Ahamparam v State of New South Wales (Concord Hospital)
[2022] NSWPIC 360
•6 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Ahamparam v State of New South Wales (Concord Hospital) [2022] NSWPIC 360 |
| APPLICANT: | Thirunamam Ahamparam |
| RESPONDENT: | State of New South Wales (Concord Hospital) |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 6 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant claims weekly compensation payable under sections 36 and 37 of the Workers Compensation Act 1987 (1987 Act) and medical and related treatment expenses payable under section 60 of the 1987 Act resulting from psychological injury sustained in the course of his employment with the respondent; the respondent raised defence under section 11A(1) of the 1987 Act; the respondent argued the applicant had no entitlement to compensation as the injury he had sustained was wholly or predominantly caused by reasonable action taken by the respondent with respect to discipline; Held – the psychological injury the applicant sustained in the course of his employment with the respondent was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline; the applicant has an entitlement to weekly benefits payable under sections 36 and 37 of the 1987 Act; the applicant has an entitlement to medical and related treatment expenses payable under section 60 of the 1987 Act. |
| DETERMINATIONS MADE: | 1. The psychological injury the applicant sustained in the course of his employment with the respondent, with deemed date of injury of 17 August 2021, was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline. 2. It is not disputed the applicant has had no current capacity for work resulting from the psychological injury he sustained in the course of his employment with the respondent since 17 August 2021. The applicant’s pre-injury average weekly earnings are agreed at $1,330.60. The applicant has an entitlement to weekly compensation payable under s 36(1) of the Workers Compensation Act 1987 at the rate of $1,264.07 each week. The applicant has an entitlement to weekly compensation payable under s 37(1) of the Workers Compensation Act 1987 at the rate of $1,064.48 each week. The applicant’s entitlement to weekly compensation is subject to legislative adjustment. The respondent is to make payments of weekly compensation to the applicant in accordance with s 36(1) and s 37(1) of the Workers Compensation Act 1987 from 17 August 2021 to date and continuing. 3. It is not disputed the applicant has an entitlement to medical and related treatment expenses payable under s 60 of the Workers Compensation Act 1987 resulting from the psychological injury he sustained in the course of his employment with the respondent. The respondent is to pay the applicant’s medical and related treatment expenses in accordance with s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
At the time the applicant, Thirunamam Ahamparam (Mr Ahamparam) sustained injury the subject of these proceedings, he was employed by the respondent (State of New South Wales (Concord Hospital) (the Hospital)). Mr Ahamparam is a long-term employee of the Hospital, working as a porter/cleaner.
Mr Ahamparam alleges he sustained injury in the nature of primary psychological injury in the course of his employment with the Hospital with a deemed date of injury of 17 August 2021. The circumstances of his injury are described in the following general terms:
“The applicant is employed with the respondent as a porter cleaner hospital assistant. As a result of bullying and harassment by management, including intimidating language and conduct by management, lack of communication, lack of support and not being offered or provided with a support person, the applicant sustained psychiatric injury in the form of post-traumatic stress disorder and adjustment disorder with Anxiety and Depression. Further particulars regarding the bullying and harassment the applicant was subjected to are detailed in the applicant’s statement.”
Mr Ahamparam has not returned to work since 17 August 2021.
Mr Ahamparam claims:
(a) weekly compensation payable under s 36 and s 37 of the Workers Compensation Act 1987 (1987 Act) from 17 August 2021 to date and continuing, and
(b) medical and related treatment expenses payable under s 60 of the 1987 Act particularised in the sum of $1,955.76.
Mr Ahamparam’s pre-injury average weekly earnings (PIAWE) are agreed to be $1,330.60.
Mr Ahamparam’s claim for weekly compensation and medical and related treatment expenses is declined and notices dated 30 September 2021[1] and 22 December 2021[2] have been issued to the Mr Ahamparam in which he has been advised of the decision to decline his claim.
[1] Application to Resolve a Dispute (ARD) at page 14.
[2] Reply at page 6.
In essence, the Hospital relies on defence available under s 11A(1) of the 1987 Act in that the Hospital says Mr Ahamparam has no entitlement to compensation as the psychological injury he has sustained was wholly or predominately caused by reasonable action taken or proposed to be taken by or on behalf of the Hospital with respect to discipline.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) whether Mr Ahamparam’s primary psychological injury is wholly or predominantly caused by reasonable action taken or proposed to be taken by the Hospital with respect to discipline.
The parties agree that it is not disputed:
(a) Mr Ahamparam suffers a total incapacity for work from 17 August 2021 resulting from the psychological injury he sustained in the course of his employment with the Hospital;
(b) Mr Ahamparam’s PIAWE is $1,330.60, and
(c) Mr Ahamparam requires medical or related treatment resulting from the psychological injury he sustained in the course of his employment with the Hospital.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)
Mr Ahamparam’s claim for compensation came before me for teleconference on 26 April 2022. Ms Delaney appeared in the interests of Mr Ahamparam. Ms Shvaji appeared in the interests of the Hospital. Mr Ahamparam was present. Mr McCarroll, a representative of EML, was also present.
With Mr Ahamparam’s claim unresolved at teleconference, his claim came before me for conciliation conference/arbitration hearing on 20 May 2020. Mr McEnaney of counsel appeared for Mr Ahamparam instructed by Ms Delaney. Mr Combe of counsel appeared for the Hospital, instructed by Ms Magan. Mr Ahamparam was present, and he was assisted by an interpreter in the Tamil language, Ms Anandakrishnan.
Following my discussions with counsel I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents dated 11 May 2022 and attached documents lodged on behalf of Mr Ahamparam, and
(d) Application to Admit Late Documents dated 12 May 2022 and attached documents lodged on behalf of the Hospital.
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Evidence
A brief review of evidence follows.
Statements of Mr Ahamparam
Mr Ahamparam provided two statements. The first is dated 28 September 2021[3] and is unsigned and the second is dated 23 February 2022[4]. Mr Ahamparam explained that he commenced employment with the Hospital on 11 March 2002 and worked Monday to Friday between 6.30am and 3pm. He reported to Giovanni Ceniza and his manager is
Harleen Kaur.[3] Reply at page 20.
[4] ARD at page 1.
Mr Ahamparam canvassed his ward transfer to the Satellite Dialysis Ward in June 2021 without reported explanation by Mr Ceniza as to why his role was being changed after he had been working in the Cardiology Ward for 19 years. Mr Ahamparam said of Mr Ceniznza:
“I felt dismissed by him, especially after being such a long-term loyal employee.”
Mr Ahamparam said that following his move to the Satellite Dialysis Ward he was told by
Mr Ceninza that Ms Kaur would be moving him to the ICU ward. Mr Ahamparam canvassed his meeting with Ms Kaur after reporting difficulties with the PPE items he was required to wear during training in ICU and COVID. Mr Ahamparam reported difficulty breathing while wearing a mask as he suffers from asthma. Mr Ahamparam’s meeting with Ms Kaur was reportedly rather acrimonious and in addition to his raised concerns about his breathing while wearing a mask, Mr Ahamparam also raised his fears about contracting COVID as he also suffered from a “blood clot condition”. Mr Ahamparam said of that meeting with Ms Kaur:“I became very distressed throughout the meeting. I was visibly shaken up. I felt like Harleen was not treating me well and I was upset that she kept raising her voice.”
Mr Ahamparam also canvassed his meeting with Ms Kaur on 3 August 2021 and the subsequent issuing to him of a first and final warning letter dated 17 August 2022.
Mr Ahamparam explained that in July 2021 his son tested positive for COVID and as Mr Ahamparam was considered a close contact, he was required to take a COVID test and isolate. He said that following a further COVID test on 31 July 2021, which returned a negative result, Mr Ahamparam contacted his supervisor and asked if he could return to work. He was told “when the Manager calls me, I can come”.
Mr Ahamparam said on 2 August 2021 Ms Kaur “called me to come to work”. He was asked to attend work at 12.30pm that day. Mr Ahamparam said of his attendance on 2 August 2021:
“When I arrived at work, I was asked to work in the dialysis area. I had my temperature checked and then attended to my work. It was around this time that I heard staff discussing the requirement to have a COVID test every three (3) days. This was the first I heard of the requirement and I did not receive any formal notice of this from my supervisor or manager.”
Mr Ahamparam said of his attendance at work the following day and sequelae:
“On 3 August 2021 at around 6.00am, I attended work and attempted to have a COVID test however, the testing place within the hospital was closed. My temperature was checked, I was given a sticker and signed in, and I continued to work in the dialysis area. At around 11.00am that morning, I received a phone call from Giovanni. He advised that Harleen required me to come to her office. I was required to go there on the spot. I was not offered a support person.
I went to Harleen’s office and advised her that I was unable to take a covid test that morning. Harleen said words to the effect “Listen to me” and threatened that “If you do not have a swab, the police can fine you and put you in jail”. I started getting distressed and intimidated by her because she was raising her voice at me. She continued to shout and raise her voice at me and I started to get emotional. My eyes were tearing up and I was having trouble speaking. Harleen did not stop yelling or ask if I was okay.
After the meeting with Harleen, I immediately had a COVID test and provided proof to Harleen. She took a photo of the test result without asking my permission.
On or around 17 August 2021, I received a letter from my employer regarding my alleged failure to undergo a COVID test. When I received this letter, I became very emotional and teary. I was required to respond to the letter within fourteen (14) days but I was too overwhelmed and needed further time. My union representative requested an extension on my behalf and helped me respond to the letter.
I have been unable to return to any form of employment since 17 August 2021. I have been seeing my doctor about the workplace difficulties I have been having for a number of months. I am seeing a psychologist for treatment.”
Statement of Ms Kaur
Ms Kaur provided a statement dated 5 October 2021[5].
[5] Reply at page 30.
Relevant to her meeting with Mr Ahamparam following his training in ICU and COVID,
Ms Kaur recalled Mr Ahamparam raising with her his concerns about working in the COVID area due his medical conditions. She said in order to complete the standard risk assessment form she was required to ask him questions about his medical conditions and medications. She denied that at any time during the meeting she spoke with the claimant “in a manner that was not nice”. She said she was “very calm and very professional”.Relevant to her meeting on 3 August 2021 with Mr Ahamparam and sequelae, Ms Kaur explained that on 2 August 2021 she and Mr Ceniza telephoned Mr Ahamparam and told him he could return to work that day. Ms Kaur said:
“The claimant was instructed to get a COVID test before he started his shift on this date.
It was also explained to him as he lived in the Cumberland Council LGA that was recognised as an LGA of concern he was required to get tested every 3 days or every 72 hours as per the public health orders. The claimant acknowledged that he understood these directions and instructions.
It was later reported to me by the claimants Supervisor that he had asked the claimant at the start of his shift if he had done his test prior to starting work and he confirmed he had.
In accordance with the NSW Health Regulations each day as Manager I am required to collate all the names of staff who undertaken a COVID test and provide a report to senior management.
On the 3rd of August I recorded that the claimant had undergone testing on the 2nd August 2021. I later received an email from the executive asking me to confirm the testing day for the claimant. In response to this I called the claimant and asked him whether he had been tested the day before. He confirmed that he had and that he had received a negative result the same day. I asked the claimant to attend my office so that I could confirm with him his test results in writing as it is direction from senior management that we must obtain evidence from staff that they have been tested and confirm their test results if they live in an LGA of concern
The claimant came to my office on this day and showed me a negative test result for the 31st July 2021.
I asked the claimant to produce evidence of his test undertaken on the 2nd August 2021 which he was unable to do. When I reminded him that he had reported to me that he had done this test he stated that he told me had done it the day before yesterday.
It became evident that the claimant had not followed instructions to get tested before he commenced his shift on the 2nd August 2021 and mislead me and his Supervisor by reporting he had been tested when if in fact he hadn’t.
The claimant came and saw me after the swab and advised he had done the test. At this time, I told him that it was wrong that he had provided me with misleading and incorrect information and that there was a risk to the community that he could be fined. He apologised and then left.
I replied to the executive and informed her of what had occurred and that the claimant had given false and misleading information. The executive referred the matter to HR.
I was interviewed by HR and my understanding is that they issued the claimant with a letter. I am not privy to the details of this letter as the incident is managed by HR and is private and confidential.”
Relevant COVID-19 testing of Mr Ahamparam
In a text message, Mr Ahamparam was advised by Medlab Pathology that the COVID-19 test that he had undertaken on 31 July 2021 was negative[6].
[6] Reply at page 93.
A COVID-19 Surveillance Test Record confirmed that Mr Ahamparam undertook a
COVID-19 test on 3 August 2021[7].[7] Reply at page 94.
Memorandum
A memorandum from the General Manager of the Hospital [8] is reportedly dated 30 July 2021. In this memorandum, the General Manager refers to an earlier memorandum dated 19 July 2021 and relevantly wrote:
“In addition to the current process for Canterbury-Bankstown and Fairfield LGAs. effective immediately, staff who live in the Cumberland LGA will be required to have a mandatory COVID-19 surveillance swab every 72 who hours and provide evidence of thls test to their line manager. Evidence of testing can include sighting of an SMS on the staff member's phone or an email addressed to the staff member. These staff are permitted to continue to work while awaiting their test results unless they are symptomatic, considered a close or casual contact, or as otherwise advised by the Public Health Unit.
Testing can take place during a rostered shift or normal working hours. Staff who live in the affected LGAs should attend the CRGH COV\D-19 Clinic during the updated dedicated staff surveillance swabbing timeslots beginning Monday 2 August 2021, between 6.30am to 8.00am and 4.00pm and 5.00pm.”
[8] Reply at page 88.
Initial Review – Managing Misconduct Policy
An Initial Review – Managing Misconduct Policy relevant to Mr Ahamparam’s alleged misconduct is dated 13 August 2021[9]. The review was completed by Wilma Finlayson, Deputy Workforce Manager. The review noted by way of background that on 3 August 2021 Ms Kaur had notified Workforce that Mr Ahamparam had failed to comply with instructions to obtain a COVID test upon his return to work after a period of COVID isolation. There were two allegations of misconduct. The first being that Mr Ahamparam had failed to comply with a reasonable direction from his supervisor in that he did not undertake his COVID test as directed, and the second being that Mr Ahamparam “deliberately and falsely stated that he had completed his Covid test on three separate occasions when in fact he did not do so”.
[9] Reply at page
Relevant to determining “the credibility, nature and seriousness of the matter” Ms Finlayson wrote (and I note reference to Mr Ahamparam is in terms of Mr Thirunamam):
“Mr Thirunamam was notified on 30 July 2021 that he was required to be tested every 72 hours as he lives in one of the restricted LGAs (Cumberland). He was in isolation until 30 July 202 and his last swab taken was 28 July 2021. CRGH received approval for him to return to work on 2 August 2021 and that he was required to take a Covid test prior to recommencing work.
Upon arrival at work on 2 August 2021 he advised Mr Giovanni Ceniza, A/Supervisor, Corporate Services, GRGH, that he had complied with Mr Ceniza's instruction to be tested at the CRG testing site before commencing work. In the afternoon of 2 August 2021, Mr Ceniza informed Harleen Kaur, Manager, Corporate Services that
Mr Thirunamam had been tested.On the morning of 3 August 2021, Ms Kaur phoned Mr Thirunamam to confirm with him directly that he had been tested on 2 August 2021. He confirmed to Ms Kaur that he had been tested.
Later the same day, upon request by Ms Grace Scott, Director, Corporate Services,
Ms Kaur called Mr Thirunamam into her office so that she could view evidence of his test result. The test result was dated 31 July 2021, not 2 August 2021 as previously advised. Ms Kaur asked him why the test result stated 31 July 2021 when he had told her that he had been tested yesterday. He replied, saying, 'Oh, I said day before yesterday'. Ms Kaur pointed out that his claim would still be incorrect as it would mean the test had been conducted on 1 August 2021.He apologised and said that he was sorry and thought it had been the day before yesterday. She instructed him to get tested immediately and show her evidence upon his return, which he subsequently did.
Taking the above into consideration, the evidence substantiates that misconduct occurred as Mr Thirunamam was instructed by his supervisor to get tested before commencing work but failed to follow this instruction.
In addition he was afforded the opportunity to admit that he had not carried out the test on three occasions; initially by his supervisor, Mr Ceniza, upon arriving at work on 2 August 2021, then by Ms Kaur on 3 August over the phone, and then finally in person to Ms Kaur later that same day, but failed to, and by doing so, tried to cover up his non-compliance.”
Ms Finlayson concluded the evidence available to her showed Mr Ahamparam had failed to get tested as instructed by his supervisor. She said of Mr Ahamparam:
“His conduct presented a serious risk to the safety and welfare of patients and/or staff as it was possible that he could have been COVID-19 positive and he would not have been aware of his status without up-to-date tests. In the current pandemic situation, three can be no excuse for failure to follow direct instructions to comply.”
Ms Finlay considered there was sufficient evidence available to substantiate the allegations referred and recommended the issuing of a proposed first and final warning letter, which was approved that same day by the Workforce Manager.
Proposed first and final warning letter
Mr Ahamparam was issued with a proposed first and final warning letter on 17 August 2021[10]. The allegations of misconduct were noted:
“Allegation 1
It is alleged that on 2 August 2021 you failed to undertake a COVID test upon your arrival at work as directed by your supervisor.
Allegation 2
It is alleged that on 2 and 3 August 2021 you attempted to mislead your supervisor and manager in that you informed them when asked on at least three occasions that you had completed your test, when you had not done so.”
[10] ARD at page 25.
Mr Ahamparam was notified that following an initial review of the evidence available both allegations were substantiated, with the following factors relevantly considered:
“It was noted that upon completion of a period of isolation due to COVID, you were approved to return to work on 2 August 2021. Your supervisor, Mr Giovanni Ceniza, Supervisor, Corporate Services, CRGH instructed you to complete COVID testing at the CRGH testing site before commencing work.
Upon arrival at work on 2 August 2021 you advised Mr Ceniza, that you had complied with his instruction to be tested at the CRGH testing site before commencing work.
On the morning of 3 August 2021, Mr Harleen Kaur, Manager, Corporate Services telephoned you and again, you confirmed that you had been tested as instructed.
Later the same day, Ms Kaur called you into her office so that she could view evidence of your test result. Upon examination of your phone, the test result was confirmed as dated 31 July 2021, not 2 August as you had previously advised. Ms Kaur asked you why the test result stated 31 July 2021 when you had told her that you had been tested the previous day. You replied, saying ‘Oh I said the day before yesterday’. Ms Kaur pointed out to you that this claim would still be incorrect as it would mean the test had been conducted on 1 August 2021.
Taking the above into consideration, the evidence substantiates that misconduct occurred as:
·You were instructed to your supervisor to get COVID tested before commencing work and failed to follow this instruction.
·In addition you were afforded the opportunity to admit that you had not carried out the test on three occasions; initially by your supervisor, Mr Ceniza, upon arriving at work on 2 August 2021, then by Ms Kaur on 3 August over the phone, and then finally in person to Ms Kaur later that same day, but your failed to do so, and tried to cover up your non-compliance.
By failing to follow this important directive, and then attempting to cover-up your non-compliance, you potentially put yourself, staff and hospital patients at risk of contracting COVID.”
Mr Ahamparam’s response to proposed first and final warning letter
Mr Ahamparam responded to the proposed first and final warning letter in an undated letter[11]. He said in response to the allegations made against him:
“My response to Allegation 1
Upon arrival at work on 2 Aug, I was asked by my supervisor for Covid testing and
I responded that I have done day before yesterday ie 31 July and the 3-day period covers till 2 Aug 2021.My response to Allegation 2
I did not mislead my supervisor and as stated above my tests results of 31 July does cover until 2 Aug 2021. When asked if I got tested, I informed her of going for test immediately upon finishing an urgent task I was entrusted. Accordingly I did the test on 3 Aug at CRGH and test report attached to this letter.
With respect to misleading Ms Kaur with respect to date of testing, it is purely a communication gap. Ms Kaur asked me “what did you reply to your supervisor yesterday when he asked you regarding covid testing”. My response was ‘I got it done day before yesterday’ which was what I told the supervisor on 2 Aug. The day before yesterday from 2 Aug was 31 July and Ms Kaur inspected my phone to ensure I had test result on 31 July.
I have to state here the communication gap was due to the fact English is not my first language and may not be for Ms Kaur. The way the question was posed, I told her the exact answer I gave to my supervisor. It is unfortunate Ms Kaur understood it differently and considered I was misleading her on testing dates. Also, I was nervous and overwhelmed when called into her room and door closed for questioning. Ms Kaur was abrupt and communication was difficult with her attitude that I was trying to evade her questioning.
I have been CRGH employee for over 20 years and there has been no complaint of any nature of my work and/or adhering to hospital directives.”
[11] ARD at page 29.
Outcome letter
An outcome letter dated 17 September 2021[12]was forwarded to Mr Ahamparam by registered post in which he was advised that the Hospital considered “disciplinary action appropriate” and the letter served as a Formal Warning. In this letter Grace Scott, Director of Corporate and Clinical Support, advised Mr Ahamparam that after careful review of Mr Ahamparam’s response against the allegations and available information::
“You still failed to follow a direct instruction from your supervisor to get tested at the CRGH testing site prior to your return to work after a period of leave.”
[12] ARD at page 39.
Ms Scott further said:
“This was a clear instruction regardless of what other testing you had carried out or policy you believed you were complying with. When given the opportunity to confirm on several occasions what testing you had specifically undertaken, you continued to provide the response that you had complied with the appropriate testing requirements, however failed to explain each time that you did not get tested at the CRGH testing site as instructed.
As you did not comply with direct managerial instructions, I cannot depart from the view that you have engaged in misconduct. I acknowledge your explanation that there may have been some confusion regarding the timing of the testing requirements. However, this in no way excuses your actions in failing to carry out lawful and reasonable directions of your supervisor, regardless of what you believed you were entitled to do.”
Factual investigation
A factual investigation report dated 11 October 2021 was prepared by Quantumcorp[13]. The executive summary to the investigation report relevantly noted:
“The claimant was issued with a first and final warning letter on 17 August 2021. By his own admission, the claimant conceded that this event had resulted in him experiencing psychological symptoms.
…
In summary, Kaur disputed the claimant’s assertion that she had bullied and harassed him and stated that she had rather managed the claimant and given him reasonable work instructions in accordance with his position description as his manager.”
[13] Reply at page 12.
The factual report also relevantly noted that despite Mr Ceniza being Mr Ahamparam’s supervisor, Ms Kaur declined the investigator access to him “stating that she did not consider he had any evidence to provide in addition to her own”.
Treating medical evidence
Spring Life Medical and Health Clinic
Mr Ahamparam consulted with a general practitioner, Dr Chrishanthan, who practises out of Spring Life Medical and Health Clinic, about his mental health fragility. Dr Chrishanthan issued Mr Ahamparam with general medical certificates on 23 August 2021[14] and 27 August 2021[15] in which he certified Mr Ahamparam as unfit to attend work with reference to psychological injury sustained because of “work issues” with his manager.
[14] ARD at page 103.
[15] ARD at page 101.
It appears Dr Chrishanthan also created a GP Mental Health Care Plan Patient Assessment relevant to Mr Ahamparam on 3 September 2021[16] in which he provided diagnosis “reactive depression and anxiety due to a work related issues” and described Mr Ahamparam’s presenting issue in the following terms:
[16] ARD at page 67.
“Showed me the warning letter he was given.
Letter – the reason he was disciplined – not doing the Covid swab. Pt feels it was excessive reaction from his supervisor.
Patient tells me that his supervisor was very harsh, and intimidating. Asked him about his health issues and medications.
He feels that he was bullied.
Became very sad and teary.
Finding difficult to concentrate at work
Feel that his self esteem is shattered.”
Bridgeview Medical Practice
Mr Ahamparam came under the care of Sumana Kodi, Mental Health Social Worker. Ms Kodi provided a report dated 7 December 2021[17]. Ms Kodi indicated Mr Ahamparam had initially been referred to her by his general practitioner after presenting with a worsening history of anxiety and depression “occurring in the context of his supervisor suddenly moving him to a different section of the Concord hospital to work as a cleaner in June 21”. Ms Kodi also reported:
“Following this incident he reported that he had to self-quarantine at home when his son who is working as Nurse had an exposure to COVID case in July 21. He reported that he returned to work on 3rd Aug 21 with all the required documents to confirm that his COVID test results were negative. He reported that he became very distressed following his supervisor verbally accusing him for not following the COVID safe practice guidelines that made him feel bullied and intimidated. He admitted that he could not sleep, eat well and felt highly anxious. His family members were also concerned about his gross deterioration in his mental state. It is noted that he further declined in his mental state when he received the warning letter from the Director of Corporate and clinical support for his “alleged misconduct” claiming that he failed to comply with undertaking COVID test as advised by his supervisor. It is noted that he developed worsening symptoms of anxiety and depression including feeling hopeless, helpless and worthless. He also suffered severe symptoms of anxiety, feeling agitated, and ashamed for receiving the warning letter that damaged his highly regarded reputation as a senior cleaner at Cardiology Section of concord hospital since past 20 years”.
[17] ARD at page 59.
Ms Kodi reported that Mr Ahamparam had been under her care since 18 August 2021, and he had been consulting with her on a fortnightly basis. She provided diagnosis of
post-traumatic stress disorder with worsening symptoms of anxiety and depression and provided opinion:“Mr Ahamparam’s psychological injuries are certainly due to the punitive approach taken by the employer who failed to consider his commendable high quality service provision as a cleaner who was liked and appreciated by the staff including the Medical fraternity.”
Ms Kodi also said of Mr Ahamparam:
“This current unreasonable action has had a significant major adverse impact on his psychological wellbeing. The employer should have considered and foreseen the potential adverse psychological impact on an effective functioning of their employees. This unfortunate psychological injury could have been avoided and should have considered Mr Ahamparam’s verbal and written explanations. The employer could have applied collaborative and supportive and nurturing style of management rather than this highly critical and punitive style of management that has been very challenging and emotionally threatening for Mr Ahamparam.”
Hall Street Medical Centre
Mr Ahamparam has also come under the general medical care of Dr Osman, who practises out of Hall Street Medical Centre. The medical centre’s clinical records[18] are in evidence.
[18] ARD commencing at page 69.
It appears Mr Ahamparam consulted with Dr Osman on 16 September 2021 about his mental health fragility, with Dr Osman noting that he “cried in consult” and was booked for psychological review on 22 September 2021. However, Mr Ahamparam was encouraged to re-present “if getting worse, new symptoms or concerns” and Dr Osman noted “discussed to come again, to bring his documents if any, employment details etc”. Mr Ahamparam
re-presented the following day, with Dr Osman recording:“brought me some docs about the allegations
Reports
3 August 2021
Was bullied in Ms Kaur’s office
Reports that she was attacking him verbally
No one was there in the office other than him and her
Felt scared and did not know what to do
Went to continue his work the same day
The returned to work until 17 Aug when he was issued a letter – first and final warning
Feels very upset about it
Discussed warning letter
Was very upset and teary about it
Counselled.”
In a subsequent entry on 30 September 2021 Dr Osman noted the psychologist to who he had initially referred Mr Ahamparam on 20 September 2021, Sarah Hamadi, described
Mr Ahamparam’s English skills as “low” and recommended he be referred to a psychologist “that speaks his language”.In his letter addressed to Mr Ahamparam’s solicitors, which is dated 9 March 2022[19],
Dr Osman provided diagnosis of “adjustment disorder with mixed anxiety and depressed mood. PTSD” and said:“Taking all circumstances into consideration, Mr Thirunamama Ahamparam did not sustain a psychiatric injury as a result of reasonable action taken by his employer with respect to disciplinary action. He reported that he has undertaken his COVID 19 testing every 3 days as instructed. He reported that he – for no apparent reason – was targeted and humiliated in the process causing him extreme distress and enduring depressive and anxious symptoms.
…
The employer ought to have foreseen an individual of normal psychological fortitude decompensating in a similar manner to Mr Ahamparam if subjected to the same conduct and unsupportive management. The psychological injury could have been avoided if steps had been taken to address the experiences encountered by Mr Ahamparam.”
Independent medical evidence
Dr Kumagaya
[19] ARD at page 63.
Mr Ahamparam was assessed by Dr Kumagaya by videoconference on 9 November 2021 in his capacity as independent medical examiner. Mr Ahamparam was assisted during assessment by a Tamil interpreter. Dr Kumagaya provided a report dated the same day[20].
Dr Kumagaya took a history of Mr Ahamparam having been employed at the Hospital since March 2002 and encountering difficulties with his workplace environment in mid-2021.[20] ARD at page 9.
Dr Kumagaya reported:
“Mr Ahamparam described how, around June 2021, he was advised that he would be moved to the Intensive Care Unit Ward, which required ward- specific training in infection control. During his infection control training session, Mr Ahamparam raised concerns regarding his difficulties wearing the requisite personal protective equipment, given his medical comorbidities. The training convener subsequently reported such concerns to Mr Ahamparam’s manager, who instructed Mr Ahamparam to attend a meeting with her. During this meeting, Mr Ahamparam described how his manager acted in an intimidating manner and raised her voice at him, whilst asking questions such as “how old are you”, “are you an Aborigine or an Islander”, “where were you born”, and “what medications are you taking”. Mr Ahamparam stated that he felt threatened and distressed as a result of this encounter.
Such workplace circumstances and stressors resulted in the emergence of depressive and anxious in approximately June 2021. These symptoms included a pervasively low mood, diminished interest and pleasure in activities, sleep disturbance, loss of energy, concentration problems, anxiety, restlessness, a feeling of being keyed up, and a fear that something awful may happen.
During July 2021, Mr Ahamparam described how his son came into contact with a positive COVID-19 case. Mr Ahamparam was, hence, required to not attend work and isolate as he resided with his son. Mr Ahamparam attended a COVID-19 test on 31 July 2021 at approximately 1200, which returned negative. He returned to work on 2 August 2021 on instruction of his employer and notified his supervisor of his negative COVID-19 test result from 31 July 2021. The following day (3 August 2021), Mr Ahamparam attended work and received a phone call from his supervisor advising that he needed to attend a meeting with his manager in relation to his COVID-19 testing. During this meeting, Mr Ahamparam reported that his manager acted in an intimidating manner and shouted at him regarding his apparent non-attendance of a COVID-19 test in recency. Mr Ahamparam remembered, for example, being threatened that police would fine him and place him in jail. Mr Ahamparam attempted to explain that he had attended a COVID-19 test on 31 July 2021, and that as per the 72- hour testing cycle, he was next due for his COVID-19 test on the day of the meeting (3 August 2021). Mr Ahamparam stated that he was not provided an opportunity to adequately explain the situation, and felt invalidated, threatened and distressed as a result of his interaction with his manager.
Mr Ahamparam stated that he later received a letter from his employer in relation to his alleged failure to undergo a COVID test, which made him most distressed. Such were his workplace circumstances and deteriorating mental state, that
Mr Ahamparam was unable to work from 17 August 2021 onwards.”Following mental state examination, Dr Kumagaya provided diagnosis of adjustment disorder with mixed anxiety and depressed mood, and in his supplementary report dated 9 December 2021, in response to specific questioning about the defence raised to Mr Ahamparam’s claim by the Hospital, Dr Kumagaya wrote:
“Taking all of the circumstances into consideration, I am not of the opinion that
Mr Ahamparam sustained a psychiatric injury as a result of reasonable action taken by his employer with respect to disciplinary action.From the history procured from Mr Ahamparam, it is clear he experienced the emergence of symptoms of his psychiatric injury in June 2021, which firmly predates his purported disciplinary action on 3 August 2021.
The emergence of Mr Ahamparam’s depressive and anxious symptoms in June 2021 was in the context of Mr Ahamparam attending a meeting with his manager during which he described being engaged with in an intimidating and threatening manner.
The unreasonable actions of Mr Ahamparam’s employer on 3 August 2021 only served to destablise Mr Ahamparam’s already unstable mental state.”
Dr Yeung
Mr Ahamparam was assessed by video link by Dr Yeung in her capacity as independent medical examiner. Mr Ahamparam was again assisted by an interpreter. Dr Yeung provided a report dated 7 March 2022[21]. While her report is dated 7 March 2022, it is evident Dr Yeung’s assessment of Mr Ahamparam was over two sessions, the first being on 7 March 2022 and the second being on 9 May 2022. Dr Yeung also took a history of Mr Ahamparam having been employed at the Hospital as a porter/cleaner for the last 20 years. She described him as working a six day a week roster “where he would work from 6.30am to 3pm”. Dr Yeung also took a history of Mr Ahamparam encountering difficulties in mid-2021.
[21] R AALD at page 1.
Dr Yeung reported:
“For the first 19 years of his role, he was working in the cardiology ward. In May 2021, he was informed by his manager, Ms Harleen Kaur regarding changing his role to working in ICU or the dialysis ward. Mr Thirunamam was upset about this decision as he did not feel comfortable working in a new environment. He stated that over the years, the cardiology ward staff were very nice to him. He said there was a sense of sadness, however, he accepted that he had to move to another unit and he continued to work. He continued to work in ICU, dialysis ward and other wards.
The second incident was relating to the COVID testing. On 23 July 2021, he was informed by his son, who worked at Bankstown Hospital at the time, that his son was a close contact. As a result, Mr Thirunamam, also became a close contact. He informed his work and work suggested that he needed to isolate. He continued to return negative tests, on 28 July 2021 and 31 July 2021. According to
Mr Thirunamam, he stated that work had informed him on 2 August 2021 to return to work, and he started work at 12.30pm that shift. He denied that work had told him to get tested before the beginning of the shift on 2 August 2021. I read out the statement provided by the manager, Ms Kaur, in particular to page 10 of her statement which indicated that Ms Kaur had instructed Mr Thirunamam to have a COVID test done before the start of the shift. Mr Thirunamam denied this had occurred. He said he was told to start work via a phone call. He stated that no one had told him to take a COVID test prior to start the shift on 2 August 2021.As he was living in the local LGA with high cases, he was required to get tested every three days.
He stated that work had asked him to meet Ms Kaur on 3 August 2021. During this meeting,
He was asked to produce the test result that supposedly occurred on 2 August 2021. Mr Thirunamam provided the result on 31 July 2021, and he was ordered to do a test and he obtained a negative result on 3 August 2021. He recalled Ms Kaur had taken a photo of the test result and uploaded it to the computer. He stated that she was not happy with him. During this meeting, Ms Kaur had scared him by stating that “If you do not produce the COVID test result, the police will catch you, give you a fine and put you in gaol”. He was scared after this meeting, but he went back to work. He said it did not affect him mentally until he received the first and final warning on 17 August 2021. On that day, he was given a letter regarding the COVID testing. He said he was shaken, he was overwhelmed. He had been working for almost 20 years and had never received any warning from work. He said he could not understand this and wished that it had been explained to him properly. He could not recall if he continued to work that day or have another shift the following day. He recalled his sleep was poor, he was not able to eat. He became tearful and suicidal. He became angry and irritable. He saw his GP on 18 August 2021 and his GP gave him a medical certificate. He also had a fall after that. He remained on a medical certificate since 18 August 2021. He believed the symptoms started after he received the letter dated 17 August 2021.”
While Dr Yeung described Mr Ahamparam as feeling upset and scared by comment made by his manager at the meeting on 3 August 2021, she noted he was able to continue to work after this meeting, with his psychological symptoms only starting after he received his first and final warning letter on 17 August 2021. Dr Yeung described Mr Ahamparam as developing at that time an acute onset of depressive and anxiety symptoms “best described as adjustment disorder with depressed mood and anxiety”.
Relevant to the issue of causation, Dr Yeung said of Mr Ahamparam:
“He stated that he feels sad after he was told to move to another ward in June 2021. He felt “scared” and “threatened” by the comments made by her manager at the meeting on 3 August 2021. However he stated that he did not have symptoms until 17 August 2021. The history that I have obtained was different to the one reported to
Dr Kumagaya.”She also said:
“…the accumulated effect of the three incidents that were highlighted in this report had precipitated his adjustment disorder. The main contributing factor was the final warning letter. He had worked for 20 years and never received any warning letter. This had impacted him significantly. His manager has told him that he may go to goal due to not doing the COVID test. He became rather fearful of his future when he received his warning letter.”
In response to specific questioning as to “the whole or predominant cause of
Mr Ahamparam’s psychological injury”, with respect to (a) the ward transfer, (b) the meeting on 3 August 2021 and (c) the disciplinary action that resulted in the issuing of the warning letter of 17 August 2021, Dr Yeung provided opinion:“The predominant factors are b) and c). It is important to consider c) as a consequence of b), therefore b) and c) can be considered as one main event. He felt threated and scared about the meeting with his manager and subsequently he had the final warning letter. He stated that his symptoms only started after he had received the warning letter on 17 August 2021.
He denied any knowledge of the outcome letter on 17 September 2021.
I do wonder whether the meeting and letter had been explained to him properly. His English level is rather poor. This was evident during the assessment. His level of comprehension in English is rather poor. He may only hear certain words and possibly misinterpret the content of what the manager had told him as well as the final warning letter. Then he became so overwhelmed and subsequently developed anxiety and depressive symptoms.
He stated that he feels sad about needing to move to another ward, event a). However, he stated that he had accepted that and was able to continue to work afterwards. He denied developing any symptoms after a).”
Submissions
Mr Combe and Mr McEnaney made oral submissions, which I have carefully considered.
I am grateful to counsel for the assistance provided to me in this particular matter. A recording of counsel’s submissions is available to the parties.
Determination
Defence raised under s 11A(1) of the 1987 Act
It is not disputed Mr Ahamparam sustained psychological injury in the course of his employment with the Hospital. However, the Hospital has raised defence under s 11A(1) of the 1987 Act relevant to “discipline”. In essence Mr Ahamparam says the psychological injury he sustained in the course of his employment with the Hospital resulted from “bullying and harassment by management” whereas the Hospital says the psychological injury
Mr Ahamparam has sustained was wholly or predominantly caused by reasonable action taken or proposed to be taken by the Hospital with respect to discipline.The Hospital has the onus of establishing the defence raised under s 11A(1) of the 1987 Act (Pirie v Franklins Ltd[22] and Department of Education and Training v Sinclair[23]) and there are two aspects to the defence raised by the Hospital in disputing Mr Ahamparam’s claim.
[22] [2001] NSWCC 167; (2001 22 NSWCCR 346.
[23] [2005] NWCA 465 (Sinclair).
Firstly, Mr Ahamparam’s psychological injury must be “wholly or predominantly caused” by the Hospital’s actions regarding one of the categories referred to in s 11A(1) of the 1987 Act and in Mr Ahamparam’s case, the Hospital relies on discipline. Principles regarding the wholly or predominately caused aspect of s 11A(1) of the 1987 Act were discussed in Hamad v Q Catering Limited[24] with comment made that medical evidence is required to determine this causation issue. It is also accepted that “wholly” and “predominately” are different concepts[25] and that the phrase “wholly or predominantly caused” means “mainly or principally caused” with the test of causation applied being that described in Kooragang Cement Ltd v Bates[26]; Ponnan v George Weston Foods Ltd[27] and Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd[28].
[24] [2017] NSWWCCPD 6.
[25] Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130.
[26] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
[27] [2007] NSWWCCPD 92.
[28] [2008 NSWWCCPD 96.
Secondly, if the Hospital successfully establishes Mr Ahamparam’s psychological injury was wholly or predominately caused by the Hospital’s actions regarding discipline, then the Hospital is required to establish the Hospital’s actions were “reasonable”.
Looking first at whether the psychological injury sustained by Mr Ahamparam was wholly or predominantly caused by actions taken or proposed to be taken by the Hospital with respect to discipline, it is important to remember an injury can have multiple causes and in St George Leagues Club Ltd v Wretowska[29] Deputy President Roche said at [101]:
“It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA at [25] and [27]). That is especially so in cases concerning a psychological injury, where, in many cases, multiple events over a long period have contributed to the injury. Just because Ms Wretowska stopped work after the events of 12 and 14 November 2011 and did not have time off work before that time and did not seek treatment for emotional conditions until 14 November2011, does not mean that those events were the whole or predominant cause of her injury. It is necessary to look at the whole of the conduct alleged to have caused the injury and to consider the evidence in light of that conduct.”
[29] [2013] NSWWCCPD 64.
It is also important to note the relevance of perception in matters such as this particular matter. In StateTransit Authority of NSW v Fritzi Chemler[30] it was determined a perception of real events, which are not external events, can satisfy the test of injury and in Attorney General’s Department v K[31] Deputy President Roche provided at [52] a useful summary of the relevant authorities:
“(a) employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which I the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chelmer at [40]);
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chelmer at [54]);
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chelmer at [69]);
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f) it is not necessary that the worker’s reaction to the events must have been rational, reasonable and proportionate’ before compensation can be recovered.”
[30] [2007] NSWCA 249; (2007) 5 DDCR 286 (Chemler).
[31] [2010] NSWWCCPD 76.
Mr Ahamparam is a long-term cleaning employee of the Hospital, who was required to isolate for a period of time in July 2021 due to being considered a close contact of his son who had apparently contracted COVID in the course of his employment as a nurse at a different hospital. After completing his period of isolation returning a negative COVID test on 31 July 2021, which he reported to his supervisor, Mr Ceniza, Mr Ahamparam was requested by his manager, Ms Kaur, to return to work that same day. At the time of his return to work on 2 August 2021, Mr Ahamparam resided in Cumberland, which was as an “LGA of concern”, and he was subjected to NSW Government requirement to undergo COVID testing every 3 days or every 72 hours. Having undergone testing on 31 July 2021 Mr Ahamparam understood he was required to undergo testing no later than 3 August 2021.
Mr Ahamparam reportedly showed Mr Ceniza his negative test result when he returned to work on 2 August 2021 and when he came to work on 3 August 2022, he told Mr Ceniza that while he was going to undergo testing that day, the Hospital COVID testing clinic had not opened prior to him commencing work at 6.30am.
Mr Ahamparam was subsequently required to attend a meeting with Ms Kaur, during which he was admonished for not having undergone testing on 2 August 2021 before commencing his shift that day and misleading both her and Mr Ceniza about the correct status of his testing. With Ms Kaur subsequently advising senior management that Mr Ahamparam had provided “false and misleading” information about the status of his testing, Mr Ahamparam was issued with a proposed first and final warning letter on 17 August 2021 following an initial review completed on 13 August 2021.
Mr Ahamparam came under the care of Ms Kodi on 18 August 2021, with Ms Kodi reporting Mr Ahamparam had become very distressed after he had been admonished by Ms Kaur about the status of his testing, with a further decline in his mental fragility on receipt of the proposed first and final warning letter on 17 August 2021.
When Mr Ahamparam consulted with Dr Chrishanthan on 3 September 2021,
Dr Chrishanthan reported Mr Ahamparam had showed him the proposed first and final warning letter and said Mr Ahamparam had been “very sad and teary”. Dr Chrishanthan provided diagnosis of “reactive depression and anxiety due to a work-related issue”.When Mr Ahamparam consulted with Dr Osman on 17 September 2021, Mr Ahamparam told him about his meeting with Ms Kaur on 3 August 2021 and the proposed first and final warning letter. Relevant to the meeting with Ms Kaur, Dr Osman noted Mr Ahamparam “felt scared and did not know what to do” and relevant to the letter, Dr Osman noted
Mr Ahamparam “was very upset and teary about it”.Dr Kumagaya has provided opinion that the emergence of Mr Ahamparam’s “depressive and anxious symptoms” occurred in the context of Mr Ahamparam’s meeting with Ms Kaur regarding his ward transfer and his training in ICU and COVID, which pre-dates his meeting with Ms Kaur on 3 August 2021. However, Dr Kamagaya accepted Ms Kaur’s meeting with Mr Ahamparam on 3 August 2021 “served to destablise Mr Ahamparam’s already unstable mental state”. Dr Yeung essentially provided opinion the whole or predominant cause of
Mr Ahamparam’s injury was Ms Kaur’s meeting with Mr Ahamparam on 3 August 2021 and the subsequent issuing of the proposed first and final warning letter.In circumstances where Mr Ahamparam appears to have first sought medical attention following receipt of the proposed first and final warning letter but also raised his meeting with Ms Kaur on 3 August 2021 with Ms Kodi, Dr Chrishanthan and Dr Osman, I accept the psychological injury Mr Ahamparam has sustained was wholly or predominantly caused by the very unfortunate situation he found himself in due to his testing status at the time he returned to work on 2 August 2021, and I accept Mr Ahamparam’s injury was wholly or predominantly caused by action taken by or proposed to be taken by the Hospital with respect to discipline.
As I accept Mr Ahamparam’s injury was wholly or predominantly caused by action taken or proposed to be taken by the Hospital with respect to discipline, the Hospital is required to established that the Hospital’s action taken or proposed taken was “reasonable”.
Considering the meaning of reasonableness, in Sinclair Spigelman CJ observed that one must look at the entire process, which includes looking at the circumstances surrounding the action, both before and after the action (Burton v Bi Lo Pty Ltd[32]; Melder v Ausbowl Pty Ltd[33]) and in Irwin Gerahty J said:
“… the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[32] [1998]NSWCC 13.
[33] [1997]NSWCCR 454.
In Northern New South Wales Local Health Network v Heggie[34] Sackville AJA usefully set out the following statements of principle regarding s 11A (1) at [61]:
“Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action or any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”
[34] [2013] NSWCA 225; 12 DDCR 95.
It must be remembered that mid 2021 was an extremely difficult time for persons residing in New South Wales, and no more so than for those persons like Mr Ahamparam who resided in Cumberland, which had become an “LGA of concern”.
The testing required by the Hospital of Mr Ahamparam on his return to work on 2 August 2021 is detailed in a memorandum from the General Manager of the Hospital reportedly dated 30 July 2021. The memorandum required a person like Mr Ahamparam to undergo mandatory testing every 72 hours and provide evidence of his testing to their manager, with such testing to take place at the Hospital’s COVID clinic between 6.30am to 8am and 4 pm and 5pm, which were dedicated staff surveillance swabbing timeslots.
As to whether Mr Ahamparam actually knew of the Hospital’s testing requirement on his return to work on 2 August 2021 is unclear although the Initial Review indicated that he did.
Mr Ahamparam said Ms Kaur telephoned him on 2 August 2021 and told him to come back to work that same day. Mr Ahamparam said when he returned to work on 2 August 2021, he heard staff discussing the requirement to undergo testing every three days. Mr Ahamparam said this was the first he heard of this requirement. He said he had not received any formal notice of this testing requirement from either Mr Ceniza or Ms Kaur.
Ms Kaur said she and Mr Ceniza telephoned Mr Ahamparam on 2 August 2021 and told him to come back to work that same day. She said Mr Ahamparam was instructed to undergo testing before he commenced his shift on 2 August 2021 and because he lived in an LGA of concern he was required to undergo testing every 3 days or every 72 hours in compliance with the Public Health Orders. Ms Kaur said Mr Ahamparam “acknowledged that he understood these directions and instructions”.
In circumstances where Ms Kaur denied the investigator access to Mr Ceniza to enable him to provide a statement which may or may not have corroborated Ms Kaur’s recollection of what Mr Ahamparam was told about the Hospital’s testing requirements on his return to work on 2 August 2021 I am inclined to accept Mr Ahamparam’s evidence that he did not know about the Hospital’s testing requirements before his return to work on 2 August 2021, particularly so in circumstances where the Initial Review indicated Mr Ahamparam had been notified of the requirement on 30 July 2021, being a date before Mr Ahamparam had contacted Mr Ceniza about returning to work.
Ms Kaur said she is required to prepare a daily report for senior management with details of staff who have undergone testing. She said on 3 August 2021 she reported to senior management that Mr Ahamparam had undergone testing on 2 August 2021 and on enquiry from senior management for confirmation of the testing day for Mr Ahamparam, she telephoned Mr Ahamparam and asked if he had been tested the day before, to which he responded he had. However, Mr Ahamparam said it was Mr Ceniza who telephoned him on 3 August 2021 and told him that he was required to attend Ms Kaur’s office “on the spot”. No statement has been made available from Mr Ceniza to corroborate Ms Kaur’s recollection of her telephone enquiry of Mr Ahamparam as to his testing status and I am inclined to accept Mr Ahamparam’s evidence it was Mr Ceniza who requested he attend the meeting with Ms Kaur.
In any event, so as to enable Ms Kaur to confirm Mr Ahamparam’s testing results as required by the Hospital, Mr Ahamparam attended Ms Kaur’s office and showed her his negative result from 31 July 2021. Mr Ahamparam explained to Ms Kaur he had not yet been able to undergo testing on 3 August 2021 as the Hospital’s COVID clinic had not been open when he arrived at work at about 6am. Mr Ahamparam said Ms Kaur admonished him in no uncertain terms for not having undergone the required testing prior to commencing work on 2 August 2021 and Mr Ahamparam said he became quite emotional. He said after his meeting with Ms Kaur he attended the Hospital’s COVID clinic and returned a negative result, which he subsequently showed to Ms Kaur.
Ms Kaur said she formed the impression Mr Ahamparam had misled her and also Mr Ceniza, who had reportedly told Ms Kaur that Mr Ahamparam had told him that he had undergone testing prior to commencing work on 2 August 2021, and she notified senior management accordingly. This notification of alleged misconduct by Mr Ahamparam was referred to HR and Ms Kaur said that after she was interviewed by HR, the proposed first and final warning letter was issued to Mr Ahamparam on 17 August 2021.
The initial review into Mr Ahamparam’s alleged misconduct is dated 13 August 2021 and was completed by Ms Finlayson. While Ms Finlayson sensibly confirmed Mr Ahamparam had not breached any Public Health Orders because he underwent testing on 31 July 2021,
Ms Finlayson considered “the evidence” demonstrated Mr Ahamparam failed to undergo testing as instructed by his supervisor, Mr Ceniza, which she considered was “of serious concern given the current pandemic”.Relevant to Ms Finlayson’s determination is that Ms Kaur said she was interviewed by HR prior to Mr Ahamparam being issued with the first and final warning letter and while
Ms Finlayson made reference in her review to purported discussions between Mr Ceniza,
Mr Ahamparam and Ms Kaur, it is not evident that either Mr Ahamparam or Mr Ceniza were interviewed by Ms Finlayson for the purpose of her initial review. It may well be
Ms Finlayson’s determination is based solely on her interview with Ms Kaur without corroboration by Mr Ceniza and input from Mr Ahamparam.Also relevant to Ms Finlayson’s determination is that she said Mr Ahamparam was notified on 30 July 2021 that he was required to be tested every 72 hours as he lived in an LGA of concern, which is clearly not the case as Mr Ahamparam was not working on 30 July 2021 and did not contact Mr Ceniza until 31 July 2021 about his proposed return to work.
In all of the circumstances known to the Hospital at the time of Mr Ahamparam’s confronting meeting with Ms Kaur on 3 August 2021 and the issuing of the proposed first and final warning letter on 17 August 2021, with particular reference to my expressed doubt
Mr Ahamparam actually knew of the Hospital’s specific testing requirements at the time he returned to work on 2 August 2021, the obvious confusion surrounding Mr Ceniza’s reported enquiry and Mr Ahamparam’s response on 2 August 2021 regarding Mr Ahamparam’s testing status that carried over into Ms Kaur’s meeting with Mr Ahamparam on 3 August 2021, and the adverse determination made by Ms Finlayson without apparent in depth investigation in her initial review, I do not accept the action taken or proposed to be taken by the Hospital with respect to the Hospital’s discipline of Mr Ahamparam was “reasonable”.
I harbor some concern that Ms Kaur denied the investigator access to Mr Ceniza, who is quite central to this matter, to enable a statement to be taken from him, which may or may not have corroborated Ms Kaur’s version of events occurring. With Mr Ahamparam having worked at the Hospital for over 20 years at the time these unfortunate events unfolded I am of the view Mr Ahamparam could perhaps have been afforded more care than had been afforded to him by either Ms Kaur during her meeting with him on 3 August 2022 or subsequently by Ms Finlayson in conducting her preliminary review. I am also of the view that when one considers the seriousness of the allegations made against Mr Ahamparam by Ms Kaur, it would have been appropriate for Ms Kaur to advise Mr Ahamparam of her intention to notify senior management of the fact he had provided information she believed was “misleading and incorrect” and the possible ramifications of such notice.
It is also evident Mr Ahamparam’s English skills are considered “low” in that his initial treating psychologist recommended he seek psychological assistance from a person who spoke his own language and he was assisted by an interpreter at the independent medical examinations and during these proceedings in the Commission. Indeed, Dr Yeung queried whether the disciplinary events unfolding as a result of his meeting with Ms Kaur and the subsequent issuing of the first and final warning letter had been “explained to him properly”. Mr Ahamparam himself concedes that English is not his first language. With Mr Ahamparam having worked at the hospital for over 20 years and the serious nature of the allegations made against Mr Ahamparam by Ms Kaur I am of the view it would have been appropriate for the Hospital to have taken steps so as to ensure that Mr Ahamparam knew with certainty the Hospital’s testing requirements before his return to work on 2 August 2021 and also the possible ramifications of Ms Kaur’s notification to senior management that she believed he had provided misleading information to her and Mr Ceniza.
For the reasons discussed above I accept Mr Ahamparam as a credible witness. For reasons discussed above I am not satisfied the Hospital has discharged the onus of proof required of the Hospital and as a consequence, the Hospital cannot rely on defence raised under s 11A(1) of the 1987 Act.
Capacity
Mr Ahamparam has an entitlement to weekly compensation payable under s 36 and s 37 of the 1987 Act resulting from psychological injury he sustained in the course of his employment with the Hospital on the basis he has had no current capacity to work since 17 August 2021.
Quantification of entitlement to weekly compensation
Mr Ahamparam’s PIAWE is agreed at $1,330.60. Mr Ahamparam has had no current capacity for work since 17 August 2021. Accordingly, Mr Ahamparam’s entitlement to weekly compensation payable under s 36(1) of the 1987 Act is payable at the rate of $1,264.07 each week and his entitlement to weekly compensation payable under s 37(1) of the 1987 Act is payable at the rate of $1,064.48 each week. Mr Ahamparam’s entitlement to weekly compensation is subject to legislative adjustment.
Treatment
Mr Ahamparam has an entitlement to medical and related treatment expenses payable under s 60 of the 1987 Act resulting from psychological injury he sustained in the course of his employment with the Hospital. The Hospital is to pay Mr Ahamparam’s medical and related treatment in accordance with s 60 of the 1987 Act.
SUMMARY
It is not disputed Mr Ahamparam sustained psychological injury in the course of his employment with the Hospital with a deemed date of injury of 17 August 2021 and I have determined that his injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the Hospital with respect to discipline.
Mr Ahamparam’s PIAWE is agreed to be $1,330.60. It is not disputed Mr Ahamparam has had no current capacity for work since 17 August 2021. Mr Ahamparam has an entitlement to weekly compensation payable under s 36(1) and s 37(1) of the 1987 Act. Mr Ahamparam’s entitlement to weekly compensation payable under s 36(1) of the 1987 Act is at the rate of $1,264.07 each week. Mr Ahamparam’s entitlement to weekly compensation payable under
s 37(1) of the 1987 Act is at the rate of $1,064.48 each week. Mr Ahamparam’s entitlement to weekly compensation is subject to legislative amendment.Mr Ahamparam has an entitlement to medical or related treatment expenses payable under
s 60 of the 1987 Act.
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