Annetts v Bitupave Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Annetts v Bitupave Limited [2022] NSWPIC 373
APPLICANT:	Edward Annetts
RESPONDENT:	Bitupave Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	12 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) for psychological injury; injury accepted but section 11A(1) of the 1987 defence raised; applicant accused of sexual harassment and inappropriate behaviour by a co-worker; most allegations unsubstantiated following investigation by employer; Northern NSW Local Health Network v Heggie considered; respondent submitted that being informed of the allegations by the employer was the whole or predominant cause of injury; applicant conceded that the process undertaken by the employer was reasonable; Held – applicant drew a distinction between the conduct of his co-worker in making a false allegation and the employer’s conduct in disclosing and investigating the allegation; respondent failed to discharge its onus of proof; matter remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment.
DETERMINATIONS MADE:	1. The respondent has not established that the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer pursuant to s 11A(1) of the Workers Compensation Act 1987. 2. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: On or about 22 February 2019 Body system: Primary Psychological Injury Method: Whole Person Impairment 3. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments, the Reply and all attachments and the document attached to an Application to Admit Late Documents lodged by the respondent on 14 June 2022.

STATEMENT OF REASONS

BACKGROUND

Mr Edward Annetts (the applicant) was employed by Bitupave Limited (the respondent) as a truck driver. The applicant claims that he sustained a primary psychological injury when he was accused falsely at work of rubbing his genitals up and down a co-worker’s back and making inappropriate comments.
On 22 May 2020, the applicant made a claim for lump sum compensation in respect of the injury relying on an assessment of 15% whole person impairment (WPI) by consultant psychiatrist, Dr Adesina Adesanya, dated 21 May 2020.
Liability to pay compensation was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 1 June 2020. Amongst other things, the respondent relied on a defence pursuant to
s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act), deciding that any psychological 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 performance appraisal, discipline and/or transfer.
On 7 July 2021, the claim was amended to seek lump sum compensation in respect of 17% WPI in accordance with a supplementary report by Dr Adesanya, dated 6 July 2021. A further dispute notice was issued on 28 October 2021.
Following an application for internal review made on 3 March 2022, the decision to dispute liability was maintained in a notice issued on 16 March 2022.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 21 April 2022. The applicant seeks lump sum compensation pursuant to s 66 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 5 July 2022 via Microsoft Teams. The applicant was represented by Mr Timothy Abbott, legal practitioner. The respondent was represented by Mr David Saul of counsel, instructed by Mr Thomas Murray. A representative from the insurer was also present.
During the conciliation phase a direction was made admitting into evidence a late document lodged by the respondent on 14 June 2022. There was also a lengthy discussion about the correct date of injury. Eventually, it was agreed that the description of injury in the ARD being a “personal” injury on “21 February 2019” was incorrect. The applicant sought and was granted leave unopposed to amend the date of injury to “on or about 22 February 2019”.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal and/or discipline and/or transfer and/or dismissal pursuant to s 11A(1) of the 1987 Act; and
(b) the degree of permanent impairment resulting from injury.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents; and
(c)    document attached to an Application to Admit Late Documents lodged by the respondent on 14 June 2022.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by him on 20 December 2021.
The applicant disclosed a prior work injury to his right shoulder. As at February 2019, the applicant was back on full duties. The applicant was working in the Cootamundra area and staying at a motel in Cootamundra with other workers working on the same site. Amongst those workers was Ms Bree Smith, who was employed by Traffic King.
On a Thursday night, one of the applicant’s co-workers, said to the applicant words to the effect of,
“You want to watch your back where Bree is concerned. She has made a complaint about you. Bree has said you said inappropriate things to her.”
The next day, Matthew Rocks who was the depot manager called the applicant into the office at Wagga Wagga. Mr Rocks said words to the effect,
“Bree has complained about you saying inappropriate things. You are to stand down on full pay.”
Mr Rocks said the complaint would be investigated. The applicant stated,
“I became aware shortly after that Bree had said that I rubbed my genitals up and down her back, and said inappropriate things to her. I was particularly upset about the complaint that I had rubbed my genitals up and down her back, as I did not do that and she was lying.”
The applicant said he returned to work after the week he was stood down. When walking into the Wagga Wagga depot, Ms Smith was sitting in the yard in the smoking area. The applicant stated:
“She smiled gleefully at me. Immediately I felt sick. I was very shaken. I said to Matthew Rocks ‘I can’t handle this. What is she doing here?’ I was so upset that I had to leave the premises straight away and I went to my general practitioner in the Glenrock Practice. He issued me with a Workcover certificate for the next two weeks and gave me some additional anti-depression medication. I was very anxious and depressed. I could not sleep at night. I could not concentrate. The problems continued.”
The applicant said he returned to work after two weeks, but the problems continued. The applicant went off work again and was ultimately terminated in August 2019 because of his right shoulder problems.
The applicant said he continued to be anxious and depressed and described functional limitations associated with his symptoms. The applicant said he was taking antidepressant medication.
The applicant stated:
“The problems that I am having relates solely to what Bree Smith said that I did and said. I make no criticism of my former employer, I realised that it had to investigate Bree Smith’s complaints.”

Mr Rocks

The respondent relies on written statements prepared by the applicant’s manager,
Mr Matthew Rocks, dated 21 July 2020 and 14 June 2022, as well as correspondence prepared by Mr Rocks, dated 26 February 2019 and 27 February 2019.
In his first statement, Mr Rocks stated that an allegation was made against the applicant of inappropriate conduct comprising sexual harassment, inappropriate conversation and inappropriate behaviour. Ms Smith alleged that the applicant made an inappropriate comment and rubbed his genitalia against her back.
Ms Smith told Mr Rocks about the two incidents on Thursday, 21 February 2019, and said they had occurred at Cootamundra on 14 February 2019.
Mr Rocks rang Karen Brady who decided that the allegations had to be investigated.
Ms Brady set up a time and date to talk to all of the people involved.
The applicant was issued with a notice to attend a meeting on 26 February 2019. The meeting occurred on 27 February 2019. Due to the nature of the complaint, the applicant was stood down on full pay.
During the meeting on 27 February 2019, the applicant was fired up because he seemed to think the allegations were not true.
The complaints were unable to be substantiated and the applicant was allowed to return to work the next day, being 28 February 2019. After this, the applicant provided medical certificates and did not turn up for work.
Mr Rocks said Ms Smith worked for a contractor as a traffic controller and it must have taken a bit of time to get another traffic controller. Mr Rocks told the applicant that he was trying to get Ms Smith off the crew but was having difficulty getting hold of her employer.
Mr Rocks rang the applicant and advised him that Ms Smith had been removed. The applicant said he was still trying to get his “head sorted out”.
In a letter dated 26 February 2019 from Mr Rocks to the applicant, the applicant was provided with notice to attend a meeting to respond to allegations of misconduct. The letter stated that, as discussed, a complaint had been received in relation to the applicant’s conduct. While the matter was being fully investigated the applicant had been stood down without loss of pay. The applicant was required to attend a formal meeting on 27 February 2019 at 8am.
The letter detailed four allegations including a sexually explicit comment and the applicant brushing past Ms Smith and rubbing his genitals against her back. It was also alleged that after hearing that Ms Smith had made a complaint against the applicant, he attempted to intimidate her by telling another traffic controller and relative to remind Ms Smith that he was “affiliated”. It was also alleged that on a number of occasions, the applicant had made sexually explicit comments and sexually suggestive gestures to Ms Smith.
In a letter dated 27 February 2019, Mr Rocks wrote that the applicant had been provided with an opportunity to respond to a number of allegations. The applicant’s responses and other information gathered through the investigation had been considered. The allegations were unsubstantiated except for the fourth allegation which was partially substantiated insofar as it had been substantiated that the applicant had made unwelcome and inappropriate comments. The applicant was issued with a written warning.
In his statement of 14 June 2022, Mr Rocks was asked when he advised the applicant of the allegations made against him by Ms Smith. Mr Rocks responded that it was on 22 February 2019. Mr Rocks was asked to confirm whether in the same discussion in which he advised the applicant of the allegations, he also advised the applicant that he was stood down from work. Mr Rocks responded:
“I don’t recall whether I did, or did not advise him of the allegations at this stage, but I did advise him that he was stood down on full pay, pending the investigation, due to allegations made at Cootamundra, by Bree Smith.”

Ms Brady

The respondent relies on a written statement prepared by Ms Karen Brady, a Human Resources manager, dated 16 July 2020.
Ms Brady recounted the four allegations made against the applicant. Ms Brady was made aware of the complaint on 22 February 2019. Ms Brady went to Wagga Wagga on 26 February 2019 to interview Ms Smith and other employees who were identified as potential witnesses.
Ms Brady and Mr Rocks met with the applicant to put the allegations to him and give him an opportunity to respond on 27 February 2019.
The information was considered and a further meeting held with the applicant later in the same day to communicate their findings. Only the fourth allegation was partially substantiated in terms that the applicant had made unwelcome and inappropriate comments.
Ms Brady considered the investigation was conducted reasonably and professionally. The applicant had the opportunity to have a support person present.
Ms Brady recalled that the applicant was quite taken aback about the allegations. Ms Brady said,
“I recall when we spoke to Eddie, he asked how Bree could be making these allegations, and when the findings were made, Eddie couldn’t believe how Bree could get away with this, but the allegations weren’t vexatious, we were going through a process to investigate in an appropriate way.”
Ms Brady said the applicant spoke about not being in a great frame of mind after going through the process. It was agreed that he could have a couple of days off.
When the applicant returned to work on 4 March 2019, the applicant realised that Ms Smith was still working with the crew. Ms Brady said they had not been able to get in touch with her employer to address their concerns. The investigations had highlighted some separate concerns about inappropriate behaviour from Ms Smith. The applicant wasn’t comfortable working with Ms Smith and went home.
On 5 March 2019, the applicant phoned Mr Rocks to say he had been to the doctor and was taking stress leave.

Treating evidence

WorkCover New South Wales, certificates of capacity issued on 4 March 2019 and 15 March 2019 by Dr Shabnam Azarm indicate that the applicant was first seen in relation to the injury on 4 March 2019.
The diagnosis given was “stress and anxiety in workplace”. In describing how the injury was related to work, Dr Azarm recorded:
“a female co-worker accused him of saying inappropriate things and touching her inappropriately, which has not been proved but he cannot attend in workplace due to extreme stress while the situation still unresolved and she is still on the work site.”
The certificate suggested the applicant had a pre-existing depression for which the applicant was taking antidepressants. The treatment for the injury consisted of antidepressants at a higher dose and a psychologist referral.

Dr Adesanya

The applicant relies on medicolegal reports prepared by Dr Adesanya, dated 21 May 2020, 6 July 2021 and 1 March 2022.
In his first report, Dr Adesanya took a history as follows:
“Edward is a 65yr old former employee of BoraI Asphalt who claimed that he was lied against by a female contract staff at a worksite at Cootamundra in Feb 2019. The staff reportedly alleged that Edward sexually assaulted her. The allegation was denied by Edward, but he was apparently not believed at the time. He subsequently walked off the job in March 2019 after he saw that the complainant at the workplace.”
Dr Adesanya recorded that the applicant had experienced depression following the death of his son by suicide 18 years earlier. The applicant had been commenced on antidepressant medications in relation to the ongoing grief and depression. The applicant had been recommenced on treatment with an antidepressant by his general practitioner for depression three years earlier.
As a result of stress from the “work incident/false allegations” in February 2019, the applicant continued to experience intermittent feelings of anxiety and depression, reduced concentration/memory and insomnia.
Dr Adesanya recorded that the applicant had not undertaken any specific treatment or therapy for the psychological injury.
With respect to causation, Dr Adesanya stated:
“The available information suggest that Edward's injuries from the work incident of Feb 2019 were sustained through his past employment with Boral Asphalt.”
In his report dated 6 July 2021, Dr Adesanya noted that the applicant continued treatment with medication and had been on an increased dosage since shortly after his first examination. The applicant had not attended psychotherapy for some time due to financial difficulties/constraints. The applicant continued to ruminate over his past work experiences and had experienced some anxiety attacks a couple of times from sighting the woman who accused him at the local shops.
In his final report, Dr Adesanya was asked to comment on whether the cause of the applicant’s psychiatric problems was the “telling to him of the complaint” and not the investigations by the employer into the complaint. Dr Adesanya responded:
“It is difficult to provide an exact/specific date of onset for Edward's work psychological injury as he only presented to me for a medicolegal report service some months after the work incident. However, the WorkCover NSW - Certificate of Capacity dated 4th March 2019 - that was completed by Edward's Nominated Treating Doctor/GP indicated a ‘work injury date of 21st Feb 2019’ and a diagnosis of ‘workplace injury /disease as ‘stress and anxiety' for Edward. Based on the above information, I am of the opinion that it is likely on the balance of probability that Edward's work psychiatric injury started on or around the time of his being advised/told of the complaint by Bree Smith against him.”

Dr Roberts

The respondent relies on medicolegal reports prepared by Dr John Albert Roberts, dated 24 June 2020 and 29 September 2021.
The applicant reported various psychological symptoms. The applicant disclosed that a female co-worker had said that he had done something inappropriate. The applicant reported:
“Mr Annetts commented that this female co-worker was ‘foul mouthed’ that she had said something smart and that he had said something smart back; that she had spoken of ‘going down on me’. Mr Annetts stated that following this interaction an allegation was made against him which comprised four allegations, including making rude gestures – Mr Annetts commented that on a Thursday night he had gone to the pub that he went to the pub to get away from others who were congregating together at a motel.
Mr Annetts referred to an allegation that he had rubbed his genitals against her back; that he wanted them to look at closed circuit television which he believed had been there, he commented that in regard to his proximity to the female co-worker concerned, he was some four feet away from her.
Mr Annetts stated that the female co-worker had told another co-worker by the name of ‘Pat’ he was affiliated with a bikie gang – Mr Annetts stated that this was untrue.
Mr Annetts alleged that he had received a message from this female co-workers brother to intimidate him.
…
Mr Annetts commented that on his returning to work he found that this co-worker was sitting in the yard that he felt sick and shook.”
Dr Roberts gave the opinion:
“I would consider that Mr Annetts as a result of the circumstances of being accused of inappropriate behaviour and the outcome of such an investigation would be expected to react with certain psychopathology arising in the context of an Adjustment Disorder. The Adjustment Disorder type symptomatology which would be also able to be conceptualised as an aggravation of a pre-existing state, is ameliorating with the passage of time as would be expected and I would consider that eventually no residual impairment would be present.”

Dr Roberts was asked whether any psychological injury was wholly or predominantly caused by action taken in respect to performance appraisal and discipline. Dr Roberts responded:
“Such is ultimately a matter for legal opinion – I would however assume that in the context of the allegations made that the employer would have had no alternative but to conduct an inquiry into such complaints.”
In his supplementary report of 22 September 2021, it was recorded that the applicant reported continuing symptoms. The applicant’s antidepressant had recently been increased without any change in the applicant’s condition. The applicant described sleepless nights and said that if a further accusation was made against him, he would not be able to handle it.
The applicant gave a history that Ms Smith had made an inappropriate comment to the applicant. While confessing to having replied to that comment in a similar vein, the applicant denied the other allegations that had been made. The applicant commented that he had moved tables to keep away from Ms Smith and there was nothing in the closed-circuit television to support the allegations of groping or rubbing. The applicant was some 4 feet away from Ms Smith.
The applicant said he could not understand why this person would make the allegation she did. The applicant noted that an investigation had been undertaken.
Dr Roberts gave the opinion that to the extent that an aggravation of a pre-existing condition occurred, the injury would on reasonable grounds, be deemed to be a response to the employer acting in an appropriate manner since the employer had no alternative but to undertake the actions that it did.
Dr Roberts expressed disagreement with the assessment of permanent impairment made by Dr Adesanya and said that he considered an assessment of 5% WPI was warranted.
Dr Roberts confirmed that, in his view, the injury was wholly or predominantly caused by the action taken in response to performance appraisal and discipline, namely “the essential enquiry undertaken by Boral would have been from the psychiatric viewpoint, a stressful situation”.

Submissions

The Commission has been assisted by the submissions of Mr Abbott and Mr Saul. Those submissions were recorded and are not set out in detail although I have summarised them below.

Respondent’s submissions

The respondent noted the confined nature of the dispute in these proceedings and submitted that the relevant law was as set out in Northern NSW Local Health Network v Heggie[1] (Heggie) and the presidential decision in Canterbury Bankstown Council v Gazi[2].
[1] [2013] NSWCA 255.
[2] [2019] NSWWCCPD 14.
A broad approach was to be taken in considering whether the injury was wholly or predominantly caused by the respondent’s action with respect to discipline. The entire disciplinary process was relevant in considering the s 11A(1) defence. The respondent noted that the applicant conceded that the employer’s actions with respect to the allegations were reasonable.
The respondent submitted that the cause of the injury was clear on the factual evidence. The whole, or in the alternative predominant, cause of the injury was the action taken by the employer to inform the applicant that allegations of inappropriate conduct had been made against him by Ms Smith. The broad disciplinary actions of the respondent in respect of the allegations were what was causative of the injury.
The respondent noted the lack of contemporaneous treating medical evidence but referred to the factual history provided in the statements of Mr Rocks and Ms Brady. The evidence established that Ms Smith told Mr Rocks of the allegations on 21 February 2019. Whilst there was some uncertainty as to whether Mr Rocks disclosed the detail of the allegations to the applicant in the meeting on 22 February 2019, it was clear that he told the applicant that allegations of inappropriate conduct had been made. The injury occurred on or about that date according to the doctor’s certificate of capacity.
The respondent said the steps in the disciplinary process commenced with Mr Rock’s meeting on 22 February 2019 but the full detail of the allegations was provided to the applicant in the letter dated 26 February 2019. Each of the steps in the disciplinary process constituted relevant action for the purposes of s 11A(1) in accordance with the principles enunciated in Heggie. The disciplinary process was wholly the cause of the injury and there was no dispute that the employer’s actions were reasonable.
The respondent noted that the history of causation provided to Dr Adesanya was consistent with that provided to Dr Roberts.
The respondent submitted that s 11A(1) provided a complete defence to the claim and there should be an award for the respondent.

Applicant’s submissions

The applicant referred to his statement evidence and submitted that he became aware of the specific complaint made by Ms Smith that he had rubbed his genitals up and down her back shortly after the he was stood down by Mr Rocks.
The applicant submitted that the Commission would be satisfied given the details provided in the letter on 26 February 2019, that the details of the allegations were not provided to the applicant in the meeting on 22 February 2019. The applicant’s evidence was that he became upset about the particular complaint made by Ms Smith.
That it was Ms Smith’s allegation, and not anything done by Mr Rocks or the employer, that was causative of the injury, was borne out in the evidence of the applicant’s reaction to seeing Ms Smith upon his return to the workplace. It was Ms Smith’s allegation that caused the injury.
The applicant referred to the summary of the relevant principles in Whittard v TAFE NSW[3].
[3] [2022] NSWPIC 218.
The applicant relied upon the opinions of Dr Adesanya and said Dr Roberts’ views had been expressed with a disclaimer that whether s 11A(1) applied was ultimately a matter for legal opinion.

Respondent’s submissions in reply

Noting the causation dispute, the respondent said the cause of the injury was the applicant being made aware of the allegations by Mr Rocks or by the letter on 26 February 2019.
Dr Roberts agreed that the cause of the injury was the applicant becoming aware of the allegations.
The need for medical evidence described in Hamad v Q Catering Limited[4] did not arise on the facts. It was not possible to separate the allegations from the steps taken to communicate them to the applicant. These steps were all part of the disciplinary process.
[4] [2017] NSWWCCPD 6.
The evidence regarding the applicant’s response to seeing Ms Smith in the workplace was just part of the factual matrix. By that stage the injury had already occurred.
The respondent submitted that Parliament intended for s 11A(1) to provide the employer with a defence in exactly this kind of case.

FINDINGS AND REASONS

There is no dispute in these proceedings that the applicant has sustained a psychological injury for the purposes of s 4 of the 1987 Act. Notwithstanding that an injury has been sustained, s 11A(1) of the 1987 Act provides that compensation will not be payable in certain circumstances:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent’s submissions asserted that the injury sustained by the applicant was wholly or predominantly caused by reasonable action taken or proposed to be taken, by or on behalf of the employer with respect to discipline.
In Heggie Sackville AJA with whom Basten and Ward JJA agreed, stated that the following propositions were consistent with the statutory language and the authorities that have construed s 11A(1) of the 1987 Act:
“(i)     A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii)     Nonetheless, for s 11A (1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii)    An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv)    The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v)     Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi)    The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”
In Manly Pacific International Hotel Pty Ltd v Doyle[5] Fitzgerald JA (Mason P agreeing) said that whether the relevant conduct of the employer (in that case transfer) was:
“... the whole or predominant cause of [the worker’s] psychological injury within the meaning of subs 11A(1) is a question of fact and degree, which involves consideration of all the factors which produced [the worker’s] condition.”
[5] [1999] NSWCA 465.
Applying this passage in Canterbury Bankstown Council v Gazi, Phillips P said:
“That required the Arbitrator to engage in an analysis of the facts as found to be causative of the injury against the relevant actions in determining the question under s 11A of the 1987 Act.”
In this case, the evidence as to the factors which produced the applicant’s psychological injury is relatively limited. Other than the WorkCover certificates of capacity, there is no evidence from a treating practitioner recording contemporaneously the complaints made by the applicant. Nor is there any report from the applicant’s general practitioner, or any other treating practitioner in which an opinion on causation is expressed.
The certificates of capacity describe an injury related to a female co-worker accusing the applicant of saying inappropriate things and touching her inappropriately. The certificate refers to the applicant not being able to return to work due to extreme stress while the situation remained unresolved and the female co-worker remained on the worksite.
From a causal perspective, the certificates thus focus on the unproven accusations made by the co-worker, who is revealed elsewhere to be Ms Smith. The certificates make no reference to the action taken by the employer in response to the allegations. There is, for example, no reference to the applicant being informed of the allegations by his employer, being stood down, an investigation or the outcome of the investigation.
This is consistent with the applicant’s own statement evidence. Although the applicant has described the meeting in which he was informed of the allegations by Mr Rocks and being stood down whilst the matter was investigated, the applicant does not suggest that he was aggrieved by the employer’s actions in this regard. The applicant states that he made no criticism of his employer and realised that it had to investigate Ms Smith’s complaints. The applicant did not make any criticism of the investigation nor the disciplinary process. The applicant said that his problems related solely to what Ms Smith said he had done.
The applicant’s submissions and his statement evidence indicated that he was particularly aggrieved by the allegation that he had rubbed his genitals up and down
Ms Smith’s back. The applicant said Ms Smith was lying about this matter. The applicant appears to have conceded, and the subsequent investigation accepted, that he had made inappropriate comments to Ms Smith.
That the applicant was particularly upset about the apparently false allegation made by
Ms Smith in relation to having rubbed his genitals on her back is reflected in the statement evidence from Mr Rocks and Ms Brady.
Ms Brady said she recalled the applicant was quite taken aback by the allegations. The applicant couldn’t believe that Ms Smith could make the allegations and get away with it.
Mr Rocks recalled that in the meeting on 27 February 2019, the applicant was “fired up” because he seemed to think the allegations were not true.
Nothing in Ms Brady nor Mr Rocks’ statement evidence suggests that the applicant was aggrieved by the actions taken by the respondent with respect to the apparently false allegations.
The parties rely predominantly on the medicolegal evidence on the question of causation.
Dr Adesanya took a history of a staff member alleging that the applicant had sexually assaulted her. The allegation was denied by the applicant. Although Dr Adesanya recorded that the applicant was apparently not believed at the time, no other reference was made in the history provided to Dr Adesanya to the disciplinary process adopted by the employer. No reference was made to meetings or correspondence forwarded to the applicant or the outcome of the disciplinary process.
Dr Adesanya’s initial opinion on causation is, however, vague and unhelpful. Dr Adesanya suggested only that there was a relationship between “the work incident” in February 2019 and the injury.
In his final report, Dr Adesanya was asked to comment more specifically on causation.
Dr Adesanya was asked whether a distinction could be drawn between the applicant being told of the complaint and the investigations by the employer into the complaint. Dr Adesanya responded that on the balance of probabilities, the injury started on or around the time of the applicant being advised of the complaint.
The respondent submits that a distinction cannot be drawn between the applicant being informed of the complaint by Mr Rocks and the remainder of the disciplinary process. Taking the broad approach to “discipline” endorsed in Heggie, the initial meeting in which the applicant was informed that allegations of inappropriate conduct had been made against him and the subsequent correspondence of 26 February 2019, in which details of the allegation were provided, all formed part of the disciplinary process for the purposes of s 11A(1).
The applicant submits that he was not informed of the particular complaint that he had rubbed his genitals on Ms Smith’s back during the meeting on 22 February 2019. The applicant’s statement evidence is that he found out about this allegation “shortly afterwards”. The applicant’s evidence does not specify how he found out of the substance of this allegation. It is, however, apparent that it was disclosed to the applicant, at least in the correspondence of 26 February 2019.
I am not, however, persuaded that it was the action taken by the employer to inform the applicant of the allegations, whether in meeting on 22 February 2019 or otherwise, that was the cause of the applicant’s symptoms. It was the false allegation itself and the conduct of Ms Smith in making the allegation, which the applicant says caused his symptoms.
The applicant’s submissions drew attention to the evidence of his response upon seeing Ms Smith at the worksite after he returned to work in support of his contention that it was Ms Smith’s actions rather than any action taken by the employer in response to
Ms Smith’s allegations, which he regarded as hostile.
In arguing that it was the disciplinary process as a whole, including the actions taken by the employer to inform the applicant of the allegations, that was the whole or predominant cause of the injury, the respondent relies on the reports of Dr Roberts.
The history given to Dr Roberts in his first report focused heavily on the applicant’s perception of Ms Smith and his interactions with her in the workplace. The applicant referred to the particular allegation that he had rubbed his genitals against Ms Smith’s back and another allegation that he had suggested to her that he was affiliated with a bikie gang which was also untrue. Dr Roberts recorded that the applicant felt sick and in shock upon seeing Ms Smith in the yard when he returned to work.
Consistently with the other evidence, the history provided to Dr Roberts made no complaint with respect to the actions taken by the employer in response to the allegations. The applicant did not describe experiencing the meetings with Mr Rocks and Ms Brady or their correspondence as hostile or distressing.
In his first report, Dr Roberts fell short of providing an opinion as to whether the disciplinary process or investigations conducted by the respondent were the whole or predominant cause of the applicant’s injury. Dr Roberts did, however, suggest that the inquiry undertaken by the employer would have been reasonable in the circumstances.
In Dr Roberts’ second report, the history once again focused on the actions of Ms Smith in making the false allegations. The applicant could not understand why the allegations would have been made. The applicant reported experiencing an increase in symptoms upon encountering Ms Smith in the community.
Despite not recording any complaints in relation to the respondent’s actions in disclosing the allegations or the process of investigating them, Dr Roberts formed the view that it would be reasonable to deem the injury to be a response to the employer’s actions. Dr Roberts reiterated his view that the employer had no alternative but to undertake the actions that it did.
I am not satisfied that Dr Roberts’ opinion in this regard adequately deals with the distinction drawn by the applicant between the actions of the employer and the actions of Ms Smith in making an apparently false accusation against him. Although there is evidence that the substance of the false accusation was disclosed to the applicant by the employer, either during the meeting on 22 February 2019 or in the correspondence from Mr Rocks, dated 26 February 2019, I am not satisfied on the balance of probabilities, that the employer was the only source of such information. The applicant described being warned about the allegation of inappropriate conduct by another co-worker. The applicant’s own evidence does not disclose how he became aware of the substance of the false allegation other than to suggest that it was shortly after the meeting on 22 February 2019.
Whilst the applicant’s own medicolegal evidence is of little assistance in distinguishing the causal factors to the applicant’s condition, it is the respondent who bears the onus of establishing, on the balance of probabilities, a defence pursuant to s 11A(1).
I am not satisfied after considering the evidence as a whole that the respondent has discharged its onus.
Although I accept that the respondent’s actions in disclosing the allegations formed part of a disciplinary process and that disciplinary process appeared reasonable, I am not satisfied that the employer’s actions in conducting the disciplinary process were the whole or predominant cause of the injury.
I am not satisfied that the employer was the only source of information in relation to the false allegations.
I am further satisfied that a distinction can and has by the applicant been drawn between being informed of the allegations and the conduct of Ms Smith in making the false allegations. Reading the lay and medical evidence as a whole it was Ms Smith’s conduct which the applicant viewed as hostile and which appears to be the focus of his complaints in reporting psychological symptoms to both his general practitioner and the medicolegal experts.

Dr Roberts’ failure to deal with this distinction causes me to give less weight to his opinion as to the whole or predominant cause of the injury.
For the reasons given above, I am not satisfied that the psychological injury in this case was wholly or predominantly caused by reasonable action taken or proposed to be taken, by or on behalf of the employer with respect to performance appraisal and/or discipline or any other matter for the purposes of s 11A(1).
In the absence of any other liability dispute, the appropriate course is to remit the matter to the President for referral to a Medical Assessor to assess the degree of permanent impairment resulting from the injury.

[2022] NSWPIC 373

12 July 2022