, limited to a period of weeks. It is extremely difficult to accept the respondent’s assertion that the applicant’s new role was redundant given the time frame since the commencement of the renegotiated contract.
There is no evidence from the respondent comparing the applicant’s performance with other employees.
The respondent did not advise the applicant that the meeting concerned potential redundancy and in fact misled the applicant as to what the meeting was about. The uncontradicted evidence from the applicant, not addressed by Ms Chaker, is that they were going to discuss how the applicant was going with the new contract. I also note the respondent forwarded an email on 6 May 2024 about the meeting to the applicant which is not in evidence.
The respondent has not explained why it proposed that the applicant’s job was potentially made redundant as opposed to anyone else. It was Mr Care’s evidence that sales across the company were down from COVID-19 times and there was no evidence that the applicant was underperforming other salespersons. This point is linked with the fact that the applicant’s role had just changed, and the respondent asserts that the applicant’s role, which had just commenced following the renegotiated contract, was then immediately identified as potentially redundant.
Ms Chaker identified Ms Care as the support person for the applicant. Mr Care did not describe himself as a support person nor is there any evidence between Mr Care and the applicant about that fact. It appears that Ms Chaker thought this but that assumption is not based on any direct evidence. The contemporaneous notes do not otherwise identify Mr Care as the support person and his presence at the meeting is explicable on the basis that he is one of the applicant’s managers. Further, given the finding made above as to the notified purpose of the meeting, no support person would have been required.
The respondent submitted that they had only made a preliminary decision to make the applicant’s role redundant. This is inconsistent with the contemporaneous note made by
Ms Chaker headed “Formal Discussions with Employee” and “redundancy notification”. The initial notes reads as if the meeting was a formality in making the applicant redundant.The respondent’s scenario is that this was a preliminary meeting leading to a possible redundancy. However, the cut and paste evidence from the respondent’s witnesses is that:
“This analysis identified that under such arrangements, the retention sales managers role would become redundant. With such a scenario it would directly impact Joadie Abi-Khattar, so it was decided a preliminary meeting should be held with her to open a conversation with her about the analysis.”
The use of the word “would” become redundant does not suggest any uncertainty in the respondent’s mind as to the outcome of the process.
The respondent has otherwise not exercised good faith in copying and pasting the statement evidence of Ms Chaker and the evidence of Mr Khan concerning the reason for making the retention sales manager role redundant. I do not take this matter into consideration but query the respondent’s bona fides in the preparation of the statements.
In these circumstances I do not accept that the respondent has satisfied the onus that its actions with respect to retrenchment on 6 and 7 May 2024 were reasonable. On my view the actions of the respondent were clearly unreasonable.
Issue of wholly or predominantly
I accept the applicant’s evidence and the respondent’s submission that the applicant’s psychological condition commenced with the contract negotiations. This conclusion is based on the applicant’s direct evidence, the GP note in late February 2024, the text messages in late February 2024 and the absence of prior clinical records on this issue. The applicant’s statement as to commencement of symptoms[76] also coincides with the January 2024 email documenting the proposed changes to the contract.[77]
[76] Application, p 3.
[77] Reply, p 235.
The applicant’s statement that the contract changes were distressful and significant is consistent with the evidence provided by Mr Abi-Khattar and Ms Harris.
Considering other documentary evidence including the applicant’s statement, I am satisfied that the applicant’s anxiety commenced with the discussions with Mr Care about contract renegotiations. To the extent that Mr Abi-Khattar suggested that the applicant’s anxiety commenced earlier, I formed the view that he was mistaken on the timing of various events.
I also accept that the applicant was significantly affected by the transfer particularly as there was going to be a substantial reduction in the commission rates. That conclusion is particularly based on the terms of the text messages sent by the applicant to Mr Care in late February and coincides with the attendance on 26 February 2024 when the GP noted temporal headaches for the past few weeks including “work related stress” and psychiatric symptoms including broken sleep, early morning wakening, low self-esteem and depressed mood.[78] This GP note refers to both work related stress and no stress at work and is obviously a shorthand error given what was occurring at that time and the context of the clinical record dated 26 February 2024 when the entirety of the record is read in context, that is, that the applicant was suffering from work-related stress.
[78] Application, p 115.
The transfer being relevant to and causative of the psychological condition is confirmed in the panic attacks occurring in late March 2024 and the GP record dated 26 March 2024 that the applicant was “very anxious for the last couple of days due to work related stress new contract to sign”. The contract was signed shortly after that consultation.
The retrenchment process is obviously relevant to the cause of the psychological condition as it was temporally linked to and causative of the loss of current work capacity. For the reasons provided earlier and noting the comments by Dr Rastogi and Ms Gossayn, the applicant is obviously aggrieved by the way she was treated. That conclusion is also consistent with Dr Gutkin’s opinion.
The applicant attended her GP on 13 May 2024 when the note refers to a “recently change of contract” and certified unfit for work. The inaccuracy of the note is again reflective of the brief record and probably relates to the recent meeting when the applicant’s redundancy was discussed.
I accept the applicant’s submission that there were work events outside the s 11A actions causative of the psychological injury. I have made this finding earlier.
The other matters are clearly articulated in the applicant’s original statement and consistent with the short explanation in the claim form that there was conduct by Mr Singh and the assistant sales manager (Sam) causative of injury. As the applicant correctly submitted,
Mr Singh and Sam were not relevant to either the actions with respect to transfer or retrenchment.The respondent noted that the GP records do not refer to the other events and the applicant had no time off work in April 2024. However, this is only one matter and does not detract from other evidence showing that other events occurring in April 2024 caused the applicant distress. By way of example the desk incident is included in text messages sent by the applicant and recounted by her to other persons including Ms Harris as a distressing event.
The other issue of significance is that the respondent never purported to deny injury. The respondent submitted that the s 78 notice is dated 19 August 2024 and predates the applicant’s particularisation of the work events causative of injury which occurred on
27 February 2025.[79][79] See [124] herein.
The respondent had the opportunity to deny the causes of injury after that time and on
27 March 2025 it expressly admitted injury and never put in issue that some of the applicant’s particularised injuries were causative of the psychological injury.Finally, I observe that Dr Gutkin did not state that the s 11A actions were the whole cause of psychological injury and he used the word “predominant” to describe the causative effect of the role of the actions with respect to redundancy on the cause of, in his opinion, the aggravation of the psychological condition.[80]
[80] Reply, p 53.
The respondent has not satisfied the onus that the psychological injury was wholly caused by the pleaded s 11A actions.
The remaining issue is whether the psychological injury was predominantly caused by the s 11A actions.
It is common ground that the s 11A actions were causative of injury. This agreement is supported by the above findings.
The respondent pressed the opinion of Dr Gutkin and otherwise noted that he expressed causation of the s 11A events in terms of the “predominant” cause of the psychological injury.[81]
[81] Reply, p 53.
I make the following observations concerning the opinions provided in the medical evidence.
The opinion of Dr Nagesh in his first report focused on the respondent’s actions with respect to transfer and the redundancy but otherwise provides a vague opinion on the issue of “wholly or predominantly”.
The opinion by Dr Nagesh in the further report provided some clarification.[82] However, I read that opinion as focusing on the transfer (contract negotiation) which commented in mid-January 2024 and the doctor described as the applicant being “bullied and harassed” at that time. Dr Nagesh also refers to ongoing “further bullying and harassment” after that time and prior to the redundancy meeting on 7 May 2024 which is obviously a reference to the other events outside the pleaded s 11A. However, the attempt to clarify is unclear but confirms that he believes the actions with respect to transfer and the redundancy were significant.
[82] See [98] herein.
The initial opinion of Dr Ristogi relates a history focused on the transfer but includes other events. The ultimate opinion describes the causes of the psychological injury as multifactorial with events outside the pleaded s 11A actions.
The clinical notes and the report of Ms Gossayn refers to the contract negotiations, various other matters and the redundancy as the causes of the psychological injury.
Dr Gutkin’s opinion, set out in detail earlier, concentrated on the redundancy based on his opinion that the applicant ruminated given what occurred to her father and the loss of the financial independence.
The respondent emphasised and I agree that the psychological symptoms commenced and were caused by the actions with respect to transfer.
The respondent also submitted that Ms Gossayn, Dr Nagesh and Dr Rastogi had an incomplete clinical picture as they were unaware of earlier absences from work in February and March 2024 due to the contract changes. However, that submission undercut the weight of Dr Gutkin’s opinion which focused on the redundancy.
Dr Gutkin otherwise does not provide an analysis of the non s 11A events as causative of injury which undercuts his conclusion.
I do not find that the failure to acknowledge short periods off work undercut the opinions of Ms Gossayn, Dr Nagesh and Dr Rastogi as they all acknowledge that the initial transfer was causative of injury. It would have been different if they had disregarded the transfer actions as not causative of injury.
It appears that there is some confusion in the entirety of the medical opinion commenting on what are the s 11A actions and whether those actions are the whole or predominant cause of injury. That confusion is evident from comments by Dr Nagesh describing the January 2024 meeting as “bullying and harassment” and Ms Gossayn describing the signing of the contract as “forced coercion”. It appears that the doctors do not consider these events as part of the pleaded s 11A actions which is understandable as the actions were only properly particularised after the Application was filed. There is a degree of confusion in the medical opinions as to their understanding of the precise scope of the s 11A actions.
The applicant acknowledged deficiencies in the opinion expressed by Dr Nagesh but submitted that Ms Gossayn provided a detailed report with a history consistent with the facts concerning the onset of symptoms, the various actions and events and were explored in treatment over four consultations.
The applicant emphasised the various other work events which are set out in the applicant’s claim form and statements.
I am entitled to use “commonsense” in evaluating the opinions contained in medical reports. The concept of the use of “commonsense” inferences was discussed in Tudor Capital Australia Pty Ltd v Christensen[83] when McColl JA (as her Honour then was) stated:[84]
“The Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material. In cases where the experts differ, the lay tribunal must apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted, an exercise which cannot be carried out without knowing the essential integers of the expert opinion.”
[83] [2017] NSWCA 260 (Christensen).
[84] At [364]-[368], Mcfarlan JA agreeing at [425].
The respondent referred to the observations of Fitzgerald JA in Doyle suggesting that the observations that considerations of the whole or predominant cause of psychological injury were potentially inconsistent with Hamad v Q Catering Limited.[85] Fitzgerald JA stated:[86]
“Whether or not the appellant’s transfer of Mr Doyle was the whole or predominant cause of his psychological injury within the meaning of s 11A(1) is a question of fact and degree, which involves consideration of all the factors which produced Mr Doyle’s condition.”
[85] [2017] NSWWCCPD 6 (Hamad).
[86] Doyle at [8], Mason P agreeing.
The respondent referred to Hamad and submitted that expert evidence was not imperative in addressing the ultimate conclusion of “wholly or predominantly”. In Hamad, Snell DP stated:
“There are a number of other findings, relevant to the causation issue, which could not, in my view, be appropriately made in the absence of medical evidence. The Arbitrator was entitled to have regard to the sequence of events; he was entitled to have regard to his common knowledge and experience of ordinary life. However, as the Arbitrator previously observed at [62] of his reasons, a series of events can have a cumulative effect, and may be causative of a psychiatric condition which does not manifest itself until a later time. That does not mean that the earlier events in the series are not causative (see the discussion in Secretary, Department of Family and Community Services v Colleen Jones by Executor of her Estate Carol Hewston [2016] NSWWCCPD 63 at [33]- [45]).”
Later in his reasons Snell DP expressed the view that medical evidence was required on the ultimate issue and stated that common knowledge cannot be used to assess the relative contributions. Snell DP stated:[87]
“Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
[87] Hamad at [88].
The present case is not without uncertainty on this issue. The s 11A actions for transfer and retrenchment were each causative of psychological injury. They were extremely important actions as the transfer undercut the applicant’s remuneration and the latter involuntary removed her employment status. Those actions had significant and overwhelmingly long-term consequences for the applicant.
Further, the psychological condition commenced with the actions with respect to transfer, deteriorated from events in the middle and obviously deteriorated following the redundancy meeting when the applicant ceased employment due other incapacity.
I do not accept Dr Gutkin’s opinion that the retrenchment was the predominant cause of the psychological injury as the doctor did not properly analyse the intervening non s 11A events and did not give proper weight to the January 2024 transfer. His explanation that the injury is due to the distress caused by the father’s redundancy minimises the obvious anxiety the applicant suffered prior to the actions with respect to redundancy.
Had I been entitled to exercise logic and commonsense and based on the entire medical opinion, I would have found that the combined effects of the actions with respect to transfer and the actions with respect to the retrenchment would probably have been the predominant cause of the psychological injury. That conclusion appears to be consistent with Dr Nagesh’ opinion discussed earlier.[88] However, that conclusion does not appear to be open to me based on the observations in Hamad.
[88] See at [97] herein.
Given the findings on reasonableness of the respondent’s separate s 11A actions, it is unnecessary to make an ultimate finding on this issue.
I briefly mention another issue given the way the s 11A defence was argued, that is the actions with respect to transfer and then retrenchment were distinct events, and the reasonableness of those actions must be separately assessed.
I do not accept that the actions with respect to transfer by themselves were the predominant cause of the psychological injury. I also do not accept that the actions with respect to retrenchment by themselves were the predominant cause of the psychological injury. The respondent only gets close to establishing the onus of predominantly by combining the respective s 11A actions.
This is relevant because I have separately found that the respective actions were not reasonable. In those circumstances, the failure to prove one of the two parts of the s 11A actions were reasonable (either transfer or retrenchment) meant that the s 11A defence fails because the actions that were reasonable, were, by themselves, not the predominant cause of the psychological injury.
Based on all the evidence, the respondent would be required to establish that both s 11A actions (that is both the transfer actions and the retrenchment actions) were reasonable actions to justify the finding that both the s 11A actions combined were the predominant cause of the psychological injury.
Capacity
“Suitable employment” is defined in s 32A of the 1987 Act as “employment in work for which the worker is currently suited”:
“(a) having regard to:
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(a)regardless of:
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker's pre-injury employment, and
(iv) the worker's place of residence.”
Schedule 3, cl 9 of the 1987 Act defines current work capacity and no current capacity as:
“An injured worker has no current work capacity if the worker has a present inability arising from an injury such as the workers not able to return to work either in the workers pre-injury employment or in suitable employment.
An injured work has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the workers pre-injury employment or able to return to suitable employment that the weekly amount that the worker has the capacity to earn in such employment is less than the weekly amount that the worker had the capacity to earn in such immediately before that injury.”
The medical evidence relied upon by the applicant supports the conclusion that the applicant has no current work capacity. I do not accept the respondent’s submission that the opinion of Dr Ristogi shows internal inconsistencies and suggests some capacity for work.
The opinions of the treating psychiatrist, Dr Nagesh, and the treating psychologist,
Ms Gossayn are made in the context of several consultations. As treating medical practitioners, it is reasonable to give their opinions significant weight.The qualified opinion of Dr Ristogi and Dr Gutkin were made following one-off appointments. It is logical, particularly in psychological cases where the nature of the symptoms may not be self-evident following one examination, to give greater weight to treating opinion formed over several consultations.
Dr Gutkin formed the opinion that the applicant was only suffering “minor symptoms”. His account of the applicant’s symptoms does not accord with the extensive symptoms recorded by the treating practitioners. This is probably reflective of the difference between a qualified doctor reaching an opinion on a one-off consultation and the rapport which develops between a patient and treater.
The respondent otherwise submitted that there was no current opinion referring to the opinions provided at the latest in September 2024.
That submission is rejected for the following reasons.
Firstly, the application was filed late last year in a front end loaded system and I do not consider that the opinions are outdated. The case has been delayed due to interlocutory decisions when it was allocated a hearing date in February 2025.
Secondly, the opinions of Dr Rastogi and Ms Gossayn summarised earlier noted partial treatment and unresolved grievances as part of their conclusions that there was no current work capacity. The grievances remained unresolved and the suggestion from the absence of medical opinion of treatment after September 2024 is that no further treatment has occurred.
The import of these opinions is that the psychological condition will continue until these matters have been addressed. That conclusion is otherwise drawn as a matter of logic and commonsense and supports the likelihood that the psychological condition and lack of current work capacity is ongoing.
I have considered the applicant’s transferable skills as outlined in the detailed curriculum vitae which shows previous experience in the employ of Westpac from 2005 to 2019 as an executive assistant, providing business advice on financial planning and as a partnership business manager.[89]
[89] Reply, p 172.
The claim for weekly compensation commences on 12 September 2024 as payments were made to 11 September 2024. It was agreed that the claim for weekly compensation fell within the second entitlement period under s 37 of the 1987 Act.
For these reasons I accept that the opinions of Dr Rastogi, Dr Nagesh and Ms Gossayn that the applicant has had no current work capacity since September 2024. I otherwise find, based on the above reasons, that the lack of current work capacity continues to date.
Pre-injury average weekly earnings
The parties agreed that the applicant’s PIAWE was $2,028.18.[90] The applicant is entitled to an order at 80% of this amount indexed in accordance with s 82A of the 1987 Act.
[90] Reply, p 28; Direction dated 27 March 2025, para 6.
FINDINGS AND ORDERS
The findings and orders are set out in the Certificate of Determination.
The parties have liberty to apply if they cannot agree on the indexed figure pursuant to s 82A of the 1987 Act.
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