Andrews v Rail Corporation NSW - [2014] NSWWCCPD 7

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Andrews v Rail Corporation NSW [2014] NSWWCCPD 7
APPELLANT:	Lindsay G Andrews
RESPONDENT:	Rail Corporation NSW
INSURER:	Self-insured
FILE NUMBER:	A1-9648/12
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	29 October 2013
DATE OF APPEAL DECISION:	12 February 2014
SUBJECT MATTER OF DECISION:	Causation of psychiatric injury; reasonable action in respect of discipline; s 11A of the Workers Compensation Act 1987; challenge to factual findings
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	TD Kelly & Co
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1. The orders made by the Arbitrator as found in the Certificate of Determination dated 29 October 2013 are confirmed. 2. No order as to costs of the appeal.

BACKGROUND

Mr Lindsay Glen Andrews commenced employment as a labourer with Rail Corporation New South Wales (the respondent) on 18 January 1976 at which time he was 19 years of age. Since that time his duties have varied following promotion from time. Since April 2006 he has held the position of Purchasing Officer in the Business Financial Services and Purchasing Section of the respondent.
On 26 July 2010, Mr Andrews ceased work by reason of incapacity caused by alleged psychological injury resulting from the nature and conditions of his employment with the respondent. He alleged that he had been subjected to harassment, bullying and intimidation by members of management. At that time a disciplinary process had been commenced by the respondent concerning certain allegations relating to Mr Andrews’ conduct.
A claim in respect of workers compensation benefits was declined by the respondent upon the ground that no relevant injury had been received. In the alternative, the respondent relied upon the provisions of s 11A of the Workers Compensation Act 1987 (the 1987 Act) in that it was asserted that no compensation was payable given that the injury alleged, being a psychological injury, was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline.
Mr Andrews commenced proceedings in the Commission by the filing of an Application to Resolve a Dispute in August 2012. The matter came before Arbitrator Wynyard for conciliation/arbitration on 26 June 2013. The matter proceeded to hearing at which time each party was represented by counsel. The Arbitrator reserved his decision following which, on 29 October 2013, a Certificate of Determination was issued in which an award in favour of the respondent was recorded. The Arbitrator at that time published his Reasons for so concluding.

PRELIMINARY MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
The parties consent to the matter being heard ‘on the papers’. Having regard to Practice Directions Nos 1 and 6 and the documents that are before me, I am satisfied that I have sufficient information to proceed without holding any conference or formal hearing as is permitted by s 354(6) of the 1998 Act.

MATTERS RAISED ON APPEAL

The following grounds of appeal are relied upon by Mr Andrews, each of which suggest error on the part of the Arbitrator in the following respects:
“1.Failed to give any or adequate reasons for rejecting lay statement in support of the Appellant’s case, or otherwise in ruling those statements lack objectivity.
2. Failed to accept or give any or adequate weight to the unchallenged evidence of the Appellant.
3.Failed to accept the unchallenged evidence of the treating GP as to the history of complaints and the genesis of injury, and/or gave no proper reasons for finding that the GP’s history and opinion were false.
4.Failed to give any or adequate weight to the medical and lay evidence that supported a finding that the Appellant’s psychiatric condition was caused or significantly contributed to by workplace bullying, harassment and/or other workplace stressors in the period 2002 to April 2010.
5.Erroneously applied section 11A of the Workers Compensation Act 1987 (NSW) when on any proper analysis of the evidence, such contribution to the injury by ‘reasonable action’ within the meaning of section 11A was not the whole or predominant cause of that injury.
6.Failed to find that the delay in processing the misconduct inquiry against the Appellant between April 2010 and about September 2010 was not reasonable conducted [sic] within the meaning of section 11A.”
Mr Andrews’ submissions assert that the Arbitrator should have held that:
“1.The injury was caused by a combination of contributing factors including various workplace stressors in the course of his employment between 2002 and 2010 such that a section 11A defence was not made out.
2.To the extent if any that the injury was contributed to by conduct of the Respondent that amounted to ‘reasonable action’ within the meaning of s 11A, such contribution did not amount to the whole or predominant cause.
3.The Arbitrator should have awarded weekly payments and medical expenses as sought in the ARD.”

THE ALLEGATION OF INJURY

Mr Andrews alleges that he received psychological injury as a result of the circumstances particularised in the Application to Resolve a Dispute. The matters complained of as being causative of the injury occurred between 2001 and 26 July 2010. The description of the manner in which injury occurred was as follows:
(a)     the general nature and stresses of Mr Andrews’ duties in the Purchasing Section since about 2001;
(b)     harassment, bullying and intimidation by management;
(c)     the conduct and delay of the disciplinary allegation made against Mr Andrews in April 2010;
(d)     the continual denial of interviews for procurement positions despite having good Performance Development Process (PDP) results, and
(e)     ignoring the applicant’s requests for PDP assessment.
The manner in which Mr Andrews presented his case before the Arbitrator placed emphasis upon his experiences in the course of his work from 2001, in which year he had been seconded to the Business Financial Services and Purchasing section. Mr Andrews’ evidence was that from the commencement of that work he was “made to feel very unwelcome”. His manager, Mr Shrub, “would not even say ‘hello’ or ‘good morning’ to [Mr Andrews]”. It is stated that Mr Andrews felt as though he was an outsider who “ought not to be there”. It is further stated that he was “regularly… abused, harassed and put under increasing pressure by another member of the team, Mr David Burns”. Mr Burns’ conduct, which was said to include “abuse for my mistakes”, continued until 2009 at which time Mr Burns left the respondent’s employment for health reasons.
Mr Andrews further states that he had been regularly abused over the telephone concerning suggested errors by Mr Karl Scharf, the Senior Product Manager. That would occur every two or three weeks at which time Mr Scharf spoke “loudly and aggressively” over the telephone and directed Mr Andrews that he had “better fix it”. Following those comments Mr Scharf would “slam the phone down in [Mr Andrews’] ear”.
Mr Andrews states that “as a result of this behaviour, I began to become quite stressed and depressed. I felt like crying all of the time. I would fight with my wife. It severely affected my mood and outlook on life, constantly being exposed to abuse and ridicule. I thought about resigning from Railcorp”.
A complaint was made by Mr Andrews to Mr Ken Griffith, the Purchasing Supervisor concerning the “bullying and abuse” on a number of occasions “in around 2002”. No action was taken concerning such complaints.
Notwithstanding Mr Andrews’ treatment by members of management, he stated that he “enjoyed [his] role”. He was keen to advance his career and began to apply “to act in higher purchasing roles”. From 2002 Mr Andrews developed “an increasing concern that no matter how industrious [his] work ethic was, [he] was not going to be acknowledged for it”. Mr Andrews regularly heard of other employees obtaining promotions. Those employees had “less qualifications and experience” than Mr Andrews, his PDP results were good to excellent, however he would “miss out” on promotion to other employees who, in the view of Mr Andrews, were less qualified or suitable. His repeated failure to obtain a higher position caused frustration.
Mr Andrews commenced his present role as Purchasing Officer in April 2006 from which time he was required to work under Mr Selvan Mills, the Manager of Financial Services. Mr Mills, it is stated by Mr Andrews, subjected those under his supervision to acts of “direct and indirect harassment and intimidation”. Mr Mills, for reasons unknown to Mr Andrews, targeted those members of staff who, like Mr Andrews, were active in the Rail, Tram and Bus Union. Mr Andrews further states that Mr Mills “had a management style which involved having employees spy on each other and report to him, undermining people and working relationships”.
Mr Andrews’ statement includes a description of a number of occasions on which he was “hassled”, “intimidated” or “harassed”. Those occasions involved the conduct of fellow employees directed by Mr Mills concerning Mr Andrews’ intentions with respect to a work related ankle injury in December 2006; his conduct relating to taking lunch and morning tea breaks in the lunch room, and accusations made by Ms Lim concerning Mr Andrews’ timesheets, in particular accusations of “taking too long for…[his] lunch break”. Mr Andrews stated that there was “no evidence of [taking too long for his lunch break] and [those] claims were false”.
In 2008, it is stated by Mr Andrews, he was called into the office of Mr Thornton, the supervisor of Accounts Payable. Mr Thornton enquired of Mr Andrews as to whether he had any enemies. Mr Andrews replied that he did not, to which Mr Thornton responded “someone dropped this unsigned note on the internal audits desk, accusing you of falsifying your timesheet and your rate of pay”. Those matters were denied by Mr Andrews and the discussion came to an end following which internal audits were conducted concerning Mr Andrews’ timesheets and pay rate. Mr Andrews states that the review “found that I was working extra hours unpaid”. Thereafter Ms Lim asked for Mr Andrews’ timesheets. That prompted Mr Andrews to enquire as to whether he would “get paid all those extra hours” he had worked. Following that exchange Mr Thornton called Mr Andrews to his office pointed to him and yelled “keep away from Margaret Lim. She has put in a complaint. Now get out of my office”. This conduct confused Mr Andrews and he became “scared about being yelled at over a harmless joke”. Mr Andrews states that he went off work for a couple of days and consulted his general practitioner, Dr Parras. Following that absence Mr Thornton apologised to Mr Andrews.
In 2007 Mr Andrews and a fellow employee Mr Papianoannou were jointly given a new role in an acting capacity which they performed during alternate six month periods. That was a promotion and Mr Andrews was pleased. Further promotion could be secured by reference to results of PDP assessments. Mr Andrews states that from 2007, despite regular requests for these assessments, he was ignored. A couple of years passed without there being any assessment at all. Mr Andrews felt that “management was deliberately ignoring [him]”.
In December 2009 Mr Andrews, a member of the Rail, Tram and Bus Union, and fellow members of the union intended to meet during a lunch break. Five minutes before commencement of the meeting Mr Mills sent an email “threatening that if anyone was late back to work they would have to make the time up”. Very shortly thereafter Mr Mills attended Mr Andrews’ desk and behaved “aggressively”. Mr Andrews said to Mr Mills that he considered the email to be ridiculous and intimidating. Mr Mills appeared to become angry and “stormed off”. Shortly after that incident Mr Andrews received an email advising him that there was to be a meeting with Mr Mills and some other supervisors about his behaviour. That meeting did not take place.
Mr Andrews proceeded in his statement to describe his experience when, in April 2010, he was informed that an investigation was to be conducted concerning “some emails [he] had sent back in 2009 and 2010”. Those emails conveyed confidential documents to unauthorised persons. Those persons were employees of the respondent and Mr Andrews’ union representative.
Mr Andrews stated that he did not know that the documents were confidential nor that he had done anything wrong. He immediately became “very upset” and was worried that his employment was going to be terminated. He stated that “the uncertainty of what was going to happen…really got to me. My depression and anxiety increased”.
As Mr Andrews waited for the outcome of the investigation his “depression and anxiety got worse and worse”. He was, on 7 June 2010, advised by mail that the investigation had been completed, and that it was to be reviewed and sent to the Disciplinary Review Panel. Uncertainty concerning his position continued. On 28 June 2010, he was advised by email by the respondent that he was not to act in the Supervisor Purchasing role as he had in the past until completion of the disciplinary process. He stated that he was “devastated”. He further stated that he “was being punished without even knowing the result of the investigation”. His depression at that time “dramatically worsened”. He had trouble sleeping; did not want to go outside the house, and he felt his life and career were over. Everything “was finished”.
Mr Andrews stated that he consulted Dr Parras in July 2010, at which time he was certified unfit for work “due to depression and anxiety”. He sought legal advice in August 2010 and a copy of the respondent’s investigation report was requested.
On 10 August 2010, the respondent advised Mr Andrews by mail that the allegations had been “substantiated” and that a two week suspension from work was “appropriate”. On 16 September 2010 the respondent informed Mr Andrews of the “final” outcome being in the same terms as the earlier advice. Mr Andrews commenced proceedings by way of appeal against the penalty before the Transport Appeal Board. That appeal was heard by the Board on 15 February 2011. On 16 February 2011 orders were made setting aside the penalty of two weeks suspension and substituting a monetary penalty of $225.
Mr Andrews returned to part-time work on 5 March 2012 and resumed full-time work on 9 April 2012. He did not resume his “acting” duties.

Lay evidence relied upon by Mr Andrews

Three written statements made by fellow employees of Mr Andrews are in evidence. The first, by Mr Emanouel Papaioannou, is dated 11 December 2009 (I note that the date of this statement is earlier than the date on which alleged incapacity commenced. This anomaly is not explained). Mr Papaioannou is employed as an Acting Supervisor Purchasing with the respondent for whom he has worked for the past 16 years. His manager is Mr Selwyn Mills. Mr Papaioannou described difficulties he had experienced in his dealings with Mr Mills and related a discussion had between Mr Andrews, himself and Mr Mills in 2009 concerning workplace “restructure”. Mr Mills indicated that he was unable to guarantee Mr Andrews and Mr Papaioannou a position in the new structure and he suggested that they should “keep quiet and not question things”.
A statement by Mr Emil Zadravec, dated 5 December 2011, is in evidence. Mr Zadravec stated that he had worked in the company of Mr Andrews and had observed the Project Manager, Mr Scharf, walking through the premise throughout the day “making comments on the [staff restructure]”. Mr Scharf made comments concerning Mr Andrews’ performance and ability, pointing out “the smallest errors and adding comments as he passed”. Mr Zadravec heard discussions between Mr Scharf and Mr Andrews and believed that there had been a “deliberate attempt by [Mr Scharf] to stir up [Mr Andrews]”. It was also stated “[Mr Scharf] seem [sic] to go out of his way to aggravate [Mr Andrews] into heated discussions for no apparent reason/s”.
A statement made by Mr John Stevens, dated 24 June 2013, is in evidence. Mr Stevens, a Purchasing Card Administrator, works with Mr Andrews and has known him for 6 ½ years. Mr Stevens stated that he had noticed “ongoing problems between union members/employees and management since 2008. Mr Stevens described his observations of the conduct of Mr Selvan Mills in December 2009 after an email concerning a union meeting had been sent to most staff members. Shortly after receipt of the email, he observed an exchange between Mr Mills and Mr Andrews, during which Mr Mills stood over Mr Andrews in “an aggressive manner”. Mr Mills, it was stated, is “a large guy”. The exchange appeared to have been a heated exchange concerning the union meeting. Mr Mills raised his voice at the time.

The final paragraph of Mr Steven’s statement is as follows:
“The culture of the Financial Services Department was and is toxic. Management’s micromanagement of the department is governed by the principals of; control, ridicule and exclusion and punishment for employees who ask questions, or are perceived by management as not towing the line. There have been several employees who raised questions, or gone to supervisors outside the department about issues, and were then subsequently isolated within the department or removed under the new structure.”

Expert Medical Evidence Relied Upon by Mr Andrews

There is in evidence a handwritten document prepared by Dr Parras, dated 4 March 2002, which is addressed “to whom it may concern”. That document states that Mr Andrews had been Dr Parras’ patient for a period of over 10 years. It is noted that he had been in general good health “until the past 12 months”. Dr Parras noted that “it has become apparent that [Mr Andrews] is beginning to feel the effects of adverse circumstances which have been prevailing in his work place”. Dr Parras noted Mr Andrews had expressed “deep seated feelings of frustration and anguish” concerning failure to be acknowledged for his long standing loyalty and industrious work ethic. Dr Parras further states in that document that Mr Andrews “now requires more mental stimulation commensurate with his knowledge and experience”. Dr Parras expressed the following view:
“I believe that [Mr Andrews] is presently suffering with mixed anxiety and depressed mood as a consequence of not being given opportunities to grow within the workforce. I am fearful that this will develop into a chronic condition unless some form of progressive stimulating job change is offered to him in the near future.”
In a report, dated 15 November 2010, Dr Parras noted a history “of at least five different occasions prior to February 2010, and dating back to May 2007, in which [Mr Andrews] alleges that he was intimidated and verbally bullied by staff above him in rank at Railcorp”. A further history was recorded concerning an allegation being made in April 2010 concerning an alleged breach by Mr Andrews of the respondent’s Code of Conduct. The report proceeds as follows:
“Mr Andrews asserts that the allegations were unjustifiable and inappropriate and amounted to an act of intimidation. This was the final straw, as Mr Andrews recounts, in a succession of acts of intimidating harassment that caused him to sink into a state of major depression and sustained anxiety. This apparent assault on his integrity was further compounded later by demotion in his status without any corroboration.”

Dr Parras noted that Mr Andrews’ experience of depression and anxiety had caused incapacity for work and the following opinion is expressed:
“There is no doubt Mr Andrews’ present condition is directly related to and substantially contributed to by the nature and conditions of his work with Railcorp. More specifically, he alleges that the inappropriate and unreasonable treatment meted out to him by one or more of his superior staff members was the sole cause for his present condition. His diagnosis is:
Adjustment Disorder with Mixed Anxiety and Depressed Mood (DSMIV 309.28).”
Mr Andrews relied upon the contents of correspondence sent by Dr Parras to the respondent dated 13 December 2010. Dr Parras recorded that Mr Andrews first consulted him concerning the claim on 14 April 2010, at which time the history was given that he had recently received a letter from the respondent alleging a breach of the respondent’s code of conduct. Mr Andrews reported that he felt that he had been unfairly victimised and that the letter amounted to an “unjustifiable attempt to undermine his job security”. Dr Parras stated that that experience “affected him profoundly given that he had been a victim of verbal bullying and intimidation over the previous three years”. The diagnosis noted above was recorded in that letter. Dr Parras expressed the view that “since [Mr Andrews’] injury [he] has remained unfit for his pre injury duties”. The view was expressed that Mr Andrews’ employment with the respondent was a substantial contributing factor “in the pathogenesis of his present condition”. Dr Parras proceeded to state:
“The contributing causative factor in the pathogenesis of the patient’s condition is the alleged unreasonable, unwarranted and unjustifiable treatment meted out to him by one or more superior staff members at Railcorp over a number of years culminating in the incident of April 2010 detailed in question 2. The latter incident however is the pivotal contributory factor. The ‘extract from s 11A of the legislation’, to which you refer in the question appears to have been omitted. The ‘effects of the employment contribution’ are hitherto of a permanent nature as Mr Andrews remains unfit for his pre injury duties.”
Dr Parras, who holds a degree in law as well as his medical qualifications, responded to correspondence from Mr Andrews’ solicitors by letter dated 30 July 2012, a copy of which is in evidence. Dr Parras deals in that correspondence with an assertion said to have been made by the respondent to the effect that “Mr Andrews’ condition…was predominately caused by the disciplinary action taken against him and not to the matters preceding it”. Dr Parras noted that “this [assertion] was apparently based on the fact that my clinical notes did not appear to reveal any treatment relating to work stress prior to April 2010”.
Dr Parras stated in that correspondence: “clinical notes of a primary care physician are rarely able to encompass every detail of a consultation”. Dr Parras notes the role of confidentiality and such considerations concerning documentation of matters of history. Dr Parras asserts “with certainty” that Mr Andrews “often attended my surgery with somatic complaints such as headaches, chest pains, insomnia and flu-like symptoms which, on further questioning, clearly reflected an underlying condition of mixed anxiety and depression. There was often mention of work related issues causing considerable distress and angst”. Dr Parras proceeded to summarise discussions that he had with Mr Andrews concerning work conditions which involved intimidation, victimisation and persecution. That report concluded as follows:
“In summary, based on Mr Andrews’ representation of the facts, it would appear that for several years before the incident of April 2010, which forms the basis of the workers’ compensation claim, Mr Andrews was continually subjected to what could be described as unethical unjustifiable, unconscionable and discriminatory treatment against him by a number of his supervising senior officers.
I also believe that such treatment led him to become anxious and dysthymic and eventually caused him to descend into major depression with a comorbid anxiety state, fuelled by the incident of April 2010, the final straw, as it were, in a long sequence of stressful anxiety and depression proving work related events.”
There are a number of WorkCover NSW Medical Certificates issued by Dr Parras which certify Mr Andrews’ incapacity between 26 July 2010 and 6 April 2012. Those certificates also include certification that Mr Andrews was able to attempt a gradual return to work as at the beginning of 2012. The first of those reports dated 14 August 2010 described the manner in which injury occurred as “psychological injury sustained by worker due to alleged harassment and intimidation on an ongoing basis by senior management in financial services”.
Mr Andrews relies upon the evidence of Ms Amanda Hall, clinical psychologist, found in reports dated 16 September 2010 and 26 November 2010. The first of those reports records Mr Andrews presenting problems as being:
“stress, anxiety, depression and problems at work. He reports that these difficulties are long standing and attributes them to a series of incidents at his workplace. He is currently employed as a purchasing officer at Railcorp and he alleges that he has experienced bullying, discrimination and harassment in the workplace.”
That history was recorded at a consultation which occurred on 15 September 2010.
A report by Dr Robyn Bradley, consultant psychiatrist, dated 17 March 2011 was relied upon by Mr Andrews. Dr Parras had referred Mr Andrews to Dr Bradley for specialist consultation. Dr Bradley reports that a history “of work stress predominately in the last five years” was stated at the first consultation conducted with Mr Andrews. Dr Bradley notes that the history is somewhat complex and records a number of incidents narrated by Mr Andrews. Included amongst those incidents was the institution of disciplinary proceedings which, as recorded by Dr Bradley “led to a long and torturous process with the case being resolved only four weeks ago”. Dr Bradley further recorded that “the prolonged stress related to this incident was very severe, precipitating an episode of depression, and he was put off work in June 2010 by [Dr Parras]”.
Dr Bradley stated her view that Mr Andrews “did have a Significant Major Depression when I saw him as a result of chronic long term stress which had arisen in his workplace”.
Dr Anthony Dinnen, consultant psychiatrist, had been qualified by Mr Andrews’ solicitors for the purpose of providing an opinion for presentation in these proceedings. Dr Dinnen reported on 7 March 2013 at which time a history of “bullying and harassment” extending over a period of about six or seven years was recorded. Mr Andrews identified a number of senior officers as being those concerned with the relevant conduct. Another “problem” recorded by Dr Dinnen was the disciplinary proceedings concerning the email communications earlier noted. Mr Andrews also complained to Dr Dinnen that merit and performance have not been taken into consideration when promotion was addressed by the respondent. Mr Andrews informed Dr Dinnen that he had complained to the Ombudsman which “caused a bit of a reaction”. Mr Andrews suggested that he was “targeted” a lot after that.
Dr Dinnen expressed the view that Mr Andrews “presents with a long history of depressive symptoms in the context of work place conflicts. It would appear that he has a chronic adjustment disorder with mixed anxiety and depressed mood as a result of his problems”. Dr Dinnen was of the view that Mr Andrews’ employment was a substantial contributing factor to his psychological condition and further expressed his disagreement with the suggestion that the disciplinary action in February 2010 “was pivotal”. Dr Dinnen stated that it was “a moot point as to whether the disciplinary proceedings were by way of further harassment or bullying, or were a reflection of poor performance”. Dr Dinnen expressed the view that “the disciplinary procedures would appear to be part of that unfair treatment”.

The Respondent’s evidence as to the alleged injury

The respondent relied upon written statements made by senior employees of the respondent including Mr Selvan Mills and Mr Allan Pasfield, Contracts and Payments Supervisor. It was accepted by Mr Mills that there existed “conflict and tension between management and personnel, including [Mr Andrews] who felt we were interfering”. That observation was made by Mr Mills in the context of his statement concerning intervention in relation to union meetings and other activities. Mr Mills also accepted that there were occasions when conflict arose between himself and Mr Andrews. A number of specific matters, including the suggestion that Mr Mills accused Mr Andrews of falsifying time notes and pay rates, were denied.
The statement of Mr Pasfield acknowledged that there appeared to be a “clash in personalities between Mr Mills and Mr Andrews. Mr Pasfield confirmed that there were, on occasions, heated exchanges between both men.
The respondent relied upon the evidence of Dr Inglis Howe Synnott, consultant psychiatrist, found in two reports. Dr Synnott had been qualified to provide an opinion for the purposes of this litigation by the respondent.
The first of those reports is not dated but relates to a consultation which occurred on 12 October 2010. The history recorded by Dr Synnott, as stated by Mr Andrews, was that Mr Andrews first developed significant psychological symptoms in December 2006/January 2007. Mr Andrews attributed these symptoms to his “workplace situation”. Specifically, the behaviour of the manager of financial services, not identified by Dr Synnott other than stating the initials SM, whose conduct had been described as “bullying and harassment”. A number of examples of SM’s conduct were given by Mr Andrews in the course of the consultation. Mr Andrews stated that he had first discussed his psychological symptoms and workplace difficulties with his general practitioner in January 2007. From that time, he had had intermittent consultations with his general practitioner “regarding the workplace and his psychological distress”. Sleep medication had been prescribed by the general practitioner, however there had been no referral at that time to other health professionals. Mr Andrews stated that between January 2007 and July 2010 he “had time off work due to psychological symptoms”. Mr Andrews was unable to estimate how much time that might have been. His symptoms increased between 2007 and July 2010 and Dr Synnott records that “eventually it reached the point where things were too difficult for him to deal with”. No history was given at that time concerning the institution of the disciplinary proceedings in April 2010.
Dr Synnott was of the opinion that, at the time he went off work in July 2010, the symptoms experienced by Mr Andrews indicated that he then met the diagnostic criteria of an Adjustment Disorder. Dr Synnott expressed the view that “it appears that the psychological symptoms developed in the context of his employment – and developed as a response to issues related to his employment”. Reference is made in that report by Dr Synnott to correspondence provided which outlined the disciplinary proceedings. Dr Synnott expressly notes that “Mr Andrews did not mention this particular situation to me at the consultation on 12 October 2010”. In Dr Synnott’s opinion, Mr Andrews was fit, at the date of consultation, for pre injury duties. It was noted in that report that Mr Andrews was prepared to attempt to return to work if the “behaviour of SM” changes, if there were no longer any difficulties with bullying and harassment and that Mr Andrews was given a clearance by his psychologist to return to work.
In the second report, dated 27 September 2011, Dr Synnott acknowledges receipt by him of a large volume of documents which included a copy of the decision of the Transport Appeals Board which was made on 16 February 2011. Dr Synnott stated in that report:
“With the benefit of the additional information, I am now of the opinion that the ‘incident in April 2010 when Mr Andrews was handed the letter advising of the disciplinary investigation’ was in fact ‘pivotal’ in exacerbating the psychological symptoms.
The additional information leads me to the view that this particular incident was far more significant than I was aware – and you would note that it was not raised with me in my consultation with Mr Andrews on 12 October 2010.”

THE ARBITRATOR’S DECISION

The Arbitrator noted that the respondent had denied the allegation of injury and, further, the respondent had asserted that “if the disciplinary action had been the cause [of the psychological injury]…[t]he respondent had the benefit of the defence in s 11A of the 1987 (sic 1987 Act) in that its conduct was reasonable disciplinary action”.
It was noted by the Arbitrator at the outset of his Reasons that, with the exception of the 2002 report of Dr Parras, there is no contemporaneous record of “any medical or other complaint recording such [psychiatric] condition before 14 August 2010”. The allegation of injury, it was noted, involved alleged events during the period 2001 until July 2010.
The evidence concerning Mr Andrews’ relationship and dealings with fellow workers was summarised and a finding was made that “the evidence does disclose an element of conflict between employees and management level regarding involvement of the union” (Reasons at [19]).
Reference was made by the Arbitrator to the evidence of Mr Andrews’ various applications for leave made “since 2007”. Those absences were in relation to sick leave. Certificates supporting the applications issued by Dr Parras noted various ailments. None of those applications “related on their face to an incident involving [fellow workers]” nor was “pressure of work” involved with such leave.
Following a summary of the expert medical evidence and a consideration of the nature of the defence raised pursuant to s 11A, the Arbitrator proceeded to determine the matters in dispute. The Arbitrator firstly considered the evidence of Dr Parras. The Arbitrator noted Dr Parras’ evidence concerning Mr Andrews’ symptoms and concerns, as expressed in consultation, arising from work and Dr Parras’ acceptance that those matters had not been recorded by him. The Arbitrator accepted that “such discussions may have taken place”, however he rejected “the inference advanced by Dr Parras that he would now place on those discussions- that they were indicative of psychological disturbance” (Reasons at [73]).
The Arbitrator proceeded to consider Mr Andrews’ allegations of “bullying and harassment”. Reference was again made to an absence of any notation by Dr Parras of a psychological problem during the relevant period, excepting the matters recorded in 2002. The cause of those problems was, it was found, different to “that now alleged”. The following finding (Reasons at [76]) was made:
“I do not accept therefore that the applicant suffered a psychological injury from the stresses of his duties with the respondent since about 2001, nor do I find that the everyday interaction of the applicant with his colleagues constituted harassment, bullying or intimidation by management.”
Other relevant findings made by the arbitrator may be summarised as follows:
(a)     commencement of the disciplinary proceedings in April 2010 led to the onset of Mr Andrews’ psychological condition (Reasons at [79]);
(b)     that the commencement of disciplinary proceedings was, as expressed by Dr Parras “the pivotal contributing factor” to the psychological injury (Reasons at [79]);
(c)     the disciplinary action was wholly or predominately “responsible for the onset” of the psychological condition (Reasons at [80]);
(d)     the psychological symptoms were not evident prior to the commencement of the disciplinary proceedings (Reasons at [83]);
(e)     the evidence of Dr Dinnen was rejected concerning causation of the subject injury (Reasons at [86]), and
(f)      the respondent’s actions in bringing the disciplinary proceedings and the process adopted were reasonable (Reasons at [104] and [107]).
The Arbitrator made reference to the allegation made by Mr Andrews that the psychological injury had resulted from denial by the respondent of interviews for promotion and refusal to conduct PDP assessments. The Arbitrator reiterated his finding that there had been no proof that any “psychological condition” had been suffered by Mr Andrews prior to April 2010. The Arbitrator found that any disappointment experienced by Mr Andrews in relation to promotion “was not of a nature that would have caused his psychological condition” (Reasons at [109]).
The Arbitrator proceeded to enter an award in favour of the respondent.

SUBMISSIONS, DISCUSSION AND FINDINGS

By way of introduction found in Mr Andrews’ submissions, the following matters of importance are correctly noted:
(a) there was no dispute between the parties that Mr Andrews suffered a relevant psychological injury which caused incapacity between July 2010 and March 2012;
(b) the case presented by Mr Andrews was that incapacity “was the culmination of workplace stress that had been building up over a protracted period from at least 2002 to 20 July 2010 in respect to which the disciplinary process was an important contributor, but not the whole or predominant factor within the meaning of s 11A”, and
(c) the disciplinary process instituted by the respondent was accepted by Mr Andrews as being “reasonable in its substance” but it was argued before the Arbitrator that that process “was not reasonably executed by the respondent due to substantial and inexplicable delay and lack of information, which greatly exacerbated [Mr Andrews’] stress during the period 12 April 2010 to 30 July 2010”.
Mr Andrews has provided amended written submissions in support of the appeal. Those amended submissions were filed in response to a notice given by the Registrar that the Application filed in respect of the appeal had not complied with Practice Direction No 6. It is to be regretted that the amended submissions do not overcome the difficulties evident in the original document. Whilst the grounds of appeal are enumerated, as noted at [7] above, the submissions said to be put in support of those grounds do not address the individual allegations of error, but rather seek to demonstrate particular factual errors. Those arguments are advanced in an apparently random manner with little, if any, reference to the grounds as stated. In the circumstances it is proposed that the grounds as enumerated be addressed in the course of these reasons with reference to argument raised which appears to be relevant to that particular ground.

Ground 1 – Rejection of Lay Evidence

A complaint is made, at [17] of submissions, concerning the Arbitrator’s observations which suggest that “the two supporting lay witness statements” lack objectivity. Those lay witnesses are Mr Zadravec and Mr Papaioannou. It is argued that the Arbitrator’s “statement is highly pejorative” and is not supported by any “further analysis”. It is put that the relevant error was “coming to a conclusion that was not fairly available on the evidence”. It is further argued that the importance of the statements was that they support Mr Andrews’ evidence that “there was a rather poisonous atmosphere at the relevant workplace”.
The first matter to be noted is that the Arbitrator made no reference to the evidence of Mr Stevens. That omission is not the subject of any complaint by Mr Andrews. The second matter to note is that, whilst it is clear that Mr Andrews’ evidence suggests that he was the subject of “direct and indirect harassment and intimidation” during the course of his employment, he did not give evidence that, as submitted, there was a rather “poisonous atmosphere at the relevant workplace”.

I reject the assertion that the Arbitrator’s observations were in any way disparaging of the lay witnesses. It is clear that the Arbitrator has treated that evidence simply as being the observations made and views expressed by Mr Andrews’ fellow workers. It was a matter for the Arbitrator to determine the weight to be ascribed to that evidence and, in my view, no error is demonstrated by the Arbitrator’s characterisation of that evidence as lacking, to some extent, objectivity. It is open to inference, at least with respect to the evidence of Mr Zadravec, that the purpose of that evidence was to seek to corroborate matters complained of by Mr Andrews concerning his work conditions. That fact, it seems, has been taken into account by the Arbitrator.
I conclude that no relevant error has been demonstrated concerning the Arbitrator’s evaluation of evidence relevant to work conditions, including that of the two lay witnesses noted in the submissions. I am fortified in that view given the Arbitrator’s conclusion, found at [18] of Reasons, that the evidence did disclose an element of conflict between employees and management regarding involvement of the union. I respectfully agree with the Arbitrator’s apparent view that union membership, being a point of distinction between Mr Andrews, his supporting fellow workers, and management, plainly gave rise to tension and conflict in the workplace. The most eloquent evidence of that fact is to be found in Mr Steven’s evidence which I have noted at [29] above. The fundamental question before the Arbitrator was to determine whether such conflict as was established on the evidence had been causative of his psychological injury. In so far as this ground suggests that the Arbitrator had rejected the evidence of Mr Papaioannou and Mr Zadravec, Mr Andrews’ argument must be rejected. It is clear that the Arbitrator has taken that lay evidence into account, together with the balance of the evidence, and reached the conclusion that conflict within the workplace existed and, properly in my view, proceeded to examine the medical evidence to determine whether those circumstances were relevant to causation of injury. That exercise required, as conducted by the Arbitrator, a careful evaluation of the medical evidence tendered on behalf of each party. This ground must be rejected.

Ground 2 – Failure to accept or give adequate weight to Mr Andrews’ “unchallenged” evidence

Complaint is made in this ground that the Arbitrator failed to “accept or give any or adequate weight to the unchallenged evidence of [Mr Andrews]”. It is important to note that during proceedings before the Arbitrator, as is recorded at T6, it was agreed between the parties that “no point will be taken about failure to cross examine by either counsel”. The complaint made in this ground, properly understood in the context of the manner of conduct of the hearing, relates to the Arbitrator’s suggested rejection of evidence which is said to be uncontradicted.
The submissions put on behalf of Mr Andrews fail to identify with precision the suggested error concerning rejection of Mr Andrews’ evidence or the suggested failure to ascribe appropriate weight to that evidence. The Reasons as expressed by the Arbitrator do not include any statement of rejection of the evidence but, rather, constitute an evaluation of that evidence in the context of the evidence in its totality. There is particular emphasis placed by the Arbitrator upon the medical evidence concerning the relevance or otherwise of work conditions to causation of the subject injury. Whilst ultimately the Arbitrator concluded that Mr Andrews’ experience at work during the relevant period was not causative of injury, there is nothing to be found in his Reasons which, as suggested, constitutes rejection of Mr Andrews’ evidence. It was a matter for the Arbitrator to ascribe weight to that evidence and nothing put on behalf of Mr Andrews persuades me that there has been a failure by the Arbitrator to take into account the detail found in Mr Andrews’ evidence concerning work conditions. This ground is rejected.

Ground 3 – Failure to accept the unchallenged evidence of Dr Parras as to history of complaints and genesis of injury; failure to give proper reasons before finding that Dr Parras’ history and opinion were false

It is correct, as suggested in submissions, that Dr Parras’ evidence was rejected by the Arbitrator. It is not correct, in my view, to suggest that Dr Parras’ evidence as to history and his expression of opinion were found to be false. The Arbitrator addressed the evidence of Dr Parras between [62] and [73] of his Reasons. A careful reading of those Reasons demonstrates, in my view, that what was rejected by the Arbitrator was the inference drawn by Dr Parras, at a time well after the consultations in question, that the discussions had with Mr Andrews concerning work conditions were “indicative of psychological disturbance”. The Arbitrator stated his Reasons for so concluding with clarity. It was accepted by Dr Parras that there was no record of matters relevant to the question of work conditions and psychological disturbance to be found in his clinical notes. I note in passing that Dr Parras’ notes are not in evidence; however it seems that the respondent held a copy of those notes. That fact may be inferred from Dr Synnott’s acknowledgement that the respondent had forwarded a copy of the notes to him for consideration. It is again important to note that the Arbitrator accepted that the relevant discussions with Mr Andrews “may have taken place”. It was the Arbitrator’s task, as stated earlier, to determine whether the evidence including that of Dr Parras demonstrated that work conditions were causally relevant to the subject injury. In so far as the circumstances in 2002 were relevant to that evaluation the Arbitrator correctly, in my opinion, noted that the psychological symptoms then demonstrated related to work conditions quite different to those characterised as intimidation and harassment. This ground is not made out.

Ground 4 –Failure to give adequate weight to medical and lay evidence concerning causation/ significant contribution of work conditions to injury

This ground appears reiterate matters earlier raised. As already noted, it was a matter for the Arbitrator to determine the weight of evidence before him. His Reasons reveal that the evidence in its totality was examined in detail, and those reasons for rejecting the assertion that work conditions were relevant to causation of the psychological condition were plainly stated. A degree of emphasis is placed upon the evidence of Dr Parras in the course of submissions and it is suggested that the Arbitrator was in error to treat Dr Parras’ opinion as being founded upon an inference formed by him. It must be remembered, in my view, that there was no relevant diagnosis prior to July 2010 and accordingly Dr Parras’ opinion, stated well after the subject events, must necessarily be founded upon inference from facts which were, as earlier noted, accepted as having occurred. No relevant error has been demonstrated and this ground must be rejected.

Ground 5 – Erroneously applying s 11A

It is suggested that the Arbitrator has asked the wrong question concerning matters relevant to the application of s 11A when it was said “the question is whether the applicant continued to suffer from a psychological condition following the report of Dr Parras of 4 March 2002’. It is submitted that the relevant question for the Arbitrator to address was:
“whether the psychiatric condition which all the doctors agree [Mr Andrews] suffered from was wholly or predominantly caused by the events of April 2010 or whether other causes such as the workplace conflicts and stressors over a protracted period before April 2010 were also a significant cause.”
The question posed as being appropriate in submissions includes, it may be seen from matters quoted immediately above, the question raised by the Arbitrator, albeit in different terms. The Arbitrator in the course of his reasoning was of the view that there was some evidence of psychiatric disturbance present in March 2002, albeit by reason of work factors other than suggested intimidation and harassment. The Arbitrator correctly, in my view, proceeded to determine whether the evidence established that conditions thereafter were causally relevant to the condition ultimately diagnosed in 2010. That enquiry involved, as earlier noted, a careful analysis of the evidence of Dr Parras. The Arbitrator’s conclusion that he was not persuaded that work conditions during that period were causally relevant to the psychiatric injury, a factual conclusion, was open to him and is not open to challenge on this appeal. The question posed in submissions was expressly addressed by the Arbitrator at [80] of his Reasons. This ground fails.

Ground 6 – Failure to find that delay in conduct of disciplinary proceedings was not reasonable

The subject of the reasonableness of the respondent’s action is addressed by the Arbitrator between [91] and [107] of his Reasons. The error suggested in this ground is the Arbitrator’s finding that the respondent’s action with respect to discipline was reasonable in terms of s 11A of the 1987 Act. That section provides, relevantly:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1)No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to worker.
…”
Mr Andrews’ argument before the Arbitrator and on this appeal is that, whilst institution of the disciplinary process may have, in the circumstances, been reasonable, the manner of execution of that process was not. The complaint made is that the process involved suggested protracted delay and failure to keep Mr Andrews informed. If those suggestions be accepted, the respondent may not rely, it is argued, upon the provisions of s 11A by way of defence to the claim.
The Arbitrator addressed the relevant chronology between [91] and [97]. It is clear from his Reasons that the Arbitrator did not consider that the review or appellate process which took place after August 2010 were in way relevant to the question of reasonableness (Reasons at [102]). I consider that approach by the Arbitrator to be correct.
Emphasis is placed by Mr Andrews in submissions upon the undisputed fact that the incapacity did not arise until his cessation of work in July 2010. The findings of the Arbitrator which led him to his conclusion as to reasonableness are found between [100] and [102] of his Reasons, where it was stated:
“100. On an overview therefore it can be seen that [Mr Andrews] was notified of the disciplinary proceedings on 12 April 2010, advised that the investigator’s report was completed on 7 June 2010 and notified of the result on 10 August 2010. I do not regard that timeframe as being excessive or unreasonable. There has been no suggestion that the institution of the proceedings was of itself unreasonable apart from the speculation of Dr Dinnen, which I have already discussed. Indeed [Mr Andrews] at no stage sought to defend the truth of the allegations and his subsequent actions in appealing to the Transport Appeal Board were not as to guilt, but as to the gravity of the penalty imposed.
101. Although [Mr Andrews] in his statement maintained the process was drawn out and lasted almost ten months, in fact from the date of commencement of proceedings to the date that [Mr Andrews] was first advised of the outcome, 10 August 2010, the period was four months.
102. I do not regard either the internal review nor the appeal to the Transport Appeal Board as being a relevant consideration in assessing the reasonableness of the timeframe between when the applicant was advised of the allegations against him and when he first learnt what the results of the respondent’s investigations were.”
The question of reasonableness is one of fact, the onus being on the employer to establish that fact, and is to be determined objectively (Northern NSW Local Health Network v Heggie [2013] NSWCA 255; Irwin v Director-General of School Education (unreported CCNSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997)). The Arbitrator has addressed the relevant time frame and had earlier acknowledged that it was “not until 26 July 2010 that Dr Parras certified [Mr Andrews] as being unfit for work as a result of his psychological condition” (Reasons at [95]).
Factual findings may only be successfully challenged on appeal if it is shown, as stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (at 506), that:
“material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial Judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”
The Arbitrator’s rejection of Mr Andrew’s argument concerning delay was open to him on the evidence and he has stated his reasons for so concluding. It cannot, in my view, be said that the Arbitrator has overlooked or given undue or too little weight to relevant evidence in deciding the question of reasonableness. Mr Andrew’s suggestion of error has failed and this ground must be rejected.

CONCLUSION

The grounds upon which the appellant placed reliance suggested, essentially, factual error. That error was said to be the Arbitrator’s finding that there was no relevant injury prior to July 2010. The argument as advanced as to factual error appears to go no further than to repeat argument as presented before the Arbitrator. Such argument has been rejected. Further argument suggested application of a wrong test as to causation and error when addressing the question of reasonableness. In so far as error of law is suggested, the appellant has failed to establish any “perverse or unreasonable applications of law to the facts found” (see Azzopardi v Tasman UEB Industries LTD (1985) 4 NSWLR 139 per Glass JA at 157). The appeal must fail. Appropriate orders appear below.

DECISION

The orders made by the Arbitrator as found in the Certificate of Determination dated 29 October 2013 are confirmed.

COSTS

No order as to costs of the appeal.

Kevin O'Grady
Deputy President

12 February 2014

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE