Armour v Bluescope Steel Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Armour v Bluescope Steel Ltd [2024] NSWPIC 602
APPLICANT:	Katherine Frances Armour
RESPONDENT:	BlueScope Steel Limited
MEMBER:	Gaius Whiffin
DATE OF DECISION:	28 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for psychological injury; claims for weekly benefits compensation, treatment expenses pursuant to section 60, and lump sum compensation pursuant to section 66; consideration of applicant’s and witnesses’ statements, medical reports and other treatment records, claim correspondence, as well as factual and contractual material; respondent accepts that the applicant sustained a psychological injury to which her employment was the main contributing factor but relies upon a defence to her claim pursuant to section 11A alleging that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with regard to ‘transfer’; consideration as to whether the respondent can establish that its action amounted to ‘transfer’; Manly Pacific International Hotel Pty Ltd v Doyle, Wilson v Qantas Airways Limited, Smith v Roads and Traffic Authority of NSW, Pirie v Franklins Limited, Department of Education and Training v Sinclair, Shore v Tumbarumba Shire Council, Ninkovic v Sydney Children’s Hospital Network (Westmead), White v Commissioner of Police, Jeffery v Lintipal Pty Ltd, Canterbury Bankstown Council v Gazi, McCarthy v Department of Corrective Services, Insurance Australia Group Services Pty Ltd v Outram, BlueScope Steel Ltd v Markovski, Northern NSW Local Health Network v Heggie, and A1 Granny Flats v Workers Compensation Nominal Insurer considered; Held – the respondent has failed to establish (pursuant to section 11A) that its action which led to the applicant’s psychological injury amounted to ‘transfer’; its defence to the applicant’s claim fails; the applicant’s claim pursuant to section 66 is referred to a Medical Assessor; the applicant’s remaining claims (which will be potentially affected by the degree of whole person impairment found during medical assessment) are referred to a preliminary conference following the completion of the medical assessment process.
DETERMINATIONS MADE:	The Commission determines: 1. As a result of employment events and circumstances during her employment with the respondent, the applicant sustained a psychological injury in accordance with s 4 of the Workers Compensation Act 1987 (the 1987 Act). 2. The applicant’s psychological injury will be deemed to have occurred on 23 June 2021. 3. The respondent has failed to establish (pursuant to s 11A of the 1987 Act) that the applicant’s psychological injury was wholly or predominately caused by reasonable action taken or proposed to be taken by it with respect to transfer. The Commission orders: 1. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for assessment as follows: Date of injury: 23 June 2021 (deemed). Body systems/parts: psychiatric and psychological disorders. Method of assessment: whole person impairment. 2. The documents to be reviewed by the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents; (b) the respondent’s Reply and attached documents; (c) the applicant’s Application to Admit Late Documents dated 20 August 2024 and attached documents; (d) the respondent’s Application to Admit Late Documents dated 19 August 2024 and attached documents (including all film, photographic, and other visual material); (e) the respondent’s Application to Admit Late Documents dated 30 August 2024 and attached documents (including all film, photographic, and other visual material), and (f) this certificate of determination. 3. Following the completion of the medical assessment process, the matter is to be listed before me for further preliminary conference, in relation to all outstanding disputes in it. 4. In relation to the applicant’s application for a de-identification order pursuant to r 132(4) of the Personal Injury Commission Rules 2021: (a) the applicant is to serve and lodge further evidence and submissions on or before 11 November 2024; (b) the respondent is to serve and lodge further evidence and submissions on or before 18 November 2024, and (c) this determination is not to be published prior to 19 November 2024.

STATEMENT OF REASONS

BACKGROUND

Katherine Armour (the applicant) is 31 years-of-age, and she commenced employment with BlueScope Steel Limited (the respondent) on 25 July 2018. From 5 July 2019, she began working for the respondent in a level 3 operator role, in its welded products section.
The applicant alleges that she sustained a psychological injury as a result of employment events and circumstances during her employment with the respondent. She last physically worked for the respondent on 23 June 2021.
On 10 August 2021, the respondent issued a notice denying liability under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the applicant’s claim in relation to her psychological injury. It then maintained that decision when requested to review the decision (in accordance with s 287A of the 1998 Act) by notices dated 3 December 2021, 4 August 2023, and 30 January 2024.
The applicant alleges that she is entitled to be paid ongoing weekly benefits compensation from 23 June 2021 as a result of her incapacity for work since that date due to her psychological injury. She also alleges that she is entitled to be paid her treatment expenses as a result of that injury in accordance with s 60 of the Workers Compensation Act 1987 (the 1987 Act). She further alleges that she is entitled to lump sum compensation in accordance with s 66 of the 1987 Act as she has been assessed with 22% whole person impairment as a result of the injury. Her formal claim for this lump sum compensation was made by letter dated 11 May 2023 (which included a permanent impairment claim form signed by her on 3 May 2023, as well as a report from Dr Chow dated 13 April 2023, which provided the assessment of 22%).
By way of an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (Commission), the applicant claims from the respondent the weekly benefits compensation, the treatment expenses, and the lump sum compensation.

ISSUE FOR DETERMINATION

The parties and the Commission have agreed that of the issues in dispute, only the following issue is to be determined in this particular determination:
(a) whether the respondent can establish (pursuant to s 11A of the 1987 Act) that the applicant’s psychological injury (with an agreed deemed date of 23 June 2021) was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with regard to transfer.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The dispute was initially listed for a preliminary conference before me on 19 June 2024. I then listed it for conciliation conference/arbitration hearing on 23 August 2024.
An extensive conciliation conference was held in the dispute on 23 August 2024. On that occasion, Ms Sarah Warren of counsel appeared for the applicant instructed by Ms Harris and Ms Perkins, and Mr Jarryd Malouf of counsel appeared for the respondent instructed by Mr Lichaa and Ms Bozinoski. The applicant was present in person (and supported by
Ms Kosta), and representatives from the respondent (Messrs Hammond and Ranasinghe) were also present.
As an agreed resolution of the dispute was not reached during the conciliation conference, the dispute proceeded to an arbitration hearing.
The respondent confirmed that it did not dispute that the applicant had sustained a psychological injury in accordance with s 4 of the 1987 Act per se, but that it denied liability to compensate her for that injury, relying upon s 11A of the 1987 Act. It also confirmed that it only pressed the ground of ‘transfer’ mentioned in the section.
Due to the relevance of the degree of the applicant’s whole person impairment to not only her lump sum compensation claim, but also to her entitlements to weekly benefits compensation (which would at the present time need to be calculated in accordance with s 38 of the 1987 Act) and treatment expenses (which would be potentially affected by s 59A of the 1987 Act), it was agreed between the parties and myself that should the respondent fail in its defence in accordance with s 11A of the 1987 Act, the dispute would be referred to medical assessment prior to the determination of the applicant’s entitlements (if any) to lump sum compensation, weekly benefits compensation, and treatment expenses.
The sole issue to be determined (see paragraph 6 above) in this determination was therefore agreed upon between myself and the parties. It was agreed that if I determined that issue in favour of the respondent, there would be awards for the respondent in relation to the entirety of the applicant’s claims. However, if I determined that issue in favour of the applicant, she would be referred to medical assessment, with the relevant referral noting the deemed date of the applicant’s injury to be 23 June 2021, and noting that all the documentation in evidence before me would also be provided to the Medical Assessor. The Medical Assessor would be asked to assess the applicant’s whole person impairment in relation to the system claimed of ‘psychiatric and psychological disorders’.
The respondent then made oral submissions on 23 August 2024, but due to the passage of time (following the extensive conciliation conference on that date), it was unable to confirm that it had completed its submissions. A timetable regarding the provision of written submissions by both parties was as a result ordered. The timetable has been complied with, and I thank the parties for their various written submissions.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission (without objection from either party) and considered by me in making this determination:
(a)    the ARD and attached documents;
(b)    the respondent’s Reply (Reply) and attached documents;
(c)    the applicant’s Application to Admit Late Documents dated 20 August 2024 (applicant’s AALD) and attached documents;
(d)    the respondent’s Application to Admit Late Documents dated 19 August 2024 (respondent’s first AALD) and attached documents – this application included both an earlier Application to Admit Late documents dated 16 August 2024 as well as various film, photographic, and other visual material, and
(e)    the respondent’s Application to Admit Late Documents dated 30 August 2024 (respondent’s second AALD) and attached documents – this application included an earlier Application to Admit Late Documents dated 22 August 2024, which had previously been rejected for lodgement by the Commission, but which was consented to by the applicant – an order was therefore made at the arbitration hearing that the Application to Admit Late Documents be re-lodged with the Commission within seven days.

Oral evidence

Despite the respondent being given (during the preliminary conference on 19 June 2024) leave to cross-examine the applicant at any arbitration hearing, the respondent advised that it did not intend to do so. No oral evidence was therefore taken by the Commission.

Statement evidence relied upon by the applicant

The ARD contains two statements signed by the applicant. The first statement is dated
17 July 2021, and found at page 1 of the ARD.
The applicant confirms that she had commenced working for the respondent three years previously and was then working for it in its welded products section as a level 3 operator. She had previously suffered from depression whilst at school and whilst she was having treatment for dental injuries.
There were three teams working in the welded products section, but approximately two months prior to the signing of her statement, the respondent took disciplinary action against a number of members of a team other than hers (which I will refer to as – the disciplinary action). She says that as a result, “the remaining two teams were forced to carry the extra work and the shift pattern changed until new people could be found and trained”.
She says that the disciplinary action involved meetings with the relevant staff members, from which “a lot of people came out of those meetings crying”. She feels that the disciplinary action was intimidating, aggressive, and adversarial.
She feels that her level 1 manager to whom she reported (Giuseppe Ciccone (Ciccone)) was under pressure, which affected “how he has been dealing with myself and other staff members”.
Ciccone announced that the number of teams in the welded products section would change from three to two and a half. She says:
“There was no consultation about this but rather we were all told. There was only myself and one other operator that were changed in the reshuffle. I already felt that the place was had [sic] become hostile and this was only creating more tension. I enjoyed working in my crew and we worked well together. I appreciate that the company could make changes but there was no consultation or support about it.”
She requested a meeting with Ciccone but he “got very cranky and argumentative and then brought in two supervisors”. She thought that this was unnecessary and involved a power imbalance, and she became intimidated and very upset. She told Ciccone that she wanted to stay in her old team, but he advised that she had to adapt as “it was a business change”.
She had another meeting with Ciccone the following week and she says:
“I decided to go back and see Joe myself, hoping he would be calmer. I thought I would go in and apologise and speak to him one-on-one to see if I could find out why I was being moved. When I spoke to him, he was calmer yet still agitated with the matter. He still was insisting that I stay with the new crew. He said to me the words to the effect ‘you are the easiest to move’. I thought that was unreasonable. I was upset about this and just went back to work.”
During the following week, the change in the welded products section from three teams to two and a half teams (which I will refer to as – the applicant’s employment changes) was implemented. The applicant says that the implementation involved a lot of change and disruption. A few days into the implementation on 23 June 2021, she was asked by a member of her previous team how she was, and she broke down and cried. She says that she was shaking and she went to see her doctor, Dr Leonard, who prescribed medication for her, referred her to a psychologist, and provided her with a certificate of capacity stating that she was unfit for work.
She considers the respondent’s actions in the implementation of her employment changes to be unreasonable in the following ways:
“(a) The way they handled the original investigation against the other crew and the way they interrogated others.
(b) The disharmony that management created with the investigation and the crew change.
(c) The failure to consult.
(d) How when I complained to Joe, he brought in the other two supervisors and made me feel intimidated.
(e) Why myself and only one other crew member was changed, yet I was not given any information about the reasoning, and only to say I was the ‘easiest to move’ without any explanation.
(f) The lack of support and any concern about my mental health.
(g) The failure to advise of the Employer [sic] Assistance Program at any time, which may have assisted to help me through this process earlier on.
(h) The way I was spoken to by Joe which I suspect is because Joe himself is under pressure from above. I wonder whether anybody is concerned about his mental health either.
(i) The failure by Joe to enquire and consider my mental health as an employer as large and sophisticated as BlueScope Steel.”
The applicant’s second statement is dated 18 September 2023 and found at page 6 of the ARD. The statement largely deals with the applicant’s current level of incapacity for work, having regard to her social media and online gaming and streaming activities since late 2021. I do not find the statement overly relevant in terms of the issue that I need to determine in this particular determination.
The applicant also relies upon a statement from Cassandra Whitenaom (Whitenaom) dated 16 May 2022 (found at page 8 of the ARD). She worked in the respondent’s welded products section from August 2018 until June 2021, initially on a 12 month contract, and then casually. She reported to Ciccone, but was in a different team to the applicant. She says her employment with the respondent impacted her mental health and specifically complains about:
(a)    an environment in which workers (particularly the applicant and her) were “pitted against each other”;
(b)    an environment where “the general vibe was that I shouldn’t be there” due to her lack of experience;
(c)    an environment where “it bothered some people that” females were being introduced into the section;
(d)    an environment where interactions with management were limited;
(e)    lack of support;
(f)    fear of bringing issues to Ciccone’s attention;
(g)    an environment where too much pressure was put on workers to fulfil production quotas;
(h)    a poorly managed section, and
(i)    the respondent lacking “a good mental health program”.
Whitenaom does not clearly in her statement deal with her knowledge as to the applicant’s psychological injury. She largely deals with her own psychological injury from working with the respondent, although she does say:
“I expect Katherine faced the same issues as did everyone there. I wasn’t prepared to put up with such bad behavior [sic]. I am not surprised that Katherine is struggling with her mental health.”
The applicant further relies upon a statement from Andrew McPaul (McPaul) dated
24 April 2022 (found at page 11 of the ARD). McPaul says he has worked with the respondent for over 30 years, including working with the applicant in its welded products section since she commenced her employment with it. He says:
“There has been issues with management and in our department for a long time. It is a hostile place to work and no one is really happy to be there. This hasn’t changed since Katherine left…If there was an issue in the department, management will just turn a blind eye to it. Instead of addressing the same issues or the rumors [sic] in the department, they would let it fester until it was uncontrollable.”
He says that the disciplinary action was handled poorly and was “just a witch-hunt”. It created “some holes” that needed to be covered and led to “everyone” in the welded products section being upset and disappointed.
He says that as soon as the applicant became aware of her employment changes, she saw him. She was “physically upset and sick about it” and told him that she would not be able to handle the changes. There had been, to his knowledge, no consultation with her about the changes.
In relation to Ciccone, McPaul says that he had previously had a few “run-ins” with Ciccone, and he also says:
“Joe is very head strong and even if he knows that he has made a bad decision, he will refuse to change his mind at all costs. He is a very vindicative person…Joe has created a really toxic environment. The Company encourages a fair and equal workplace but that has all gone out the window with Joe. He thinks we should all count ourselves as lucky that we have a job even if the workplace is toxic…Joe will often have favorites [sic] and everyone else will just get rubbed off.”

Medical evidence relied upon by the applicant

There are three reports from Dr Chow in evidence. The first report is dated 21 October 2021 and found at page 56 of the ARD.
The doctor obtains a history of a change in the applicant’s work environment over the last 18 months, which had led to added pressure for her. He is told that “more issues” started in April 2021 when there were staff changes, including the dismissal and transfer of staff members. He is told that as a result, the applicant’s team was short-staffed and was also required to be involved in the training of new staff. He is told that 17 employees had left the employ of the respondent in a period of eight months, and that “morale in the workplace was low”. He is told that since April 2021, the applicant was becoming more depressed and anxious, and was not eating or sleeping well.
He then obtains a history of “equipment issues” and the applicant being advised of her employment changes, and two subsequent meetings that she had with Ciccone regarding those changes. He is told that Ciccone had informed other staff that the applicant had issues with certain staff in her team, and that that was the reason for her employment changes. He is told that the applicant subsequently had a breakdown and had not returned to work since June 2021.
On mental state examination, the doctor records that the applicant’s affect was restricted, her mood was low, and she experienced anxiety, sleep disturbance, concentration difficulties, and a poor appetite, as well as fluctuating motivation, energy and interest in activities.
The doctor diagnoses the applicant with an adjustment disorder. As a result, she needed ongoing treatment and was totally unfit for work. The doctor opines:
“I do consider Ms Armour’s employment to be the substantial contributing factor to her psychiatric injury. She reports numerous changes taking place at work especially with workload and short-staffed…She stated that there were further equipment issues and she was also moved to different teams which she felt further singled out by management. With the reported lack of support, she developed further escalated psychological difficulties and she eventually ceased work in June 2021.”
The doctor’s second report is dated 13 April 2023 and found at page 61 of the ARD.
The doctor is told that the applicant has become worse psychologically over the last 12 months. She does not cope well with any social setting; she does not sleep much; she has intermittent suicidal ideation; she has panic attacks if she leaves her home; she has breathing issues; she cries easily; she remains depressed; she has poor motivation and energy; she does not socialise with friends; she has lost interest in most activities and hobbies; she does not attend to house chores; she needs to be prompted to shower; and she feels worthless and hopeless most of the time.
Following a mental state examination, the doctor now diagnoses the applicant with a major depressive disorder, requiring ongoing treatment. She had no capacity for work and the doctor assesses her with 22% whole person impairment. On specific questioning, the doctor opines:
“Her liability was disputed on the basis of section 11A reasonable action of defence…From my understanding, the workplace had implemented a number of changes and these were claimed as administrative actions…However, Ms Armour’s reported difficulties has [sic] been corroborated by the other two workers’ statements provided…Therefore the causation of Ms Armour’s injury is unlikely to be purely due to her perception of the workplace event…I do consider Ms Armour’s reported various workplace difficulties to be the substantial contributing factor to her injury.”
The doctor’s third report is dated 23 October 2023 and found at page 69 of the ARD. The report largely deals with the applicant’s current level of disability/impairment having regard to opinions expressed by Dr Saboor, as well as with her social media and online gaming and streaming activities since late 2021. I do not find the report overly relevant in terms of the issue that I need to determine in this particular determination.
There are also various clinical records of the applicant’s in evidence. The records of
Dr Leonard (the applicant’s treating general practitioner) are found from page 79 of the ARD as well as from page 191 of the Reply; the records of Yao Yao Chen (Nest Psychology & Counselling) are found variously from pages 72 and 78 of the ARD as well as from page 186 of the Reply and pages 364 and 411 of the respondent’s first AALD; and the records of Bethanie Hannagan (Althea Counselling) are found from page 176 of the ARD. I have considered these records in their entirety and will further detail below records that I find to be relevant to the issue that I need to determine in this particular determination. I will also refer to other records should I specifically be directed to them during the parties’ submissions.
In relation to Dr Leonard’s records:
(a)    the records commence on 9 February 2021;
(b)    there are no records of the applicant complaining about psychological symptoms until a consultation on 23 June 2021;
(c)    the consultation notes on 23 June 2021 record – “not coping at work…3.5 years in her job – lots of changes…has tried to discuss with her manager and no change and no change and they do not care…mental health worsening as a result of her work” – “few months” is also recorded but it is not clear whether this refers to when the applicant’s symptoms started, or when her work changes started, or both - the notes also record that “everyone at work is miserable” and that the applicant feels victimised as she was the only worker (except for someone who was about to retire) who was being forced to join a new team - the notes further record “definite trigger is work…7th june - new crew (whole new team she works with)…day/arvo/night shifts”;
(d)    the consultation notes on 29 June 2021 record – “the thought of work makes me feel sick…has never had a work place make me feel like this…some of her colleagues have phoned to check up on her – they have confirmed to her that they are all miserable too, and the workplace has changed so much”;
(e)    there are a number of certificates of capacity – they are consistent in their recording of the applicant’s injury as relating to “work load, work changes, and how these work changes were handled in the work place”, except for a certificate dated 29 June 2021 which records “multiple changes and readjustments in a small amount of time at the workplace, lots of stress and pressure in work place, change of team in the crew”, and
(f)    there are referrals to Lisa Boland (dated 9 August 2021), Picton Psychology (dated 24 August 2024), and Nest Psychology & Counselling (dated
24 August 2021) which repeat the 23 June 2021 consultation notes but clarify “symptoms for a few months”.
In relation to Yao Yao Chen’s records:
(a)    it appears that she first consulted with the applicant on 16 September 2021;
(b)    the consultation notes on 28 September 2021 refer to the applicant’s ongoing anxieties around “anything relating to work” - the notes also refer to the applicant advising that a colleague of hers had referred to the work environment as “toxic and hostile”, and
(c)    there is a Victims Services certificate dated 9 February 2022 in which the psychologist describes the cause of the applicant’s psychological injury as being “ongoing workplace bullying, intimidation, discrimination”, and in which it states – “Client reported being ‘singled out’ for bullying and was ‘treated like Client reported attempted to address this with the manager, who intimidated, discriminated, and bullied them into accepting decisions which resulted in a ‘mental breakdown’. Client stated that they were using ‘intimidation tactics’ of firing other people as a way of threatening employees. Client has since taken extended leave”.
In relation to Bethanie Hannagan’s records:
(a) it appears that she only consulted with the applicant on 31 May 2023,
7 July 2023, and 19 July 2023, and
(b) the consultation notes on 31 May 2023 refer to a history of the applicant experiencing bullying and intimidation at work in the three months prior to her nervous breakdown - the notes record the following history – “Worked for a steel company – BlueScope Steel in Wollongong four years, and there were drastic changes introduced. People were being fired and moved across teams and she felt punished and was accused of attacking them when meetings were held. Then had a nervous breakdown in the workplace”.

Other evidence relied upon by the applicant

The ARD and the applicant’s AALD also contain documentation regarding the applicant’s earnings (both with the respondent and since last working for it) and regarding her medical costs with respect to her psychological injury. I have considered this documentation but do not find it to be relevant to the issue that I need to determine in this particular determination.

Statement evidence relied upon by the respondent

The respondent arranged for KB Investigations to provide it with a factual investigation report (found from page 74 of the Reply). I do not however accord any weight to the summaries, opinions and findings in the factual investigation report, as it is my function to independently review the evidence before me and make relevant findings. I do not see the report to be of any assistance to me in this regard.
The report does however attach eight signed statements.
There is a statement from Ciccone signed on 2 October 2021 (found from page 93 of the Reply).
Ciccone’s role is as a co-ordinator, supervising the three teams that work in the respondent’s welded product section. He says that the applicant commenced her employment in that section on 25 July 2018 as a level 1 operator. She became a level 2 operator automatically after four months, and a level 3 operator automatically on 5 July 2019. He describes her position:
“The level 3 operator position is a fulltime permanent position, contracted to 38 hours per week. The operators work Monday to Friday on a three-shift pattern, rotating between a week of day/afternoon/night shifts. The rotation pattern is a week of day shifts followed by a week of night shifts followed by a week of afternoon shifts, and so on. The shift [sic] are eight hours in duration and the shift times are 7am to 3pm, 3pm to 11pm, and 11pm to 7am.”
In relation to the applicant’s performance, he describes her as “one of the better operators”, and he advises that he was not aware of any issues with regard to her work performance. She generally followed the respondent’s policies and procedures, although it had been necessary to talk to her about her failure to wear hearing protection. He describes her as quiet and reserved, and he found her “to be low maintenance other than trying to manage her absenteeism”. He believes that she has the potential “to do duties at a higher level”.
He advises that he was not aware of any formal complaints being made against the applicant, although two staff members had previously spoken to him informally about issues which they were having with her.
He also advises that he was not aware of the applicant making any formal complaints or grievances about other staff members. However, she had complained to him at the beginning of April 2021 about “the state of the plant and the lack of maintenance that was being carried out”, specifically by a mechanical coordinator, David Peacock (Peacock). A meeting was arranged for the applicant to voice her concerns to Peacock’s manager on 6 April 2021, and Peacock was then asked to be at team meetings to hear about maintenance concerns. Ciccone advises however that no meetings had yet been held in this regard “due to COVID”.
Ciccone then discusses the disciplinary action. The three teams that he supervised largely “ran their own show” and managed themselves on shifts when neither he nor his manager were working. He was provided with information that led him to investigate and review CCTV footage in relation to one team, which revealed a systemic issue in that the team “was running their shifts thinking they had produced enough metres for the shift and decided to withdraw their labour and they went to the crib room to watch television”. Following this investigation, one team member was dismissed and four others were moved to another department of the respondent’s.
He says that prior to the disciplinary action, it had already been decided that a supervisor would be appointed to each of the three teams which reported to him. The supervisors were due to start on 17 May 2021, 31 May 2021, 7 June 2021 respectively. The teams had been informed about the introduction of the supervisors, which he says “made sense” due to a culture of poor work behaviour at the time.
He says that he does not believe that there was an increase in workload for existing operators following the disciplinary action. He says that all he asked of his operators was that they work eight hours per shift.
In the week of 31 May 2021, he says that he and the newly appointed supervisors talked about how to re-balance the teams following the disciplinary action. He says:
“By the end of that week we had reached a position on how to execute, with the short-term introduction of the five-shift pattern for between five and ten weeks and then to review. The expectation was always to revert to the three-shift pattern once new recruits were trained. Katherine and Colin were on the same crew, crew 2, and their crew was the least affected by the recent people movements. That was the primary crew from which people would need to be relocated to help achieve the business needs, which were to train new recruits needed to fill the vacant positions. Crews 1 and 3 had less experienced operators. the crews were made aware somebody would have to move from crew 2 to the other crews.”
He says that he had had difficulties in the past re-structuring, due to the “clicky” nature of the applicant’s team, but that:
“I used a different tact this time. We profiled the people in the crews to see who had the right temperament and potential to move into the new crews and be the leader. Katherine and Colin were selected for movement to other crews based on their skillset and temperament to train others. It was proposed and discussed with the supervisors, as they came on board. It was ratified and communicated to the crews.”
From 7 June 2021, he says that he communicated “the proposed new crew structure” to the teams by posting it on a notice board and having discussions with all teams. He advised that the structure was not “hard and fast”, but was a proposal that staff members could speak to him about.
Ciccone then describes his meeting with the applicant and Frank Jugow (Jugow) on
9 June 2021. He says that the applicant asked Jugow to speak for her as she was upset and needed Jugow for support. Jugow then asked him why the applicant had been chosen to move teams when she had been in her current team longer than others, such as Claude Moussa (Moussa) and Joshua Taylor (Taylor). He advised that the applicant had been chosen based on her level 3 operator status and her ability to effectively train others. He asked the applicant and Jugow if they knew of anyone in their team that would consider moving instead of the applicant, and they advised that they did not. He says that he then said to them – “apart from that what was I to do”, and he advised them that he would speak to Moussa and Taylor. He says that he later had discussions with Moussa and Taylor, who both told him that they did not want to move teams.
Ciccone then describes his meeting with the applicant and Jugow on 10 June 2021, during which Leigh Kingwill (Kingwill) and Shannon Hemsworth (Hensworth) were also present, as they were two of the newly appointed supervisors that had been involved in the discussions with him about how to re-balance the teams following the disciplinary action. The applicant advised him that “she did not understand why she was singled out”, and he says that he again explained that it was “her skillset as a level 3 operator and her nature in general would make a great fit for training people”. He says:
“I told Katherine and Frank I had spoken to Claude and Joshua about the potential for them to move crew and they had both said they like working on the crew they were in and would rather stay. Frank mentioned Claude and Joshua would have been the obvious choice. I asked Frank if he was willing to move crews and he did not answer. I asked Katherine and Frank if they had discussed with their crew members if there were any interested operators with the same skillset prepared to move crew. The answer provided by both of them was ‘Not really’…I told Katherine and Frank we were in a difficult position if I did not have somebody with the required skillset wanting to move. I said I understood that people form relationships, but we found ourselves in a business environment that is dynamic in nature and there will always be a need to have people move around from time to time. I told them I try to accommodate people the best I can, but there has to be flexibility in return from employees. I said once we get to a comfortable point, we could revisit the situation and potentially have Katherine move back into her preferred crew…I asked in the meantime if they could let me know if somebody within the crews did have a change of mind, and we could look at doing things differently, however at that point in time that was the requirement.”
Ciccone then describes his next meeting with the applicant on 15 June 2021, when only the two of them were present. He says that this meeting was his last interaction with her. During the meeting, he says that she seemed more settled, apologised for involving Jugow in her previous discussions with him, and “told me she understood if she did not move someone else would have to”. She also asked him to be her referee in relation to a job application which she was making for another position with the respondent, and he agreed.
Ciccone says he was informed by Keith Hampton (Hampton) on 23 June 2021 that the applicant wished to see him, but he was in a meeting and busy. Hampton told him that the applicant was still not happy about moving teams, was not feeling well, and was going to see a doctor. Hampton then informed him on 24 June 2021 that the applicant was going to take some leave and had provided a medical certificate.
He says that the applicant has not returned to work for the respondent, and he also advises:
“It ended up we only did the five-shift pattern for five weeks, from 21 June 2021 to 23 July 2021, which was long enough to get the new recruits to complete a station. After the supervisors and I reviewed the pattern and training, we recognised it was not working. The supervisors told me it was not working because every week they had different people on their crew. We reverted to the three-shift pattern.”
Ciccone then specifically addresses various allegations made by the applicant, as follows:
(a)    he denies informing another staff member (on 8 June 2021) that the applicant “couldn’t work with him”;
(b)    he denies being argumentative and irritated about Jugow joining the applicant for the meeting on 9 June 2021 – he agrees that he said that he did not understand why Jugow was present as there was no “serious incident” for which support was required, but he says that if the applicant “took that as being irritated or argumentative, that is her prerogative”;
(c)    he denies that Moussa and Taylor were as qualified as the applicant, in order to be able to move teams;
(d)    he denies saying to the applicant during their 10 June 2021 meeting that “he was telling me and not asking”;
(e)    he advises that the applicant did not inform him that she felt intimidated during the 10 June 2021 meeting;
(f)    he denies that there was any discussion about the applicant’s mental health during the 10 June 2021 meeting - although he advises that he knew that the applicant was not happy with her team move and was upset, but does not recall her crying – he says “at the end of the day, it is not a school it is a business”, and
(g)    he denies informing the applicant during their 15 June 2021 meeting that she was the “easiest to move”.

There is next a statement from Hemsworth signed on 29 September 2021 (found from page 127 of the Reply).
Hemsworth commenced her employment with the respondent as an operator in 2018. She was appointed as a supervisor in the respondent’s welded products section in June 2021. She had worked with the applicant “at one point” but not since around June 2019. She describes the applicant’s position as a level 3 operator:
“The level 3 operator knows all of the stations in the department, may have a forklift ticket, and is the person you lean on to assume additional duties and responsibilities such as training new staff.”
When she worked with the applicant, she considered that the applicant was positive. The applicant “seemed to dodge” some of the people in the welded products section who “could be negative”.
She says that she had however not had a chance to interact with the applicant after she became a supervisor. She says that since then, she had only seen the applicant “in formal situations where it was an uncomfortable situation”. She specifically mentions the meeting that she attended between the applicant, Ciccone and Jugow (on 10 June 2021). Kingwill was also present at that meeting. She recalls that the applicant was upset at the meeting about being “singled out to move crews”. She recalls the applicant suggesting Moussa or Taylor be moved instead, and Ciccone advising that he would ask them. She says:
“Joe told Katherine she was chosen as she is an experienced level 3 operator. I recall Katherine saying she understood what was happening and why it was happening. She said she was not happy about it and wanted to stay on her crew, but she understood she had to be flexible if it was necessary…Joe was diplomatic throughout the discussion. He understood that Katherine was upset and why she was upset, but he also had a business to run. Katherine was upset. She cried at least once. I recall she mentioned everything that had led up to the conversation had impacted her mental health. To my recollection she was offered support and EAP.”
Hemsworth then specifically addresses various allegations made by the applicant, as follows:
(a)    she says it would not be unusual for the applicant to be assisted by a support person during a meeting such as the 10 June 2021 meeting;
(b)    she says that Ciccone did not say “he was telling not asking” during the
10 June 2021 meeting;
(c)    she has no recollection of the applicant raising with Ciccone (at the 10 June 2021 meeting) that he had informed another staff member that the applicant could not work with that staff member;
(d)    she agrees with the applicant that there was an increased workload on remaining staff following the disciplinary action - there was additional responsibility on level 3 operators such as the applicant to train new staff and then provide ongoing management assistance to them – she was also aware that “operators have raised increased workload as an issue”;
(e)    she disagrees with the applicant that following the disciplinary action, experienced operators would have to work on the “harder stations” due to “newer staff not being able to”;
(f)    she disagrees with the applicant that following the disciplinary action, “management was coming down hard on crews”, and
(g)    she says that her understanding as to the reasons why the applicant and Colin McKay (McKay) were chosen to move teams was that they were experienced level 3 operators, and that they were not difficult and “would be easier people to work with”, as well as that the teams would then be “balanced in terms of experience”.
There is next a statement from Kingwill signed on 30 September 2021 (found from page 133 of the Reply).
Kingwill says that he commenced employment with the respondent on 7 June 2021 as a supervisor in its welded products section. The applicant was not a member of the team that he supervised, but he confirms that she “is at a level where she can train and complete accreditations for other staff”. Despite his lack of interaction with her, he opines that she was a skilled and competent operator who “appeared to get along well with her crew and had the respect of others”.
He says that soon after commencing his employment with the respondent, there was a meeting that was attended by Ciccone, Hemsworth and himself “where we discussed balancing the skills out across the crews and we agreed that we needed to balance those skills and could not accommodate everyone to stay in their pre-existing crews”. He says that the applicant and McKay were to be moved to a different team, “based on their skillset and experience”, in order to ensure that experienced operators were spread across all the teams.
He then specifically mentions the meeting that he attended between the applicant, Ciccone and Jugow (on 10 June 2021). He says that the applicant suggested that Moussa and Taylor be moved from her team rather than her, and Ciccone said he would speak to them. However, he says that the “crux” of the conversation was that Ciccone advised the applicant that she was being moved because of her skillset. He says:
“I cannot recall if Katherine was offered EAP. My impression from the conversation was that Frank had more of an issue that Katherine, and the crew wanted to retain Katherine. She did not speak much at all during the conversation, she was passive and quiet. I cannot recall any tears or visual emotions from Katherine. I would describe her as emotionless. I did not get the impression she was upset or distraught.”
Kingwill also advises that the departure of the operators following the disciplinary process “caused grief and displeasure for the remaining operators, which is a natural reaction in the circumstances”.
There is next a statement from Hampton signed on 1 October 2021 (found from page 140 of the Reply).
Hampton is the production coordinator/planner in the respondent’s welded products section. He was not the applicant’s direct supervisor and says that he does not have much knowledge as to her work performance.
In relation to the applicant’s interactions with Ciccone, he says:
“I believe her interactions with Joe were ok. Joe is very much by the rule book, and he has to make difficult decisions around staffing and disciplinary action, which does not make anyone popular. I know Katherine did not want to talk to Joe when she was upset, which is why she came to talk to me.”
He says that he was told by Jugow that the applicant “was not travelling well and to keep an eye on her”, but he says that she seemed “upbeat and happy”. The next day however (which he says was either 22 June 2021 or 23 June 2021), Jugow brought the applicant to his office and the applicant made him aware that she was not happy about having to move teams. He says that she was reasonably upset, was tearful at one point, was agitated, and then advised him that she would be seeking medical attention. He says that he provided her with a telephone number for her to seek EAP assistance. He then says that she provided him with a medical certificate on the evening of 23 June 2021, and he has had no contact with her since then.
In relation to the applicant’s employment changes, Hampton says:
“With regards of the changes to the crews and shift patterns, I am aware there were changes from three-shift pattern to a five-shift pattern. That is doing one week of day, afternoon, or night shift for the pattern. For example, the three-shift pattern is day/afternoon/night, and the five-shift pattern is day/afternoon/day/afternoon/night. Effectively, the crews would do one week of night shift every third or fifth week as per the pattern. Staff sign up knowing the department is based on shift work and business need requirements…To my knowledge, the decision making behind the crew changes was because the crews were unbalanced. For example, one crew may have had seven experienced people and the other crews may have had four experienced people. The intention was to balance the experienced people across the three crews and to assist with training the new incoming staff. I do not know how Katherine and Colin McKay were chosen to move crews. Joe could give that information.”
Hampton also says that following the disciplinary action, he does not believe that there was extra workload for operators such as the applicant.
There is next a statement from Jugow signed on 2 October 2021 (found from page 115 of the Reply).
Jugow is a level 3 operator in the respondent’s welded products section. He says that in that position he is “required to know all of the stations and I provide training to the new recruits”.
He met the applicant when she commenced her employment with the respondent and he provided some training to her when she commenced. She was a member of the same team as him. He describes her as very honest and easy to talk to. She listened to instructions and got along well with others. Her work performance was good.
In relation to the applicant’s employment changes, he says:
“I cannot recall the dates of these events I will describe that lead to Katherine being upset. There was a decision made to move two crew members, Colin McKay, and Katherine. They were both moved from our crew to other crews. The decision was made by Joe, there was no consultation. He looked at the skillsets of the crews and moved experienced operators to cover the gaps in other crews for the purpose of training. Neither Colin nor Katherine had been given an option. In the past, when crews were changed, we were given an option to write down what crew we wanted to be on. This did not occur on this occasion.”
The applicant told him that she was not happy with her employment changes as she was comfortable working in her current team and as she was worried that other teams did not have training and support. He encouraged her to meet with Ciccone, and he went with her to that meeting to support her.
He says that Ciccone was surprised and unhappy that he attended the meeting, and asked him why he was there. He said that he was there to support the applicant. Ciccone then arranged for two supervisors to also attend the meeting. He says that “I had taken it as an impromptu discussion, but it escalated into a proper meeting”.
At the meeting, he says that Ciccone told the applicant that she was being moved from her team in order for there to be a balance of level 3 operators among the teams. Ciccone needed to move an experienced operator of her skill level. Ciccone also said that he would talk to Moussa and Taylor to see if they were willing to move teams instead of the applicant. Ciccone did not offer any EAP support to the applicant.
Jugow says that on the second day after the implementation of the applicant’s employment changes, she burst into tears when he asked her how she was. He then suggested a further meeting with Ciccone, but she became more upset, so he suggested a meeting with Hampton. He walked with her to Hampton’s office, explained to Hampton that she was very upset, and then left Hampton to talk to her. He says that he has not seen the applicant since.
Jugow also says that the disciplinary action was “disruptive” and “placed an additional workload on the level 3 operators in terms of having to train the new starters and support them with the machine operations”. He says:
“With the removal of the five operators, everyone was in shock. The feeling was that it was heavy handed by management. Particularly in relation to the worker that was dismissed. He was a good worker, always arrive to work an hour before the shift started. It was upsetting and out of the blue. I am not sure if it was used as a lessen [sic] to others and to reiterate the consequences can be high.”
He also explains:
“We had been working with three crews of around eleven people, on a three-shift pattern of day/afternoon/night shifts week about. When the new starters began, management had decided to split the crews into five smaller crews of around five people. The five crews were then formed into two and a half crews. For example, crew 1 and 2 would work together on dayshift, crews 3 and 4 would work together on afternoon shift, and crew 5 would work on night shift as a half crew.”
This structure was supposed to operate for 10 weeks, but after five weeks, the three team structure returned.
There is next a statement from McKay signed on 30 September 2021 (found from page 159 of the Reply).
McKay says that he worked with the applicant for four years, and they were both level 3 operators in the respondent’s welded products section. He describes her as a “good model worker”, who was upbeat and chatty, keen to learn, and followed policies and procedures.
He says that he was aware that she had made a complaint in the past against the respondent’s maintenance section.
He says that he was on leave when the disciplinary action and the applicant’s employment changes (which also involved him being moved to a new team) occurred. He says he was however aware that the applicant was very upset following the disciplinary action, which he believes was “poorly handled”. He also agrees with the applicant that following the disciplinary action, there was extra workload for existing staff as six new operators with no experience needed to be trained. He explains further:
“The department try [sic] to put the new starters on the easiest machine to learn, which means the existing operators do not get an opportunity to work on the easy stations, we have to work on the machines that are always breaking down or have a higher intensity workload. It gets quite stressful at work some days with machines breaking down and our maintenance schedule just putting a band aid on issues.”
He says that he was not informed by Ciccone of his (and the applicant’s) employment changes until he returned to work following his period of leave. The applicant had however made him aware of those changes by text message on 7 June 2021. In relation to the changes, he says:
“My comment is to my recollection we were working a three-shift pattern, which was day/afternoon/night. We moved to a 2.5-shift pattern, which was day/afternoon/day/afternoon/night. I think we were on that pattern for a while. That was when the supervisors and new staff were bought [sic] in. To be honest it all blends in together. We have had so many shift changes and been all over the place on a regular basis for the past two years. We are currently working the three-shift pattern again…Over the past nine (9) months, our department has lost seventeen (17) personnel. We lost the five from the disciplinary actions, others to retirement, not being happy and leaving, or new casuals not working out. It has been disruptive. Prior to the past nine (9) months, we probably lost one person every three (3) years. There is an issue around trust. They have introduced CCTV, which is supposedly for monitoring incidents, but it is more for watching staff. BlueScope talk about mental health such as ‘R U OK?’, but they do not follow through.”
There is next a statement from Taylor signed on 28 September 2021 (found from page 167 of the Reply).
Taylor is a level 3 operator in the respondent’s welded products section. Prior to the applicant’s employment changes, he worked on the same team as her. The team consisted of him, her, McPaul, Jugow, Moussa, McKay, Tony Field (Field), as well as operators Alex and Lauren. He says that the applicant interacted well in her team and was happy at work.
He says that the applicant informed him that she was not happy about her employment changes, and was going to speak to Ciccone in that regard. He says that the team that she was moved into included Hemsworth as its supervisor, in relation to whom the applicant had earlier told him - “If I get Shannon, I won’t be happy”. It also included an operator known as River, and he is aware that “Katherine and River butt heads”.
Following the applicant’s meeting with Ciccone, Taylor says that the applicant told him that Ciccone was going to ask him if he wanted to move teams, and she said – “If you don’t want to move, don’t. I don’t want to put you in a position you don’t want to be in anyways [sic]”. Taylor then says Ciccone did speak to him:
“Joe said words to the effect of, ‘Certain people are not happy with where they have been put in the crews. I just have to ask you did you want to move crews. Before you say anything, I am not making you, you do not have to. I just have to ask this question’. I told Joe I did not really want to move crews as I had been with that crew for a long time, and I was happy where I was.”
Taylor also confirms that following the disciplinary action, there was a “significant gap in the crews”, and the need to train new staff placed extra pressure on the existing operators.
There is finally a statement from Field signed on 28 September 2021 (found from page 148 of the Reply).
Field is a level 3 operator in the respondent’s welded products section, where he has worked for over 26 years. He worked with the applicant and describes her as contributing to a “supportive crew environment”.
He says that at one stage, there had been an attempt to move him to another team, which he objected to, and he was then allowed to work on the same team as before.
He says:
“There have been some significant changes in our department over the past couple of years, particularly in the past five months or so, in terms of crew changes, shift pattern changes, and with the introduction of supervisors…Since Christmas we have had eighteen people leave, basically because of the way the department is being run. Now we are watched 24/7. The supervisors were introduced after one of the senior operator’s was terminated, and four operators were transferred to another department. Basically, we were told we could not be trusted anymore, which was a disgusting way to treat their workforce. People are not happy having people standing over them with a big stick watching everything they are doing.”
He then describes how the changes in his opinion have led to a lack of rotation of tasks amongst team members; a lack of social interaction amongst team members; a lack of quality control amongst team members; a lack of training in relation to new team members; a lack of toolbox meetings; experienced team members being impacted “in terms of workload and having to remain on harder tasks for longer periods of time”, and issues with the newly introduced supervisors.
He says that he spoke to Ciccone about the applicant’s employment changes in mid June 2021 (specifically referring to “crew members were unhappy with being transferred to another team”), and was told “It’s just the way it is”. Ciccone then asked him if he wanted to change teams.
He says he became worried about the applicant around 23 June 2021, describing her as agitated, frustrated, and shaking. She told him that she was “struggling to deal with the decision to move her to another crew”. He offered to speak to Ciccone again, but she said she had already tried to talk to Ciccone. Instead, he raised the applicant’s situation with Hampton. He also advised Jugow about the applicant’s situation, and understands that Jugow accompanied her to meet with Hampton.
He says that he has kept in contact with the applicant since she last worked with the respondent, and is aware that she was referred to a psychologist and prescribed medication.

Medical evidence relied upon by the respondent

The respondent relies upon the opinions expressed by Dr Saboor.
The doctor’s first report is dated 18 October 2021 and found at page 174 of the Reply.
The doctor takes a history from the applicant that her work had substantially changed in the last 18 months, which made her anxious. One worker was then dismissed, four staff were transferred, and shift changes were made. She was then told on 8 June 2021 that she would be working in a different team. When she approached her manager to discuss her employment changes, the manager was hostile, frustrated, and angry. The doctor summarises:
“She reported that she has been off work since 28 June 2021. She stated that there were issues regarding a changing work environment. There were new supervisors who came to work and there were changes in the shift and also changes in the teams which affected her. She also noted that when approaching the manager, the manager was hostile and was frustrated with her. She stated that she approached the manager again and was told that ‘it is what it is’. After the changes, she felt uneasy and it affected her psychosocial functioning and mood. She stated that she broke down at work.”

The doctor also records:
“She reported that her symptoms commenced in the last 18 months and she had been upset going to work. When I asked her why she was upset and depressed for 18 months she could not elaborate and she vaguely told me that there was a lot of pressure on them at work. She claimed that she was worried about going to work. She claimed that a lot of things happened at work, without any description of it.”
The doctor takes a history of the applicant having a depressive illness at the age of 16, and then performs a mental state examination of her. He diagnoses her with an adjustment disorder with depressed and anxious mood, opining that “the changes in her work environment affected her and she developed a psychological injury”. In relation to these work changes, he specifically mentions shift changes, supervisor changes, team changes, and the aggressive attitude of her manager. He says that he could find no “reason” for her claim of depression for 18 months and that “most of the issues that she raised were pointing around this period of time, around June 2021, when all the transitions were happening”.
When specifically asked (in a question from the respondent) to consider whether the applicant’s psychological injury was wholly or predominantly the product of any of the matters canvassed under s 11A of the 1987 Act, the doctor opines:
“Based on the provided history and presentation, I am of the opinion that she sustained a psychological injury in the manner alleged and it was predominantly caused by the changes at work and transfer of teams that caused her a psychological injury.”
The doctor further opines that the applicant is unfit for work and requires ongoing psychological treatment, but that her prognosis is good for a three month recovery.
The doctor’s second report is dated 14 July 2023 and found at page 472 of the Reply.
The doctor does not take any further history as to causation of the applicant’s psychological injury. He obtains information from her as to the progress of the injury, and notes her continuing constant anxiety, her experiences of chest pain and stomach pain, her depressed mood, her ongoing psychological treatment, her agoraphobia and avoidance of public places, her financial difficulties, her fluctuating self-care, her lack of energy and motivation, her poor appetite, her social avoidance, and her poor concentration.
The doctor performs a mental state examination of the applicant, and diagnoses her now with a persistent depressive disorder with anxiety features. In relation to causation and in response to a specific question from the respondent’s solicitors, the doctor opines:
“I refer to my previous report for the factors causing her psychological injury. In summary it was related to work changes and pressure at work and how the manager was hostile towards her that caused her psychological injury.”
The doctor further opines that the applicant is totally unfit for work. He assesses her whole person impairment at 6%.
The doctor’s third report is dated 14 August 2024 and found at page 15 of the respondent’s first AALD. The doctor is asked a lengthy (almost 3 page) causation question by the respondent’s solicitors and provides the following brief response:
“As per my previous response for question 3, she reported that she was depressed for 18 months prior to the change of work conditions and she did not elaborate as to why she was depressed. As per her reported history, the issues at work were predominantly about the change of work conditions. Therefore, I consider it was due to action taken by the employer. It should be determined by the Personal Injury Commission as to whether it was reasonable action or not.”
The doctor’s final report is also dated 14 August 2024 and found at page 22 of the respondent’s first AALD. The report provides an amended whole person impairment assessment for the applicant (at 14%) but does not provide other opinions.

Other evidence relied upon by the respondent

The Reply and the respondent’s first AALD also contain documentation regarding the applicant’s earnings (both with the respondent and since last working for it) and regarding her medical costs with respect to her psychological injury. There are also on-line investigation reports into the applicant’s post-injury on-line activities (attaching extracts, screenshots, and video footage), as well as a brief surveillance report. I have considered all this documentation but do not find it to be relevant to the issue that I need to determine in this particular determination. I will however detail any documentation in this regard that is brought to my attention during the parties’ submissions.
Finally, the Reply and the respondent’s second AALD contain factual material, such as emails, text messages, meeting notes, claim forms, and documents relevant to the applicant’s employment with the respondent. Some of this material is referred to in the statement evidence relied upon by the respondent. Having considered all this material, I only intend to detail below the material which I find to be relevant to the issue that I need to determine in this particular determination (although I will later also detail any material in this regard that is brought to my attention during the parties’ submissions):
(a)    the applicant’s claim form is found at page 12 of the Reply - it is largely consistent with the statement evidence relied upon by her but it does emphasise that prior to her being informed about her employment changes, she was already “quite stressed and felt a shift in the work environment was in affect [sic]” - in this regard, she had had to adapt to “many changes” since the disciplinary action which had involved her taking on an extra workload and “management coming down hard” - the implementation of the team supervisors “was a big change to take on”;
(b)    the claim form advises that on the evening of 8 June 2021, the applicant was advised by a particular operator that Ciccone had told another operator that she “had an issue” with that particular operator - she says that as a result she felt “more frustrated” - she also advises that later Ciccone denied to her that he had said this;
(c)    the claim form advises that Ciccone became irritated and argumentative about Jugow supporting the applicant during her meeting with Ciccone on 9 June 2021;
(d)    the claim form advises that the applicant expressly told Ciccone during the
9 June 2021 meeting “how all [my emphasis] the changes were affecting me” and “that it was human nature for me not to like change but I had been adapting to so much but wasn’t coping with this change”;
(e)    the claim form advises that the applicant was not offered EAP support by Ciccone during or following the 9 June 2021 meeting;
(f)    there are over two pages of typed notes found from page 16 of the Reply - in context, it is clear that these were prepared by Ciccone, but it is not known when he prepared them as they are not dated (he says in his statement signed on
2 October 2021 that he recorded the notes after he had been informed on
29 June 2021 that the applicant had lodged a workers compensation claim) – in any case, the notes are consistent with Ciccone’s signed statement and in fact very similar to certain extracts from it – the notes also emphasise that Ciccone had no issue with Jugow supporting the applicant during his meetings with her;
(g)    the respondent’s role description for a level 3 operator position is found from page 50 of the respondent’s second AALD - the role includes “providing the technical knowledge, training and guidance to the team so that the beam product meets the necessary standards”, as well as “directly engaging team members to ensure their performance is maximised”, and the role “is critical in ensuring the skills and competency of team members is built and maintained”;
(h)    the role description then specifically lists training of employees as well as assisting in the induction of new employees, as key technical accountabilities to the role;
(i)    the role description further specifically lists coaching and support as well as giving direction, as key people accountabilities to the role;
(j)    the respondent’s letter of offer of employment to the applicant dated 1 July 2019 is found from page 78 of the respondent’s second AALD - the letter details a position based at Port Kembla in the respondent’s welded product section, and it warns that - “It is a condition of your employment that you work in accordance with the shift roster applicable to your crew and department. The roster may be changed from time to time to meet the needs of the business. Shift allowance and other penalties will be paid in line with the relevant shift roster pattern”;
(k)    the letter also advises – “You will be required to safely and diligently perform the duties advised to you from time to time and in your job description, and to comply with lawful and reasonable instructions given in the course of employment”, and
(l)    there are lists of team members found between pages 121 and 123 of the respondent’s AALD - these confirm the limited proposed time period (until
30 August 2021) that the applicant’s employment changes were to operate in.

Respondent’s oral submissions

As indicated, at the conciliation/arbitration on 23 August 2024, the respondent provided submissions orally. The submissions were recorded and form part of the Commission’s record. I will therefore not go through them in detail.
The respondent submits that its actions in implementing the applicant’s employment changes were actions with regard to ‘transfer’ in accordance with s 11A of the 1987 Act. It draws my attention to Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465 (Doyle) and Wilson v Qantas Airways Limited [2009] NSWWCCPD 121 (Wilson). It submits that in determining whether a ‘transfer’ has occurred, a change in the nature and responsibilities of employment is more important to consider than a change in location. It submits that the applicant’s employment changes involved changes to her rostering, her shifts, her team, her supervisor, and her duties. It would be a “curious situation” if such changes did not amount to a ’transfer’, as such a situation would allow workers who were simply dissatisfied with shifts given to them to potentially claim compensation, a result which could not be the intention of Parliament.
The respondent also quotes a dictionary definition of ‘transfer’ in terms of “conveying from one person, place or situation to another”.
The respondent further submits that fellow operators to the applicant viewed her employment changes as a ‘transfer’, referring to the wording used by Field in his statement – see paragraph 106 above.
The respondent relies upon the following evidence to prove that the applicant’s employment changes were the whole or predominant cause of her psychological injury:
(a)    the applicant’s statement evidence does not provide any account of any psychological symptoms of hers or how she was affected psychologically, prior to the implementation of her employment changes – she first describes being upset (see paragraph 23 above) following her meetings with Ciccone in June 2021, and she first describes actual psychological symptoms (breaking down and crying - see paragraph 25 above) on 23 June 2021;
(b)    there is no evidence of the applicant undergoing any psychological treatment prior to 23 June 2021;
(c)    in Dr Leonard’s record on 23 June 2021, when discussing work being the “definite trigger” to the applicant’s condition, the doctor specifically refers to only the applicant’s change of team from 7 June 2021;
(d)    there is no evidence whatsoever to support the allegations of ongoing (my emphasis) bullying, intimidation, and discrimination referred to in the applicant’s Victims Services certificate dated 9 February 2022 (see paragraph 45(c) above);
(e)    Jugow’s statement evidence is silent as to the applicant being upset prior to the implementation of her employment changes - as is the statement evidence of McKay and Taylor – in circumstances where all three of them were fellow operators who worked closely with the applicant;
(f)    the applicant explained to Hampton (see paragraph 78 above) that the reason for her then distress was in relation to her need to move teams – he does not record any other reason given by her;
(g)    the statement evidence from Taylor (see paragraph 98 above) suggests that it was the particular team that the applicant was being moved to (with Hemsworth as its supervisor) that she had expressed concern about to him, even before the implementation of her employment changes;
(h)    the opinions of both Drs Chow and Saboor accepted that there had been aggressive and unreasonable behaviour from Ciccone towards the applicant, which on the evidence before me cannot be accepted – nevertheless, Dr Saboor even still considered that the applicant’s employment changes were the whole or predominant cause of her psychological injury, and
(i)    the statement evidence of Whitenaom and McPaul is not relevant to the precise issue that I need to determine as to the effect upon the applicant of her employment changes – while they state that there were issues with the work environment in the respondent’s welded products section, they in no way detail whether those issues affected the applicant psychologically.
The respondent relies upon the following evidence to prove that its actions in implementing the applicant’s employment changes were reasonable:
(a)    there is no corroboration of the applicant’s statement evidence that during her meetings with Ciccone, he was angry and argumentative;
(b)    the applicant had the assistance of a support person (Jugow) during her meetings with Ciccone – there was as a result no power imbalance as described by the applicant at paragraph 23 above;
(c)    the applicant’s evidence that she apologised to Ciccone during her last meeting with him (see paragraph 24 above) is not consistent with him previously acting unreasonably;
(d)    Dr Leonard’s record on 23 June 2021 (see paragraph 44(c) above) does not refer to any complaint by the applicant that the respondent was treating her aggressively;
(e)    Ciccone’s statement evidence explains in detail the reasons for, and the process involved in, the applicant’s employment changes – the respondent particularly draws my attention to the extracts from the statement evidence quoted at paragraph 58 above – the changes were reasonable but not permanent – they were necessary for business and training needs;
(f)    Ciccone’s statement evidence in relation to his meetings with the applicant on
9 June 2021 and 10 June 2021 (see paragraphs 59 and 60 above) demonstrates that he fully explained to the applicant that she was being moved teams due to her skillset and her ability to train others – these were entirely consistent reasons with those explained by him at paragraph 58 above;
(g)    Ciccone’s statement evidence in relation to the meetings also demonstrates that he explained that he was “in a difficult position”, and if he did not move the applicant and Taylor to a different team “what was I to do” - the respondent submits that these comments support the position that there was no other reasonable measure that Ciccone could have taken other than implement the applicant’s employment changes – the respondent describes Ciccone’s explanations as honest and forthright;
(h)    Ciccone’s statement evidence (see paragraph 60 above) also explains why Kingwill and Hemsworth were present at the 10 June 2021 meeting as they had been involved in previous discussions with him regarding the need to re-balance the teams in the respondent’s welded products section, which then led to the implementation of the applicant’s employment changes;
(i)    Ciccone’s statement evidence (see paragraph 64 above) denies that he was argumentative, irritated, or intimidating during his meetings with the applicant and Jugow – he also denies telling the applicant that she was the “easiest to move”;
(j)    the respondent’s letter of offer of employment to the applicant (see paragraph 123(j) above) makes it clear that her roster may be changed from time to time to meet the needs of the respondent’s business – this is exactly what occurred when the applicant’s employment changes were implemented;
(k)    there is no comment in Jugow’s statement evidence to suggest that Ciccone was aggressive or bullying during his meetings with the applicant;
(l)    the statement evidence of Hemsworth (see paragraph 68 above) and Kingwill (see paragraphs 72-73 above) is entirely consistent with the statement evidence of Ciccone, and
(m)     there is no complaint by the applicant to Hampton of Ciccone being aggressive or intimidating to her - see paragraph 78 above.

Applicant’s written submissions

These submissions have been lodged on the Commission’s portal and form part of the Commission’s records. I will therefore not go through them in detail.

The applicant refers to her statement evidence and submits that she “was affected by not only the change of crew but also the demeanour and way in which it occurred as well as the earlier impact on her workplace including the environment becoming hostile which ultimately resulted in her psychological injury”. Her evidence is that her injury developed over a period of time and as a result of numerous events. In this regard, her claim form (see paragraph 123 above) refers to “events over a period of months including changes in the workplace with increased workload, alteration in management, treatment of staff as well as the change of crew and interactions with Mr Joe Ciccone”. There is no reason to doubt the applicant’s credibility in this regard.
The applicant submits that the statement evidence of Whitenaom and McPaul supports the toxic and hostile nature of the workplace. The increased workload for level 3 operators is also supported in the statement evidence from Jugow, Hemsworth, McKay and Taylor. The increased pressure from management is supported in the statement evidence from Jugow, Field, and Taylor.
The applicant also specifically draws my attention to the statement evidence from Hemsworth (see the extract quoted at paragraph 68 above) that during the applicant’s meeting with Ciccone on 10 June 2021, the applicant mentioned that “everything that had led up to the conversation had impacted her mental health”.
The applicant concedes that there are no records from any treating doctors in relation to her psychological injury prior to 23 June 2021. However, the records from Dr Leonard (see paragraph 44 above) from 23 June 2021 are consistent in referring to there being “lots of changes” and in referring to the applicant’s symptoms as having been present for a “few months”. The applicant submits:
“The lack of entries prior to June 2021 as to psychological symptoms does not displace the applicant’s evidence. There is no reason not to accept the applicant’s evidence as to the development and cause of her psychological symptoms.”
The applicant also draws my attention to the care that I need to take when dealing with records from treating doctors, I need to remember that such records are rarely a complete record of the exchange between a patient and a busy general practitioner – the applicant refers me to authorities such as Winter v NSW Police Force [2010] NSWWCCPD 12 and Davis v Council of the City of Wagga Wagga [2004] NSWCA 34.
In relation to the medico-legal evidence, the applicant submits that “Dr Saboor’s opinion aligns with that of Dr Chow in that there were multiple causative elements to the applicant’s psychological injury that was not limited to the change of crew”. The applicant specifically relies upon the extracts from Dr Chow’s reports quoted at paragraphs 38 and 41 above. She also submits that Dr Saboor variously in his reports (see paragraphs 113, 114, and 118 above) does not limit the cause of the applicant’s psychological injury to her team change, but also mentions the aggressive attitude of her manager, “changes at work” in general, and “pressure at work”.

The applicant submits that the respondent (as the party with the onus to prove its defence pursuant to s 11A of the 1987 Act) has an obligation to provide medical evidence “that addresses the relative causative contributions before a finding as to what wholly or predominantly caused the injury can be made”. She submits that it has failed in this regard as the medical evidence (including that of Dr Saboor) supports that her psychological injury was caused by multiple factors. The respondent has failed to establish that her employment changes “was a stronger cause of the psychological injury and prevailed over others” in accordance with Jackson v Work Directions Australia Pty Ltd (1998) 17 NSWCCR 70.
In any case, the applicant submits that the respondent has failed to establish that her employment changes were a ‘transfer’ as is necessary for it to make out its defence pursuant to s 11A of the 1987 Act. She refers me to the judgment of Mason P (actually that of Davies AJA) in Doyle, and she distinguishes Wilson and Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130 (Smith) on their facts. She also submits:
(a)    the nature of the work that the applicant was to undertake in her new team was no different to the work that she had been performing prior;
(b)    there was as a result no change in the nature, responsibilities and duties of the work performed by her;
(c)    the requirement for the applicant to train others in her new team had always been one of the requirements of her employment as a level 3 operator – as evidenced in the respondent’s role description (see paragraph 123 above), and
(d)    the requirement for the applicant to work shifts as directed by the respondent had also always been one of the requirements of her employment and part of her employment arrangement – as evidenced in the respondent’s letter of offer to her dated 1 July 2019 (see paragraph 123 above).
The applicant also submits that the respondent’s actions in implementing her employment changes were not reasonable as:
(a)    there is no evidence before me as to the respondent’s policies that would apply when informing employees of team changes - and as to whether those policies were followed;
(b)    the evidence is that the applicant was treated differently to other employees who were given options when team changes were to be implemented, and
(c)    the applicant’s evidence is that Ciccone did not conduct his meetings with her professionally or appropriately.
Finally, the applicant requests a de-identification order in accordance with r 132(4) of the Personal Injury Commission Rules 2021, specifically removing from this determination any identifying factors of hers, such as her name, her treating doctors, and her employers. She submits:
“Given the applicant’s mental state, the applicant respectfully submits that the safety, health and wellbeing of the applicant affected and named by the publishable decision should be a strong factor weighing against the full publication of this decision…The applicant acknowledges that there is public interest in open justice however that the public interest in protecting the applicant given her fragile mental state significantly outweighs the public interest in open justice…The applicant acknowledges that the objects of the PIC Act and the Commission is to be open and transparent about its processes however the applicant submits that de-identification of this specific decision would not impact that object overall.”

Respondent’s written submissions in Reply

These submissions have been lodged on the Commission’s portal and form part of the Commission’s records. I will therefore not go through them in detail.
The respondent also refers me to the judgement of Davies AJA in Doyle, but submits that the applicant’s employment changes resulted in a “change in the nature and responsibilities” of her work as she worked with different co-workers, reported to a different supervisor, trained others, and trained new individuals. The respondent submits:
“If the Applicant is correct that the present claim does not involve transfer, then this must mean that any worker who suffers a psychological injury due to a change of shift times or teams will always have a compensable claim – that is, an employer would never have a defence under Section 11A. This would be an absurdity.”
The respondent otherwise submits that the applicant’s submission that her psychological injury was the result of a combination of events is untenable because:
(a)    her own evidence in her claim form is that “she was handling the prior changes” until her change of team - see paragraph 123(d) above;
(b)    the contemporaneous records of Ciccone (see paragraph 123(f) above) as well as the statement evidence led by the respondent support the position that the applicant was not suffering from psychological symptoms prior to her employment changes - there is no reason not to accept that evidence;
(c)    Dr Leonard’s firm opinion is in fact (as quoted in the extract at paragraph 44(c) above) that “definite trigger is work…7th June… new crew”;
(d)    the opinions of Drs Chow and Saboor were based upon an inaccurate history provided to them by the applicant, and
(e)    a proper reading of Dr Saboor’s reports reveals that he is not in agreement with Dr Chow – his opinion is in fact clear that the applicant’s psychological injury was wholly or predominantly caused by her employment changes.
The respondent then submits that, in relation to the reasonableness of the applicant’s employment changes:
(a) there is no evidentiary basis before me to draw an inference that the respondent would have policies and procedures which applied when informing employees of team changes, and
(b) the applicant’s evidence about the “manner” in which her meetings with Ciccone were conducted is both unpersuasive and contrary to the statement evidence led by the respondent.
Finally, the respondent resists the de-identification order requested by the applicant, submitting that there is no “proper basis for non-publication”; that the applicant’s “case is not distinguishable” from the hundreds of similar decisions of the Commission each year which are published, and that there is “no medical evidence supporting the Applicant’s contentions”.

FINDINGS AND REASONS

Whether the respondent can establish (pursuant to s 11A of the 1987 Act) that the applicant’s psychological injury (with an agreed deemed date of 23 June 2021) was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with regard to transfer

Section 11A of the 1987 Act reads as follows:
“(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 bears the onus of proof in establishing its defence under s 11A of the 1987 Act: Pirie v Franklins Limited [2001] NSWCC 167 and Department of Education and Training v Sinclair [2005] NSWCA 465.
The respondent only relies upon one ground under s 11A, being the ground of ‘transfer’.
For the respondent to succeed in its defence, it therefore needs to establish all of the following:
(a)    that the applicant’s employment changes amounted to a ‘transfer’;
(b)    that the applicant’s psychological injury was wholly or predominantly caused by the employment changes, and
(c)    that the employment changes constituted reasonable action.
Both parties have referred me to Doyle. In that case, the worker was a larder chef, which involved cold food preparation and carving work. He had been in that position for nine years. However, following two months off work with a chest infection, he was placed in the role of a sauciere, which was work that he had not done for nine years and was very different from the work of a larder chef. It involved preparing hot food. He was given the assistance of a demi chef as he was uncertain about the quantities he had to use in making various sauces. The trial judge made unchallenged findings that the worker had not had experience in the new role for almost a decade, and that the new role “was a much more physical job which put him under far more pressure than his long established role”.
In the Court of Appeal, Davies AJA and Fitzgerald JA (with whom Mason P agreed) differed in their reasoning as to why the employer’s appeal failed. They both however agreed that the trial judge was incorrect to find that the worker was not transferred. Davies AJA stated [at 30-31]:
“The trial Judge did not express his conclusion in that way. The trial Judge held, first, that the move which Mr Doyle was required to undertake, from that of Larder Chef to Sauciere, was not a transfer. The trial Judge said that ‘transfer’ [emphasis in original] usually involves a shift from one place to another and that Mr Doyle was moved only a short distance within the kitchen of the Manly Pacific.
In my opinion, that interpretation of the word ‘transfer’ [emphasis in original] was too narrow. The word is used in the employment context. As such, it encompasses a move from one position to another whether or not there is any change in location. In determining whether or not there is a transfer, a change in the nature and responsibilities of the work performed may be of more importance than a change in the place where the work is carried out. Mr Doyle was moved from the position of Larder Chef to that of Sauciere. That was a transfer.”
And Fitzgerald JA stated [at 3]:
“I also agree with his Honour [Davies AJA] that, in that subsection, ‘transfer’ includes a move from one position to another, whether or not there is any change in location, and that Mr Doyle was transferred within the meaning of that subsection.”
Both parties have also referred me to Wilson. In that case, the worker had been a premium customer liaison officer with the employer for around 11 years, when the employer undertook a reorganisation which included “a significant change to the duties performed” by the worker. The worker was required to apply for a newly created position as a Qantas first host. With the new position, there were also significant changes to the rosters which prescribed the worker’s working hours. The worker required training to undertake her new role. The arbitrator treated the employer’s conduct (including in relation to the provision of the new rosters) as being action taken with respect to ‘transfer’. It was stated that in the past the worker had enjoyed shift work, and that when she applied for her new role, she was advised that if she was appointed, she would be rotating between morning, day, and evening shifts. However, following the establishment of the new role, she was required to mostly work day shifts.
On appeal, O’Grady DP found that the actions of the employer were not reasonable and the worker’s appeal succeeded. In relation to whether the employer’s actions amounted to a ‘transfer’, he accepted [at 55-56]:
“A reading of the last two quoted extracts of Reasons confirms, in my view, that the Arbitrator has, as submitted by the Appellant, treated the Respondent’s conduct with respect to the provision of rosters as being action taken with respect to transfer and/or promotion within the meaning of section 11A. The Respondent submits that ‘...the rosters were an integral part of the Appellant’s promotion and/or transfer and therefore relevant to the section 11A issue.’ The real question raised by this ground and the matters put on behalf of the Appellant require a determination as to whether the term transfer as it appears in section 11A is limited to the singular and discreet action on behalf of the employer effecting transfer of the Appellant from Premier Customer Liaison Officer to Qantas First Host.
In my opinion the concept of ‘action’ with respect to both transfer and promotion includes those employment conditions which prevail as a consequence of that transfer or promotion. On the present facts the immediate consequence of both the transfer and the promotion was a requirement that the worker adhere to a revised roster.”
The applicant has referred me to Smith. In that case, Snell ADP (as he then was) revoked an arbitrator’s determination, finding that the worker’s psychological injury was not wholly or predominantly caused by a meeting held on 13 September 2007. The employer had argued that that meeting was an action with respect to ‘transfer’, and while not needing to determine this point and in fact expressly [at 80] stating it to be inappropriate to come to a concluded view, Snell ADP stated [at 77]:
“The only potential element of ‘transfer’ associated with the meeting of 13 September 2007, was the direction that the Appellant Worker work two to three days per week out of the Granville office, rather than the Newcastle office. The Appellant Worker’s position was not changed. It is not suggested his job description was varied. The email from Mr Dinan dated 24 September 2007 (referred to at [38] above) specifically asserted ‘The position was not relocated’. In my view, there is considerable doubt regarding whether the meeting can be regarded as action taken by the Respondent Employer with respect to transfer.”
I have also had cause to consider the following cases where transfers have been accepted to have occurred in accordance with s 11A of the 1987 Act:
(a)    Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1 - worker was to be “transferred to a different position” and he was given a new job description;
(b)    Ninkovic v Sydney Children’s Hospital Network (Westmead) [2013] NSWWCCPD 46 - worker was transferred from her general cleaning duties in the employer’s Paediatric Intensive Care Unit to the employer’s public amenities;
(c)    White v Commissioner of Police (2006) 3 DDCR 446 - the physical location where the worker was to perform his duties was to be different, and the worker was to be under supervision and removed from his position of command;
(d)    Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 - worker’s employment as a cleaner transferred from one school to another;
(e)    Canterbury Bankstown Council v Gazi [2019] NSWWCCPD 14 (Gazi) - worker transferred from Canterbury Council to the newly amalgamated Canterbury Bankstown Council, which involved a physical change to her work premises;
(f)    McCarthy v Department of Corrective Services [2010] NSWWCCPD 27 - employer’s refusal to accede to the worker’s request to be moved from its Hurstville office to another of its offices found to be an action with respect to transfer, and
(g)    Insurance Australia Group Services Pty Ltd v Outram [2019] NSWWCCPD 44 – worker’s secondment to a higher role (as a technical advisor) came to an end and he returned to his former role as a senior case manager.
I am surprised that I was not referred by either party to the case of BlueScope Steel Ltd v Markovski [2013] NSWWCCPD 69 (Markovski). The employer in that case is the same as in this dispute, and it was represented in that case by the same solicitors and counsel as in this dispute. The worker in Markovski was also represented by the same solicitors as in this dispute.
The facts in Markovski are similar to those in this dispute and were summarised by Roche DP as follows [at 3-4]:
“Meanwhile, in August 2011, BlueScope announced that steel production would decrease and there would be a loss of jobs. Sufficient workers took voluntary redundancy to avoid any forced retrenchments. However, the redundancies were not even across the company and it was necessary to distribute the remaining workers across the four crews (designated A crew to D crew) in the Slab Yard.
The company called for a volunteer to transfer from B crew, where Mr Markovski worked, to C crew. Though a qualified worker volunteered for the transfer, BlueScope’s manager decided to transfer Mr Markovski. The manager informed him of that decision at a meeting on 5 January 2012.”
Roche DP noted [at 6] that the arbitrator in Markovski found that “the moving from one crew to another position within the same organisation constituted a transfer, notwithstanding that there was no physical change in location”. It is not apparent however as to whether or not the finding was made without dispute from the worker or whether it was made following a consideration of submissions from the parties. What is clear is that in the appeal determined by Roche DP, the employer only challenged the arbitrator’s finding on causation and the worker only challenged the arbitrator’s finding on the reasonableness of the employer’s actions. The issues to be determined by Roche DP, as outlined by him [at 8-9], did not involve a consideration as to the correctness of the arbitrator’s finding that a ‘transfer’ had occurred. It seems (especially when considering the submissions outlined by Roche DP which were made to him by the parties) that they accepted that finding.
I therefore (especially without submissions to the contrary) do not find the finding of the arbitrator in Markovski to be overly helpful in my consideration of this dispute. My consideration of the other cases which I have referred to above, in my opinion, provide me with the following guidance as to the meaning of ‘transfer’ in s 11A of the 1987 Act:
(a)    a ‘transfer’ will generally involve a change of employment location, but that is not always the case;
(b)    the term ‘transfer’ needs to be interpreted in its employment context – in my opinion by considering the employment relationship between the parties as defined by the contract between them;
(c)    without a change of position and/or a variation of job description, there would be “considerable doubt” as to whether a ‘transfer’ has occurred - see Smith;
(d)    a ‘transfer’ involves a “move from one position to another” - Fitzgerald JA in Doyle, and
(e)    in determining whether a ‘transfer’ has occurred, it is important to consider whether there has been “a change in the nature and [my emphasis] responsibilities of the work performed” - Davies AJA in Doyle.
The respondent (see paragraphs 125 and 141 above) submits that the applicant’s employment changes involved changes to her rostering, her shifts, her team, her supervisor, and her duties (especially in being required to train staff). As such, the implementation of the employment changes amounted to a ‘transfer’.
It is true that there were changes to the applicant’s rostering and shifts. However, these shift pattern changes applied to all employees in the respondent’s welded products section, and would have applied to the applicant whether she moved team or not. According to Ciccone (see paragraph 58 above), there was to be the short-term introduction of a five-shift pattern rather than the previous three-shift pattern. Hampton also explains the shift pattern change (see paragraph 79 above). The applicant (as with all employees) was to be subject to a new “day/afternoon/day/afternoon/night” pattern. She was to work her pattern with new team members, and she would (over an extended period) work more day and afternoon shifts rather than night shifts because of the new pattern. However in my opinion, the new shift pattern did not result in any change to the applicant’s position or job description, and it did not result in any change to the nature and responsibilities of the work that she had to perform pursuant to that new shift pattern.
Additionally, I accept the applicant’s submission (at paragraph 137(d) above) that when considering the applicant’s employment context and particularly the respondent’s letter of offer to her dated 1 July 2019, it was a requirement of her employment that she undertake shift work as directed by the respondent. Her acceptance of the new shift pattern was therefore in my opinion a requirement of her employment and already part of her employment context, and could not be seen as indicative of any ‘transfer’ occurring. The statement evidence of Hampton (see paragraph 79 above) and McKay (see paragraph 95 above) also suggest that shift changes were regular occurrences and expected by employees.

Similarly, the change implemented by the respondent in relation to the introduction of supervisors was a change which applied to all employees in its welded products section. The change meant that the applicant would have a supervisor between herself and Ciccone for the first time. This change would have applied to the applicant whether she moved team or not. Ciccone explains (see paragraph 56 above) that the introduction of supervisors had been decided upon due to a culture of poor work behaviour in the section. The introduction of a supervisor for the applicant between herself and Ciccone cannot in my opinion be seen to in any way change her position or job description, or the nature and responsibilities of the work that she had to perform.
The evidence makes it clear that the applicant was moved teams due to her experience and skill levels, which would assist in the training of new employees. However, the training of employees was not a change in her role, position, or responsibilities. Her job description as a level 3 operator (see paragraphs 123(g) and (h) above) clearly involved training, guidance, and induction duties. Further, during his evidence, Ciccone continually refers to the applicant’s ability to effectively train others. Indeed, that is why he chose her to move teams. The inference is that Ciccone came to his opinions in this regard due to his knowledge of her training activities in the past.
Hemsworth (see paragraph 66 above), Jugow (see paragraph 82 above), and Kingwill (see paragraph 71 above) also make it clear that the duties and responsibilities of a level 3 operator in general involved training staff.
Further, the applicant’s movement to a new team did not change the nature and responsibilities of the work that she performed. She was still a level 3 operator and her employment context was still subject to the respondent’s letter of offer to her dated
1 July 2019. She worked at the same location within the respondent’s welded products section, she worked on the same machines, she performed the same duties as previously, and she still had the same responsibilities as she had previously, including the training of others. She just worked with different fellow employees. Her position had not changed and her job description had not changed.
Having regard to this evidence, I do not believe that the applicant’s employment changes can be characterised as a ‘transfer’ pursuant to s 11A of the 1987 Act. In coming to this conclusion, I have also taken into account the broad approach often said to be required when dealing with the categories of action referred to in s 11A - see Northern NSW Local Health Network v Heggie [2013] NSWCA 255, Gazi, and A1 Granny Flats v Workers Compensation Nominal Insurer [2023] NSWPICPD 69. However, when analysing precisely what the applicant’s employment changes involved, a broad interpretation of ‘transfer’ is still not enough to bring those changes within its interpretation. The changes in my opinion did not involve any change in the applicant’s position or job description, and they did not lead to any change in the nature and [my emphasis] responsibilities of the work that she was required to perform in her employment context. They did not involve any change of location either.
In coming to my conclusion, I have distinguished the decision in Wilson on its facts. In my opinion, the rostering changes referred to in that case were the result of an obvious ‘transfer’ into a completely new role, where there was a significant change to the duties performed. The ratio of the case is that the concept of ‘transfer’ includes the employment conditions (such as rostering changes) which prevailed as a result of the transfer. The case is in my opinion certainly not authority for the fact that rostering changes alone can create a ‘transfer’ pursuant to s 11A of the 1987 Act.
The respondent refers to it being an “absurdity” if the applicant’s employment changes were not considered to be a ‘transfer’ (see paragraph 141 above), and it also submits that such a position could not have been the intention of Parliament (see paragraph 125 above). I disagree. When the section was drafted, eight categories of action were included in it specifically. It has never been the case that any reasonable action of an employer is covered by the section, and Parliament could have easily legislated as such had that been its intention. Instead, it chose to make the section available to an employer only if one of the eight specific categories of action had occurred.
The respondent’s actions in implementing the applicant’s employment changes may be viewed as a ‘reorganisation’ or a ‘reshuffle’ (a term used by the applicant – see paragraph 22 above) or a ‘movement’, but those terms are not included as categories in s 11A of the 1987 Act. ‘Transfer’ is the only category in the section relied upon by the respondent, but when analysing the nature of its actions in implementing the applicant’s employment changes, I do not find the actions to come within even a broad definition of ‘transfer’, especially having regard to the judgments of Fitzgerald JA and Davies AJA in Doyle.
Finally, I refer to the respondent’s submission at paragraph 127 above, and confirm that I do not attach weight to Field using the term ‘transfer’ to describe the applicant’s employment changes. I also do not attach weight to the term ‘transfer’ not being used to describe the applicant’s employment changes in the remainder of the respondent’s statement evidence. The term has to be considered in accordance with the authorities and the guidance referred to at paragraph 158 above, rather than in accordance with descriptions applied by lay witnesses.
I therefore formally find that the respondent has not met its onus in establishing that the applicant’s employment changes were an action with respect to transfer pursuant to s 11A of the 1987 Act. Having so found, I believe that it would be inappropriate in the circumstances for me to make any other findings in relation to either the reasonableness of the respondent’s actions in implementing the applicant’s employment changes, or whether the implementation of those changes was the whole or predominant cause of the applicant’s psychological injury. The respondent’s defence to the applicant’s claim in relation to the injury fails in any event.

SUMMARY

Pursuant to the agreement of the parties (see paragraph 11 above), I find that as a result of employment events and circumstances during her employment with the respondent, the applicant sustained a psychological injury in accordance with s 4 of the 1987 Act.
Pursuant to the agreement of the parties (see paragraph 13 above), I find that the applicant’s psychological injury will be deemed to have occurred on 23 June 2021.
I find that the respondent has failed to establish (pursuant to s 11A of the 1987 Act) that the applicant’s psychological injury was wholly or predominately caused by reasonable action taken or proposed to be taken by it with respect to transfer.
I will remit this dispute to the President of the Commission for referral of the applicant for medical assessment, in accordance with the terms outlined at paragraph 13 above.
Following the completion of the medical assessment process, I will order that the dispute be listed before me again for initially a preliminary conference, in order to conciliate, or if necessary list for arbitration hearing, all outstanding issues in it.
At this stage, I refuse to make the de-identification order requested by the applicant (see paragraph 139 above) as I lack specific medical evidence dealing with the psychological effect upon her of publication of this determination, and as the respondent objects to such an order. I will however order that the determination not be published for a period of 21 days, and I will order any further medical evidence or submissions (solely in relation to the de-identification order request) to be lodged by the parties as follows:
(a) applicant within 14 days, and
(b) respondent within 21 days.

[2024] NSWPIC 602

28 October 2024