Andersen v Manpower Pty Ltd

Case •

[2009] NSWWCCPD 139

•

28 October 2009
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION: Andersen v Manpower Pty Ltd [2009] NSWWCCPD 139
APPELLANT: Kate Andersen
RESPONDENT: Manpower Pty Ltd
INSURER: Cambridge Integrated Services Australia Pty Ltd
FILE NUMBER: A1-8183/08
ARBITRATOR: Ms R Gurr
DATE OF ARBITRATOR’S DECISION: 29 June 2009
DATE OF APPEAL DECISION: 28 October 2009
SUBJECT MATTER OF DECISION: Psychological injury; weight of evidence; sections 4, 9A and 11A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING: On the papers
REPRESENTATION: Appellant: Higgins & Higgins
Respondent: Leigh Virtue & Associates
ORDERS MADE ON APPEAL:

The decision of the Arbitrator dated 29 June 2009 is confirmed.

No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

  1. The Appellant, Ms Kate Andersen, claimed that she suffered a psychological injury as a consequence of the nature and conditions of her employment with the Respondent, Manpower Pty Ltd (‘Manpower’) between March 1999 and November 2006. The evidence however suggested that it was a series of events during 2006 that was causative of her condition, in particular, her move to a new team in early 2006 where, she claimed, she was not provided with support or assistance, and events surrounding a meeting with representatives from the Respondent on 23 November 2006 after which she ceased work.

  1. The Respondent denied liability on the grounds that Ms Andersen did not suffer an injury within the meaning of section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’) or, if she did, then her employment was not a substantial contributing factor to that injury within the meaning of section 9A of that Act. In addition, the Respondent claimed that if any injury arose as a consequence of Ms Andersen’s attendance at a meeting on 23 November 2006, then it had a defence under section 11A of the 1987 Act.

  1. By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 14 October 2008, Ms Andersen sought weekly benefits from 27 November 2006, medical expenses and lump sum compensation for what was described as “stress, anxiety and depression” as a consequence of her employment.

  1. The parties attended a hearing before a Commission Arbitrator on 10 February 2009 and again on 18 March 2009.  Oral evidence was given by Ms Andersen, and by Ms Clisdell and Ms Patole on behalf of the Respondent.  That evidence is recorded in the transcripts of both days.  Both parties made written submissions following completion of that evidence.

  1. In a reserved decision delivered on 29 June 2009, the Arbitrator found in favour of the Respondent on the basis that employment was not a substantial contributing factor to the injury.  The Certificate of Determination issued on 29 June 2009 records the following orders:

“The Commission determines:

There is to be an Award for the Respondent in relation to all claims arising from the psychological injury alleged to have arisen from the nature and conditions of the applicant’s employment between 1999 and November 2006.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

  1. It is from this decision that Ms Andersen seeks leave to appeal.

ON THE PAPERS REVIEW

  1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(6)   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 without holding any conference or formal hearing.”

  1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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. 

LEAVE

  1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

  1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.  The amount at issue on appeal satisfies the threshold requirements of section 352(2).

  1. Leave to appeal is granted.

THE EVIDENCE

Ms Andersen’s Evidence

  1. Ms Andersen was born in 1961 and resides in the Blue Mountains. She has two daughters in their late teens. She completed a Science/ Law degree at Macquarie University in 1985.  She also completed computer courses that qualified her as a Microsoft certified professional.

  1. She commenced employment with the Respondent in March 1999 as a database administrator and remained in that role for about 4 years. She became an expert in the asset management aspect of the company and received awards for her achievements. It seems that she worked principally with Manpower’s client, Hewlett Packard (‘HP’), as a business analyst.

  1. After the asset management team was dissolved in 2004, she began working partly from home, and continued to be successful in her role.

  1. In early 2006 her team was again dissolved and she moved to another group where she knew only a few people and worked more independently rather than as a group, although she was still required to obtain information from other members of the group some of whom were located interstate and overseas. She was under the supervision of Mr Ross Cordukes, the business operations manager for HP.

  1. She said her role in the new team “deteriorated.” She said that she was not helped by other members of the team, was not given sufficient work, and did not get support from her supervisor, Mr Cordukes, or from representatives of the Respondent. She felt that her job was a “non job” and that she was being worked out of a role. Mr Cordukes she described as “ineffective” [T45].

  1. In mid 2006 she began to get “sick at work and I didn’t know why.” She lost weight, suffered panic attacks and couldn’t eat. She couldn’t concentrate and felt nauseous. She was frustrated both at work and because of personal problems at home [T29].

  1. She attended the Respondent’s office and requested assistance from “a young blonde female” whose name she did not recall. She explained that she was not coping at work and wanted to know her options. She was asked to send an email setting out what she wanted. Ms Andersen requested an outline of what was available to her. She said this never occurred, and she did not contact the Respondent again because she was too upset and felt she had been brushed off.

  1. She considered that it was her employer’s responsibility to provide her with interesting and stimulating work, and to promote her professional development. She also expected her employer to help her by allowing her to work part-time, given all her personal problems [T32] referred to below.

  1. She was simultaneously experiencing problems at home. Her eldest daughter, 16 at the time, left home to live with her 22 year old boyfriend around May/June 2006. Ms Andersen acknowledged that she was extremely concerned about this situation and chose to work at home for much of this time. She was also upset that her younger daughter moved to Sydney to attend school and live with her father during 2006.  In addition, she had concerns about her own health, in particular, weight loss, excessive menstrual bleeding, and skin lesions [T59].

  1. She received a phone call from the Respondent in August 2006 in part to do with her domestic difficulties, but she denied that she was offered assistance or counselling [T28]. She continued to feel sick when she tried to work, particularly when she was required to attend HP’s Rhodes office.

  1. Arrangements were made with her to meet with Mr Cordukes on 22 November 2006 to discuss work issues. She cancelled that meeting on that morning because her partner was sick and because of “the bushfire situation.” Later that day, she received an email from Ms Deepa Patole, a new on-site consultant who commenced with the Respondent in September 2006, and who had been assigned to HP at Rhodes. Ms Patole said she was Ms Andersen’s new Manpower representative, and suggested a meeting to review her current work and discuss any assistance she needed.

  1. Ms Andersen responded by email as follows:

“Yes, things have been extremely difficult for me personally and it has affected my work.  Discussing options is the best thing to do.  I know my existing contract runs until February and I’d like to continue with HP until then, obviously that is not my decision but one I hope we can resolve tomorrow. I am expecting it to be that type of meeting, and that’s fine…but you will also have to expect me to be upset. Please arrange a private meeting room for our meeting, if you could.”

  1. The meeting was held on 23 November 2006. Present were Ms Andersen, Mr Cordukes and Ms Patole. Ms Andersen said that she expected to meet with Ms Patole, whom she had not met previously, privately before the meeting.  She wanted to discuss her view that problems at work arose from people not wanting to give information to Mr Cordukes, and she did not want to discuss this in front of him. 

  1. She said that she wasn’t sure why Ms Patole was present, and was “shocked” when Mr Cordukes said that he wanted to discuss the lack of work from her. She said that Ms Patole accused her of “fraud” at the beginning of the meeting, referring to her claims for payment, and also breached confidentiality by discussing her personal situation in relation to her daughters. She became upset, left, but returned. She said: “at the end of this meeting I felt I wanted to smash the window…” The outcome of the meeting was that she would attend the Rhodes office for the next month and perform duties set out in a program arranged by Mr Cordukes.

  1. Ms Andersen said that Ms Patole told her to take the rest of the week off and to arrange a meeting with her when she was able to return. On the following Sunday evening, Ms Andersen sent an email to Ms Patole requesting a meeting at 9.30am the next day. When she arrived on the Monday morning, she was unable to see Ms Patole who had other commitments (the induction of new employees), and was told that Ms Patole would see her later in the day.  She felt annoyed and upset, and drove home where she immediately submitted her resignation by email. She said:

“Working at Rhodes HP is making me physically and mentally ill. Personal circumstances have not helped. But they are not the only cause of my current mental anguish and depression.  Manpower has been aware of this for some months and have been told of my circumstances at home and at work. … I am so upset by how I was treated last week and this morning that it was difficult for me even to speak.  At no point in conversations or emails with Manpower have I felt them to be my representative or agents in regard to my contracted conditions or future employment and I believe they misrepresented themselves to me as such.  I am not speaking to people who have no experience of me because I feel that would not be productive.”

  1. The last sentence was a reference to Ms Patole.

  1. Ms Andersen said that she attended the Springwood Medical Centre three or four times over the next six months. She said that she believes it was about this time she was diagnosed with anxiety and depression. At one stage during this time she was offered medication and counselling but refused. More recently she says she has been prescribed anti depressant medication. She is now able to do some part time tutoring, but has lost all motivation and confidence in her ability to do the work she was previously performing.

Manpower’s Evidence

  1. Ms Sarah Clisdell commenced employment at Manpower’s branch office at HP at Rhodes in July 2004. She has held the position of Client Manager since about June 2007. She made a statement dated 21 December 2007, on which she was cross-examined at the hearing before the Arbitrator.

  1. Ms Andersen had been in her portfolio of employees to manage after another consultant left. As Ms Andersen worked remotely, she only had phone contact with her, commencing in August 2006. Her first contact was after a call from Mr Cordukes, who said that Ms Andersen had phoned him in tears and was experiencing problems in her personal life. She was not approached at that time in relation to work performance issues. She contacted Ms Andersen and found her very upset in relation to issues about her daughter. She said she could not handle any stress. Ms Clisdell said she discussed the options of changing working days and/or hours and counselling. She suggested Ms Andersen see a doctor to determine if she needed further professional assistance from a psychiatrist or a psychologist. She was asked to call back with any request as to what she wanted to do and whether the Respondent could assist. She telephoned Ms Andersen twice but Ms Andersen responded that Manpower could not assist further. She said she would come to the office and see Ms Clisdell but she did not do this. The matter seemed to go away. Ms Clisdell’s last attempt to phone Ms Andersen was 15 November 2006. She did not answer the telephone.

  1. Under cross-examination, Ms Clisdell agreed that there was a reduction of employees at HP during 2006 as a result of a restructure. However, Ms Andersen retained her position and HP had indicated that her position was to be retained.

  1. She regarded Mr Cordukes as supportive of staff, and fair. It was he who had approached Manpower and asked them to assist Ms Andersen.

  1. Ms Patole made a statement dated 4 February 2008. She too was cross-examined at the hearing before the Arbitrator.

  1. Ms Patole reported to Ms Clisdell. She first had contact with Ms Andersen on 22 November 2006.  She had been asked by Ms Clisdell to take over a portfolio, which included HP. She met with Ross Cordukes who expressed his concerns about Ms Anderson. There were concerns about her work performance over the previous 12 months and she had some personal problems, particularly involving her daughter. He wanted to hold a meeting with her to address these problems, and offer assistance to improve work performance. She had not been turning up for work (although it was an acceptable practice at HP for people to work from home). She had been submitting timesheets for 40 hours per week, but there was very limited output given she was allegedly working those hours. He considered her output had been insufficient for the previous couple of months. She had submitted a time sheet for 40 hours one week when she had admitted she had been on leave for part of the week. Ms Patole said that, although her contact with Mr Cordukes was limited, she got the impression that he was a very caring person, and was sympathetic towards Ms Andersen’s situation. Ms Patole set up the meeting for 23 November.

  1. The meeting was held in a private meeting room. Ms Anderson was said to have been upset at the beginning of the meeting and looked as if she had been crying prior to the meeting. Ms Patole introduced herself and explained the purpose of the meeting. She told Ms Andersen that Mr Cordukes had raised concerns about her work performance and the personal issues she was experiencing. Ms Anderson talked openly about the problems with her daughter and began crying. She referred to her daughter’s boyfriend as a “drugo.” She does not know where her daughter is most of the time and finds herself sitting on the lounge being unable to think, staring at her mobile phone and waiting for her daughter to call. The possibility of assistance with work by accessing counselling and/or working part time was discussed. Ms Anderson at first said that the work was not challenging enough and that she has to be busy so she stops thinking about her daughter. Then she said the work was too difficult because she had to keep waiting on information from others, which they did not supply.

  1. Ms Patole said that Mr Cordukes then asked her about this and how she had chased up the information and whether she had copied him on the emails so that he and management would be aware of the problem. She lost control and began swearing at Mr Cordukes. She stormed out of the room. A few minutes later she returned and apologised. The issues about her output were raised. Ms Andersen admitted to going away to Melbourne with a friend for a week for which she had claimed paid time.  Counselling and part time work were again suggested but Ms Anderson had the view that the suggestion of part time work indicated that the Respondent was trying to get rid of her. Ms Patole said that she tried to discuss the fact that the contract did not finish until February 2007 and that problems should be sorted out now and HP needed the output. Ms Andersen persisted in the view that the Respondent was trying to get rid of her.

  1. Ms Patole recounted that Ms Andersen said that she was having difficulty understanding the work she was supposed to be performing. She was told she needed to keep Mr Cordukes informed of the problems she was encountering. She was told a first formal written warning would be issued in relation to her work performance and there would be a month long period of performance management. Mr Cordukes was to prepare a statement of work and she would need to attend the office in Rhodes five days a week so that Mr Cordukes could monitor her progress. She was to speak directly to Mr Cordukes if she was sick. It was accepted there may be exceptional circumstances eg. bushfires which may prevent her attending the office in Rhodes. Ms Patole understood that Ms Andersen accepted the outcome of the meeting. Ms Andersen did not mention any illness which would prevent her attending the office. She was asked to contact Ms Patole and make a time to see her during the following week.

  1. Under cross examination Ms Patole conceded she had used the word “fraud” during the meeting. Her evidence was that this had been in the terms “That could be considered fraud” in answer to Ms Andersen’s acknowledging that she had charged for some days when she had been on holiday, which under the terms of her contract she was not entitled to do.

  1. When Ms Patole  arrived at work between 8.30am and 9am on Monday 27 November she found an email from Ms Andersen requesting a meeting at 9.30am. She sent an email advising she could not do that as she had a new employee induction that morning. She said that she and Ms Clisdell tried to phone Ms Andersen without success.

  1. When Ms Andersen arrived at the Rhodes office, Ms Patole said that she was abrupt and demanding. Ms Patole said she would meet her later that day. Ms Andersen was obviously annoyed. Ms Patole’s evidence was that she stormed from the office and slammed the door. She said she understood Ms Andersen would have been at Rhodes in any case as she was to attend the office from 8.30 am every work day for a month as agreed at the end of the meeting on 23rd November. Later that day a resignation was received from Ms Andersen. It was agreed with Ms Clisdell it should not be accepted, as it was considered to be an emotional and not a rational response. The matter was referred to Ms Howse, the National Manager, to contact Ms Andersen.

  1. In her statement, Ms Andersen said that she met with Ms Howse about a week later, but that “nothing really came from the meeting.”

  1. Mr Cordukes provided a statement dated 8 February 2008. As a business analyst, Ms Andersen’s task was to collect information on the basis of which business performance could be managed and assessed. His evidence was that Ms Andersen took a passive approach to her duties, failing to follow up when no one responded. From time to time she would seek assistance from him to escalate progress at which point he says she was offered assistance but in most cases she did not follow through. She took the view no one was interested in the project.

  1. He said that from early 2006, she confided the problems she was having with her daughter and Mr Cordukes says he gave her some leniency and allowed her to work at home. The problem was she was not providing an adequate amount of work. She said she was not able to attend meetings in the office due to personal commitments towards the end of her involvement in his team. He had spoken to Sarah Clisdell, who, he understood, had spoken to Ms Andersen. He was prepared to accommodate more flexible working days and/or hours but needed the work to be done. He had also spoken to her and strongly suggested she speak to someone for assistance with her personal issues and emotional state. He tried to get her to attend a meeting with Ms Clisdell but she did not attend. When Ms Patole took over he informed her of the situation and a meeting was organised.

  1. The purpose of the meeting was to get the work back on track and offer support. His primary objective was to get her working back in the office at Rhodes to assist her in focussing on her work at hand and ease her focus on personal issues. She did not accept this idea very well and Mr Cordukes understood from previous conversations that Ms Andersen found working in the office depressing. There was a restructure and retrenchment process going on at the time.

  1. Ms Andersen was “edgy and aggressive” in her manner and cried and was upset during the meeting and at the end of it. At one stage she “stormed out” but returned. There was a lot of discussion about the personal issues and the difficulties with her daughter. She was personal in her attacks on him and swore during the meeting. She felt HP “owed” her.

  1. He acknowledges that Ms Patole used the term “fraud” in referring to Ms Andersen having booked time on her time sheet when she was not actually working. He thought this “a little direct” given Ms Andersen’s emotional state but says in general Ms Patole was seeking to focus on the work issues and to reach a workable solution.

  1. At the end of the meeting it was acknowledged she would receive a formal warning in relation to her work performance and she would be working for 30 days under a performance management system which included attending the Rhodes office on every work day. He did not think that Ms Andersen was accepting of this outcome. She made it clear she did not think what she was being asked to do was valid or of worth to anyone. However, he needed the work completed, and needed Ms Andersen at the Rhodes office so that he could monitor the work. He agreed that Ms Andersen was upset at the conclusion of the meeting.

Ms Andersen’s Medical Evidence

  1. The clinical records from the Springwood Family Medical Centre show that Ms Andersen first consulted that practice on 20 February 2006 with concerns about a skin lesion on her right arm for which she was referred to a dermatologist. In March 2006 she presented to the emergency Department of Nepean Hospital with abdominal pain and a 24 hour history of vomiting occurring around the menstrual cycle.

  1. In April 2006 she is noted as having a urinary tract infection, which had been persistent, and hyperthyroid symptoms. On 5 April 2006 a note records “lives with partner 17 years younger, both smoke a lot of marijuana, interested in counselling.” On 19 July 2006 she is noted as having “hyperthyroid type symptoms” as well as “blocked gland under right eye.” On 21 July 2006 the notes record  “tired and not gaining weight” and continuing to suffer menorrhagia. On 17 October 2006 there is note to say that she discussed multiple issues with the GP whom she saw, including urinary problems, weight issues, eating problems, and a new skin lesion on her left forearm. In December 2006 she consulted the practice again in relation to ear problems.  On 14 and 21 March 2007 she continues to have dysuria and a recurrent urinary tract infection. On 30 March 2007 she consulted the practice with a range of symptoms and anxiety/depression and was tentatively diagnosed by a Dr Mehraby, and was given anti depressant medication.  The next consultation was on 17 July 2007 with Dr Rezk. Symptoms included “Poor sleep. Depressed mood. Low self esteem. Irrational fear.” On 24 July 2007 she was referred to a psychologist, Ms Sharp, and on 30 July 2007 to a psychiatrist, Dr Peter Morse. The next consultation was on 10 March 2008 where it was noted she has “no lethargy, no fevers, no malaise”. She has a persisting problem with dysuria.

  1. On 4 June 2008, the notes recorded by Dr Rezk state:

“Came for a check up Psych:
Low self esteem. Depressed mood. Poor sleep. Early morning wakening. Irrational fear as a result of work related stress. No panic attacks…Very emotional. Unwell. Not happy. Needs assessment of her condition by her solicitor.”

  1. Subsequent consultations with Dr Rezk appear to relate to respiratory, joint and muscle pain in the neck and back.

  1. On 17 July 2007 a mental health assessment notes she reports feeling depressed “all of the time.” The problem/ diagnosis is “lack of work, the way she was handled at the end of her contract, insomnia, tired, lethargic, frustrated, unhappy, lack of motivation.” Lifestyle issues notes “marijuana.” Management is to be through “counselling.” When she is referred to Ms Sharp on 24 July 2007, Dr Rezk noted: “patient is very depressed as a result of her treatment at work and the way she was terminated from her work.”

  1. In his report dated 12 September 2008, Dr Rezk stated as follows:

“Katherine was going through [a] hard time at work when her contract with Manpower as IT support was terminated for no good reason and the lack of supervision and support of her employer while working for them at HP.

The diagnosis that I made…[was] mixed Anxiety and depression as a result of the way she was treated at work and the [way] she described to me her contract termination. However, I have not seen her during that period as Katherine did not apply for work cover at that time either to me or to other doctors in the practice at the time of termination.

Listening to Katherine’s complaints and after assessing her as well as reading through the report sent by Dr Morse I consider that Katherine’s employment with Manpower as a substantial factor to her Psychological Injury despite the concern that I as well as Dr Morse raised that we did not see her at the time of her termination.”

  1. Dr Rezk concluded that, although Ms Andersen’s symptoms had improved a little, she was still “unable to do her pre-injury duties as well as the lack of recognition of what happened to her.”

  1. Dr Morse first saw Ms Anderson 31 July 2007. He prepared a report dated 10 September 2007 and a supplementary report of 2 July 2008. He diagnosed “major depression” with “recurrent panic attacks. ” Relevant parts of his report are as follows:

“She complained of a lack of supervision and support by a representative from Manpower at HP and was given little support and assistance.

She began to get ‘sick’ because of the pressures at HP…She asked for help from representatives from Manpower but they sent a junior person. She says they never got back to her and the representative sent a report to the company rather than assist her. There was a review in November 2006 and she continued to be upset and distressed and ceased work.

She said in 2006 HP was going through cuts and she was in the group which had to send out management reports on people who were to be fired. This was a difficult time. She had the feeling that she was ‘next on the list.’ She asked Manpower for another position and requested an increase in salary but they never got back to her. A supervisor was appointed who was young and inexperienced and didn’t give her any support or feedback to her…She had nothing to do and so did no work for about 30 days. She wrote to Manpower but nothing was done. She felt that they were trying to force her out and that from that time she began to get depressed and physically ill. She had a review in November 2006.

She was very bitter about the way she was treated and she doesn’t know what she is going to do in the future…

She says she received no support or help from Manpower despite her years of service…

I am unable to state if she experienced the stresses [in] the workplace she describes, however, if, as she says, she was treated in this manner without support of Manpower in a difficult situation with HP without feedback and no adequate reward for efforts, it is not surprising she suffered and (sic) anxiety and depressed state she described.”

  1. Dr Morse referred to the loss of Ms Andersen’s parents at a relatively young age, the break up of her marriage and the conflict with her daughter and said that:

“Although this would have added to her depression it would seem that her lack of confidence and low self esteem added to her inability to deal with the situation in an adequate manner. There are no other features of her personality functioning to suggest she is more vulnerable to suffer depression in the absences of the stresses she experienced. Therefore, I consider the experience of the work situation is the cause of the psychobiological change which is depression and anxiety.”

  1. He considered that she would not be fit for work until she had some intensive psychiatric therapy.

  1. In his supplementary report, he said that Ms Andersen’s stressful experience in the workplace “occurred over a number of years up to 2006.”

Manpower’s Medical Evidence

  1. The Respondent relied upon a report from Dr Leonard Lee, psychiatrist, dated 29 April 2008. He reported as follows:

“Ms Andersen told me that for about six months before she stopped work, she was having a lot of health difficulties – losing weight, menstruating heavily, and having hot and cold flushes. She was tested for menopause, but the results were not conclusive…
She said that her work role was difficult because other groups would not supply her the basic information she needed to put her reports together. Many people were leaving the organisation and many managers were overseas and she therefore was not getting the work to do…She said that when she asked for other work, her boss [Mr] Cordukes told people not to give her any other work. She said he might have been trying to be nice to her or alternately trying to get her bored enough to resign.

She had been in the team for six months when Cordukes organised a meeting with the Manpower representative, Deepa Patole, whom she had never met before. At the meeting, Patole told her it was a performance review, which she felt shocked about. She put Ms Andersen’s time sheets down and apparently said she was frankly lying and demanded to know what was going on. Patole did not seem very interested in her explanations. Ms Andersen became upset because she felt this was really unfair.

Apparently Patole decided that Ms Andersen had to come in for the next 30 days and sit at her desk because Ms Andersen was not doing her work, to get the report done. Ms Andersen felt that she was too sick to do so, but was given no other choice…

Over the weekend, Ms Andersen realised that her health was more important and decided to come in and talk to Deepa to put in her resignation. However, Deepa had cancelled the meeting without telling her. Ms Andersen said she went home and just resigned.”

  1. Dr Lee concluded:

“It appears from a detailed consideration of the factual investigation that her current symptoms are not related to the accident or employment, as opposed to her unexplained physical symptoms and her personal life. On the basis of her report, I would have to say that she is probably not able to cope with her current work due to apparent ongoing depression. Her employment statements show that her employment did not cause any condition that she may be suffering from. Her work was not demanding but her attitude was apparently either poor or she was unable to follow through because of her symptoms.”

THE ARBITRATOR’S REASONS

  1. After setting out the evidence, the issues in dispute, and the relevant legislative requirements, the Arbitrator set out her findings and reasons as follows:

“56. As noted above, there is agreement in the medical evidence as to diagnosis in relation to Ms Andersen’s condition. She has been diagnosed as suffering from a major depressive disorder. That would qualify as a psychological injury pursuant to s.11A(3). That is not disputed by the Respondent.

57.    It is argued on the Applicant’s behalf in the written submissions that her distress and consequent injury were caused by essentially two matters:

·      Her distress at being placed in an ineffective position with an impossible task not supported by her host employer or what she perceived to be an ineffective manager; and

·      The inappropriate conduct of Ms. Patole in late November 2006 and in particular the meeting on 23rd November 2006.

58.    The Respondent contends that the injury did not arise out of or in the course of her employment – either prior to the meeting of 23rd November or from that time.

59.    According to Mr Corduke’s statement which was not refuted by the Applicant, she did not suggest to Mr Cordukes, when she had personal discussions with him, that she was suffering psychological problems because of work – she only discussed her upset over her daughter’s situation and she herself acknowledged it was affecting her work The text of her email to Ms Patole prior to the meeting acknowledges this -

“Yes, things have been extremely difficult for me personally and it has affected
my work.”

60.    There was no contemporaneous suggestion by her doctors or by Ms Andersen to them that the headaches, nausea, excessive menstruation, tiredness and failure to gain weight, which were occurring in 2006, were related to her employment. On April 5, 2006 her doctor notes that she and her partner smoke “a lot of marijuana” and that she is “interested in counselling.” Ms Andersen denied during her evidence at the arbitration that she had said she smoked a lot of marijuana but conceded some use. She said the reference to counselling referred to the issues with her daughter. However, it seems unlikely the doctor would have noted a “lot of marijuana,” if that is not what had been said and the conjunction of that with the interest in counselling appears to indicate that the two were related. There is no note that she discussed the other issues with the doctor at that time.

61.    It is not refuted that Ms Andersen had difficulties in obtaining the information she needed in her task as a business analyst in Mr Cordukes’ team. The employer asserts she was offered assistance to which she took a “passive” attitude. It is clear that in any case, she was experiencing significant difficulties in the work situation.

62.    Ms Andersen herself agrees as late as November that her home concerns were impacting on her work and she describes her feelings of helplessness  - sitting on the couch waiting for the mobile to ring - in not knowing where her daughter was and having quite understandable fears for her welfare.

63.    Ms Andersen was very upset and angered by the meeting of 23rd November and the events of 27th November. That is clear from her resignation email. I accept Ms Andersen behaved in the meeting as described by Ms Patole in her evidence which is set out above.  She herself acknowledges she left the meeting at one point and that she was extremely angry and upset. She had acknowledged in her email to Ms Patole prior to the meeting that she was likely to be upset.

64.    The evidence is that, prior to the meeting of 23rd November, Ms Andersen had no psychological condition diagnosed, received no treatment for a psychological condition, had no time away from work nor suggested to her employer or her doctors that she was suffering a psychological condition because of work –or at all. After the meeting she did not work again for the Respondent.

65.    Whilst her condition was not diagnosed until March 2008, Ms Andersen appears to have been experiencing the symptoms, which were later referred to as indicating her depressive disorder, earlier than this. I would conclude from all of the evidence that the symptoms occurred initially in the course of her family situation and concerns about her melanoma and other health issues. However, they also manifested themselves in the course of her work as well as in her life generally, particularly as she was, with the agreement of her employer, working substantially from home, and in particular manifested themselves in relation to her work at or around the meeting of 23rd November to the extent she felt she could no longer continue with her employment after that time. I accept that she suffered an injury in the course of her employment to which the employment made some contribution.”

  1. The Arbitrator then turned to consider the requirements of section 9A of the 1987 Act, noting that the most recent comprehensive discussion and application of that section was contained in the decision of his Honour Judge Keating in Nexon Asia Pacific Pty Ltd vBadawi [2008] NSWWCCPD 72 (‘Badawi 1’).  That decision was recently overturned by the Court of Appeal in Badawi v Nexus Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324 (‘Badawi 2’), but the discussion and analysis of section 9A by his Honour remains relevant. I will refer to this decision more fully in due course.

  1. The Arbitrator noted that a “broad approach” was required and said:

“72. An important issue to be considered in making a decision in relation to s.9A is the nature of the work undertaken. Ms Andersen’s case rests heavily on her contention that her employer did not make appropriate arrangements in relation to supervising and supporting her in a situation where HP provided a ‘non job’ possibly with a view to ‘easing her out.’

73.    The evidence that Ms Andersen’s difficulties at work stemmed from an ineffective manager or a task, which was not worthwhile or of value to the organization for which she was performing it, consists only in her own assertions.  Mr Cordukes says it was work he needed to have done and he made efforts to ensure that Ms Andersen was able to perform it. He was accommodating of her personal difficulties and she had confided in him, so it must be inferred she felt some measure of trust in him and that he was prepared to assist her to be able to perform her work and that he really wanted the work to be done.

74.    There is also no evidence other than her own assertion that HP or the employer was seeking to end her employment or to force her to resign.  On the contrary, there is evidence that her resignation was not initially accepted and some effort was made to dissuade her from her resignation when she did resign.

75.    It is asserted on behalf of the Employer that Ms Andersen was giving conflicting messages – on the one hand she wanted the work to be less stressful because of her own emotional situation – on the other hand she was saying that she wanted more interesting and stimulating work to distract her from what was happening at home. I accept, on the basis of Ms Andersen’s  own evidence and that of Ms Clisdell and Ms Patole that this was the case.

76.    Ms Andersen asserts a lack of adequate support and supervision. The evidence of the employer, particularly that of Mr Cordukes was that there were mechanisms for seeking to address the difficulties she was experiencing with obtaining information, which she did not access. Dr Morse says that that her “ lack of confidence and low self esteem added to her inability to deal with the situation in an adequate manner.” He implies that the lack of confidence and low self esteem arose from her work situation but does not explain why or how this would have been the result of the work situation rather than the other factors – particularly the extremely worrying situation with her daughter  - which seems to have predated the difficulties at work. Mr Cordukes records her passivity in the face of the difficulties she had obtaining information, which is consistent with the symptoms of “tiredness” she was describing to her GP in mid 2006. It is also consistent with her unwillingness to suggest to Ms Clisdell how her work situation might be improved or to meet with Ms Clisdell.

77.    Whilst Ms Andersen  complains of a lack of supervision and support she also seems to have avoided the supervision and support which was offered.

78.    The evidence is that that both Mr Cordukes and Ms Clisdell sought to assist Ms Andersen by seeking information from her as to how her work hours could be organised to better accommodate her difficulties and also suggested she seek counselling. She did not respond to either of these suggestions…. If the difficulties were as great as Ms Andersen said, in that other parts of the organization were not supplying information, it is unclear why she did not see this, at least in part, as an opportunity to demonstrate directly to Mr Cordukes that this was a problem and have him take responsibility for assisting her, if she had the view that he had not previously adequately done so.”

  1. The Arbitrator then turned to consider the “second aspect” of the employment causative of her injury, namely, the conduct of Ms Patole at the meeting in November 2006. The Arbitrator considered all the evidence on this issue to which I have referred above, before concluding as follows:

“85.   I find that the accounts of the meeting given by Mr Cordukes and Mr (sic) Patole are likely the more credible than the Applicant’s account. I accept that it was likely that the term ‘fraud’ was used in the way suggested by Ms Patole and not as suggested by Ms Andersen.  It was probably, as Mr Cordukes acknowledged a term which was ‘a little too direct’ in the situation and I would go further to suggest that it was not helpful terminology in this context.  Ms Andersen claims that she should have been put on notice of such an ‘allegation.’  It was not an ‘allegation’ decided on prior to the meeting which Ms Andersen was required to ‘answer’ – her own acknowledgement during the meeting had given rise to it. There appears to have been no formal allegation nor any consequence, which flowed from it in any disciplinary or other sense.  There is no record the employer sought to recover any monies, which may have been paid to Ms Andersen for work she herself acknowledged she did not perform. If they did, Ms Andersen did not complain.

86.    Dr Morse records that she told him that she did not do any work for 30 days because she had nothing to do.  She did not confess this to Manpower or HP but it perhaps explains Mr Cordukes’ concerns about lack of output and justifies the employer’s review of her performance. It also perhaps explains why Ms Andersen expected that the meeting of 23 November 2006 would be about performance appraisal and provides a reasonable basis on which the employer would consider that an appropriate course of action….

88.    Ms Andersen also perceived the events of 27th November as discourteous and indicating that Manpower and Ms Patole were not appropriately concerned about her situation as her employer. Although she had been invited to set up a meeting on Thursday for the following week, Ms Andersen did not contact Ms Patole by email until Sunday night – to set up a meeting for Monday morning at 9.30am. She knew or should have known Ms Patole would not receive this until 8.30am on Monday morning, by which time it would be too late to notify her if that time did happen to clash with any other arrangement Ms Patole might have had. Ms Andersen was not entitled to expect Ms Patole would be free to see her at what was at the most an hour’s notice. Even so, Ms Patole and Ms Clisdell did try to forestall her, without success. That Ms Andersen dealt with this matter in this way is probably a measure of her emotional state. This is unreasonable behaviour in a work context. Its results were entirely predictable.

89.    There seem to be some mismatched expectations as to the employment relationship which have played a part in the events surrounding the allegations of injury.

90.    Ms Andersen refers to Manpower as her ‘agent’ or ‘representative’ vis a vis HP. However, Manpower was her employer – it was not her agent or representative. There is no evidence to suggest that it represented itself to Ms Andersen as anything else. HP was Manpower’s client.

91.    Manpower had responsibilities as an employer to Ms Andersen to provide her with a safe system of work.  She alleges in her resignation email that Manpower had been told of ‘her circumstances at home and at work’ over some months but it is unclear what circumstances at work it was told of – other than that Ms Andersen’s personal difficulties appeared to be impacting on her work and that she found work at once ‘too stressful’ and ‘not challenging enough’ to distract her from the problems at home.”

  1. The Arbitrator then noted the considerable amount of evidence relating to Ms Andersen’s “other problems outside her work” and that those problems “formed a major theme of her discussions with Mr Cordukes and… Ms Clisdell.”

  1. She concluded:

“94.   In summary, I accept that Ms Andersen’s own analysis of the situation during 2006 prior to the November meeting – and the perception of Manpower’s supervisors and Mr Cordukes - that her home situation was impacting on her work, rather than the work itself and a lack of support and supervision being the major factor, was likely to have been correct.”

  1. In considering the medical evidence in relation to the section 9A issue, the Arbitrator noted that none of the doctors saw Ms Andersen at the relevant time, that is, during the latter part of 2006. Dr Rezk did not see her until July 2007, and no information was provided to Dr Mehraby about work issues during his consultation in March 2007. Dr Lee clearly relied upon Manpower’s account of events at work, while Dr Morse was entirely reliant on Ms Andersen’s account. She said at [97]:

“…because of [the] nature [of] the information which the medical witnesses have relied on as a basis [for] their opinions in relation to causation, I am unable to derive a great deal of assistance from any of the medical reports in that regard.”

  1. She rejected Dr Rezk’s statement that Ms Andersen was terminated “for no good reason” as being factually incorrect. She noted that none of the doctors had dealt in any detail with other issues concerning Ms Andersen, particularly her daughter’s situation and her skin lesions. She continued at [101]:

“None deal with her heavy marijuana use. Dr Morse says that her daughter’s situation was a cause of distress but not the main cause of her emotional disturbance.  This is a conclusion reached a year after the daughter moved away from home and after Ms Andersen herself had decided, in retrospect, that work was the major cause of her psychological condition. He does not explain why he reached this conclusion, other than his acceptance of Ms Andersen’s contention that it was so.”

  1. In considering Ms Andersen’s state of health prior to mid 2006, the Arbitrator said at [103]:

“In relation to Ms Andersen’s state of health prior to mid 2006, in her statement of 18th January 2008, Ms Andersen says she did not suffer any medical conditions during 2006. She also states that she began to suffer ‘general illness’ around mid 2006.  That assertion is not supported by the GP practice notes, which are summarised above…The implication is that she was underweight throughout 2006  - loss of weight is a symptom she has attributed to her psychological condition.  However, from the GP’s notes it seems this concern, as well as other symptoms noted above, pre dated the difficulties she says she experienced in mid 2006 with her work.”

  1. Weighing all these factors, the Arbitrator concluded at [104]:

“On the basis of all of these findings in relation to the relevant issues to be considered pursuant to s.9A, and balancing them, as I am required to do…the conclusion is that employment was not a substantial contributing factor to Ms Andersen’s psychiatric condition.”

THE ISSUES IN DISPUTE

  1. The notice of appeal lists the following grounds:

“1. The Arbitrator erred in law in entering an award for the Respondent pursuant to section 9A [of the] Workers Compensation Act 1987;

2.     The Arbitrator erred in failing to adopt and apply Mercer v ANZ Banking GroupLimited (2000) 48 NSWLR 740 (Mercer);

3.     The Arbitrator misapplied Nexon Asia Pacific Pty Ltd v Badawi [2008] NSWWCCPD 72 (Badawi 1);

4.     The Arbitrator’s decision was against the weight of all the evidence both lay and medical;

5.     The Arbitrator failed to heed the Respondents own concessions that their conduct may have been inappropriate and distressing;

6.     The Arbitrator placed undue weight and overstates the Applicant’s personal issues in relation to her daughter, skin issues and weight issues. The Applicant was not incapacitated or ‘injured’ within the meaning of the Act by life issues. Her ‘injury’ arose out of a background of her work situation and particularly out of the conduct of her employer and Host employer in meetings in November 2006 about which significant evidence was called and addressed upon.”

  1. Supplementary submissions were filed on 16 September 2009 following receipt of the transcript. They do not add to the matters raised on appeal and frankly amount to no more than a summary of the facts as Ms Andersen interprets them. There is a claim that there was “continual interference and interruption by the Arbitrator during cross-examination” which it is said impeded “the ability to obtain clear and coherent evidence from witnesses.” Despite this assertion, Ms Andersen submits that there was a “clear and consistent story” which emerged, which, she claims, supports her contention that employment was a substantial contributing factor to her injury. In these circumstances, I do not understand the relevance of these submissions.

THE SUBMISSIONS AND DISCUSSION

  1. Regrettably, Ms Andersen’s submissions in support are not clearly directed to the issues raised on appeal. Most focus on issues such as section 11A and incapacity which Ms Andersen states were not decided by the Arbitrator. Given the Arbitrator’s primary findings, it was not necessary for her to consider these issues, but I accept that it may be appropriate that they be considered on review. As I understand her submissions, Ms Andersen says that, since employment was in fact a substantial contributing factor to her injury, then she was entitled, failing any defence under section 11A, to have the level of her incapacity determined by the Commission and to obtain any other related benefits.

The Section 9A Issue

  1. Ms Andersen has not presented any useful submissions on this issue other than the bald assertion that the Commission “would not” accept the views of Dr Lee over those of Ms Andersen, Dr Rezk and Dr Morse as to “the causes of her distress.” No reference is made to the statements of Mr Cordukes, Ms Patole or Ms Clisdell. She simply presents a summary of the background to the claim and attempts to amplify the evidence she claims supports her contention that her employment was a substantial contributing factor to her injury. For example, she submits: “Mr Cordukes was unpopular at [HP] and the applicant suffered resistance from [HP] staff to assist her.” Although she described Mr Cordukes as “ineffective” there was simply no evidence to support this assertion.

  1. To consider the operation of section 9A of the 1987 Act, regard must also be had to the terms of section 4 of that Act. “Injury” is defined as “personal injury arising out of or in the course of employment.” The sections must be read together. Section 9A (2) sets out examples of matters to be taken into account in order to determine whether a worker’s employment was a substantial contributing factor to an injury, but they are not exhaustive.

  1. The Arbitrator accepted at [56] that Ms Andersen’s condition would “qualify” as a psychological condition within the terms of section 11A (2). That finding was consistent with the evidence, but that is not an end to the matter.

  1. I must say that I have considerable concerns as to whether Ms Andersen did indeed suffer an “injury” within the meaning of section 4. There are a number of reasons for this. In her oral evidence, Ms Andersen said [T25]:

“Everything was deteriorating – health, work…I couldn’t get satisfaction from going to work…”

  1. In August 2006 she rang Manpower about “two different things…with my daughter being the way she is, is there some way I can arrange for my work differently?” [T27]. She denied that Ms Clisdell offered her any assistance [T28] but referred to being “frustrated” both at work and at home [T29].

  1. In stating that “I needed to be kept occupied at work to distract me from what was happening at home”, she conceded that she was referring not only to her worries about her daughter, but her own many health problems [T60].

  1. The evidence disclosed that Ms Andersen had a number of health problems for which she sought treatment from early 2006. There is no suggestion in the medical records that such problems, particularly weight loss and menstrual problems, were as a consequence of any psychiatric injury, let alone a work related psychiatric injury, and she conceded that she did not mention any frustrations at work causing her distress when she consulted various doctors at the Springwood Medical Practice [T59].

  1. In addition, she concedes in her email to Ms Patole prior to the November meeting:

“Yes, things have been extremely difficult for me personally and it has affected my work.”

  1. It is also clear from the evidence of Ms Patole and Mr Cordukes that Ms Andersen was distressed and crying at the November meeting when discussing the problems she was facing with her daughter. In addition, as the Arbitrator rightly noted at [59]:

“…she did not suggest to Mr Cordukes, when she had personal discussions with him, that she was suffering psychological problems because of work – she only discussed her upset over her daughter’s situation and she herself acknowledged that it was affecting her work.”

  1. The Respondent submits that Ms Andersen’s comments about her “frustrations” and dissatisfaction at work and her need to keep working to distract her from events at home are not evidence of an ‘injury’ within the meaning of section 4 of the 1987 Act. That is a compelling argument. Having said that, there is evidence to suggest that she was experiencing difficulties at work particularly as a consequence of the structural changes which took place early in 2006, and the frustration she described in her oral evidence in trying to obtain the information she needed for her reports (for example, [T23]). The Arbitrator also accepted this at [61]. On this basis, she concluded at [65] that Ms Andersen “suffered an injury in the course of her employment to which the employment made some contribution.”

  1. With some hesitation, I am prepared to accept the Arbitrator’s determination on this issue, particularly since she had the benefit of hearing from Ms Andersen. 

  1. Nonetheless, the evidence clearly supported the view that there were significant other factors causing Ms Andersen distress. Even if her work situation made, as the Arbitrator noted, “some contribution” to her condition, it was not in my view by any means “substantial.”

  1. As the Arbitrator concluded at [94]:

“In summary, I accept that Ms Andersen’s own analysis of the situation during 2006 prior to the November meeting  – and the perception of Manpower’s supervisors and Mr Cordukes - that her home situation was impacting on her work, rather than the work itself and a lack of support and supervision being the major factor, was likely to have been correct.”

  1. Having carefully reviewed all the evidence, I am comfortably satisfied that the Arbitrator’s conclusion that Ms Andersen’s employment was not a substantial contributing factor to her condition was correct, and in line with the authorities to which I will now refer. 

The Authorities

  1. Ms Andersen has again failed to identify in what respects she claims the Arbitrator failed to “adopt and apply” Mercer, nor indeed how she “misapplied” Badawi 1.

  1. The Arbitrator considered these decisions together with those of Dayton v ColesSupermarkets Pty Ltd (2001) 22 NSWCCR 256 (‘Dayton’) and Tilman’s Butcheries Pty Ltd vAustralian Meat Industries Employees’ Union (1979) 42 FLR 331 (‘Tilman’s’) commencing at [66]. She made reference to the comments of Deane J in Tilman’s noting that a broader view of what was determinative was required:

“…which requires the weighing of all of the relevant factors in what was said to be ‘a broad area for personal judgement’ on the part of the decision maker.”

  1. She appropriately summarised the principles established in Dayton at [70] as follows:

“In Dayton it was confirmed that a finding as to the relevant contributing factors to an injury is a question of fact which must be supported by the evidence. It is the strength of the causal connection which is in question and the particular employment concerned – not the fact of being employed. There may be more than one substantial contributing factor – the legislation requires that employment be a substantial contributing factor, not the substantial contributing factor. Whether a factor is ‘substantial’ will, according to Giles J (at 745) be ‘a matter of impression and degree.’  A factor can be minor and still trigger the onset of a disease and symptoms but if it is minor amongst contributing factors it will not be ‘substantial.’  A factor may come into the ‘last straw’ category and the substantial problem may be all of the other factors.”

  1. The interaction between sections 4, 9 and 9A have recently been considered by the Court of Appeal in Badawi 2.  In that case, the worker and her supervisor were on a business trip to the Perisher Blue Ski Resort. The purpose of the trip was to secure the resort as a client. It was arranged that the worker would go skiing with a representative from the Resort on the final day of the trip. The representative withdrew, but the worker and her partner went skiing anyway. While skiing, her supervisor rang and asked her to return to the Resort. As she started to ski down the mountain, she injured her knee.

  1. An Arbitrator upheld her claim, but it was overturned on appeal by his Honour Judge Keating on the grounds that the skiing on that day was primarily recreational such that her employment was not a substantial contributing factor to her injury.

  1. The Court of Appeal (per Allsop, Beazley and McColl JJA, Basten JA concurring and Handley JA in part dissenting) upheld the worker’s appeal, noting at [93] that:

“As the facts reveal, the appellant sustained her injury when, in the course of her employment, she was leaving one place, that is, the ski slopes, where she was not engaged in a particular employment task, to return to the Resort, which was the principal site where the respondent’s business was relevantly being conducted, to discuss matters in relation to the very business that had brought her to Perisher. She was doing so at her supervisor’s specific request.”

  1. The summary of the majority’s findings are a useful guide to the proper construction of the relevant sections, and are worth reproducing in full as follows:

“1. The tests for an injury ‘arising out of’ employment under ss 4 and 9 and for employment being a ‘substantial contributing factor’ under s 9A must be considered separately. It is not sufficient to find that injury arose out of employment and to therefore conclude that the employment concerned was a substantial contributing factor to the injury: [85], [91].

2. The meaning of an injury ‘arising out of’ employment for the purpose of ss 4 and 9 is settled. An injury arises out of employment if the fact that the claimant was employed in the particular job caused, or to some material extent contributed to the injury. The phrase involves a causative element and is to be inferred from the facts as a matter of common sense: [73] - [76].

3. The phrase ‘substantial contributing factor’ in s 9A also involves a causative element. It is a different or added requirement to the ‘arising out of’ employment limb of ss 4 and 9, however the causal connection required for s 9A is not less stringent than that found in s 9. Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740 not followed: [80] - [85].

4. For employment to be a ‘substantial contributing factor’ to the injury for the purposes of s 9A the causal connection must be ‘real and of substance’. The language of the section is not to be confused with interpretations such as ‘large’, ‘weighty’ or ‘predominant’. Mercer v ANZ Banking Group [2000] NSWCA 138; 48 NSWLR 740 not followed: [82]-[83], [107].

5. ‘Employment’ for the purposes of s 9A is the same ‘employment’ that is under consideration in ss 4 and 9: [91]

6. In determining whether worker’s employment was a substantial contributing factor the matters specified in s 9A(2) must be taken into account to the extent that they are relevant: [89].

7. Section 9A(2)(b) directs attention to the nature of the work performed and the particular tasks of that work and not to what the employee was doing at the actual time of the injury. It is an incorrect approach to consider some other activity other than the employment that had preceded the injury and then seek a linkage with the employment from the standpoint of that preceding activity: [95] – [98], [105].

8. The Presidential Member’s failure to consider s 9A(2)(b) by reference to the work performed and the particular tasks of that work involved a misconstruction of the provision and was an error in point of law: [99]-[100].

9. Once it is accepted that ‘substantial’ in this case means ‘in a manner that is real or of substance’ the only answer when the test is applied to the facts of this case is that the contribution of the appellant’s employment to her injury was real or of substance: [107].”

  1. In other words, as the Court pointed out at [105]:

“Section 9A requires a consideration of ‘the employment concerned’ to ascertain whether it was a substantial contributing factor to the injury given the relevant circumstances in which the injury occurred, including the matters in s 9A(2).”

  1. In the present case, the “relevant circumstances” in which the injury occurred were the personal problems being experienced by Ms Andersen during 2006 which she clearly acknowledged were affecting her work.  Most of her complaints as to Manpower’s failure to assist and support her, and the claimed “ineffectiveness” of Mr Cordukes consisted, as the Arbitrator rightly pointed out, “only in her own assertions.”  There was ample evidence that Manpower and Mr Cordukes endeavoured to assist her with her personal problems, and indeed her problems in obtaining the information she needed, but Ms Andersen avoided the assistance offered.

  1. In my view, the causal connection was arguably real, but it was certainly not of substance. Simply put, Ms Andersen’s evidence failed to establish that the “employment concerned” was a substantial contributing factor to her injury.

  1. The Court having declined to follow Mercer renders Ms Andersen’s complaint in this regard otiose. Similarly with the submissions as to the “misapplication” of Badawi 1.

The ‘Weight of Evidence’ Issue

  1. Again, Ms Andersen’s submissions do not address this issue. Ms Andersen asserts that her injury “arose out of a background of her work situation and particularly out of the conduct of her employer and host employer in meetings in November 2006” and that the Arbitrator placed “undue weight” on her personal problems.

  1. It was Ms Andersen’s own evidence that her personal problems affected her work. There was conflicting evidence as to the circumstances surrounding the meeting in November 2006 which the Arbitrator considered at [85], preferring the accounts given by Ms Patole and Mr Cordukes to that of Ms Andersen. It is clear that Ms Andersen had discussed her personal problems with Mr Cordukes from early 2006. His concern was relayed to Ms Clisdell who attempted to assist her. She was given the opportunity to work from home more often, but this resulted in a significant decrease in her output about which her employer was justifiably concerned. Ms Andersen admitted to doing less work over concerns about her daughter’s welfare (see [35] above). Ms Patole was aware of her personal situation prior to the meeting. It is worth setting out the contents of Ms Patole’s email to Ms Andersen on 22 November 2006: Ms Andersen’s response is reproduced at [23] above. Ms Patole wrote:

“Hi Kate,
I have recently joined Manpower as a new on-site consultant and am currently in the process of meeting all clients/managers at HP and contractors that fall under my portfolio.
I met with Ross Cordukes last week and he advised that he was going to organise a meeting with you this week, to review your current work/process. I have been made aware by manager Sarah Clisdell, who you would have previously dealt with and Ross that there are personal circumstances that are currently affecting your work. Ross and I therefore need to discuss/understand from you what level of commitment you currently have to your job/role so that we can make a decision regarding your current contract and/or assist you where possible.”

  1. Those “personal circumstances” were the subject of considerable discussion at that meeting.

  1. The Arbitrator’s acceptance of the accounts of Ms Patole and Mr Cordukes was in my view appropriate. She had the benefit of having seen and heard both Ms Andersen and Ms Patole. I do not consider that Manpower’s conduct at that meeting was inappropriate. Although Ms Patole used the word “fraud” which the Arbitrator accepted was perhaps “not helpful”, the Arbitrator accepted that it was used in the context described by Ms Patole. In any event, nothing came of that allegation.

  1. In all the circumstances, I am not persuaded that the Arbitrator’s determination was against the weight of all of the evidence, nor that she placed undue emphasis on Ms Andersen’s personal problems.

The ‘Concessions’ Issue

  1. Like Manpower, I find this ground of appeal “obscure.”  There was only one Respondent, and the “concessions” are not identified. Indeed, no submissions have been made on this issue so that I am somewhat at a loss to understand the nature of Ms Andersen’s complaint.

  1. Nowhere in the evidence can I see that Manpower conceded that its conduct may have been “inappropriate and distressing.” If this submission is a reference to Ms Patole’s use of the word “fraud” then I am not persuaded that it was inappropriate, though I can accept that it may have distressed Ms Andersen. Ms Andersen conceded that she had billed for work for days when she had been on leave. Ms Patole’s statement “that could be considered fraud” was not inappropriate. Indeed, as Manpower points out, it could have afforded the Respondent a valid defence under section 11A. It was not necessary to consider that issue since the Arbitrator, correctly, determined that the substantial cause of Ms Andersen’s condition was not her employment.

  1. This ground of appeal simply has no merit.

Other Matters

  1. Having determined that the Arbitrator’s decision was correct, it is not necessary for me to decide any of the other matters raised by Ms Andersen in her submissions to which I referred earlier. I do not consider it necessary to comment on the ‘incapacity’ issue raised by Ms Andersen, but some comments on her submissions relating to section 11A of the 1987 Act are appropriate.

  1. Ms Andersen’s submissions are a little confusing. On the one hand she submits that her injury was predominantly caused by “her impossible situation with Hewlett Packard” but on the other hand says that if her condition was predominantly caused by the meeting on 23 November 2006 then Manpower’s conduct at that meeting (particularly the actions of Ms Patole) was not reasonable such that the employer could not sustain a defence under section 11A.

  1. The contents of the email from Ms Patole to Ms Andersen on 22 November 2006 could certainly be regarded as “performance appraisal” within the meaning of section 11A. Given Ms Andersen’s conduct up to that time, and her clearly expressed difficulties in carrying out her work because of her various personal problems, it was appropriate for such a meeting to take place. Indeed, Ms Andersen welcomed it.

  1. Ms Patole’s caution to Ms Andersen that charging for days not worked could be considered “fraud” was, as Manpower submits, “direct [but] it can hardly be seen as unreasonable.” I accept that submission. It may also be seen as “discipline” within the meaning of section 11A as considered by Neilsen CCJ in Kushwaha v Queanbeyan City Council (2002) NSWCCR 339.

  1. If the evidence supported the contention that Ms Andersen’s condition arose wholly or predominantly as a consequence of the meeting on 23 November 2006 (and I’m not persuaded that it does) then I am satisfied that the conduct of Manpower was reasonable, and Ms Andersen’s claim would fail on this basis.

CONCLUSION

  1. Having conducted a “review on the merits” (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249) I conclude, for the reasons stated in this decision, that the Arbitrator’s determination was correct, and the appeal must fail.

DECISION

  1. The decision of the Arbitrator dated 29 June 2009 is confirmed.

COSTS

  1. I make no order as to costs of the appeal.

Deborah Moore

Acting Deputy President  

28 October 2009

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Ltd v Badawi [2008] NSWWCCPD 72
Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324
Wong v Silkfield Pty Ltd [1999] HCA 48