ACR v Grace Worldwide Pty Ltd
[2021] NSWPICPD 44
•7 December 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | ACR v Grace Worldwide Pty Ltd [2021] NSWPICPD 44 |
| APPELLANT: | ACR |
| RESPONDENT: | Grace Worldwide Pty Ltd |
| INSURER: | icare Workers Insurance |
| FILE NUMBER: | A1-5865/20 |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| DATE OF APPEAL DECISION: | 7 December 2021 |
| ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determination dated 4 March 2021 is confirmed. |
| CATCHWORDS: | WORKERS COMPENSATION – Acceptance of evidence in the absence of cross-examination Aluminium Louvres and Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358 applied – acceptance of and weight to be afforded to evidence – principles discussed in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied – s 11A of the Workers Compensation Act 1987 – wholly or predominantly caused by action with respect to the provision of employment benefits – JobKeeper benefits – BB v Secretary, Department of Education [2020] NSWWCCPD 27 discussed – Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, Canterbury Bankstown Council v Gazi [2019] NSWWCCPD 14 discussed and applied |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr J Mrsic counsel, | |
| Grieve Watson Kelly Lawyers | |
| Respondent: | |
| Mr P Perry, counsel | |
| Holman Webb Lawyers/Lee Legal Group | |
| DECISION UNDER APPEAL | |
| MEMBER: | Ms D Moore |
| DATE OF MEMBER’S DECISION: | 4 March 2021 |
INTRODUCTION AND BACKGROUND
ACR (the appellant) commenced employment with Grace Worldwide Pty Ltd (the respondent) as the Group Marketing Manager on 18 June 2018, reporting directly to the respondent’s Managing Director, Mr Steven Brown. The appellant’s responsibilities initially included managing four staff, which increased to five staff between 2019 and 2020.
The appellant alleged that, as a result of interactions with Mr Brown, she suffered a psychological injury culminating in her ceasing work on 20 April 2020 and making a claim for workers compensation. The respondent denied liability for the claim, disputing that the appellant had sustained a psychological injury, or that the appellant’s employment was a substantial contributing factor or the main contributing factor to any psychological injury, in accordance with ss 9A and 4(b) of the Workers Compensation Act 1987 (the 1987 Act). The respondent also subsequently raised a defence under s 11A(1) of the 1987 Act, asserting that any psychological injury suffered by the appellant was not compensable because it resulted from reasonable actions taken by the respondent to stand down staff, including the appellant, because of the effect of the COVID-19 pandemic.
The appellant lodged a claim for weekly payments of compensation in the Workers Compensation Commission. The matter was listed for conciliation and arbitration before Arbitrator Moore (as she then was) on 10 December 2020, however due to time constraints and technical difficulties, the matter did not proceed to arbitration on that day. The Arbitrator set a timetable for written submissions, which were filed by the parties.
On 1 March 2021, before the Arbitrator issued her Certificate of Determination, the Workers Compensation Commission was abolished by operation of Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act). The matter then became a matter within the Workers Compensation Division of the Personal Injury Commission (the Commission) from that date,[1] and the Arbitrator became a non-presidential member of the Personal Injury Commission.
[1] Section 12(1) of Div 2.3 of Pt 2 of the 2020 Act.
In her capacity as a member of the Commission, the Member issued her Certificate of Determination on 4 March 2021, in which she entered an award for the respondent.
The appellant appeals the decision.
ON THE PAPERS
Section 52(3) of the 2020 Act provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties have indicated that they are content for the appeal to be determined on the basis of their written submissions.
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
THE EVIDENCE
The appellant’s statement
The appellant provided a statement dated 17 June 2020.[2] The appellant confirmed that she commenced employment with the respondent as the head of the marketing department. She described the marketing department as having a “problematic” history and said that it took her about two years to correct the issues.
[2] Application to Resolve a Dispute (ARD), pp 17–27.
The appellant said that she first experienced difficulties with the Managing Director, Mr Steven Brown, in November 2018, at one of their weekly meetings. She said that Mr Brown queried why she had not given a report on the progress of the “Nurture” campaigns. The appellant said that she felt as though his query was an accusation that she was wasting time, but when she provided the requested details, Mr Brown “backed down.”
The appellant referred to the weekly meetings, which she said had no agenda or formal process. She described them as a “nerve wracking experience,” as Mr Brown would ask her unexpected questions about issues which did not involve her input and she was unable to provide an immediate response. The appellant complained that there were no clear paths of communication between the respondent’s departments, which made it difficult to keep up with matters raised by Mr Brown, to which he was privy but she was not. The appellant described Mr Brown’s communication style as blunt and said that he expected immediate and detailed answers, which made her nervous and stressed.
The appellant advised of several resignations by team members, requiring her to pick up additional workloads, which she found additionally stressful.
The appellant referred to what she considered was a “difficult discussion,” in which Mr Brown accused her of not following the “SEO” plan. The appellant explained that she had not implemented such a plan. She said that there had been one such plan previously which had been run by a third party, but when that arrangement had finished, the respondent did not implement a new SEO plan. The appellant said that Mr Brown later conceded that, although he had thought there had been such a plan, one was not in place.
The appellant referred to an issue arising in May 2019 in relation to a “quick quote” tool on the respondent’s website. The appellant said that she had intended to discuss the issue with Mr Brown at the next weekly meeting, but Mr Brown raised it with her before the scheduled meeting. The appellant asserted that Mr Brown berated her and told her that he was the Managing Director, he had the say as to what happens in the organisation, and she had no decision-making powers.
The appellant referred to a further meeting on 16 July 2019, which was intended to take one hour but eventuated into two hours of difficult conversation, with Mr Brown aggressively firing questions at her, criticising her results and badgering her to get the response that he wanted. The appellant said that Mr Brown sent her an email after the meeting, indicating that they had started on the wrong foot in the meeting that day.
The appellant advised that, at a regular meeting on 16 August 2019, Mr Brown informed her that a Mr Andrew Wilson was to be employed from September 2019 in the role of an E‑Commerce Group Manager. The appellant said that this was the digital aspect of her role. She said that she felt victimised and felt she was being pushed aside from a role that was within her purview. The appellant stated that she told Mr Brown that she did not agree with the appointment and that if Mr Wilson was appointed, he should report to her. The appellant said that Mr Warren Elsworth, the Financial Director, agreed with her, but Mr Brown went ahead with the appointment and Mr Wilson was required to report directly to Mr Brown. The appellant stated that she felt threatened by Mr Wilson being appointed to that role.
The appellant described a contretemps between her and Mr Wilson in September 2019 in relation to log-ins and passwords, part of which was in the form of an email from Mr Wilson to the appellant in which Mr Wilson reportedly ordered the appellant to hand over the passwords and declared there would be no further discussion. The appellant said she found the email threatening and the miscommunications frustrating.
The appellant reported that she was then called to a meeting with Mr Brown and Mr Elsworth, in which Mr Brown berated her for being unco-operative with Mr Wilson and not providing Mr Wilson with access to the systems. The appellant asserted that Mr Elsworth commented that the email from Mr Wilson was rude and not consistent with the respondent’s values. The appellant said that Mr Brown persisted and told her that she had to find a way for her and Mr Wilson to work together.
The appellant advised that she was then required to have weekly meetings with Mr Wilson, and after several weeks, they managed to find the right balance and work together successfully.
The appellant spoke of difficulties with the respondent’s Operations Manager, which she raised with Mr Brown, but Mr Brown purportedly laughed and said that the Operations Manager’s bark was worse than his bite.
The appellant referred to having received an email from Mr Brown in relation to a bonus scheme, about which she had no knowledge. She said she sought assistance from Mr Elsworth in order to make submissions to qualify and found out that she had missed two earlier deadlines for bonuses because nobody had advised her about them. The appellant indicated that all the senior management bonuses were paid by 15 March 2020, except for hers.
The appellant said that on 25 March 2020, Mr Brown emailed both Mr Wilson and her, requesting them to restructure the marketing department, with a Head of Digital and Customer Interaction and a Head of Marketing and Promotions. The appellant considered this to be another attempt to break up her role and leave her with little to do. She remarked that digital marketing fell within marketing and Mr Wilson had no marketing background.
The appellant indicated that on 31 March 2021, the whole marketing team was advised that they would be stood down, except for Mr Wilson, because of the COVID-19 pandemic. The appellant said that she told Mr Brown that she thought failing to stand down Mr Wilson was a wrong decision and suggested that she continue to work two to three days per week. The appellant met with Mr Brown again on 1 April 2020, when she was told to stand down her team members and Mr Brown asked her if she could work from home one day a week. The appellant advised that Mr Brown told her that Mr Wilson was not stood down at that point. The appellant said that she received an email from Mr Brown directed to the whole staff advising that the marketing team was stood down, the appellant was to work from home one day per week and work on select projects only, while Mr Wilson would support the online marketing and the client service centre. The appellant said that the email was “unpleasant,” and she felt that Mr Wilson had been assigned her role.
The appellant advised that on 9 April 2020, she was locked out of all of the respondent’s systems because she had made an application for medical support due to her psychological health. The appellant referred to experiencing difficulty sleeping, significant physical ill health, tightness in her chest, heart palpitations, night terrors, cold sweats, and insomnia in the days leading up to the meetings with Mr Brown. She said she was under the care of her general practitioner and a psychologist and was certified as unfit for work.
Mr Steven Brown’s statement
Mr Steven Brown, the respondent’s Managing Director, made a statement dated 8 September 2020.[3] Mr Brown said that the appellant reported directly to him. He gave an overview of the appellant’s responsibilities in her role as the Marketing Manager and described the appellant’s performance as having done well in some aspects of the role, but said that other aspects required “serious discussion.” He said, however, that there was never the need to escalate those discussions to the level of a formal disciplinary process or the need to issue a formal warning, although there were issues in relation to her management style. Mr Brown attached an email dated 10 September 2020 in which her management style was reported in employment exit interviews, but acknowledged that some of the appellant’s team were difficult to manage. He described the appellant’s management style as controlling, with expectations of accountability without offering her staff support or guidance, which led to staff frustration and lack of productivity.
[3] Reply to Application to Resolve a Dispute (reply), pp 11–29.
Mr Brown advised that over 2019 and 2020, the appellant’s marketing team grew from four staff reporting to her to five, and additional marketing resources were allocated.
Mr Brown referred to the “Nurture” campaigns, which he said were introduced in 2017, but had not been implemented by October 2018. He said the appellant denied any knowledge of the campaign documents and denied any responsibility for them. Mr Brown said he found that to be “not credible”, as:
(a) the appellant had met with the marketing agency involved on a number of occasions;
(b) she had been present in internal meetings when they were discussed;
(c) she had been given hand-over notes by the former Marketing Manager which referred to the documents, and
(d) her staff had worked on collating those documents.
Mr Brown referred to a further meeting with the appellant in November 2018, in which she continued to deny any responsibility and rejected Mr Brown’s view that the campaigns were within her responsibilities. Mr Brown asserted that the meeting “remained a reasoned and professional discussion about an issue of some importance to the company.”[4]
[4] Reply, p 14, [15].
Mr Brown spoke of the appellant’s resistance to any support offered and her preference for being in control, which included actively failing to access support through a consultancy agreement which Mr Brown had arranged with the former Marketing Manager. Mr Brown confirmed that there were several members of staff who left the respondent’s employ, during which time the respondent provided support to the appellant, including the opportunity to access the consultancy arrangement with the former Marketing Manager.
Mr Brown referred to the “SEO” plan, which he said involved a discussion over a period of some ten months about a decline in the respondent’s “paid” and “organic” volume of sales leads. He said the respondent tried many different changes in order to improve the outcomes and he was very concerned about the situation because of the importance and value of those leads. Mr Brown said that, after a series of conversations with the appellant about this issue, he met with the appellant on 30 April 2019. He said the appellant had continued to deny that the SEO plan was her responsibility, and had asserted that the issue was therefore not her fault, when it was inherently part of her role. Mr Brown stated that her stance on this issue was not credible in the light of the appellant having made reference to the plan in an email written by her immediately after her recruitment interview on 29 May 2018 and had included reference to the plan in her business plan for the 2019 year. He described the meeting as a “difficult discussion” but maintained that it was a professional discussion about a matter of importance.
Mr Brown advised that, over time, it became apparent that the appellant was less expert in digital marketing than she had suggested in the interview process, so the respondent offered her the opportunity of external training and access to professional consultants. He said that the appellant did not pursue those opportunities and one of her categories, “organic,” continued to fail. Mr Brown said that this was a key part of the appellant’s role, yet she continued to eschew responsibility for it.
Mr Brown referred to the “quick quote” tool, which was to be built by contracted web designers and said that he and the appellant had a number of meetings about this tool, culminating in a discussion on 14 May 2019 because the timeline for completion had blown out. Mr Brown said that the appellant was working with the provider and, in his view, she was responsible to get the issue resolved. He said that the appellant had promised that it would be completed by 2 May 2019, yet she disagreed that it was her responsibility. Mr Brown denied that he had berated the appellant and that he had used words to the effect of saying to the appellant (or anyone else in the organisation) that he was the Managing Director and that he had the say in what happens within the organisation.
Mr Brown advised that he had monthly meetings with the appellant in which they would discuss the prioritising of her workload. He said that he encouraged her to focus on what she considered to be the priorities and promised her his support for her decisions in that regard. He conceded, however, that there were times when he did sideline some projects or re-set the priorities in order to balance the marketing workload. Mr Brown said that he found the job of supporting the appellant challenging because she wanted to do things her way.
Mr Brown spoke of the marketing review meeting in which it was intended to discuss various marketing matters with the appellant on 16 July 2019. Mr Brown indicated that the meeting became “consumed” with a discussion about the appellant’s relationships with her staff, workload management and the SEO program. Mr Brown asserted that the discussion was frank but respectful. Mr Brown denied that he was firing blunt accusations at her, and he was merely asking her questions about her role and responsibilities. He reviewed his calendar for that day and concluded that the meeting probably lasted more than an hour but less than two hours. He said that after the meeting, he realised that they had not had the opportunity to discuss other, positive, matters, so he sent her the email referred to by the appellant in her statement (discussed above at [17]).
Mr Brown referred to the recruitment of Mr Wilson, which he said was intended to provide support to the appellant in the area of digital marketing and to improve the sales process, which was not part of marketing. Mr Brown said that Mr Wilson was an expert in E‑Commerce, online sales and the supporting software. Mr Brown asserted that he had five meetings with the appellant and had written to her several times giving extensive reasons for the appointment, but the appellant apparently did not understand why he was being appointed, did not want to share her responsibilities and actively resisted the appointment. Mr Brown said that he sent the appellant the position description on 9 August 2019 and explained in that email and a subsequent email on 19 August 2019 how it would assist her. In his statement, Mr Brown provided detailed reasons about the benefits of the appointment.
Mr Brown referred to the email sent by Mr Wilson to the appellant on 10 September 2019, requesting access to Google Suite and Brightedge, a software solution. Mr Brown said that he had already asked the appellant to provide access and had given her reasons why Mr Wilson needed the access, but on 10 September 2019 asked her again, once again explaining the reasons to her, however, she actively blocked his access. Mr Brown reported that he had a meeting with appellant on 16 September 2019, who still denied Mr Wilson the access. He said that, on this occasion, he directed the appellant to give Mr Wilson the access. He described the meeting as a relatively short discussion, asserted that he was not aggressive in manner and said that the appellant complied with the directive that day, although she was not happy with it.
Mr Brown advised that, despite his efforts to get the appellant and Mr Wilson to work together, they had several clashes. He said that he took Mr Wilson to task about his attitude and reminded him to show respect to others.
Mr Brown referred to the appellant’s complaint about the Operations Manager. Mr Brown told of how the issue arose, which he said began as an exchange of words which left both parties frustrated. Mr Brown said he looked into the matter and decided that both parties were at fault, so he spoke with the appellant and directed the Operations Manager to apologise for his reaction.
Mr Brown spoke of the changes in the marketing area, which included the appointment of Mr Wilson, the outsourcing of some marketing aspects and the shifting of some of the responsibilities to two Business Managers. Mr Brown reported that the appellant was not happy about those changes, which resulted in difficult relationships between her and those people, a refusal on her part to share the responsibilities, and resistance from her in accepting support, all of which affected the running of the business.
Mr Brown spoke of the bonus system, details of which were attached to the appellant’s letter of appointment. Mr Brown said that the appellant did not submit a claim for the first bonus (for the first half of 2019). Mr Brown stated that the appellant was not excluded, and he attached a copy of an email dated 4 February 2020 relating to the bonus for the second half of 2019, which included the appellant. Mr Brown said that the senior staff who had submitted their claims on time all received their bonuses by 15 March 2020. He said that the appellant submitted her claim late and the key performance indicators and calculations were incorrect. Mr Brown stated that in those circumstances the appellant’s claim would normally have been excluded, but the respondent re-calculated her claim and paid her in May 2020.
Mr Brown reported that in September 2020, the respondent discovered discrepancies between the appellant’s calculation of lead source data and that of Google analytics to the extent that the appellant’s numbers were actually between 200% and 300% higher than the actual numbers. Mr Brown said that the respondent was investigating this issue.
Mr Brown referred to a re-structure of the respondent which involved the progressive transfer of a number of its services, including marketing, to a service centre in Manilla. He said the intention was to outsource all of the marketing support but retain two roles based in Australia. Mr Brown said that the outsourcing was never meant to undermine the appellant’s role and he continued to reassure the appellant that she was important to the business. He added that further discussion with the appellant about that plan was delayed because of the impact of the COVID-19 pandemic.
Mr Brown stated that he met with the appellant on 31 March 2020, when he told her that she, and the rest of her team, would be stood down. He said that the appellant raised with him an issue in relation to Mr Wilson continuing to work in the business role, the reasons for which he explained to her in an email dated 14 April 2020. Mr Brown explained Mr Wilson’s continuing role, which he said consisted of tasks that were not marketing tasks and were given to Mr Wilson because of his experience in logistics. Mr Brown added that the appellant could not have done either of those tasks and Mr Wilson had never been assigned to take over the appellant’s role, although there were some marketing tasks that had to be addressed during the appellant’s absence when she was stood down.
Mr Brown advised that it was the respondent’s policy to remove access to their systems to employees who would be absent from the workplace for an extended period, which was partly for the benefit of the employee’s welfare.
Mr Brown maintained that the appellant was difficult to manage because of her passive resistance to embrace what the respondent was trying to achieve if she did not agree with it, as well as her refusal to accept support. He said the respondent’s attempt to improve by investing in people, systems and processes was devalued by the appellant’s unwillingness to utilise those resources. He added that he received numerous emails from the appellant in which she thanked him for his support and leadership, the most recent of which was in March 2020. Mr Brown attached copies of such emails to his statement, as well as numerous other emails confirming the evidence given by him.
Mr Warren Elsworth’s statement
Mr Elsworth, the respondent’s Financial Director, provided a statement dated 8 September 2020.[5] He confirmed that the appellant was appointed to her role on 18 June 2018. He said that he and the appellant had limited interaction, but she did discuss some matters with him, such as a personality clash with the Human Resources Manager, issues related to her team, improvement of the team culture, and the appointment of Mr Wilson. Mr Elsworth pointed to the discussion he had with the appellant about the appellant’s desire to appoint an existing team member to an important role, which both he and Mr Brown considered was not in the respondent’s best interests. Mr Elsworth said that the appellant went ahead and appointed the team member in any event, who resigned shortly afterwards.
[5] Reply, pp 143–151.
Mr Elsworth said that he did not have any discussions with the appellant about her workload increasing or that she was experiencing bullying.
Mr Elsworth referred to the meeting with the appellant on 14 September 2019, which he believed had been convened because the appellant was continuing to resist the appointment of Mr Wilson. He said that the appellant had confided in him that she was concerned about Mr Wilson’s role. Mr Elsworth said that he advised the appellant to try to work with Mr Wilson. He said that it became clear to him that the appellant’s concerns related to the reporting lines and that she thought she should be Mr Wilson’s direct report. Mr Elsworth said that this led him to believe that her concerns were really a “power play”.
Mr Elsworth stated that, at the meeting, Mr Brown detailed the E-Commerce role, and how it was fundamentally different to the appellant’s marketing role. Mr Elsworth added that, at the end of the meeting, Mr Brown raised the appellant’s failure to provide Mr Wilson with log in access, but the appellant was unable to explain why she had failed to do so. Mr Elsworth stated that Mr Brown was direct in making it clear that the appellant was required to provide the access, but did not raise his voice or berate the appellant. Mr Elsworth observed that it was clear that the appellant was annoyed at Mr Brown’s direction.
Mr Elsworth said that the marketing leads were falling, and the respondent was frantically trying to improve that issue. He added that Mr Wilson was an expert in digital marketing, and the appellant had very little knowledge in that area and did not have the time to focus on that area. Mr Elsworth pointed out that Mr Wilson was an expert in those matters, but did not have the appellant’s creative marketing skills. He said the two roles were complementary to each other but fundamentally different. Mr Elsworth said that this was explained clearly to the appellant, who he felt was reading things into the proposal and would not listen. He denied having suggested to the appellant that Mr Wilson report to her.
Mr Elsworth spoke of the bonus scheme, which he said he discussed with the appellant and had assisted the appellant to understand and submit her application form. He said the appellant had missed the deadline and she was unable to demonstrate that she had reached the key performance indicator goals. He encouraged her to speak with Mr Brown about the application being late.
Mr Elsworth described the impact of the onset of the COVID-19 pandemic, the early assessments of which recorded a revenue drop of 53%. He said the respondent sought legal advice and decided that they would attempt to qualify for the JobKeeper allowances in order to avoid making staff redundant. He said that 109 staff were stood down, including the entire marketing team, which was a discretionary spend. Mr Elsworth reported that staff were then brought back to work on a systematic basis. He asserted that Mr Brown provided detailed and regular updates to the staff during this time. Mr Elsworth explained that Mr Wilson was not stood down because he was working on critical projects.
Mr Elsworth said that he was aware that the appellant had made comments about not being able to pay her mortgage if she was stood down. He commented that he was of the view that the appellant had in her mind that Mr Wilson was replacing her, which was confirmed by her being stood down but not Mr Wilson. Mr Elsworth said that the appellant could not be convinced otherwise.
Mr Elsworth stated that the appellant’s concerns were unfounded. He said that he liked the appellant and they got along well. He described her as enthusiastic and said that she was good at the marketing aspect of her job. He referred to benefits and privileges that had been afforded to the appellant, such as flexible working arrangements to accommodate child-care obligations and to attend to her candidacy for election in the local elections. Mr Elsworth described the appellant as determined, and said that, when challenged, she would become defensive, which was in his view what had occurred in relation to Mr Wilson’s employment. He considered that the appellant and Mr Wilson had a good working relationship.
The medical evidence
The Mona Vale Medical Centre
Dr Yu (Mack) Deng, general practitioner at the Mona Vale Medical Centre, recorded the appellant’s first attendance at that clinic on 20 April 2020.[6] The history recorded was as follows:
[6] ARD, pp 37–38.
“work cover case
bullying from boss - manage director,
he reasigned [sic] her role,
humiliated her,
boss is aggressive towards her,
not sleeping well - only 3 hours of sleeping,
heart pumping at night a lot,
nervous going to work,
scared of going to work,
sick of whole things at work,
having panic attacks - when going to work, esp prior to a scheduled meeting
shaking a lots [sic] as well,
keep picking her nail,
been like this for long time - basically since she started working there,
worse from last Sept when another person was brought in and replaced her role,
boss pushing her responsibility towards him
confidence gone
boss gave her no explanationspoke to solicitor already
not well enough going to workwould like to claim worker’s compensation
no suicidal thought
never had mental health issues”.
Dr Deng noted that the appellant was teary, appeared anxious, and had lost her distal nail but had no current suicidal thoughts. He diagnosed work-related anxiety, provided a SIRA certificate of capacity, and referred the appellant to a psychologist and psychiatrist.
The appellant attended again on 29 April 2020, on this occasion consulting Dr Raymond Zorn, general practitioner. No notes of the visit were recorded but a certificate of capacity was issued. At the same visit, the appellant received an influenza vaccination.[7] The appellant attended the same doctor at that practice on 27 May 2020 and 24 June 2020, although no clinical notes were recorded. On 1 July 2020, Dr Zorn noted that the appellant attended complaining of anxiety. Dr Zorn prepared a letter in respect of a mental health plan.[8]
[7] ARD, p 38.
[8] ARD, p 39.
On 20 July 2020, Dr Zorn recorded that the appellant was suffering from an upper respiratory tract infection. The appellant consulted him again on 22 July 2020 and 19 August 2020, with no clinical note recorded.[9] On 16 September 2020, Dr Lachlan McArthur, general practitioner, noted the reason for the visit was “workers compensation” and issued a certificate of capacity.[10]
[9] ARD, p 39.
[10] ARD, p 40.
The certificate of capacity issued by Dr Deng on 20 April 2020 recorded a diagnosis of anxiety and advised that the cause of the injury was “being bullied at work by managing director at work.”[11] A further certificate was issued by Dr Zorn on 29 April 2020[12] indicating that the appellant’s injury was caused by “bullying [and] victim[i]sation at work by Managing Director.” Further certificates issued by Dr Zorn on 27 May 2020[13] and 22 July 2020[14] and Dr McArthur on 16 September 2020[15] repeated the same cause of injury.
[11] ARD, pp 41–43.
[12] ARD, pp 53–55.
[13] ARD, pp 44–46.
[14] ARD, pp 47–49.
[15] ARD, pp 50–52.
The respondent relied upon a medical certificate provided by Dr Zorn dated 8 April 2020, certifying that the appellant was unfit for work from 8 April 2020 to 17 April 2020.[16] The certificate, which was not a SIRA certificate of capacity, did not disclose the reason for the appellant’s unfitness for work.
[16] Reply, p 223.
Dr Martin Allan, psychiatrist
Dr Martin Allan was asked by the appellant’s legal representatives to examine the appellant and provide an opinion in respect of her claim. Dr Allan was provided with a copy of the appellant’s statement and certificates of capacity issued between April and September 2020. Dr Allan provided a report dated 28 August 2020.[17] He took a history of the appellant’s difficulties which was consistent with the workplace difficulties described by her in her statement.
[17] ARD, pp 28–36.
Dr Allan noted that the appellant alleged a decline in her physical health over the course of 2019 and developed palpitations, sweating, feelings of anxiety, fear and dread, as well as a worsening of her symptoms in 2020 in the context of being stood down. Dr Allan said that the events in 2020, which included Mr Wilson not being stood down, culminated in the appellant being unfit to continue working. Dr Allan reviewed the appellant’s symptoms on presentation and assessed her mental state.
Dr Allan diagnosed the appellant as suffering from an adjustment disorder with depressed and anxious mood. He attributed the disorder to the “direct result of experiences with Mr Brown”[18] and considered that the experiences were the main contributing factor to the development of the condition.
[18] ARD, p 35.
Dr Allan was asked to provide a supplementary report, addressing further material, which included the general practitioner’s records and the statements of Mr Brown and Mr Elsworth. He provided a report in response dated 2 November 2020.[19] He advised:
“Having reviewed these documents, it is my opinion, that these statements generally confirm the events that occurred that were referred to in my initial report. I note that there are different perspectives about what had occurred but that the events seemed to be generally agreed upon.”[20]
[19] Appellant’s Application to Admit Late Documents (AALD) dated 19 November 2020, pp 1–3.
[20] Appellant’s AALD dated 19 November 2020, p 2.
Dr Allan concluded that the documents did not lead him to alter his opinion that the workplace events described in his earlier report were the main contributing factor to the appellant’s injury.
Dr Adam Martin, psychiatrist
The respondent arranged for the appellant to attend Dr Adam Martin, psychiatrist, for an assessment of her psychological condition. Dr Martin reported to the respondent on 13 November 2020.[21]
[21] Respondent’s AALD dated 3 December 2020, pp 1–9.
Dr Martin took a history of the appellant complaining of being “blind-sided” by the Managing Director, who was intimidating and had engaged in “hounding” behaviour. The appellant complained to Dr Martin that she was required to attend weekly, then fortnightly meetings which caused her anxiety, and the Managing Director would not support her when she made complaints about other employees. The appellant complained that the environment was very much a “boys’ club.” The appellant referred to the appointment of Mr Wilson in the role of E‑Commerce and she was shocked that half her role had been passed on to someone else. She advised that she was stood down, but Mr Wilson was not, which “broke her.” The appellant told Dr Martin that she had felt threatened every day for the past six months and was concerned for her job security. She indicated that she had to fight for her bonus, and did not receive the full amount of the bonus, despite having performed well and “delivered”.
Dr Martin took a history of the appellant’s symptoms and performed a mental state examination. He noted that the appellant complained of symptoms of depression and anxiety, which she alleged commenced in January 2019. He noted that she did not report them to a general practitioner until she was stood down. Dr Martin further noted that the appellant attributed her symptoms to being unfairly treated and intimidated by Mr Brown for over a year before she sought medical assistance. He was of the view that her presentation was consistent with her report of anxious symptoms as a result of industrial issues, as identified by Dr Allan.
Dr Martin observed that the main issue appeared to be that of causation and liability, noting that the appellant’s account centred around unfair treatment and bullying in the workplace, which was refuted by the respondent. Dr Martin pointed to the temporal association between the appellant’s attendance upon a general practitioner and her being stood down by the respondent.
Dr Martin agreed that the appellant suffered from an adjustment disorder with depressed and anxious mood. He considered that it was apparent that those symptoms were work related and that her employment was a substantial contributing factor to her psychological condition. He said it was less clear as to whether the symptoms were caused by the incidents reported by her or whether they were more closely associated with being stood down, and then terminated, while Mr Wilson remained in the employ of the respondent. Dr Martin considered that while the appellant was probably experiencing anxious symptoms in the period leading up to being stood down, her performance did not seem to have been impaired during that time.
Dr Martin concluded that the factors set out in s 11A of the 1987 Act were more relevant to the appellant’s symptoms and, in his view, the predominant cause of the appellant’s psychological condition was being stood down on 2 April 2020. Dr Martin declined to offer a view as to whether the respondent’s conduct was reasonable which, he said, was an industrial issue.
Other documentary evidence
The parties and the Member referred to an email from the appellant to Ms Susan Gilroy, the Human Relations Manager, dated 7 April 2020, which was in the following terms:
“Hi Susan
Just to advise I have an appointment with my GP in the morning so it is unlikely I will be up to work tomorrow. I have had a flare up of my throat and have been suffering stomach issues - I suspect it’s down to stress related issues but I have booked in to see my GP tomorrow at 0945.
I have found it really tough not having a role to play and this could be manifesting itself in more than a mental situation.
I hope you are all staying safe. I will revert following my GP appointment in the morning.”[22]
[22] Reply, p 204.
In a subsequent email dated 20 April 2020, the appellant again wrote to Ms Gilroy, saying:
“Hi Susan
I have today sought more medical assistance following legal advice as I feel victimised and humiliated which has resulted in me suffering panic attacks, anxiety, poor sleep and plain nervous system shock.
I would request no further contact whilst I seek the medical assistance available to me.”[23]
[23] Reply, p 205.
THE MEMBER’S REASONS
The Member identified that the claim brought by the appellant was for ongoing weekly payments of compensation in respect of an alleged psychological injury deemed to have occurred on 20 April 2020, which resulted from the appellant’s interactions with Mr Brown. The Member noted that the respondent indicated that the issues for determination fell within the ambit of “causation” and “Section 11A of the 1987 Act.”
The Member referred to the appellant’s statement dated 17 June 2020 and recorded substantial extracts from that statement. The Member also included numerous relevant extracts from Mr Brown’s statement and that of Mr Warren Elsworth, the Financial Director. The Member recorded the findings of an internal “Incident and Investigation Plan” dated 22 April 2020, conducted by the respondent.
The Member reviewed the clinical notes produced by the Mona Vale Medical Centre, which she noted recorded consultations attended by the appellant from 20 April 2020 to 16 September 2020. The Member provided a detailed summary of the reports provided by the qualified experts, Dr Allan and Dr Martin. She also provided an extensive summary of the parties’ submissions.
The Member noted the respondent’s concession that the appellant had suffered a psychological injury. She acknowledged that the onus of proving a defence under s 11A of the 1987 Act rested with the respondent.
The Member turned to the issue of causation, which she said required her to assess the veracity of the evidence provided by the appellant, Mr Brown and Mr Elsworth. The Member referred to the appellant’s submission that the appellant’s evidence should be accepted because the respondent had not sought to cross-examine the appellant. The Member concluded that the submission was without merit, given that cross-examination in the Commission was limited, and the statements provided by the three witnesses were sufficiently detailed to enable her to reach a conclusion about that evidence.
The Member formed the view that the appellant’s predominant complaints were in relation to various meetings, plans and activities, which matters were equally addressed with specificity by Mr Brown and Mr Elsworth. The Member commented that the respondent was a large company, and it was not surprising that detailed notes and records about the business operations were retained. The Member said that the overall picture led her to conclude that it was inevitable that meetings between Mr Brown, Mr Elsworth and an employee of such senior status as the appellant, would be “thorough, robust and forthright”.[24] The Member commented on the likelihood that a workplace such as that of the respondent would be such that it would be both challenging and rewarding and not all personnel would get along. The Member observed that the respondent had procedures in place to handle grievances and other employment related issues, which it appeared the appellant did not access.
[24] [2021] NSWPIC 3 (reasons), [42].
The Member said that, in the context of all of those matters, she had difficulty accepting that the behaviour of either Mr Brown or Mr Elsworth constituted “bullying.” The Member looked to the matters referred to in the Fair Work Act 2009 (Cth) as constituting “bullying” and the examples provided, noting that reasonable action taken by management in a reasonable manner did not constitute “bullying,” including directing and controlling the way in which the work is to be carried out.
The Member referred to the appellant’s complaint that she found some meetings “incredibly frustrating” and observed that this was likely to be an inherent part of a senior role in such an organisation. The Member referred to Mr Brown’s concession that at times he may have spoken to the appellant in a firm and direct manner, as the appellant bore the responsibility for the project. She further referred to Mr Brown’s denial of having said to the appellant that he was the managing director and had the say as to what happens, and his denial that he berated the appellant.
The Member described the evidence of Mr Elsworth as compelling, in particular his evidence that:
(a) he thought the appellant formed the view that Mr Wilson was replacing her, which view was confirmed in her mind by her being stood down, but not Mr Wilson, and the appellant could not be convinced otherwise;
(b) he liked the appellant, who was enthusiastic, good at the marketing aspects of her job and they got along well;
(c) the appellant was given privileges that other employees did not enjoy;
(d) the appellant was determined and had difficulty accepting contrary views expressed by him or Mr Brown, and
(e) Mr Brown held weekly meetings with the appellant, assisting her to be successful in her role.
The Member referred to the appellant’s allegation that her psychological injury was caused by her dealings with Mr Brown, which allegations were significantly expanded in her complaints to Dr Deng. The Member concluded that the expanded allegations made by the appellant were completely contrary to the evidence of both Mr Brown and Mr Elsworth, and for the reasons expressed by her, she did not accept those allegations. The Member observed that there was no evidence that it was intended that Mr Wilson was to replace the appellant, who was mainly employed to work in a different category of marketing to that of the appellant.
The Member said that while she accepted that there were times when the appellant experienced a greater workload during staffing changes, those periods were short-lived and, according to the appellant, replacement staff were appointed. The Member considered that, in the appellant’s senior role, it would be incumbent upon her to take on extra work in those circumstances. The Member rejected the appellant’s assertion that the appellant was bullied and subjected to unreasonable work demands, as those terms are described in the Fair Work Act.
The Member referred to the respondent’s submission that there was no evidence, such as medical treatment provided or access to the employee assistance program, that would indicate that those employment challenges were the cause of the appellant’s psychological condition. The Member commented that, if she were wrong in respect of her view of the allegations of bullying and the workload issues, it was significant that none of those matters, which the appellant relied upon as causative of her psychological injury, appeared to have any effect on the appellant’s health.
The Member considered that it was clear to her that the whole or predominant cause of the appellant’s condition was the respondent’s actions in standing the appellant down in order to avoid retrenching her. The Member added that it appeared that the fact that Mr Wilson was not stood down as well seemed to have also contributed to the appellant’s condition, but that was a matter entirely within the discretion of the respondent and not of relevance to the appellant. The Member referred to the respondent’s internal enquiry into the appellant’s claim and also to the appellant’s email to Ms Gilroy about “not having a role to play.” The Member further referred to the history provided to Dr Martin that the catalyst for the onset of symptoms was the appellant being stood down, but the respondent not standing down Mr Wilson.
The Member concluded that Dr Allan’s evidence carried little weight because his opinion was based upon the history provided to him by the appellant, and there was no reference to the matters she raised in any other evidence, including the appellant’s own detailed statement. Moreover, the history was not consistent with the evidence of Mr Brown and Mr Elsworth. The Member said that, in any event, those matters did not seem to have affected the appellant’s health until after the appellant was stood down, contrary to the opinions of Dr Deng and Dr Allan. The Member referred to Dr Allan’s supplementary report, in which Dr Allan was asked to review the evidence of Mr Brown and Mr Elsworth, but did not change his opinion and described the evidence as “different perspectives” of events. The Member considered that the different version of events was more than a matter of perspective. The Member referred to the evidence of Mr Brown and Mr Elsworth about the appellant’s dogged determination, dislike of being questioned, and her management style, which was both a benefit and detriment. The Member observed that none of those matters appeared to have impacted the appellant’s psychological well-being until after she was stood down. The Member considered that those matters were only relied upon by the appellant to support her claim after she was stood down. The Member reiterated that, even if the appellant had complaints about her workplace, which would not have been uncommon, those matters did not appear to have impacted the appellant’s functioning while she was performing her role.
The Member noted that, in her submissions, the appellant advised that she did not dispute that it was reasonable to stand her down because of the pandemic. The Member said that the question then became one of whether the employer’s action in standing her down was reasonable in accordance with s 11A of the 1987 Act. The Member noted the appellant’s submission that the actions referred to in s 11A were specific, and standing down the appellant did not fall within those matters. The Member rejected that submission.
The Member observed that s 11A referred to action that was taken, “or proposed to be taken”, by an employer “with respect to” retrenchment and/or the provision of employment benefits. The Member said that:
“What the employer clearly set out to do in an unprecedented situation was to try and avoid retrenchment to better assist not only the applicant but also the employer because of the availability of government benefits.
It is indeed arguable as the respondent submits, that those benefits could be construed as the ‘provision of employment benefits to workers’ again because of the unprecedented situation caused by the Coronavirus. The provision of Jobkeeper benefits in my view should be seen as the provision of employment benefits since the funds made available were distributed by and through the employer. Without such benefits, the applicant may well have received no income or limited income depending on her personal circumstances.”[25]
[25] Reasons, [76]–[77].
The Member concluded that she was of the view that s 11A of the 1987 Act was satisfied, in that the respondent’s actions fell within the ambit of retrenchment and the provision of employment benefits. The Member accepted the respondent’s submissions on this point and the authorities relied upon by the respondent in its submissions.
The Member noted that the appellant had made the concession that the respondent’s actions in standing her down were reasonable.
The Member determined that the whole or predominant cause of the appellant’s psychological injury was the respondent’s actions in standing the appellant down in order to avoid retrenchment, which was an action with respect to retrenchment and the provision of employment benefits within the meaning of s 11A of the 1987 Act. The Member further determined that respondent’s actions were reasonable, and thus no compensation was payable to the appellant.
The Certificate of Determination issued on 4 March 2021 records:
“The Commission determines:
1. Award for the respondent.”
GROUNDS OF APPEAL
The appellant brings fifteen grounds of appeal from the Member’s Certificate of Determination. The written submissions attached to the Application – Appeal Against Decision of Member (appeal) were deficient as they did not comply with the procedural requirements of s 352 of the 1998 Act, the Personal Injury Commission Rules 2021, and Procedural Direction WC3. A delegate of the President issued a Direction on 6 April 2021, directing the appellant to file amended submissions. Those amended submissions, which refer to matters that the appellant considers the Member “ought to” have done or “should have done” are poorly expressed but identify the following alleged errors in the Member’s Certificate of Determination:
(a) Ground One: error of law in failing to apply Cruceanu v Vix Technology (Aust) Ltd,[26] in that the Member considered that cross-examination was not necessary;
[26] [2020] NSWCA 203 (Cruceanu).
(b) Ground Two: error of law by applying the Fair Work Act, which constituted a jurisdictional error and led to error in determining that:
(i)the conduct of Mr Brown and Mr Elsworth could not be described as “bullying”, and
(ii)the appellant was not subjected to “unreasonable work demands”;
(c) Ground Three: error of fact in rejecting or placing little weight on the history recorded by Dr Deng on 20 April 2020, which was the appellant’s perception of events;
(d) Ground Four: error of fact in determining that there was no evidence that the appellant sought medical treatment, when the appellant attended her general practitioner on 20 April 2020;
(e) Ground Five: error of fact in finding that events as related by the appellant did not appear to have affected the appellant’s mental health;
(f) Ground Six: error of law by conflating the separate causal tests of “wholly” and “predominantly” within s 11A of the 1987 Act;
(g) Ground Seven: error of law in finding that the whole or predominant cause of the appellant’s psychological injury was the respondent’s action in standing the appellant down in order to avoid retrenchment;
(h) Ground Eight: error of law in failing to deal with the appellant’s submission that the cause of the appellant’s injury was not solely the respondent’s action in standing down the appellant and not Mr Wilson, but included the appellant’s feelings over the previous six months that her role was threatened;
(i) Ground Nine: error of discretion in affording the evidence of Dr Allan little weight;
(j) Ground Ten: error of law in misconstruing the statutory phrase “action” within s 11A of the 1987 Act to include “standing down”;
(k) Ground Eleven: error of law in misconstruing the statutory phrase “with respect to” within s 11A of the 1987 Act;
(l) Ground Twelve: error of law in failing to deal with the appellant’s submission that the appellant’s psychological injury was not wholly or predominantly caused by reasonable action by the respondent with respect to employment benefits (namely “JobKeeper”);
(m) Ground Thirteen: error of law in failing to deal with the appellant’s submission that the onus of proof in respect of s 11A of the 1987 Act rested with the respondent so that it was incumbent upon the respondent to adduce evidence about JobKeeper, of which there was none;
(n) Ground Fourteen: error of law by taking into account an irrelevant, speculative consideration, namely that the appellant may well have been left with little or no income, and
(o) Ground Fifteen: error of law in misconstruing the statutory phrase “action taken or proposed to be taken” within s 11A of the 1987 Act.
LEGISLATION
Section 11A of the 1987 Act relevantly provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
(3) A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
(4) This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
(5) (Repealed)
(6) This section does not extend the definition of injury in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
(7) ...
(8) … ”.
SUBMISSIONS
Ground One
The appellant’s submissions
The appellant asserts that the Member erred in determining that Cruceanu did not apply because cross-examination in the Commission is limited and considering that it was not necessary in this matter because of the nature and extent of the statements. The appellant submits that it is not clear what the Member meant by the “nature” of the statements.
The appellant submits that if the Member’s reference to “extent” was intended to mean that the statements were lengthy and/or comprehensive, then those matters were irrelevant to a consideration of the principle enunciated in Cruceanu, and thus it was not open to the Member to reject that principle.
The appellant says that if the Member considered that Cruceanu did not apply because the appellant’s evidence was not challenged, then that would be a different matter, but in this case the application of the “principle” was crucial because the Member observed that:
(a) the causation issue was dependent upon the veracity of the evidence of the appellant, Mr Brown and Mr Elsworth, and
(b) she did not accept the appellant’s comments because they conflicted with the evidence of Mr Brown and Mr Elsworth.
The appellant asserts that she was deprived of the opportunity to explain those perceived inconsistencies, which has led to a denial of procedural fairness. Additionally, the appellant asserts that the respondent made no adverse submission in relation to the appellant’s credibility, either in its initial written submissions, or in its submissions in reply. The appellant says that submissions had closed, and the Member proceeded to determine the veracity of the appellant’s evidence, without having provided the appellant the opportunity to address on that point.
The respondent’s submissions
The respondent concedes that the onus fell upon it to establish that s 11A of the 1987 Act was satisfied and points out that the appellant did not contend that the respondent’s actions with respect to standing down the appellant were other than reasonable. The respondent submits that it was also not disputed by the appellant that being stood down and the retention of Mr Wilson were major causative factors in the onset of her psychological injury. The respondent contends that this is clear from the account by the appellant to Dr Allan and Dr Martin. The respondent submits that the Member’s task was therefore to determine whether those actions, when proposed and taken, were of such significance that they were at least the predominant cause of the appellant’s psychological injury, if not the whole of the cause.
The respondent says that it submitted to the Member that the Member should be so satisfied on the basis of the appellant’s own account of the reasons for her psychological injury. The appellant refers to the terms of the email sent by the appellant to Ms Gilroy, just five days after she was stood down, in which the appellant stated that she found it “tough” not having a role to play and was consulting her doctor the following day. The respondent submits that the appellant did not produce any record of that consultation, although she later confirmed to Ms Gilroy that she had attended her general practitioner in relation to her anxiety and stress levels.
The respondent submits that it is evident from the Member’s reasons at [79]–[81] that the Member accepted the respondent’s submission that the appellant being stood down was the cause of her injury. The respondent adds that it is clear that the Member took into account the appellant’s assertion that other aspects of the appellant’s employment played a causal role.
The respondent asserts that the observations made by Basten JA in Cruceanu are not apposite. The respondent submits that his Honour’s observation that it behoved the respondent to cross-examine the appellant was not adopted by either of the appeal judges in the majority, who both indicated that they had considered Basten JA’s judgment.
The respondent refers to s 354(2) of the 1998 Act, in respect of the Commission not being bound by the rules of evidence and being entitled to inform itself on any matter it thinks appropriate in the proper consideration of the matter. The respondent contends that it is apparent that the Member informed herself in accordance with the section.
The respondent refers to the appellant’s statement, in which she reported that she was having difficulties sleeping and had been in poor health for eighteen months. The respondent submits that, despite the appellant consulting her general practitioner on 8 April 2020, after she had been stood down, she produced no contemporaneous evidence of a work related illness prior to being stood down. The respondent submits that the appellant herself attributed the cause of her symptoms to no longer having a role to play.
The respondent refers to the Court of Appeal decision in Aluminium Louvres and Ceilings Pty Ltd v Zheng,[27] and the observations by Bryson JA in respect of cross-examination in the Commission and the Member’s discretion to limit and or not allow it. The respondent submits that the Member was entitled and obliged to consider the extent to which matters that preceded the COVID-19 pandemic and the respondent’s action consequent upon the pandemic were causative of the appellant’s psychological injury. The respondent asserts that the Member’s findings in that regard were findings of fact which she was entitled to make and thus the appellant has failed to demonstrate error.
[27] [2006] NSWCA 34; 4 DDCR 358 (Zheng).
The respondent submits that the evidence of the appellant, Mr Brown and Mr Wilson was before the Commission, and the evidence of both Mr Brown and Mr Elsworth conflicted with that of the appellant. The respondent contends that the appellant made no submission that their evidence should be excluded on the basis that the appellant had not been cross-examined, and no application was made to cross-examine either Mr Brown or Mr Elsworth. The respondent maintains that, in the light of the conflict in the evidence, the Member was obliged to consider which evidence she preferred on the basis of the material before her.
The appellant’s submissions in reply
The appellant asserts that the respondent has only now, in this appeal, raised the submission that the evidence of Mr Elsworth and Mr Brown conflicts with that of the appellant. The appellant maintains that the respondent did not raise this issue before the Member and did not seek to impugn the appellant’s credibility. The appellant submits that, as a matter of procedural fairness, the respondent was required to put those matters to the appellant in order to give her the opportunity to explain any inconsistencies. The appellant asserts that the Member disbelieved the appellant in respect of some aspects of her evidence when the respondent had not put the appellant on notice that her credibility was in issue.
The appellant refers to Basten JA’s observation in Cruceanu that it was necessary to look at the “big picture” and ask whether the appellant had been given the opportunity to explain any inconsistency, which, the appellant submits, is fundamentally a matter of procedural fairness.
Ground Two
The appellant’s submissions
The appellant submits that the Member should not have found that she had difficulty in accepting the conduct of Mr Brown and Mr Elsworth constituted “bullying” or that the appellant was subjected to “unreasonable work demands.” The appellant contends that neither party asked the Member to make a finding as to whether the appellant had been bullied in her employment. The appellant says that the pleadings did not make an allegation of bullying, and simply referred to the treatment she received from Mr Brown and her experiences with him.
The appellant contends that, even if the Member had been asked to make such a finding, she did not have the power to do so. The appellant submits that there is no reference to “bullying” in either the 1987 Act or the 1998 Act. The appellant says that the Member undertook an unnecessary enquiry as to whether the appellant had been bullied at work and did not have jurisdiction to embark on such an enquiry, thus it was ultra vires of her power, amounting to jurisdictional error. The appellant expressed concern that the Member’s venture into the Fair Work Act may have affected her reasoning process in her determinations that followed.
The respondent’s submissions
The respondent concedes that the appellant’s pleadings did not allege that she had been bullied but submits that the pleadings did assert that the cause of the injury was the treatment she received over the course of her employment with Mr Brown. The respondent points out that the appellant relied upon the evidence of Dr Deng who recorded the word “bullying” in his clinical note dated 20 April 2020, which was eighteen days after the appellant was stood down. The respondent submits that it is clear that where there is bullying in the workplace, it is more likely to cause psychological injury. The respondent asserts that, given that “bullying” was recorded by Dr Deng, it was appropriate for the Member to give consideration to the meaning of the word, in order to examine whether the appellant’s injury was caused by Mr Brown’s interaction with the appellant or whether the “loss of her role” was the cause.
The respondent contends that the Member’s reference to the Fair Work Act is of no concern, and it was appropriate that the Member look for a definition of the term, in circumstances where the term had been brought into play. The respondent refers to the definition contained in the Concise Oxford Dictionary, however, asserts that it was a more effective exercise to look for the meaning within an employment setting. The respondent says that it is unsustainable for the appellant to allege that the Member applied a statutory test from another jurisdiction.
The respondent submits that the inquiry into whether the appellant was actually bullied was very relevant. The respondent disputes that the Member made a “frolic into the Fair Work Act” and further disputes that the Member committed jurisdictional error.
The appellant’s submissions in reply
The appellant asserts that the Member’s reference to the Fair Work Act is “bizarre and indefensible”, and says that the Member was never asked to determine whether bullying had occurred. The appellant submits that the Member’s enquiry was odd, given that s 11A was the only issue between the parties. The appellant asserts that the Member misdirected herself as to her statutory task and for this reason alone, her decision should be revoked.
Ground Three
The appellant’s submissions
The appellant asserts that the Member “ought to have” accepted the history provided by the appellant to Dr Deng on 20 April 2020, in the light of that history being of the appellant’s perception of events. The appellant observes that the Member preferred the evidence of Mr Brown and Mr Elsworth, whose evidence was provided some four to five months afterwards. The appellant says that the Member did not have the opportunity to observe the appellant giving evidence or the opportunity to assess her demeanour.
The appellant submits that the Member ought to have afforded the appellant’s evidence more weight when it was given in the context of the confidential environment of a doctor/patient consultation. The appellant asserts that the Member was wrong, her finding on credit was unfair and was also wrong, and the Member failed to give sufficient reasons for failing to accept the appellant’s evidence.
The respondent’s submissions
The respondent indicates that it appears that the appellant alleges the Member made a fact finding error in determining that the cause of the appellant’s injury was the respondent’s proposed action in March 2020 and early June 2020 to stand down the appellant, when there was no evidence to support that finding. The respondent points to the email sent by the appellant to Ms Gilroy on 7 April 2020, in which the appellant attributed her symptoms to not having a role to play. The respondent submits that it is reasonable to infer that the appellant gave the same history to her general practitioner at the consultation the following day. The respondent submits that the appellant did not produce the evidence of that consultation with that general practitioner, and it was apparent from the clinical notes produced by the Mona Vale Medical Centre, that that practitioner was obviously not Dr Deng.
The respondent says that the appellant does not plead that she was bullied or humiliated. The respondent submits that the events of being stood down and then Mr Wilson not being stood down were, in the appellant’s words “shocking” to the appellant and “broke” her. The respondent says that those words are consistent with the language the appellant used in her description to Dr Martin. The respondent asserts that this evidence, together with the evidence of Mr Brown and Mr Wilson (neither of whom were cross-examined), was sufficient for the Member to conclude that the appellant was not bullied or humiliated, as asserted by Dr Deng. The respondent says, however, that Dr Deng may likely have used the term “humiliated” in reference to the appellant being stood down, and if so, he would have been correct.
The respondent asserts that the Member gave her reasons for preferring the evidence of Mr Brown and Mr Elsworth, and, to the extent that their evidence was in conflict with that of the appellant, was entitled to come to that conclusion.
The appellant’s submissions in reply
The appellant submits that the Member was not required to decide one version over another. The appellant asserts that the Member failed to consider the appellant’s version of events reported to her general practitioner, which was consistent with her genuinely held beliefs.
The appellant submits that the respondent did not raise the proposition that the appellant suffered from a delusionary disorder and imagined the events at work. The appellant says that the events occurred and she interpreted those events in a particular way. She submits that it was a matter of everyday experience that people have different perceptions of events and despite that the appellant may have “overinterpreted” the events, her injury was still compensable.
Ground Four
The appellant’s submissions
The appellant asserts that the Member ought not to have found that there was no evidence that the appellant sought medical treatment when the appellant attended Dr Deng on 20 April 2020. The appellant says that the Member’s conclusion that there was no medical evidence was wrong. The appellant refers to and quotes from the contents of the clinical note recorded by Dr Deng in relation to the appellant’s complaints made in that consultation. The appellant asserts that this evidence was critical.
The appellant submits that it is significant that Dr Deng noted that the appellant had “been like this for long time - basically since she started working there.” The appellant says that it was never put to the appellant that she lied to her general practitioner in that consultation about those matters or the duration of her symptoms.
The respondent’s submissions
The respondent submits that, contrary to the appellant’s submissions, the Member was correct to observe that there was no evidence of the appellant seeking medical treatment or accessing the employee assistance program. The respondent says it was obvious that the Member was appraised of the evidence showing that the appellant sought treatment on and from 20 April 2020 and that the Member conducted a detailed review of that evidence. The respondent asserts that it is equally obvious that the Member’s observation was a reference to the fact that the appellant did not seek any medical treatment, or that there was no evidence of the appellant seeking treatment, prior to being stood down. The respondent says that this was made abundantly clear by the Member referring to its submission that the appellant did not consult a practitioner in respect of psychological symptoms until after she was stood down.
The respondent contends that no error is disclosed in the Member’s reasoning and adds that the Member expressed the necessary caution in dealing with the Dr Deng’s record.
The appellant’s submissions in reply
The appellant maintains that the Member’s “bald finding of fact” was that there was no evidence of the appellant seeking medical treatment, which was wrong. The appellant says that she attended Dr Deng on 20 April 2020 and gave a history of mounting stress at work.
Ground Five
The appellant’s submissions
The appellant contends that the Member should have found that the events described by the appellant affected her psychological health. The appellant described the Member’s finding that none of the matters complained of appeared to have affected the appellant’s health as an “obscure” finding. The appellant submits that the finding is contrary to the appellant’s statement evidence, the clinical note of Dr Deng recorded on 20 April 2020, and the histories the appellant provided to Dr Allan and Dr Martin. The appellant submits that the respondent did not cross-examine the appellant about her version of events or on the history she provided to Dr Deng at that consultation.
The appellant says that if the finding had been that the appellant did not report her symptoms to a medical practitioner, then that would be a different matter. The appellant submits that it is well known that a person suffering from mental health issues may not always be aware of those issues when they commence, and it is common that mental health issues are not reported contemporaneously. The appellant submits that, in any event, it is not a requirement of law that there must be a contemporaneous record of a complaint to corroborate it and, further, the appellant’s mental health issues were cumulative.
The respondent’s submissions
The respondent disputes that the Member’s finding was “obscure.” The respondent submits that the Member noted the respondent’s submission, which she accepted, when she observed that:
“The interchanges were clearly robust, sometimes difficult and, at times, to use the applicant’s words, incredibly frustrating. There is no suggestion, however, that her employment challenges were causing the applicant any illness.”[28]
[28] Reasons, [30].
The respondent submits that the appellant may, or may not, have consulted a doctor before or after the consultation on 8 April 2020, however, there was no evidence adduced by the appellant to that effect and no evidence of her complaints made to the general practitioner on 8 April 2020. The respondent asserts that there was, therefore, no evidence before the Member to enable her to conclude that the appellant was suffering from psychological damage prior to being stood down. The respondent contends that it was up to the appellant to adduce evidence that she was psychologically affected, and that the interchanges between the appellant and Mr Brown were causative.
The respondent maintains that the Member was correct to conclude that none of the events prior to the appellant being stood down were causative.
The appellant’s submissions in reply
The appellant maintains that the Member’s finding that none of the prior events appeared to have affected the appellant’s health was inconsistent with the history provided by the appellant to her general practitioner and the appellant’s own statement evidence. The appellant contends that this evidence clearly indicated that the events at work did impact her health prior to her being stood down.
Ground Six
The appellant’s submissions
The appellant refers to the Member’s conclusion that the appellant’s psychological condition was wholly or predominantly caused by the respondent’s actions in standing the appellant down in order to avoid retrenchment. The appellant asserts that the Member conflated “wholly” and “predominantly,” which were two separate concepts. The appellant says that “wholly” means “completely” and “predominantly” means less than that.
The appellant submits that the Member was required to apply the statutory test set down in s 11A of the 1987 Act, that is, to consider firstly whether the injury was wholly caused by reasonable action taken or proposed to be taken by the respondent. The appellant submits that, if that proposition is answered in the affirmative, there is no need to consider whether it was predominantly caused by that reasonable action. The appellant says that it is only when the answer is “no” that the member is required to then look at whether the respondent’s reasonable actions were the cause of the psychological injury. The appellant submits that her submissions to the Member set out the proper path to take.
The appellant points to the Member’s subsequent finding that the action of failing to stand down Mr Wilson contributed to the appellant’s condition, which condition she had already determined was wholly or predominantly caused by the respondent’s action in standing down the appellant to avoid retrenchment. The appellant asserts that “the glass [was] perhaps already full.”[29] The appellant makes further submissions, in effect contending that the conclusion that the action was contributed to by Mr Wilson not being stood down was only available to the Member if standing down the appellant was the “predominant”, rather than the “whole” cause.
[29] Appellant’s amended submissions, [70].
The appellant contends that there cannot be more than one predominant cause. The appellant submits that the Member erred in finding that the failure to stand down Mr Wilson contributed to the appellant’s condition because she had already determined the predominant cause. The appellant says that, in any event, the finding was irrelevant because the Member’s finding was only that it “contributed” to the appellant’s condition, so that it did not rise to the level of being the predominant or whole cause.
The appellant asserts that the Member’s finding is also problematic because the failure to do something, such as to stand down an employee, is not an action, it is an inaction.
The respondent’s submissions
The respondent contends that, although the Member used the expression “the whole or predominant cause”, her finding was clear when she concluded that:
“no compensation is payable since the injury was caused by reasonable action proposed to be taken by the employer with respect to retrenchment and the provision of employment benefits.”[30]
[30] Reasons, [83].
The respondent refers to the Member’s reasons from [29]–[57], and submits that the Member’s conclusions at [58] and [59], which were based on those reasons, made it clear that the Member was of the view that only those matters relating to the appellant being stood down were causative.
The respondent observes that the appellant does not refer to the Presidential authority of Smith v Roads and Traffic Authority of NSW,[31] but submits that, if that authority is relied upon by the appellant, the observations by Snell ADP (as he then was), were not determinative of the case. The respondent contends that it is open to a Presidential member determining this appeal to consider whether, in circumstances where a Member determines that one of the actions within s 11A(1) is the whole cause of the psychological injury, the Member falls into error by then alternatively determining that if it is not the whole cause, it is the predominant cause, and that error is of the essence.
[31] [2008] NSWWCCPD 130 (Smith).
The respondent submits that the decision in Smith, which was followed in Allen v Department of Community Services,[32] is authority to say that a finding by a tribunal of fact that particular actions were the whole or predominant cause of the psychological injury is simply a finding that the actions were either the whole, or in the alternative the predominant, cause of the injury.
[32] [2010] NSWWCCPD 78 (Allen).
Ground Three
Ground Three asserts that the Member fell into error by failing to accept the history provided by the appellant to Dr Deng. The appellant submits that the history as recorded was of the appellant’s “perception of events”. Presumably, that assertion is reliant upon the authorities of Federal Broom Co Pty Ltd v Semlitch,[59] State Transit Authority of New South Wales v Chemler,[60] and Attorney General’s Department v K.[61] Those cases are authority to say that if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established and it does not matter that the events affected the worker’s psyche as a result of a flawed perception because of a disordered mind.
[59] [1964] HCA 34; 110 CLR 626.
[60] [2007] NSWCA 249; 5 DDCR 286.
[61] [2010] NSWWCCPD 76.
This was not a submission made to the Member. In any event, in this case, there was no evidence that the appellant was suffering from a disordered mind or had a “vulnerable personality”. There was no evidence of the appellant complaining of the manner in which the interactions with Mr Brown were conducted, either to the respondent or to a health care provider, at the time of those events occurring. The Member did not reject the notion that the appellant was psychologically injured by those interactions on the basis that the appellant’s reaction to those events was unreasonable or unrealistic. She rejected the opinion of Dr Deng that the events were causative of injury because his unexplained opinion was based on the history that the appellant was subjected to bullying behaviour and her symptoms manifested during that time. The Member did not accept that history, including the history that the psychological symptoms manifested during the previous six month period, which was not supported by any other objective evidence. Thus, whether there was or was not a misperception on the part of the appellant, the Member determined that the acceptable evidence did not support the notion that the events caused the appellant’s psychological injury. This was a factual determination, and the principles discussed in Raulston apply.
The appellant’s assertion is that the Member erred by failing to accept that the interactions with Mr Brown and others were causative of the injury because the complaint made to Dr Deng was her “misperception” of those events. I do not accept that the Member erred as asserted. This ground of appeal fails.
Ground Four
The appellant alleges that the Member erred in fact in determining that there was no evidence that the appellant sought treatment, when the appellant attended Dr Deng on 20 April 2020.
The Member’s reasons must be read as a whole.[62] The Member’s observation was couched in the following process of reasoning:
“In summary then, I do not accept that the applicant was bullied by Mr Brown as she claimed, nor was she subjected to any unreasonable work demands.
Of greater significance in my view, as the respondent points out, is that ‘there is no suggestion that her employment challenges were causing the applicant any illness.’ There is no evidence of the applicant seeking any medical treatment, or availing herself of the employer’s assistance programme.
The point being, even if I am wrong about the ‘bullying’ allegations, let alone workload issues and other matters to which I have referred, none of these appear to have affected the applicant’s health.”[63]
[62] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430.
[63] Reasons, [57]–[59].
In that context, it is abundantly clear that the Member’s observation that there was no evidence of the appellant seeking such treatment was referrable to treatment being sought in the period prior to the appellant being stood down.
The appellant submits that it was never put to the appellant that she lied to Dr Deng. I have discussed the status of evidence in the Commission that is not the subject of cross-examination in Ground One. The fact that the veracity of the appellant’s complaints to Dr Deng was not challenged through cross-examination is immaterial to a consideration of whether the Member erred as described.
The Member was undoubtedly correct to say that there was no evidence before her that the appellant sought treatment from a health provider prior to being stood down. The error described by the appellant is not made out and this ground of appeal fails.
Ground Five
The appellant asserts that the Member erred in fact in finding that the events as related by the appellant did not appear to have affected the appellant’s mental health. The appellant points to her own statement evidence, the evidence contained in Dr Deng’s clinical note and the histories provided by the appellant to Dr Allan and Dr Martin.
The appellant considers that there is some difference between there being an absence of complaints to a medical provider and the absence of evidence of such complaints. In the circumstances of this case, there was an absence of evidence that the appellant sought treatment for her psychological condition before she was stood down. The Member’s enquiry was directed at ascertaining whether there was some medical evidence to support the appellant’s contention that she experienced symptoms during that period that was consistent with insults to her psyche sufficient to corroborate that those events were causative, and to what degree, of her psychological injury. This was a necessary enquiry in the light of the fact that the Member was required to determine, on the basis of the evidence available to her, what events were either partly or wholly causative of the injury.
The Member took into account that the appellant appeared to be successfully working up until the point of being stood down, that the appellant attended a doctor on 8 April 2020, but no evidence was adduced in respect of the complaints made, and that the appellant did not avail herself of the employee assistance program or other counselling services. All of those matters pointed to the absence of any contemporaneous evidence that supported the appellant’s ex post facto complaints. There was no objective evidence to support the appellant’s case on causation, which lay in the context of the contest between Dr Martin’s medical opinion against that of Dr Allan.
Once again, the Member’s determination was a factual determination and the principles discussed in Raulston apply. On the evidence before her, the Member’s finding was open to her and thus no error is disclosed.
It follows that this ground of appeal fails.
Ground Six
The appellant asserts that the Member erred in law by conflating the terms “wholly” and “predominantly” used in s 11A of the 1987 Act, which, she says, are two different concepts. The appellant submits that the Member erred in finding that the failure to stand down Mr Wilson contributed to the appellant’s condition because she had already determined the predominant cause.
The Member provided reasons as to why she considered that the workplace events which occurred prior to the appellant being stood down had no “real impact” on the appellant or her functioning.[64] The Member proceeded to consider the effect of the appellant being stood down. At [61], the Member said:
“What is clear to me on all the evidence is that the whole or predominant cause of the applicant’s psychological condition was the respondent’s actions in standing her down to avoid retrenchment. I add that it seems clear also that the failure to stand down Mr Wilson at the same time contributed to her condition.”
[64] Reasons, [55]–[58]; [66]–[68].
The Member then provided a review of the evidence that supported that conclusion, her reasons for placing little weight on the evidence of Dr Allan, and an analysis of whether the actions related to standing down the appellant fell within s 11A(1) of the 1987 Act.
There is some confusion in the submissions made on appeal as to whether the decisions in Smith and in Allen were correctly decided. On a careful reading of the submissions, it appears that both parties are of the view that those decisions are not detrimental to their case.
Deputy President O’Grady in Allen succinctly summarised Snell ADP’s observations in Smith at [62] as:
“In that matter the Arbitrator made a finding that the subject injury was ‘wholly’ or ‘predominantly’ caused by action taken by the Respondent employer. As was stated by Snell ADP in that matter, the concepts ‘wholly’ and ‘predominantly’ are different concepts and if such findings were to be made ‘it needed to be one or the other’.”[65]
[65] Allen, [87].
In Allen, the Arbitrator was found to be in error by finding that the injury was “wholly and “predominantly” (my emphasis) caused by the reasonable actions of the employer, which was not consistent with the language of the section. I cannot see that there is any issue that the observations of Snell ADP in Smith are correct, and in my view, Allen takes this matter no further.
It is trite law that a condition, especially a psychological condition, can have multiple causes.[66] In Doyle[67] Fitzgerald JA (Mason P agreeing) said that:
“... the whole or predominant cause of [the worker’s] psychological injury within the meaning of subs 11A(1) is a question of fact and degree, which involves consideration of all the factors which produced [the worker’s] condition.”
[66] ACQ Pty Ltd v Cook [2009] HCA 28, [25].
[67] Doyle, [8].
As Phillips P observed in Canterbury Bankstown Council v Gazi:[68]
“The Court of Appeal in Heggie was dealing with the category of ‘discipline’ in s 11A of the 1987 Act and was of the view that a broad approach should be taken to ‘action with respect to discipline’. While the decision in Heggie is factually distinct from Doyle and the present case, it remains relevant to the proper approach to be taken to determining s 11A(1) of the 1987 Act. There is no warrant to depart from the approach taken in Heggie with respect to the category of ‘transfer’ or the other categories in s 11A. As was said by the majority in Doyle, it is a ‘question of fact and degree’ as to whether the relevant category was the whole or predominant cause of a worker’s psychological injury within the meaning of s 11A(1).
Therefore, the Arbitrator was required to consider all of the relevant actions or proposed actions taken by the employer with respect to transfer in determining whether those actions were the whole or predominant cause of the psychological injury.”
[68] [2019] NSWWCCPD 14 (Gazi), [175]–[176].
In BB v Secretary, Department of Education,[69] Snell DP observed that it was necessary for the Arbitrator to “identify whether the finding was one based on ‘wholly’ or ‘predominantly’”, which he did not do.[70] Snell DP, further observed that, in accordance with Phillips P’s decision in Gazi:
“it was necessary, consistent with the passage of Gazi … that the Arbitrator engage in an ‘analysis of the facts as found to be causative of the injury against the relevant actions in determining the question under s 11A of the 1987 Act.’ This was required to support a finding of ‘predominantly’ …”.[71]
[69] [2020] NSWWCCPD 27 (BB).
[70] BB, [110].
[71] BB, [110].
I accept the appellant’s submissions that “wholly” is a different concept to “predominantly.” It is necessary, however, to consider the context in which the Member used the phrase “wholly or predominantly” when considering the cause of the appellant’s injury.
The Member extensively reviewed the evidence pertaining to the appellant’s allegation that her interactions with Mr Brown were causative of her injury. She concluded that:
(a) none of the matters raised which occurred prior to 31 March 2020 appeared to have affected the appellant’s health;
(b) it was clear that the whole or predominant cause of the injury was the respondent’s actions in standing the appellant down;
(c) the failure to stand down Mr Wilson also contributed to the appellant’s condition, and
(d) the appellant’s complaints about the workplace did not have a real impact on the appellant’s functioning at work.
Thus the Member engaged in an analysis of the alleged causative factors as she was required to do. The Member’s reasoning process exposes her conclusion that on the evidence before her, it appeared that the events prior to 31 March 2020 had little impact on the appellant’s psychological health and the events involving the respondent standing down the appellant were either the whole cause, or at least the predominant cause of the injury. The Member’s ultimate determination that the “whole or predominant cause of the applicant’s condition was the respondent’s actions in standing her down” should be read in the context of her reasons. That the relevant events were at least the predominant cause of the injury was sufficient to deny the appellant compensation.
The appellant submits that there cannot be more than one predominant cause. The cause can be multifactorial, and a predominant cause can consist of numerous events under the umbrella of one of the actions described in s 11A(1) of the 1987 Act, in this case standing the appellant down in order to qualify for JobKeeper payments, which included not standing down Mr Wilson.
The approaches taken by the primary decision makers in Smith, Allen, Gazi and BB were not the same as the approach taken by the Member in this case. The Member in this case weighed all of the factors alleged to be causative of the injury and determined some of the events, which were matters that fell outside the parameters of the actions identified in s 11A, had “little”, or no “real” impact upon the appellant’s psychological well-being. The Member identified the impact of the respondent’s actions in standing the appellant down and, on the basis of the evidence, determined that those events had a significant psychological impact on the appellant’s well-being and thus were the whole, or at least the predominant, cause of the injury.
In an ideal world, the Member may have expressed her finding more exactly, however as Kirby J observed in Roncevich v Repatriation Commission,[72] “[t]he focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties.” It is not an error to omit to clearly state a finding that is readily apparent on a fair reading of the decision-maker’s decision.[73]
[72] [2005] HCA 40; 222 CLR 115, [64].
[73] Polglaze v Veterinary Practitioners Board (NSW) [2009] NSWSC 347, [56].
The Member adequately set out her reasons for her decision and the decision must be read as a whole. I do not accept that, in this case, the Member conflated the two concepts of “wholly” or “predominantly.”
The ground of appeal is not made out and fails.
Ground Seven
The appellant alleges error of law on the part of the Member in finding that the whole or predominant cause of the appellant’s psychological injury was the respondent’s action in standing the appellant down in order to avoid retrenchment. The appellant asserts that the Member did not point to any evidence that supported her conclusion, and there was no such evidence.
The Member included in her reasons a detailed summary of the evidence before her. In assessing the cause of the appellant’s injury, the Member firstly reviewed the evidence provided by Dr Allan in his initial report and the short supplementary report. She noted that some of the complaints made to Dr Allan did not appear in any other evidence, including in the appellant’s statement, and were inconsistent with the evidence of Mr Brown and Mr Elsworth. The Member discussed and rejected Dr Allan’s opinion expressed in his supplementary report. The Member also reviewed the evidence from Dr Martin and quoted the following passage from his report.
“I think it can be said that employment was a substantial contributing factor to her psychological condition. I think it is less certain whether her anxiety can be said to have been caused by the events raised or is more closely related to her being stood down (and subsequently terminated) when another worker, Andrew Wilson, was kept on.
I think it is probable that she was experiencing anxious symptoms in the time leading up to being stood down but there is no sense that she was significantly impaired in terms of performance in the time leading up to April 2020, and subsequent complaints of anxiety have been after this time, and on balance, I am inclined to the opinion that s 11A factors are more relevant to her distress. That is, in my view, it is more likely that the predominant cause of the psychological condition is the standing down of the worker on 2 April 2020 …”.[74]
[74] Dr Martin’s report, AALD dated 3 December 2020, p 6.
The above passage is clear medical evidence that the predominant cause of the appellant’s injury was the appellant being stood down on 2 April 2020. The Member also took into account the emails passing from the appellant to Ms Gilroy in respect of the effect on the appellant of being stood down and the lack of acceptable medical evidence to support another work-related cause for the injury. These were sufficient reasons in support of the Member’s conclusion.
The appellant has not identified error on the part of the Member and this ground fails.
Ground Eight
Ground Eight of the appeal asserts error on the part of the Member by failing to deal with a submission made by the appellant. The appellant submits that the Member “ought to have found” that the appellant’s experiences over the six months prior to the appellant being stood down were additionally causative of the injury. The appellant says that the Member relied on only a select part of Dr Martin’s evidence.
The Member summarised the submissions of the parties and also advised that she had given consideration to those submissions. The Member analysed the factual evidence in relation to the events prior to 31 March 2020 before looking to the medical evidence that may have supported the allegation that those events were causative of the appellant’s psychological injury.[75] The Member observed:
“It is this aspect of the evidence that the applicant principally relies upon in her submissions, that is, that throughout her employment she was subjected to behaviour that, taken over that period, caused her to sustain a psychological injury.”[76]
[75] Reasons, [52]–[59].
[76] Reasons, [60].
This was a clear reference to the appellant’s submissions and the Member’s discussion of the evidence both before and after that observation at [61]–[68] of her reasons discloses that the Member gave due consideration to the appellant’s submission.
The appellant asserts that the Member relied only on a select part of Dr Martin’s evidence. The Member referred to the appellant’s submission made in relation to this aspect of the evidence[77] and, in the context of noting the respondent’s submissions, summarised that submission as saying that:
“It was the applicant who identified the respondent’s action in standing her down and not standing down Andrew Wilson as the action which ‘broke’ her. [Account to Dr Martin, cited in the respondent's submissions.]”[78]
[77] Reasons, [31].
[78] Reasons, [32].
In its submissions to the Member, the respondent submitted:
“Critically, Dr Martin has the following record of the applicant’s history to him:
‘She said that in October 2019, following a restructure and take over, that another person was introduced (interview) the role of e-commerce, identified as Andrew Wilson. She said that when she was stood down that this person was not stood down and she remarked ‘that broke me’.”[79] (respondent’s emphasis)
[79] Respondent’s submissions dated 21 January 2021, [15].
The appellant submits that when the entire sentence is read, it paints a different picture.
The complete extract reads as follows:
“She said that when she was stood down that this person was not stood down and she remarked ‘that broke me’ and said that over the previous six months that she had felt threatened every day in terms of job security and that she had been shocked to see half her role being passed to this other person.”
The Member did not assess this evidence alone as being evidence sufficient to support a finding of causation. The appellant’s description of being broken by being stood down was just one factor taken into account in measuring the impact of that action on the appellant. The Member looked to the appellant’s account to Ms Gilmore of the effect of that action as well as Dr Mason’s conclusions on causation. The history that the appellant felt “threatened” and “shocked” by other events was recorded by Dr Martin, who ultimately concluded that:
“I think it is probable that she was experiencing anxious symptoms in the time leading up to being stood down but there is no sense that she was significantly impaired in terms of performance in the time leading up to April 2020, and subsequent complaints of anxiety have been after this time, and on balance, I am inclined to the opinion that s 11A factors are more relevant to her distress. That is, in my view, it is more likely that the predominant cause of the psychological condition is the standing down of the worker on 2 April 2020 …”.[80]
[80] Dr Martin’s report, AALD dated 3 December 2020, p 6.
The Member was clearly cognisant of the appellant’s submission on this aspect of the evidence. In any event, it is difficult to see how the submission assists the appellant when Dr Martin had that history and formed his opinion that the appellant was not significantly impaired by the events preceding the appellant being stood down.
The Member clearly dealt with the essence of the appellant’s complaints. I do not accept that the Member failed to deal with the submission or that the manner in which the Member dealt with that evidence discloses error. This ground of appeal fails.
Ground Nine
The appellant asserts error on the part of the Member by affording little weight to the evidence of Dr Allan, which conclusion the appellant says was reached without a proper basis. The appellant points to the Member’s observation that Dr Allan did not take into account the evidence of Mr Brown and Mr Elsworth and describes it as illogical. The appellant says that, in any event, Dr Allan was subsequently provided with the statements. The appellant asserts that this error was attributable to the Member’s erroneous finding that there was no evidence that the appellant suffered from psychological symptoms before she was stood down. The appellant again refers to the appellant’s evidence about the onset of psychological symptoms prior to the events relating to being stood down as “unchallenged.”
As discussed in Grounds One, Three, Four and Five of this appeal, the Member did not err by determining that there was no evidence that the appellant suffered from psychological symptoms before she was stood down, and the appellant’s evidence was not “unchallenged.” The appellant’s assertions that those purported errors infected the Member’s determination on this issue is unsustainable.
The Member rejected the opinion of Dr Allan expressed in his first report because he formed that view without the benefit of the evidence which contradicted the history provided by the appellant. The Member made the following observations in respect of Dr Allan’s opinion:
“Dr Allan’s report carries little weight because he has clearly based his opinion on what the applicant told him, particularly about events prior to her being stood down. The matters she raised, as set out in his first report, such as Mr Brown’s challenging management style, his alleged comments such as ‘suck it up princess’ and the concept of a ‘boy’s club’ are not mentioned anywhere else, let alone in her detailed statement, and seem to me to be inconsistent with the evidence of Mr Brown and Mr Elsworth.
Moreover, as I said earlier, such matters do not appear to have affected the applicant’s health, contrary to her assertions to Dr Deng and Dr Allan, until she was stood down.
In his supplementary report, having been provided with the statements of Mr Steven Brown and Warren Elsworth, Dr Allan noted that there seemed to be agreement as regards the particular events but did not change his opinion, clearly regarding the dispute between the parties as ‘different perspectives about what had occurred’.”[81]
[81] Reasons, [63]–[65].
All of those matters were relevant to the Member’s ultimate determination to place little weight on the opinion of Dr Allan.
The Member’s finding in relation to the probative value of Dr Allan’s evidence was a finding of fact, thus the principles discussed in Raulston apply. As discussed above, it is well settled that the acceptance or rejection of evidence and the weight to be afforded to particular evidence is generally a matter that falls within the province of the primary decision maker.[82] Findings of fact will not normally be disturbed on appeal if they have rational support in the evidence.[83] The Member’s finding was rational and open to her and, for the reasons enunciated by her, was not in error. The appellant has pointed to no proper reason to disturb that finding and Ground Nine of the appeal fails.
[82] SZMDS; Rigby.
[83] Fox v Percy.
Grounds Ten and Eleven
Ground Ten of the appeal asserts that the Member misconstrued the word “action” within s 11A(1) to include “standing down”. Ground Eleven of the appeal complains that the Member erred in determining that the action of standing down the appellant was “with respect to” retrenchment. The appellant made the submission to the Member that being stood down was not an action with respect to retrenchment or the provision of employment benefits as prescribed by s 11A(1) of the 1987 Act. The Member rejected the submission, reasoning that:
“Section 11A clearly refers to action taken ‘or proposed to be taken’ by an employer ‘with respect to’ retrenchment and/or the provision of employment benefits. The action itself need not have taken place.
The term ‘proposed’ in my view must include any number of considerations or ‘proposals.’ In the present case, a proposal to consider alternate methods to avoid retrenchment is an action ‘with respect to’ retrenchment.
Put another way, if the respondent had indeed retrenched the applicant, it would undoubtedly have been regarded as an action with respect to retrenchment.
What the employer clearly set out to do in an unprecedented situation was to try and avoid retrenchment to better assist not only the applicant but also the employer because of the availability of government benefits.
It is indeed arguable as the respondent submits, that those benefits could be construed as the ‘provision of employment benefits to workers’ again because of the unprecedented situation caused by the Coronavirus. The provision of Jobkeeper benefits in my view should be seen as the provision of employment benefits since the funds made available were distributed by and through the employer. Without such benefits, the applicant may well have received no income or limited income depending on her personal circumstances.”[84]
[84] Reasons, [73]–[77].
The relevant words of the section are “… action taken or proposed to be taken … with respect to …”.
In Heggie,[85] Sackville AJA said that 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.” As Phillips P observed in Gazi (extracted at [244] above), there is no reason to depart from the approach taken in Heggie with respect to the other categories of actions within s 11A.
[85] Heggie, [59].
The Member determined that the provision of JobKeeper payments constituted the provision of employment benefits. The evidence of Mr Elsworth describes the reason that the appellant and her team were stood down, which was because marketing was a “discretionary spend” but was intended to enable the JobKeeper arrangements to be put in place. It is common knowledge that the JobKeeper scheme was implemented by the Australian Government to help support businesses and keep workers in employment during the COVID-19 crisis. That is, it was a benefit provided to employers which was passed on to their employees and was intrinsically linked to ensuring that the workers remained in employment. The benefit was not payable outside of an employment relationship and was not reward for work done. The scheme was of limited application. In my view, it cannot be argued that the JobKeeper payment did not constitute an employment benefit.
The appellant argues that the relevant “action” for the purpose of s 11A was standing down the appellant, which did not fall within an action specified in s 11A of the 1987 Act. In my view, such an approach is too narrow in compass and ignores the observations of Sackville AJA in Heggie and Phillips P in Gazi that a broad view should be taken of the expression “action … with respect to.” It should encompass the entire process of standing down the appellant and her team with a view to retaining their employment status and enabling the benefit to be passed on to its employees.
The appellant also submits that an action to avoid provision of employment benefits is not action with respect to the provision of employment benefits. The respondent did not propose or take action to avoid the provision of benefits. It did quite the opposite.
The appellant refers to the respondent’s evidence that the action taken to stand down its employees was taken in order to avoid redundancies. The appellant submits that there is no reference to “retrenchments” in the evidence and thus there was no basis upon which to apply s 11A of the 1987 Act.
The appellant submits that it follows that there was no basis upon which to consider the phrase “with respect to … retrenchment” and the words “retrenchment” and “redundancy” are different concepts, so that the Member was in error to consider that phrase. This submission was not a submission made to the Member and it is not appropriate to raise this new argument on appeal.
In any event, the Member was correct to determine that the defence pursuant to s 11A was made out because the relevant action was “with respect to” the provision of “employment benefits.” That determination is sufficient to disentitle the appellant to compensation. It is therefore not necessary to deal with the appellant’s argument that the relevant action was not with respect to the “retrenchment” of workers.
Grounds Ten and Eleven of the appeal fail.
Ground Twelve
The appellant submits that the Member did not acknowledge her submission that the appellant did not suffer a psychological condition as a result of being provided with JobKeeper payments, and that there was no evidence to support that notion. Further, the appellant asserts that the Member did not make a determination in relation to that submission, which amounts to an error of law.
I reject the appellant’s assertion. The Member referred to the appellant’s submission at [71]–[77] of her reasons. The Member reasoned that “action” incorporated not only actions taken but also proposed actions “with respect to” the matters identified in s 11A of the 1987 Act. Thus, the cause of the psychological injury suffered by the appellant was not of itself being paid the JobKeeper benefit, but those actions taken by the respondent in order to enable those payments to be passed on to the appellant. That is, actions “with respect to” the provision of that benefit.
The appellant has not established error on the part of the Member and this ground of appeal fails.
Ground Thirteen
The appellant asserts error on the part of the Member by failing to deal with her submission that it was incumbent upon the respondent to adduce evidence about JobKeeper. The appellant made the following submissions to the Member:
“It seems that JobKeeper is a payment provided by the Commonwealth to employers and not employees. The employer then pays wages to the employee. The payment of an employee’s wage cannot be a benefit to an employee.
As the onus to establish the defence under s 11A(1) lies with the Respondent, it behoved the Respondent to lead evidence regarding the mechanics of the JobKeeper system.”[86]
[86] Appellant’s submissions to the Member, 29 January 2021, [21]–[22].
The appellant does not identify what evidence is lacking in respect of the JobKeeper scheme. It is apparent from the evidence of Mr Elsworth and the appellant’s own experience with the scheme, that the appellant was stood down so that she could receive the scheme payments, thus retaining the appellant’s employment status and passing on the benefit to the appellant. In the COVID-19 climate, there would be very few Australians who would be unaware of those rudimentary aspects of the JobKeeper scheme.
I do not accept that the Member’s determination that it was an employment benefit was determined in a “vacuum.” Further, the nature of the JobKeeper payment was not that of a payment of wages. Those employees such as the appellant were stood down from their employment roles, with the appellant being asked to work just one day per week. Clearly the benefits passed on to those workers were not payments for work done and thus could not constitute a payment of wages.
This ground of appeal fails.
Ground Fourteen
The appellant alleges error on the part of the Member by taking into account an irrelevant consideration, namely by considering that the appellant may well have been left with little or no income. It is abundantly clear that an alternative action taken by the respondent may have left the appellant with little, less or no income. It was therefore a very relevant matter for the Member to take into account when assessing whether the provision of JobKeeper payments was a “benefit” within the meaning of s 11A(1) of the 1987 Act.
The appellant’s allegation of error is rejected, and this ground of appeal fails.
Ground Fifteen
The appellant asserts that the Member erred in law by misconstruing the phrase “action taken or proposed to be taken.” The appellant submits that the Member had no need to ask herself questions about proposed action because the respondent relied upon actions which had actually occurred.
The Member’s consideration of the phrase “action taken or proposed to be taken” is set out in her reasons at [73]–[77]. It is clear that the Member contemplated that the action of retrenching the appellant had not taken place, but that the actions that had taken place still fell within the section because those actions were “with respect to” retrenchment, as well as the provision of employment benefits. This reasoning process is consistent with the observations of Sackville AJA in Heggie that the disciplinary action included the preliminary action of standing down the worker while investigating the complaints. In this case the proposed action was to avoid retrenchment (or redundancies) and to provide the appellant with employment benefits, neither of which actions had occurred when the appellant suffered her psychological injury.
The respondent clarified its position in its submissions to the Member in reply to the appellant’s submissions. The respondent submitted that:
“the conclusion ought be that the whole or predominant cause was the respondent’s actions in standing down the applicant to avoid retrenchment, an action with respect to retrenchment and also an action with respect to the provision of employment benefits.”[87]
[87] Respondent’s submissions dated 4 February 2021, [14].
I do not accept that the Member misconstrued the phrase. This ground of appeal fails.
CONCLUSION
The appellant has failed to establish error of either fact, law or discretion on the part of the Member and the appeal fails. The Member’s Certificate of Determination is confirmed.
DECISION
The Member’s Certificate of Determination dated 4 March 2021 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
7 December 2021
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