AS v The State of New South Wales - [2019] NSWWCCPD 18

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	AS v The State of New South Wales [2019] NSWWCCPD 18
APPELLANT:	AS
RESPONDENT:	The State of New South Wales
INSURER:	Employers Mutual Limited as agent for Insurance for NSW
FILE NUMBER:	A1-4493/18
ARBITRATOR:	Mr M Perry
DATE OF ARBITRATOR’S DECISION:	13 November 2018
DATE OF APPEAL DECISION:	8 May 2019
SUBJECT MATTER OF DECISION:	Section 11A(1) of the Workers Compensation Act 1987 – whether the injury was wholly or predominantly caused by the respondent’s actions
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Turner Freeman Lawyers
Respondent:	Rankin Ellison Lawyers
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 13 November 2018 is confirmed.

INTRODUCTION AND BACKGROUND

AS (the appellant) was employed by the State of New South Wales (the respondent), initially as a Special Constable and, ultimately, as a Senior Special Constable. He was attached to the Counter Terrorism & Special Operations Group of the New South Wales Police Force. He began that employment in 1990 until 1993 and then resumed that employment again in 1995. His employment was terminated on 4 January 2016.
On 10 February 2015 at 1.10 am, the appellant was handed a letter dated 9 February 2015 from the Professional Standards Command (the PSC). A copy of that letter was not in evidence, but the Arbitrator recorded that the parties agreed that the letter alleged that the appellant may have engaged in misconduct. It was alleged that he:
(a)    sexually harassed Special Constable AT (AT) in November 2014 by asking her to “suck my cock” (the offending question);
(b)    subsequently rang AT on her day off and asked her to confirm he did not say anything offensive to her;
(c)    during that phone call, advised AT that he had another employee (de Francesco) moved, which he was able to do because he “knew people”. AT felt immediately threatened by that contact;
(d)    attempted to contact AT by telephone on several occasions over the weekend of 7 and 8 February 2015 in order to dissuade her from making a complaint about his behaviour. This conduct could be viewed as bullying and harassment, and
(e)    made inappropriate and offensive comments in front of colleagues in the workplace, which the PSC described as unprofessional behaviour.[1]
[1] Torres v The State of New South Wales [2018] NSWWCC 277 (Reasons), [4].
At an unspecified time between the date of that letter and 9 August 2015, the PSC sent the appellant a further letter, amending the allegations of misconduct. A clear and complete copy of that letter was not in evidence, but it was agreed that the amended version “gave further detail of, and scope to” the allegations made in the first letter.[2]
[2] Reasons, [6].
The appellant ceased work on 16 February 2015, and consulted his general practitioner, Dr Roger Fabian, who diagnosed the appellant as suffering from an adjustment disorder, and certified that the appellant had no capacity for work.
The appellant lodged a NSW Police incident notification form on 25 May 2015 claiming bullying, harassment, victimisation, discrimination, and being accused of something he did not do. The date of injury was recorded as 10 February 2015 at 1.10 am.[3]
[3] Reply, pp 18–19.
Liability for the injury was initially accepted, however, the workers compensation insurer conducted an investigation into the claim which included obtaining statements from various witnesses, and by letter dated 15 June 2017, notified that the claim was declined.
The appellant commenced proceedings in the Commission, alleging psychological injury resulting from the “[n]ature and conditions of employment from 1990 to August 2015.”[4] He claimed weekly payments pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act), the treatment expenses associated with the injury, as well as lump sum entitlements in respect of 19% whole person impairment pursuant to s 66 of the 1987 Act.
[4] Application to Resolve a Dispute (ARD), Part 4 – Injury Details.
The matter proceeded to arbitration on 11 October 2018. The issues that remained to be determined were:
(a) whether the appellant’s psychological injury was wholly or predominantly caused by reasonable action taken by the respondent, and
(b) if the injury was compensable, whether it was caused by the appellant’s serious and wilful misconduct within the meaning of s 14(2) of the 1987 Act.
The Arbitrator issued a Certificate of Determination on 13 November 2018, entering an award in favour of the respondent.
The appellant appeals from that decision.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties indicate that the matter can be dealt with “on the papers” and an oral hearing is not required.
I have had regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

The lay evidence

The appellant’s evidence

The appellant provided a statement dated 24 June 2015.[5]
[5] ARD, pp 773–788.
The appellant described his employment status and duties, which included supervision of constables and the security at Parliament House, Sydney. He said that he reported directly to whichever Field Officer was on his shift each day, depending on which location he was allocated to work. He said he mainly reported to Operational Supervisor Lawrence Mallia (Mallia) who had been his immediate supervisor for the past ten years. He said he would also report directly to Trent Pennington (Pennington) and Shony Majcug (Majcug). The appellant denied any prior workers compensation claims and previous performance issues.
The appellant said that about three years previously, he was acting as a senior special constable, and introduced techniques designed to create a team environment. He said he offered support to work colleagues, including a special constable by the name of Adam Craven (Craven). The appellant said that about one year later, he and Craven applied for the position of senior special constable, and Craven was the successful candidate. Thereafter, the appellant’s work colleagues complained to the appellant about Craven’s management style, and that they did not want to work with Craven.
The appellant stated that as he was the direct line supervisor for the complainants, and he was equally ranked with Craven, in an effort to resolve the issues raised, he advised Craven of the complaints. The appellant reported that Craven replied, saying “I’m not going to fucking change my attitude because of them.”[6]
[6] The appellant’s statement; ARD, p 777, [21].
The appellant asserted that the work colleagues continued to complain to him, and so he escalated the matter to the field supervisors, Pennington and Majcug, speaking to them for about two hours on his days off. He added that he had never observed Craven speaking inappropriately to any staff, and he was merely acting on the complaints made by the complainants.
The appellant recalled that on 4 July 2013, he received an email from Senior Sergeant Mark Christie (Christie), who was the co-ordinator of the Security Management Unit. Christie was seeking clarification of the complaints and the names of the six staff members who made the complaints, so that Christie could speak with them. The appellant said that he did not disclose the names either to the field supervisors or Christie.
The appellant reported that after he had raised those concerns with the field supervisors, Craven began to avoid him and rarely spoke to him in the workplace. He alleged that Craven’s unfriendly behaviour towards him continued ever since.
In about December 2013, a new special constable, Alex Mantzoros (Mantzoros), commenced and was working with the appellant at Parliament House, in what the appellant described as a happy and close team. During the team’s Christmas Party, Mantzoros, who was intoxicated, whispered to him that he intended to “make [Majcug] drunk tonight and I will fuck her tonight.”[7] The appellant warned Mantzoros to be careful, and that both Mantzoros and Majcug were married. The appellant observed that it was not uncommon for Mantzoros to make comments publicly about Majcug.
[7] The appellant’s statement; ARD, p 778, [26].
The appellant said that about three months after the Christmas party, Mantzoros approached the appellant and accused him of spreading rumours about him and Majcug. The appellant denied the accusation, and felt that Mantzoros had accepted his explanation. After that, they remained friends but the rumours continued and work colleagues would often see Mantzoros and Majcug together.
In about November 2014, the appellant underwent neck surgery, following which his specialist advised the respondent that the appellant needed to wear a load bearing vest. When he acquired the vest, the appellant put it on the control room table, and while he continued to do administrative work in the control room, his co-workers (AT, Cody Baxter, Maren Gersuvic and Roy Decarvalho) tried the vest on and, unknown to him, took photos. The appellant stated that about a month later, Pennington and Majcug called him to the office and advised him that by allowing the staff to try on the vest, he had not complied with the Code of Conduct. The alleged breach of the Code was that the staff had taken photos of themselves in the vest.
The appellant reported that after he returned to the control room, he jokingly asked Cody Baxter why she was making trouble for him about them trying on the vest. He said that Majcug overheard this conversation and called him into the office, wherein she accused him of discussing details of conversations that they had, which were secret. The appellant said that when he left Majcug’s office, he saw her talking on the telephone. The appellant said that on the same day, Mantzoros, who had been working in the Premier’s office returned and came into the control room, saying “fucking peoples mouth, can’t keep them shut.”[8] The appellant said he asked Mantzoros what was wrong, but Mantzoros walked out of the room mumbling.
[8] Appellant’s statement; ARD, p 780, [30].
The appellant stated that about thirty minutes later, Special Constable McVicker (McVicker) advised him that he had overheard a telephone conversation in which Mantzoros had sworn and complained to somebody that the appellant could not speak English properly and was unable to do his job properly. McVicker said that Mantzoros was upset and before he left had said that the appellant could not keep his mouth shut.
The appellant said that he felt guilty about what McVicker told him, and about four days later, he approached Mantzoros. In the field supervisor’s office, the appellant asked Mantzoros whether he had a problem with him, and after a discussion, Mantzoros said that he had had a problem with the appellant for a long time, and accused the appellant of spreading rumours about him and Majcug. The appellant denied spreading rumours and said that the affair was public knowledge. The appellant stated that after the appellant expressed an intention to take the matter to internal affairs, Mantzoros calmed down and as far as he was aware, there was no animosity between himself and Mantzoros. The appellant said that Mr Tuan Huynh (Huynh) and Mr Peter Hewett (Hewett) witnessed the whole conversation.
About five months after that event, Mantzoros left the workplace before completion of his shift. The appellant spoke to Mantzoros, before reporting the matter to Majcug.
The appellant stated that in January 2015, he approached Pennington about Mantzoros’s accusations, but Pennington advised against asking internal affairs to investigate the matter, saying that Mantzoros and Majcug had “something on” the appellant. Pennington then disclosed that he had been told that the appellant had apparently telephoned AT and asked her the offending question.[9] The appellant said that he denied that he would ever say such a thing, and requested that he and Pennington discuss it with AT. Pennington told him a complaint had not been lodged, and so not to worry about it. The appellant alleged that Pennington said he would always protect Majcug and Mantzoros.
[9] Appellant’s statement; ARD, p 781, [35].
The appellant stated that in January 2015, he obtained AT’s mobile phone number from Special Constable Olivia Walker (Walker) and Walker rang AT on his behalf. In the presence of Walker, the appellant spoke with AT, advising her of the conversation he had with Pennington. The appellant observed that AT sounded surprised and denied that the appellant had ever said that to her, even as a joke. The appellant said that AT indicated if she was asked about it she would say it never happened, and the phone call ended in a friendly tone.
On 16 January 2015, the appellant asked Mallia to investigate the allegations made about him in relation to AT. A little later that day, Mallia told him that AT had advised that the allegations were not correct. Mallia confirmed that he had spoken to De Francisco, who told Mallia that Pennington had made other staff aware of the allegations.
The appellant said that on 28 January 2015, he observed AT crying in Majcug’s office, then running to the change rooms. Majcug chased after AT, and returned with AT’s gun belt. Majcug advised the appellant that AT was ill and going home, and the appellant did not see AT again for two weeks.
On 2 February 2015, the appellant had a discussion with Majcug about Mantzoros leaving the work place before completing his shift. The appellant said that Majcug defended Mantzoros, and while they were discussing the matter, Mantzoros walked into the office. The appellant discussed the issue of leaving early with Mantzoros. They began to argue. Mantzoros was wearing his gun, and the appellant said that Mantzoros began to threaten him, saying “you don’t know who you fuck with and I show you later on,”[10] while he had his right hand on his gun, which was in its holster. Mantzoros criticised the way he was treated by the appellant, and when he was shown out of the room, Mantzoros pointed at the appellant and said “we’ll see later on you don’t know who you fuck with.”[11] The appellant said that the incident was witnessed by Majcug and other colleagues, and Majcug said she would do something about it.
[10] The appellant’s statement; ARD, pp 782–3, [39].
[11] The appellant’s statement; ARD, pp 782–3, [39].
The appellant stated that he saw AT working on the exit gate some time after he had seen AT crying in Majcug’s office. He approached her and asked her why she had been crying, and she advised him that she had made a comment that Mantzoros was “hot,” and since then, Majcug had been picking on her. She indicated that she wanted a transfer, and the appellant said he assisted her with the application, and she was transferred to police headquarters.
The appellant said that after her transfer, on 7 February 2015, he rang AT and was told he could not speak to her. No reason was given.
The appellant said that on 9 February 2015, at 1.10 am, he was handed the letter from the PSC discussed at [2] above. He spoke to the union delegate, who referred him to the union solicitor. He was advised not to respond to the allegations.
The appellant remained at work on normal duties. He was advised by McVicker that Pennington was threatening staff members to give evidence to the PSC against the appellant. The appellant said that with that knowledge, on 16 February 2015, when he was required to work with Pennington, Majcug, Craven, and David Sherman, he broke down. He was shaking, had headaches and dizziness and was wondering why this was happening. He felt being rostered on the same shift as Craven was intimidating. He advised Huynh that he could no longer work and went home. He attended Dr Fabian, who certified him unfit for work. He did not lodge a workers compensation claim because he was advised that he was to be transferred to Government House.
He returned to work at Government House on 3 March 2015. The appellant said that he remained worried, could not think properly, had headaches, a sore stomach and was shaking. He was concerned that he was being watched by Pennington.
On 22 May 2015, the appellant was moved to the Sydney Police Centre and was rostered on morning shifts. The appellant was not notified by email or telephone, and alleged that the transfer was contrary to the NSW Police Special Constable policy. He questioned the reasons for the transfer and roster change and was advised that the transfer arrangements had been requested by Senior Sergeant Mark Christie. The appellant said that he was sweating, his face felt numb and his blood pressure rose, so he went for a walk. He said that he did not consult Dr Fabian as he was working night shift, and remained at work but did not interact with his work colleagues because he was upset at the roster changes.
The appellant said that he attended Dr Fabian on 25 May 2015 and told Dr Fabian about the roster changes, which the appellant felt were being initiated so that Pennington could watch over him more closely. Dr Fabian issued a WorkCover Certificate, diagnosed an adjustment disorder and recommended the appellant consult a psychologist. The appellant first consulted the psychologist on 14 July 2015.
The appellant stated that the main cause that contributed to his condition was the false allegations presented by the PSC in the letter dated 9 February 2015, and he thought about it constantly.

Special Constable Vivek Murgai

Special Constable Vivek Murgai (Murgai) provided a statement dated 1 July 2015.[12]
[12] ARD, pp 755–760.
Murgai said that he was employed to work in the Security Management unit attached to the Counter Terrorism Special Tactics Unit. Majcug had been his immediate supervisor over the preceding three years. He said that when he began work at Government House, he first met the appellant, who from time to time acted in the senior constable role. He said the appellant assisted him to fit into the team, guided him and monitored his work. Murgai described his relationship with the appellant as professional, and described the appellant as a mentor and approachable, giving training and support, and had a good rapport with the parliamentary members.
Murgai asserted that the appellant would always interact in a helpful manner with colleagues, but would speak quite loudly and happily, sometimes using the “f” word, which some work colleagues considered rude behaviour. He said the swearing was not directed to any particular person.
Murgai observed that about six months earlier, the appellant’s demeanour changed. He became quiet, and when he said the “f” word, (which he had only ever said among colleagues) he would apologise. Murgai observed that the appellant stopped smiling, interacted less with colleagues (particularly Majcug and Pennington) and appeared stressed and preoccupied.
Murgai said that he and other work colleagues would ask the appellant what was wrong, but the appellant would not disclose anything.
Murgai stated that he observed arguments taking place at work between the appellant and Craven, but never saw the appellant arguing with Majcug or Pennington.

Murgai said that about once or twice a month, the operations Manager would allocate a different person to perform the senior’s role, and the appellant would be required to do only the work of a special constable.
Murgai stated that about three or four months previously, he heard a rumour that the appellant was transferred to Government House because he was being investigated by the PSC. He also heard many rumours as to why the appellant was being investigated, but Murgai had no direct knowledge about the allegations.
Murgai said he observed the appellant and Pennington to have conversations in Pennington’s office with the door shut, and both men would be unsmiling and appear to be tense and stressed.
Murgai stated that he enquired of the appellant why he had begun conversing in a more formal matter, and the appellant explained that he needed to be careful about what he was saying.
Murgai observed that over the preceding six months, the culture within the unit had changed, the team did not work closely together and became segregated.

Special Constable First Class Kris McVicker

McVicker provided a statement dated 19 August 2015.[13]
[13] ARD, pp 737–744.
McVicker stated that he had been employed in the Security Management Unit under the Counter Terrorism Special Tactics Unit for almost seven years. He confirmed he reported to the senior special constable who was on duty each day, and to Majcug and Vito De Francesco. Prior to December 2014, he reported to Pennington.
McVicker said that he first met the appellant during the first year when they worked at Parliament House. He described the relationship between himself and the appellant as professional. McVicker described the appellant as supportive, caring and receptive. McVicker said that the appellant initially presented as light-hearted and easy going, and would make funny jokes which McVicker did not find offensive.
McVicker remarked that in early 2015, the appellant was having difficulties with Mantzoros. McVicker described those difficulties, but did not say whether he had first-hand knowledge of them. He did say that on one occasion, Mantzoros referred to the appellant as a “fuckwit” who lacked English skills and was unable to write reports, and said the appellant was incompetent. On other occasions, Mantzoros would swear angrily about the appellant in the workplace, in the presence of others.
McVicker asserted that he had never observed the appellant to have any disagreements with either Pennington or Majcug. McVicker confirmed that many staff had difficulty working with Craven, which the appellant had tried to discuss with Pennington.
McVicker said that while he was in the change room, he overheard a conversation between a new special constable (Dave Shearman) and Craven where Craven told the special constable that Craven could make him a senior, but he would be required to spy on the team “to get dirt on them”, especially the appellant.
In relation to the allegations contained in the letter from the PSC dated 9 February 2015, McVicker stated that he had two conversations with AT, in which AT told him that the appellant did not say what was alleged, and that she felt harassed by her supervisors who were trying to get her to lodge a complaint. McVicker said that AT told him that Mallia was going to come to the worksite and take a statement from her. in about March or April 2015, Mallia attended the work site, and McVicker offered to be AT’s witness, which she declined. McVicker said he escorted AT and Mallia to an area where they could talk. McVicker said that after Mallia left, AT told him that she had said nothing occurred, and signed Mallia’s notebook to that effect.
McVicker stated that about a week later, AT complained to him that she had received an email from a supervisor, criticising her for supporting the appellant, which upset her. McVicker said that AT went into Majcug’s office, and later exited in tears and ran to the change room. Majcug ran after her, and returned with AT’s gun belt. McVicker stated that about thirty minutes later, Pennington arrived and then took AT away.
McVicker recalled he had received a telephone call from a Mr Ken Barrows, who informed McVicker that Pennington needed to use Mr Barrows’ office to counsel somebody. Mr Barrows informed McVicker that he saw Pennington enter the office in the company of AT.
McVicker stated that a few months later he was working with AT and she asked him what she should say the Professional Conduct Unit when they interviewed her. He advised her to tell the truth, and she responded that she was being pressured by the supervisors to say the appellant did ask the alleged question.
McVicker confirmed that he heard Mantzoros in the workplace swear angrily about the appellant, and said “fucken George, he can’t keep his mouth shut.”[14]
[14] ARD, p 743, [37]–[38].
McVicker further confirmed that work colleagues had told him that Pennington was telling them that if they heard the appellant making offensive comments in the workplace they were to report it to him, otherwise they would be “written up” (reported to the PSC for a breach of Code of Conduct).
McVicker said that he observed Pennington come to the workplace to collect people who were making statements, but that he was not asked to provide a statement regarding the internal investigation.
McVicker confirmed that he overheard the conversation between Craven and Dave Sherman, in which Sherman was told that, to get a promotion, he would need to target employees, especially the appellant, to get “dirt on them”.

Special Constable First Class Corey Hatch

Special Constable Corey Hatch (Hatch) signed a statement dated 1 July 2015.[15]
[15] Reply, pp 46–50.
He advised that he was attached to the Security Management Unit and reported to Inspector Schilt. He further advised that he first met the appellant in 1995. Hatch described his relationship with the appellant as “pretty good”, that the appellant had always been friendly and outgoing, and there was no conflict between them.
Hatch observed that the appellant was always respectful to colleagues at work and had not observed the appellant verbally abuse any work colleagues. He said the only workplace conflict he observed was between the appellant and operations supervisors, which the appellant handled in a controlled way, albeit appearing a little upset.
Hatch reported that he witnessed an incident which occurred three to four months previously when Majcug approached the appellant in an upset manner. Hatch said he heard Majcug say in a firm tone that they had asked the appellant not to talk about something. Hatch asked the appellant what it was all about, and the appellant replied that it was in relation to a photograph of a load bearing vest. Shortly afterwards, Pennington approached the appellant in an intimidating manner, accusing the appellant of upsetting Majcug, and saying that the appellant ought to know better. The appellant then followed Pennington into the office.
Hatch, who was the union delegate, said that in about April or May 2015, the appellant telephoned him seeking guidance in relation to allegations of sexual harassment against a work colleague. About a month later, the appellant again contacted him because he had received a letter from Professional Standards Command, advising he was under investigation. In late May 2015, the appellant contacted him once more, and was in a distressed state because he had been transferred to Sydney Police Centre. Hatch was of the view that the agreement with the employer required that employees be given six weeks’ notice of a transfer. Hatch contacted his superior, who advised that the PSC had directed the transfer because of the internal investigation.
Hatch described Pennington as being “hard” and inflexible, and wants things done his way. Hatch recalled that on one occasion, as a representative of the union members, he met with Pennington to discuss a legislative matter. Hatch said that during the discussion, Pennington spoke in a raised voice and he felt bullied by Pennington. Hatch stated that he had also received verbal reports from other special constables, who complained of Pennington’s intimidating manner, but did not want to formally report it for fear of repercussions.
Hatch said he had no knowledge about the internal investigation that was being conducted in relation to the allegations of sexual harassment.

Senior Special Constable Tuan Huynh

Huynh provided a statement dated 1 July 2015.[16] Huynh worked with the appellant between 1992 and 1996 and again from 2013. He described their working relationship as professional, respectful, and they had never had any workplace conflict between them.
[16] Reply, pp 51–56.
Huynh said that when he commenced working with the appellant in 2013, he observed that the appellant had conflicts with certain members of the team, such as arguing with workers who were not doing their job properly or were disobeying his instructions. In particular, the appellant would argue with Craven, as the appellant was not receiving messages about operational last-minute changes. In addition, the appellant would also have what appeared to be heated arguments with management, although Huynh could not hear what they were saying.
Huynh stated that the appellant discussed with him matters where he had reported employees to management because they disobeyed his directives or made unauthorised decisions. The appellant reported to Huynh that management would not believe him and would side with the employee.
Huynh said that generally, the appellant and the staff were mutually respective, and if there were issues, the appellant would speak privately with the employee. Huynh mentioned that the appellant had clashes with Mantzoros, and Huynh was required to speak with both of them in the presence of Peter Hewett. Huynh said that the appellant and Mantzoros continued to hold a grudge against each other.
Huynh described the appellant as very outspoken and often made light hearted jokes that sometimes offended staff. Huynh said that he heard the appellant call people (including Huynh) “you bastard”, but Huynh did not take any notice and would sometimes jokingly say it to the appellant as well.
Huynh stated that he observed conflict between the appellant and Craven, but never observed any direct conflict between the appellant and either Pennington or Majcug. He did, however, observe the appellant having conversations in the office with Pennington and Majcug, but was not privy to what was being said. He described their body language to be negative, they did not smile and their faces looked angry.
Huynh confirmed that in about December 2014, the appellant disclosed to him that staff had complained to Pennington and Majcug that the appellant did not speak English properly and they had difficulties understanding his directives. Huynh also recalled that the appellant told him that he had been called into the office because he had said something offensive to the staff, or because he was not performing his duties correctly. Huynh further recalled that in January or February 2015, the appellant had disclosed that an unidentified person had complained directly to management about him making inappropriate sexual comments openly in the workplace, without coming to him first.
Huynh stated that he had never observed the appellant make inappropriate comments in the workplace, and although the appellant would make joking comments, they were not of a sexual nature. Huynh said that the appellant treated male and female staff equally, and he did not observe the appellant displaying inappropriate behaviour towards female staff.
Huynh conceded that he did not work the same shift as the appellant, but he had never seen Pennington or Majcug bully the appellant. On occasions, he has seen them interacting respectfully with the appellant.
In conclusion, Huynh said that the appellant left the workplace in March or April 2015, but did not tell Huynh why he was leaving. Huynh recalled that another colleague told him that the appellant had been transferred because of an allegation of sexual harassment against AT.

Trent Pennington, Operations Supervisor

Pennington provided a statement dated 7 December 2015.[17] Pages four and five of the statement were omitted and are not in evidence. As that was the state of the evidence before the Arbitrator, the appeal will proceed on the basis of the evidence that was before the Arbitrator.
[17] Reply, pp 81–87.
Pennington advised that he was aware that the appellant asserted that he first began to experience issues two years ago when the appellant reported to both Pennington and Majcug that staff were complaining about Craven, and that from then on Craven ignored him.
Pennington recalled the complaint was that six people were about to walk off work, but the appellant would not provide names. Pennington said he held the appellant “accountable for that” and that a person cannot make threats against an organisation without supplying the names, so he escalated the complaint to the Security Management Unit Command.
Pennington commented that Craven was performing his job quite well, and it was not the appellant’s responsibility to monitor Craven, it was a matter for Craven’s supervisors. None of the six alleged complainants lodged a complaint themselves. Pennington said that after the appellant was directed by to the Security Management Unit Command to provide the names of the complainants, and the appellant did not comply, the matter was not raised again.
Pennington said that the appellant made twelve applications to be promoted to senior special constable, and Pennington and Majcug spent a lot of time mentoring him through the last process, the interview process, and through the appeal to the Industrial Relations Commission. Pennington said that the appellant was successful in the last application.
Pennington asserted that he did not believe anything the appellant had to say, and provided examples of statements made by the appellant that were difficult to accept as being true.
Pennington said that the appellant had been spoken to on a number of occasions about him inappropriately talking of an apparent piercing in his penis, which Pennington did not believe and found offensive.
Pennington stated that the appellant was moved to Sydney Police Centre so that he could be supervised.
In relation to the appellant’s allegation that Pennington was approaching staff and threatening them to be a witness in the allegations relating to AT, Pennington said that the allegation was a lie. He said that while he was in a drug and alcohol course, he was told to go to Parliament House and speak to AT, and he took a statement from her. Professional Standards contacted him and asked him to contact the people who were to be interviewed. He was provided with the names of the staff and he facilitated the interviews.
Pennington reiterated that the appellant was moved so that he could be supervised, but that was not his decision and he had no input to the rostering, or the conduct of the internal investigation.
Pennington denied the allegation that Mantzoros was drunk at the Christmas party, and contended it was out of the scope of Mantzoros’ character to speak about Majcug in a sexual or diminishing manner. This was the first Pennington had heard of the matter.
Pennington further denied that the appellant was wrongly accused of spreading rumours about Majcug and Mantzoros having a sexual relationship. Pennington said that he did speak with the appellant about discussing those matters and that he had warned the appellant about that and told him to stop.
Pennington described the appellant as lacking in integrity, and said that the appellant was a liar. Pennington believed that he and the appellant had a good relationship, and that the only time he had to speak with the appellant was in relation to inappropriate comments in the workplace, or telling lies.
Pennington provided a further statement dated 24 May 2016, which was prepared for the purposes of unfair dismissal proceedings in the Industrial Relations Commission.[18] That statement was in similar terms as the statement dated 7 December 2015, and included details of observations made by Pennington of the appellant’s inappropriate behaviour and conversations in the workplace, and the need to frequently speak to the appellant in relation to those matters.
[18] Reply, pp 125–128.
Pennington also provided details in relation to his part in dealing with the allegations involving AT. Annexed to that statement were notes of the content of the conversation with AT, that included her confirmation that the allegation was correct, and the reason for not coming forward was that she felt intimidated by the appellant.[19]
[19] Reply, pp 129–130.
A third statement dated 13 May 2015 from Pennington was also in evidence.[20] That statement was broadly consistent with the statements discussed above.
[20] Reply, pp 131–133.

Special Constable AT

AT provided statements dated 28 January 2015[21] (which was unsigned), 18 May 2015[22] and 24 May 2016.[23] The statement dated 28 January 2015 was unsigned, but was adopted by her in her statement dated 24 May 2016.
[21] Reply, pp 118–119.
[22] Reply, pp 120–124.
[23] Reply, pp 112–117.
In the statement dated 28 January 2015, AT said that in November 2014, she received a telephone call from the appellant, which was overheard by other special constables, in which the appellant asked her the offending question. AT said that she did not think anything of the comment because the appellant usually talked in that manner, but that it was never usually directed at one person. AT indicated that she knew such a comment was wrong, especially in the work place, but being new in the job, not having any one to confide in, and not wanting to upset anyone, she did not report it.
AT first became aware that the incident had been reported to operations supervisors by colleagues when the appellant telephoned her and told her what had been reported, and wanted confirmation that he had not said the comment to her. AT said she did not feel comfortable talking about it as she was on her rostered days off. Following that telephone call, she was interviewed by Mallia at the request of the appellant. She felt uncomfortable. She also felt intimidated (but not through any fault of the appellant) because she knew from colleagues’ conversations that the appellant knew people in senior positions and had been saying he had been involved in getting people terminated from work. AT said that she aspired to become a police officer, and did not want to risk her future. She also did not want to be known as a “dobber”.
In her second statement (dated 18 May 2015), AT related the incident in a consistent manner, but added that in the telephone call to her mobile while she was rostered off work, the appellant asked to her to confirm or deny whether he had said to her the offending question. AT said she found the telephone call bizarre, because it could have waited until she was back at work the next day. She was concerned, caught off guard and shocked. The appellant then told her he was with Special Constable Olivia Walker (Walker) and offered for AT to speak with Walker, with whom AT had a brief conversation.
AT added that the following day, Mallia (who was a friend of the appellant) came to ask her questions about the complaint. AT was offended, as she thought a female manager could have interviewed her, instead of one of the appellant’s “mates”. AT said that Mallia asked her questions and she felt quite intimidated and offended. As a result, she said “no” to every question, and it was playing on her mind that the appellant had told her he could get people terminated from work because he was close to the bosses.
AT said that she was quite upset by these events, and at her request was moved to Parramatta, commencing there on 20 January 2015.
On 25 January 2015, AT received an email from Craven, advising that he was aware of the issue and providing AT with advice and support. AT said that she was advised to report the incident in November 2014, which she did, submitting the report to the Commander, Security Management Unit.

AT said that the appellant then attempted to call her numerous times, but she did not want to speak with him and ultimately, her Senior Special Constable, Keith Rivers, told the appellant not to call again. She advised Pennington by email of the telephone calls. AT believed that the dates these phone calls occurred were 7 and 8 February 2015.
In response to specific questions put by the interviewer, AT said:
(a)    she believed the telephone call from the appellant on 15 January 2015 was intended to intimidate her so that she would not complain and would not confirm the allegation;
(b)    it was not during that telephone call that the appellant told her he was responsible for having De Francesco removed from Parliament House, but the appellant did tell her this in a prior conversation;
(c)    the appellant’s language was always vulgar and inappropriate, with sexual innuendo, which offended her, and
(d)    she felt harassed and bullied by the telephone calls from the appellant in February 2015.
In her statement dated 24 May 2016, AT recounted eight inappropriate comments of a sexual nature that she recalled were made by the appellant. She described them as disgusting, and said she was personally offended, and felt uncomfortable and harassed in the workplace
AT also said that she had not been given any warning that Mallia was coming to take her statement. She denied having the conversation asserted by McVicker, and said McVicker did not escort her to the interview room. She asserted that when she returned from the interview, she was certainly not joking and laughing as the appellant alleged as reported to him by McVicker. AT denied the further alleged conversation between her and the appellant, which is not necessary to recount here. She stated that she did not depart from her station at Parliament House on good terms with the appellant.
AT denied that she had ever been threatened to make a complaint about the appellant.

Lawrence Mallia, Operations Supervisor

Mallia provided statements dated 2 February 2015,[24] 17 June 2015,[25] 5 July 2015[26] and 6 July 2016.[27] The statement dated 5 July 2015 was unsigned, but Mallia adopted it in his statement dated 6 July 2016.
[24] Reply, pp 149–150.
[25] Reply, pp 151–154.
[26] Reply, pp 155–156.
[27] Reply, pp 145–148.
In the first statement, Mallia said that on 16 January 2015, he was delivering uniforms to Parliament House when he was approached by the appellant. The appellant wished to talk to him about rumours circulating in relation to the appellant and AT, in particular that he had asked AT the offending question. Mallia said that the appellant was quite upset and denied the allegation, and asked him to speak to AT on his behalf to confirm what was said.
Mallia said that he advised the appellant to go through his immediate operations supervisors at Parliament House to deal with the rumours. Mallia indicated that before leaving Parliament House, he informed De Francesco that he was going to interview AT and also informed De Francesco of the subject of the appellant’s concerns.
Mallia said that he interviewed AT who denied the appellant’s conduct. Mallia asserted that he did not, in any way, intimidate AT and he was duty bound to investigate the appellant’s complaint. He expressed the view that AT had falsified police documents by signing his note book and not being truthful about the rumours.
Mallia’s statement dated 17 June 2015 is consistent with the contents of the first statement, but Mallia referred to the perception in the workplace that he was friends with the appellant, and stressed that the reason he spoke with AT was because he was concerned for her welfare. Mallia conceded, in hindsight, that AT may have felt intimidated by him investigating the matter, but said he thought at the time that he was doing the right thing.
The statement dated 5 July 2015 does not provide any additional relevant evidence.
In the statement dated 6 July 2016, Mallia confirmed the evidence in his earlier statements. He observed that from time to time, the appellant would make jokes and comments of a sexual nature in the workplace, but could not recall any that were directed at or offensive to any specific person, or the appellant directing inappropriate comments to a specific female employee. In his view, the comments and jokes were not any different to those made by others in the workplace.
Mallia stated that after the interview with AT, he contacted De Francesco and, as AT had denied the incident, they together decided that no further action was required. He did not file any formal report of the interview.

Shony Lee Majcug, Operations Supervisor

Majcug provided statements dated 20 May 2015[28] and 25 May 2016.[29]
[28] Reply, pp 160–163.
[29] Reply, pp 157–159.
In the earlier statement, Majcug gave evidence that on 28 January 2015, she was approached by AT, who asked to speak with her. They then went to Majcug’s office, and AT became upset, distraught, and began to cry. She showed Majcug an email from Craven, which appeared to Majcug to be support and advice in relation to bullying and sexual harassment. AT told Majcug that Mallia had spoken to her about a rumour that the appellant had said something inappropriate to her. Majcug said that AT was crying uncontrollably and it was difficult to get AT to tell her what was wrong, other than her concerns related to the appellant. As she was unable to find out what was wrong, Majcug suggested to AT that she may be more comfortable with speaking to Pennington and Majcug contacted him. Pennington then had a conversation with AT, who was unable to complete her shift and was sent home.
Majcug said that she recalled an incident in late 2014 when the appellant arrived at work an hour early (which he had never done before) and was looking for AT. Majcug considered that this incident may have been relevant to what was upsetting AT.
Majcug confirmed that after she had spoken with AT on 28 January 2015, the appellant approached Majcug, asking what AT was upset about. Majcug advised the appellant that AT was unwell.
Majcug stated that she was later informed of the extent of the complaint involving AT and the appellant. She added that she was shocked and surprised that Mallia had taken it upon himself to interview AT. Majcug said that Mallia and the appellant were friends, and as she was the shift operations manager, she should have been consulted. Because of the nature of the complaint, it should have been officially reported, recorded and dealt with in an appropriate manner.
Majcug observed that the appellant was a manipulative, dishonest person and a pathological liar, and believed the appellant was seeking out a “weak” supervisor to deal with the complaint. Majcug considered the appellant to be unprofessional. She was aware that the appellant used inappropriate and offensive language, although there had never been any official complaint about his behaviour. Majcug gave examples of the inappropriate conduct.
Majcug denied that she was having an affair with a colleague, and said she found the rumours spread by the appellant upsetting and inappropriate.
In her statement dated 25 May 2016, Majcug confirmed the matters reported in her earlier statement and added further examples of the appellant’s inappropriate behaviour. Majcug said that she counselled the appellant about that behaviour on a number of occasions.

Senior Constable First Class Peter Hewett

In his statements dated 18 May 2015[30] and 24 May 2016,[31] Hewett said that while working with the appellant in the control room, he heard the appellant ask AT over the telephone the offending question, consistent with AT’s allegation. He said he was surprised that someone would say such a thing directly to a person in the workplace. He advised the appellant that it was inappropriate. Hewett then (on the same day) reported the incident to Pennington.
[30] Reply, pp 168–171.
[31] Reply, pp 164–166.
Hewett confirmed that although the appellant was good at his job, his conduct and language at times were inappropriate and offensive. He further recalled that subsequent to the incident, the appellant arrived at work early, which was unusual, and was looking for AT.

Special Constable Olivia Walker

Walker provided statements dated 28 May 2015,[32] 8 July 2015[33] and 25 May 2016.[34] Her evidence in each of those reports was consistent. In essence, Walker said that the appellant’s behaviour in the workplace was inappropriate and he regularly made jokes and comments of a sexual nature, more so than other employees. She confirmed that on one occasion, he asked her whether she would be offended if he asked her the offending question, to which she replied “yes”. She further confirmed that on 15 January 2015, she gave the appellant AT’s mobile telephone number and, using the work telephone, the appellant asked AT if she was offended when he asked her the offending question.
[32] Reply, pp174–177.
[33] Reply, pp 178–179
[34] Reply, 172–173.
Walker stated that she did not understand the appellant’s questions to mean that the appellant was trying to dissuade AT from making a complaint about the incident.

Senior Special Constable Adam Craven

A statement was taken by Craven on 24 May 2016. Only one page of the statement was in evidence, which was of no evidentiary value and was appropriately disregarded by the Arbitrator.

The medical evidence

Dr Fabian

Dr Fabian’s clinical records were in evidence, presented in a most unsatisfactory manner. They included numerous documents that were totally irrelevant to any of the issues raised by the respondent at any stage during the life of the claim.
The clinical notes commenced from page 367 of the ARD and concluded at page 404, spanning the period between 14 February 2002 to 12 November 2017.
The first relevant entries were in February 2002 and March 2003, when the appellant complained of difficulties with his sergeant and other work-related matters and was issued with WorkCover certificates from 17 March 2003 to 2 May 2003.[35] Thereafter the appellant attended his general practitioner and made no complaints of a psychological nature until 1 and 8 December 2007, when he was prescribed Lexapro in the context of significant marital difficulties.[36]
[35] ARD, pp 401–404.
[36] ARD, p 393.
The appellant returned to Dr Fabian in 2008, again with psychological complaints arising from stressors in relation to his house renovations.[37]
[37] ARD, p 390.
There were no further relevant entries until 16 February 2015,[38] when the appellant attended Dr Fabian complaining of being stressed, upset, angry and unable to sleep. He told Dr Fabian he was falsely accused of sexual harassment. Dr Fabian provided a medical certificate and increased the appellant’s dosage of Lexapro, which he had previously prescribed.
[38] ARD, p 375.
The appellant attended Dr Fabian again on 23 February 2015, complaining of sleeping difficulties and a wandering mind. Dr Fabian provided a Medical Certificate, and noted:
“Continue meds
Lexapro
Counselling with Police service
Relaxation technique”.[39]
[39] ARD, p 375.
The next relevant entry was on 25 May 2015, when the appellant complained to Dr Fabian that he had been moved from Parliament House to the Police Centre and his shifts were changed to day shifts. He complained that he was stressed and Dr Fabian issued a WorkCover certificate of capacity.[40]
[40] ARD, p 375.
Although the appellant attended Dr Fabian on several further occasions, the first detailed account Dr Fabian took of the stressors which were alleged to have led to the injury was on 7 August 2015. The clinical note described the rumours that Majcug and Mantzoros were having an affair, and that colleagues were alleging he was responsible for the rumours. Dr Fabian noted that the appellant was told not to lodge a complaint because a complaint may be made about him asking a female officer the offending question. Dr Fabian further noted there were also allegations against the appellant in relation to his inappropriate language.[41]
[41] ARD, p 374.
The medical certificates issued on 16 February 2015 and 23 February 2015 were not WorkCover certificates, and simply diagnosed an adjustment disorder and certified an inability to work.[42] The WorkCover Certificate issued on 25 May 2015 indicated that the injury was related to work because the appellant was falsely accused of sexual harassment at work, had recently been transferred to another location and his roster was changed. The stated date of injury was 9 February 2015.[43]
[42] ARD, p 321.
[43] ARD, p 318.

Ms Grace Canales, psychologist

Dr Fabian referred the appellant to Ms Canales, who first examined the appellant on 14 July 2015.
In her undated report that was endorsed “completed on 28 March 2018” and directed to the appellant’s legal representatives, Ms Canales recorded a history of the appellant being unfairly treated by his employer. The appellant complained to her that when he made allegations to Pennington about Mantzoros’ conduct, Pennington told him not to continue with the allegation, which made the appellant feel threatened. Ms Canales noted that according to the appellant, soon after he made the complaint, allegations of inappropriate sexual conduct were made by AT against the appellant. The appellant protested his innocence and asserted he was framed. His mental state deteriorated and he was ruminating about what happened.[44]
[44] Ms Canales’ report; ARD, pp 17–18.
In a progress report directed to Dr Fabian and dated 20 June 2017, Ms Canales observed that the appellant was “still stuck on what happened to him at work”.[45]
[45] ARD, pp 19–20.

Dr Richa Rastogi, consultant psychiatrist

Dr Rastogi was qualified by the appellant’s legal representatives to provide a forensic medical report on behalf of the appellant.
In her report dated 28 March 2018,[46] Dr Rastogi took the history that the appellant sustained his psychological injury as a result of bullying, harassment and discrimination, culminating in alleged unlawful dismissal on January 2016. Under “History of Injury”, Dr Rastogi recorded the following stressors:
[46] ARD, pp 1–13.
(a)    in 1995 the appellant was accused by his Commander of poor performance. The appellant lodged a complaint, and the allegations were not substantiated;
(b)    following that event, he fell prey to targeted harassment and bullying by his superiors, being called names, given unacceptable shifts and duties, racial discrimination and was refused promotion;
(c)    in 2001, he was falsely accused of sleeping on duty, following which his superior was asked to leave his position, which led to increased bullying. He was ostracised and looked down upon;
(d)    in 2014, Mantzoros alleged the appellant was spreading rumours about Mantzoros having an affair with Majcug. It was also reported to the appellant by a colleague that the colleague overheard Mantzoros saying that the appellant was unable to speak English well, and could not do his job properly;
(e)    in January 2015, Pennington advised the appellant against making a complaint about being accused of making rumours and warned the appellant that Mantzoros and Majcug were aware of the appellant having made an inappropriate sexual comment to AT. The appellant was dumbstruck, shocked and felt his reputation had been tarnished;
(f)    in a telephone call made in the presence of Walker, AT denied the event occurred. She further denied to Mallia (who the appellant had asked to investigate the allegation) that the comment was made, but a few days later changed her story;
(g)    the appellant received the letter dated 9 February 2015 from the PSC advising he was alleged to have sexually harassed AT, confronted her and behaved unprofessionally on multiple occasions. The appellant took two weeks off because of psychological symptoms;
(h)    thereafter, he felt constantly watched by Pennington, which exacerbated his anxiety;
(i)    his roster was suddenly changed to morning shifts without notification, which led to him losing control and being unable to cope, and
(j)    in August 2016, he was found guilty of the allegations, and his employment was unlawfully terminated.
Dr Rastogi diagnosed an anxiety disorder due to accumulation of multiple negative events since the commencement of his employment in 1992. The last straw was the allegations of sexual misconduct. Dr Rastogi opined that the appellant suffered the psychological sequelae of bullying, harassment, racial discrimination and the allegations that caused the loss of his employment and his identity. The injury was a direct result of those chronic work-related issues, namely protracted bullying and harassment. Dr Rastogi was of the view that the anxiety disorder developed in the 1990s, and was exacerbated by the allegations of misconduct.

Dr Martin Allan, consultant psychiatrist

Dr Allan was retained by the respondent to provide a forensic medical report on its behalf. Dr Allan provided a report dated 24 July 2015.[47]
[47] Reply, pp 1–15.
The history provided by the appellant was that he had been experiencing long term psychological difficulties throughout his employment with the respondent. The appellant reported that he had been exposed to discrimination and various traumas over the years, including:
(a)    in 1997, it was alleged he had patrolled outside the areas of Government House, which was not permitted. He denied the allegation;
(b)    in 2003, he was accused of sleeping on the job;
(c)    on multiple occasions, he was refused promotion to senior special constable;
(d)    more recently, he had been repeatedly blamed for spreading rumours about Mantzoros and Majcug;
(e)    in January 2015, Pennington advised the appellant not to lodge a complaint about the allegation he was spreading rumours because there were being allegations made that the appellant had sexually harassed AT;
(f)    AT initially denied to both the appellant and Mallia that the event occurred, but subsequently advised that it did in fact happen;
(g)    the appellant received the letter of allegations from the PSC dated 9 February 2015, following which he took two weeks off work because of psychological symptoms, and
(h)    following his return to work, his roster was suddenly changed without notification.
Dr Allan concluded that, over the years, the appellant had suffered from mild psychological distress that fluctuated in response to various traumas. Dr Allan said, however, that it was clear that the appellant’s psychological well-being had deteriorated dramatically more recently. He said it appeared that the deterioration resulted directly from the suggestion he was spreading rumours and the allegations of sexual harassment and serious misconduct which were under investigation. Dr Allan opined that the above incidents were the whole cause of the adjustment disorder.
Dr Allan provided a supplementary report at the request of the respondent’s legal representatives, dated 2 March 2017.[48] Dr Allan was provided with the factual investigation reports dated 7 July 2015, 27 August 2015 and 8 December 2015.
[48] Reply, pp 16–17.
Dr Allan referred to his comments in his original report in relation to the alleged discrimination and long-term exposure to numerous traumas. Dr Allan clarified that those events caused the appellant some stress, but the symptoms were not sufficient to reach the threshold for a diagnosis of a psychological condition. Dr Allan said he was of the view that it was only when the appellant received the letter from the PSC that his psychological symptoms required him to take time off work. Dr Allan said that he was of the opinion that overall, the appellant’s stress-related disorder was attributable to the sexual harassment allegations and the ramifications that ensued. Dr Allan concluded that the appellant’s psychological condition developed as a result of the respondent’s entirely appropriate actions in disciplining the appellant and managing the ensuing circumstances.
Dr Allan also provided a further supplementary report dated 9 October 2018.[49] Dr Allan referred to the reports of Dr Canales in which Dr Canales recorded the appellant’s ruminations about the allegations made against him in early 2015 and investigations into those allegations which pointed against the appellant’s denials. Dr Allan concluded that the allegations of sexual harassment raised against the appellant and the investigation into those allegations were the predominant cause of the appellant’s psychological injury. Dr Allan was of the view that, given the nature of the allegations against the appellant, the disciplinary actions taken by the respondent were reasonable.
[49] Application to Admit Late Documents dated 10 October 2018, pp 1–3.

The appellant refers to Dr Allan’s observations that Ms Canales recorded that the appellant was ruminating about the allegations contained in the letter dated 9 February 2015 and the appellant was suffering ongoing stress of the investigation. The appellant contends that those matters were not new information for Dr Allan, as he had made observations about that evidence in his first report. The appellant submits that those observations indicate that Dr Allan did not take into account all of the stressors in his consideration of whether the respondent’s actions were the predominant cause of the injury. As the Arbitrator observed at [174] of his reasons, Dr Allan was considering a separate question in his third report, to that posed in the first report. The matters that dominated the appellant’s thought processes and reports to his treating psychologist were very relevant to a consideration of the predominant cause of the injury.
The appellant’s criticisms of the Arbitrator’s acceptance of Dr Allan’s opinion and the Arbitrator’s ultimate findings are not made out and ground one of the appeal fails.

Ground two: The Arbitrator erred in finding that the “allegations” by AT, which came to light before the letter dated 9 February 2015, formed part of the s 11A actions of the employer, or that those allegations were predominantly causative

The appellant submits that the Arbitrator erred in considering that the allegations of sexual harassment was action taken by the respondent. That assertion was made by the appellant at the arbitration, and was dealt with by the Arbitrator in his reasons.[69] The Arbitrator found that Dr Allan’s reference to the allegations of sexual harassment was a reference to the receipt by the appellant of the letter dated 9 February 2015 containing the allegations. The Arbitrator based that conclusion on Dr Allan’s reports dated 24 July 2015 and 2 March 2017. The passage relied upon in the first report included a reference to the appellant having taken two weeks off work following receipt of the letter dated 9 February 2015 because the appellant was feeling overwhelmed and distressed. He was worrying, not sleeping and was irritable.[70] The relevant passage from the second report recorded that although the appellant had been under some stress prior to making his claim, it was only after the receipt of the letter containing the allegations that the appellant’s symptoms were sufficient to render the appellant unfit for work. On that basis, Dr Allan was of the view that the injury was attributable to the sexual harassment allegations and the ensuing ramifications, that is the reasonable actions taken by the respondent.[71]
[69] Reasons, [169].
[70] Reply, p 4.
[71] Reply, p 17.
The appellant provides no reasons as to why the Arbitrator’s conclusion was wrong. The appellant simply submits that the Arbitrator ought to have found otherwise. The Arbitrator’s conclusion was a finding of fact for which he provided reasons. A finding of fact will not be disturbed on appeal unless it can be established that the Arbitrator took into account irrelevant material, overlooked material evidence or gave insufficient weight to the evidence.[72] The appellant points to no evidence to support its assertion that the Arbitrator erred.
[72] Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156.
It follows that this ground of appeal fails.

Ground three: The Arbitrator erred in finding that the respondent had proved its actions reasonable in requiring the appellant to work with officers with whom he was in dispute

The appellant submits that the respondent was “well aware” before 9 February 2015 of the allegations made, the dispute between the co-workers, and Mallia’s investigations, so that the respondent ought to have arranged for the appellant to be relocated. The Arbitrator found that the respondent had no reason to know there were factors distressing the appellant before 23 February 2015, when the appellant produced a medical certificate.
In relation to the respondent’s knowledge of the accusations made by AT, while it is clear the respondent was aware of those allegations before 9 February 2015, there is nothing that would indicate those allegations affected any other person other than the appellant and AT, who was transferred on 20 January 2015 and about whom the appellant made no complaint of ill will. There is no corroborative evidence that the respondent was aware of difficulties between the appellant and Pennington, Majcug or Sherman. Although there appears to have been some interpersonal conflict between Craven and the appellant, there is no evidence to indicate that the respondent was aware that those difficulties were having or would have an adverse effect on the appellant. As the Arbitrator observed, when the appellant returned to work after informing the respondent he was having difficulties, the appellant was transferred to Government House.
The appellant asserts that the reason he broke down on 16 February 2015 was because he was required to work with Pennington, Majcug, Sherman and Craven. This assertion was made in his statement evidence. The Arbitrator found that the appellant’s evidence could not be accepted without corroboration or where it conflicted with other evidence. The Arbitrator’s rejection of the appellant’s uncorroborated evidence is not challenged in this appeal. The appellant’s assertion that he broke down on 16 February 2015 because he had to work with the above people is contradicted by Dr Fabian’s notes that recorded that on 16 February 2015, the appellant was stressed, upset and angry in the context of being falsely accused of sexual harassment.[73]
[73] ARD, p 375.
It follows that this ground of appeal also fails. As the appellant has been unable to establish error on the part of the Arbitrator, the Arbitrator’s decision is confirmed.

DECISION

The Certificate of Determination dated 13 November 2018 is confirmed.

Elizabeth Wood

DEPUTY PRESIDENT

8 May 2019