Atlas Digital Group Pty Ltd v Workers Compensation Nominal Insurer (iCare) Summary

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Atlas Digital Group Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Others [2022] NSWPIC 159
APPLICANT:	Atlas Digital Group Pty Ltd
FIRST RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
SECOND RESPONDENT:	Laura Clare
THIRD RESPONDENT:	Born and Raised Brand Group Pty Limited
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	12 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Application to set aside notice issued pursuant to section 145 of the 1987 Act; employment, insurance, notice of injury, injury, incapacity and reasonable necessity of medical treatment in issue; applicant relied on section 11A of the Workers Compensation Act 1987 (1987 Act), with respect to performance appraisal, discipline and/or provision of employment benefits; consideration of Attorney General’s Department v K; State Transit Authority of New South Wales v Fritzi Chemler; Pirie v Franklins Ltd; Department of Education and Training v Sinclair; Irwin v Director-General of Education; Kushwaha v Queanbeyan City Council; Hamad v Q Catering Limited. Held- second respondent was employed by the applicant, which was uninsured at the date of injury; second respondent sustained psychological injury in the employ of the applicant, as a result of aggravation, acceleration, exacerbation or deterioration of disease, pursuant to section 4(b)(ii) of the 1987 Act; second respondent complied with the notice provisions in giving notice of the injury; applicant does not have a defence to the claim, pursuant to section 11A of the 1987 Act; medical treatment afforded to the second respondent was reasonably necessary as a result of the injury; application to set aside section 145 notice refused; applicant to pay first respondent the sum of $155,664.87, in accordance with the notice; award for the third respondent; second respondent has at all material times had no capacity for work.
ORDERS MADE:	1. That the applicant’s application to set aside the notice issued by the first respondent pursuant to section 145 of the Workers Compensation Act 1987 is refused. 2. That the applicant is to pay to the first respondent the sum of $155,664.87, in accordance with the notice dated 6 September 2021, issued pursuant to section 145(1) of the Workers Compensation Act 1987. 3. That there is an award for the third respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, Atlas Digital Group Pty Ltd (Atlas), has filed a Miscellaneous Application (the Application) in response to a demand by the first respondent, Workers Compensation Nominal Insurer (iCare), pursuant to section 145(1) of the Workers Compensation Act 1987 (the 1987 Act), for the reimbursement of $155,664.87 paid to the third respondent, Laura Clare (Ms Clare).
Ms Clare claims to have sustained a psychological injury, deemed to have occurred on 19 June 2020, as a result of treatment to which she was subjected by the Chief Executive Officer (CEO) of Atlas, Christopher Harris (Mr Harris), while she was employed by Atlas. ICare has accepted liability for her claim and has paid compensation to her and on her behalf. ICare claims that, as at the date of injury, Atlas did not hold a workers compensation policy.
ICare maintains that Ms Clare was employed by Atlas. Atlas maintains that she was employed by the second respondent, Born and Raised Brand Group Pty Limited (Born and Raised). Atlas also maintains that, as at 19 June 2020, it held a valid workers compensation insurance policy.
Atlas disputes its liability to reimburse iCare. In addition to disputing that Ms Clare was employed by Atlas, it also disputes that she has sustained injury; “causation”; that employment was a substantial contributing factor to any injury; that employment was the main contributing factor to any injury; the deemed date of injury; “insurance”; that notice was given of the injury; that Ms Clare is incapacitated for work; and the reasonable necessity of medical treatment. Atlas also relies on a defence pursuant to section 11A of the 1987 Act, in respect of performance appraisal, discipline and provision of employment benefits.
There is no evidence as to when Ms Clare made her claim. There is evidence of a telephone call to her from iCare on 25 June 2020, and file notes were entered by iCare employee Jamie Gearside on 25 June 2020 and 26 June 2020.
ICare commissioned a factual investigation, and statements were taken from Ms Clare and Mr Harris.
There is also no evidence of when iCare accepted liability for Ms Clare’s claim. It issued Atlas with the notice pursuant to section 145(1) of the 1987 Act on 6 September 2021.
Atlas lodged the Application on 1 October 2021. It named only iCare as a respondent to the Application.
ICare lodged its Reply on 22 October 2021. It submitted that Ms Clare and Born and Raised should be joined to the proceedings, stating that Ms Clare had previously been represented, and Born and Raised should “again” be joined.
The matter was listed for telephone conference on 1 November 2021. I was advised that there had been previous proceedings, when the section 145(1) notice was withdrawn.
I directed that Ms Clare and Born and Raised were to be joined as respondents to the Application; and the matter was listed for further telephone conference on 6 December 2021.
The second respondent, Ms Clare, lodged her Reply on 29 November 2021.
The third respondent, Born and Raised, lodged its Reply on 29 November 2021.
At the telephone conference on 6 December 2021, Ms Clare was not present, but her solicitor submitted that she should not be a party to the proceedings. However, counsel had been briefed to appear on her behalf, and she would assist in any way she could. She was excused from attendance at the conciliation/arbitration hearing should she wish.

ISSUES FOR DETERMINATION

The applicant advised that it would address firstly the issues of insurance and employment, followed by “the compensation issues”, as noted above. It indicated that, if I were satisfied as to either of the first two issues, it would be unnecessary to determine the other issues.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by telephone on 2 March 2022.
Mr Macken appeared for the applicant; Mr Grant of counsel, instructed by Ms Faapito, appeared for the first and third respondents; and Mr Stephen Hickey of counsel appeared for the second respondent. Mr Harris took part, as did Mr Butcher of iCare. Mr Hickey’s instructing solicitor was unable to take part due to flooding in his area on the date of the hearing. The second respondent did not attend.
At the conclusion of submissions, the applicant requested a period of 14 days, in order to lodge further evidence. It was submitted that the existence of this evidence had been brought to Mr Macken’s attention during Mr Hickey’s submissions, and the necessity for it was due to Mr Hickey having made submissions “purporting to impugn unfairly” the evidence of
Mr Harris. The applicant proposed that, once the evidence had been lodged, the matter could be determined.
This course was opposed by all three respondents. They submitted, among other submissions, that it was inappropriate to allow the applicant to lodge further evidence, and for the matter to then proceed to determination without providing them with the opportunity to lodge evidence in reply.
I advised the parties that in my view, it was not appropriate to allow the applicant to lodge further evidence, and then determine the matter without allowing the respondents to respond to that evidence, should they wish to do so. I therefore treated the applicant’s application as one for an adjournment.
The respondents opposed the applicant being granted an adjournment. The application was refused, for reasons that were provided and recorded at the time. I now expand on those reasons.
As was submitted by Mr Grant, it was always the issue, and it was always said, that Atlas was the correct employer, and it was uninsured. It has always been a live issue as to whether Atlas or Born and Raised was the employer. Atlas is the applicant, and it was not appropriate to allow it an adjournment to lodge further evidence, in circumstances where it may be necessary for the respondents to then lodge further evidence.
I will approach the evidence on the basis that, where there are conflicting accounts, the documentary evidence must be carefully considered.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    the Application and attached documents;
(b)    First respondent’s Reply and attached documents;
(c)    Second respondent’s Reply and attached documents;
(d)    Third respondent’s Reply and attached documents;
(e)    Application to Admit Late Documents filed by the first and third respondents dated 1 December 2021 and attached documents;
(f)    Application to Admit Late Documents filed by the applicant dated 21 February 2022 and attached document, and
(g)    Application to Admit Late Documents filed by the first and third respondents dated 24 February 2022 and attached documents.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

SUBMISSIONS

The submissions have been recorded, and a transcript is available. In view of the issues raised by the applicant, it is appropriate to summarise the arguments before considering the evidence.

Applicant

Mr Macken’s first submission was that the first respondent says the date of injury is 19 June 2020; and the applicant entered into a policy of workers compensation insurance in respect of that date and from that date and continuing. He submitted that it is incorrect to say that, because the policy was only entered into on that date, it can’t cover that date. There has been no suggestion by iCare that it should have changed coverage of that policy to another date. It starts on 19 June 2020 and covers that period.
Mr Macken submitted that the deemed date of injury is after 19 June 2020, but even accepting that as the date of injury, there was a policy in place for all those periods, which is enough to remove any assertion that the applicant is uninsured as alleged.
Mr Macken submitted that the staff of the 360 Group, all of whom were employed by Born and Raised, worked in one small office and across multiple projects for different organisations within that group, but all were employed by the one employer. Mr Harris has given evidence about some confusion as to whether all the business names could be listed for the purpose of the workers compensation policy.
Mr Macken submitted that the first period of incapacity, if incapacity is accepted, is 30 June 2020, two weeks after the applicant resigned on 16 June 2020, giving two weeks’ notice. He submitted there is no doubt that there was insurance, and that policy ought to answer the claim.
As for employment, Mr Macken submitted that there is uncontradicted evidence from
Mr Harris that the employer was Born and Raised. Ms Clare makes a generic reference to being employed by Atlas. That is one of the names by which the business operated.
Mr Macken submitted that Ms Clare received payments from several of the businesses at various times, according to payslips, but they all operated under the umbrella of Born and Raised.
Mr Macken submitted that I would accept that the employer is the third respondent. It is not a case of a company attempting to avoid its obligations, as it paid premiums at all relevant times and the wages declarations provided included wages paid to Ms Clare.
Mr Macken submitted that Ms Clare worked the notice period from 16 June 2020 to 30 June 2020, albeit from home. Therefore, the deemed date of injury becomes the first period of incapacity after employment ceased, that is 30 June 2020 [sic].
Mr Macken referred to the evidence of Mr Harris. He submitted there are two significant things relevant to injury, causation and section 9A of the 1987 Act. He referred to Ms Clare’s resignation, in which she thanked Mr Harris for the opportunity “here at Atlas” and stated that she had learnt so much and would look back at her time there fondly. He submitted that statement and the following statement were completely inconsistent with her allegations.
Mr Macken submitted that Ms Clare was not subject to harassment, but at most to what can generically be described as performance appraisal. He referred to Mr Harris’s evidence that on numerous occasions he had to correct, direct and advise her. Mr Harris has given uncontradicted evidence that his behaviour was entirely reasonable. The section 11A defence was enlivened, in that there was reasonable action by the employer in respect of performance appraisal.
Mr Macken made a submission that Ms Clare had already been suffering from post-traumatic stress disorder (PTSD). He referred to the clinical records of Star City Medical Centre, which include non-work-related stressors. He submitted she came to this employer as a person with significant psychiatric/psychological history.
Mr Macken submitted that Ms Clare’s complaints to her general practitioner on 19 June 2020 were an invention, presumably for the purpose of securing some financial benefit, in circumstances where she had chosen to resign and move north. He submitted the applicant’s position was difficult, as it did not manage the claim, and the insurer’s position was also difficult in seeking to recover compensation paid in circumstances where it has never sought to have Ms Clare medically assessed.
Mr Macken submitted there is clear evidence that suggests that, at best, if the allegations of bullying and harassment are accepted, there might be a short term aggravation to a much longer term medical condition, but not the type of aggravation that has as its consequence the payment of such substantial compensation.
Mr Macken submitted that the evidence as to incapacity is extremely inadequate, which cannot be addressed by the alleged employer. He submitted that at the least Ms Clare had work capacity because she was working from home from 19 June 2020 to 30 June 2020, and there is insufficient evidence to suggest she did not have capacity at that date. He referred to her putting together and posting videos, using them to promote her other endeavours.
Mr Macken submitted there is no real basis upon which it could properly be suggested that Ms Clare at all relevant times has had no current work capacity. There would be many activities, including in the entertainment industry, where she could obtain some remuneration.
Mr Macken submitted that Ms Clare had seen multiple medical practitioners from whom there are no reports, and Dr Radovic’s brief report doesn’t really assist. There is an incorrect opinion that Ms Clare suffers PTSD in the context of workplace bullying that lasted two years. He submitted that even her evidence does not suggest bullying and harassment over that period. There is a further report from Dr Radovic “which is equally useless”. It says nothing more than that Ms Clare needed to go to hospital because of PTSD.
Mr Macken submitted that it would be extremely difficult for me to assess reasonable compensation, “even if we got to that point at all”.

First and third respondents

Mr Grant, on behalf of the first and third respondents submitted that Mr Macken had made a “nice smoke and mirrors submission”, a lot of which was not linked specifically to any particular piece of evidence.
The starting point is that Ms Clare was employed by Atlas. Mr Grant referred to Mr Harris’s evidence that it is one of the businesses known as the 360 Group. It is a freestanding company. The respondents say it employed Ms Clare, because she says so, and she was paid some money post her resignation, the salary and wages document dated 22 June 2020 saying, “Paid by Atlas Digital Group Pty Limited”.
Mr Grant submitted it was common ground that the 360 Group consisted of four separate businesses, two of which were Born and Raised and Atlas. Born and Raised was sold in about March 2020. There was a policy that was cancelled at some time in March 2020 but was resurrected at some later time.
Mr Grant submitted that the position is that Ms Clare was employed by Atlas. There are no payslips or pay information to suggest she was paid by Born and Raised at any time, and in any event that business was sold prior to June 2020. The only payslip in evidence is the one to which the respondents had referred.
As regards the insurance position, Mr Grant submitted that the Certificate of Currency on behalf of Atlas was created on 19 June 2020 at 6:02:41pm. It doesn’t indicate that Atlas was covered for any period before that time, contrary to the applicant’s submission.
Mr Grant submitted it is quite clear that the worker indicated to the employer that she was going off work and had a medical certificate. The employer then realised that the company was not insured, sought a policy late that afternoon and put a policy in place from that time.
Mr Grant referred to the applicant’s submission that at all times Ms Clare was employed by Born and Raised. He asked why, if Mr Harris thought that, did he get a policy at all on 19 June 2020 to cover Atlas? He submitted that the answer is that Mr Harris realised Ms Clare was an employee of Atlas, Atlas had been paying her wages, she was working under the Atlas business, but Atlas wasn’t covered. He then sought to obtain a policy as quickly as possible. Unfortunately, by that time Ms Clare had gone off work as a result of injuries she sustained due to bullying and harassment by Mr Harris.
Mr Grant submitted that the insurance position is quite clear, and the employment position is quite clear.
As regards injury, Mr Grant referred to Ms Clare’s statement. She made complaints about her experience whilst working for Atlas and interaction with Mr Harris over a period of time. It wasn’t something that happened as a result of one isolated event. Issues arose between her and Mr Harris starting on the day she started work.
Ms Clare referred to Born and Raised being bought out by a company called Enigma.
Mr Grant submitted this dovetails with his earlier submission that at some point it exited the 360 Group.
Mr Grant submitted that Ms Clare’s evidence was clear that Mr Harris treated her badly up to June 2020, and she felt stressed and anxious through that period because of his behaviour. It seems he was aware she was stressed because he had a conversation with her about it. It seems obvious that’s what brought her to Dr Kot, who provided the certificate that relates to her being incapacitated from 19 June 2020.
Mr Grant submitted the contemporaneous information provided to Dr Kot is clear. There is no dispute that Ms Clare was a person who could well have been vulnerable from past experience and past treatment for PTSD, among other issues, but it’s clear that the attitude of Mr Harris towards her up to 19 June 2020 led her to seek medical attention, she was incapacitated from that time, and all the medical evidence supports the proposition that she’s been unfit ever since.
Mr Grant submitted that there is no contradictory evidence and the applicant ceased work and resigned on 16 June 2020. There is no evidence that she worked post-19 June 2020 and I would accept that, and that from 19 June 2020 she has been off work, certified totally unfit for work.
Mr Grant submitted that Ms Clare was being paid compensation quite properly, and as a result the first respondent seeks to recover the monies or part of the monies paid, up to 6 September 2021, which is covered by the section 145 certificate on that date.
As regards section 11A of the 1987 Act, Mr Grant submitted that from Ms Clare’s evidence it is quite clear she had been having trouble with Mr Harris for a long time. There were a number of events that led to the development of her condition, not just one or two, and certainly not one or two that would fit within the definition of section 11A (1). It would also be incumbent on the applicant to demonstrate that Ms Clare’s condition was wholly or predominantly as a result of Mr Harris’s actions, fitting within an 11A(1) defence. It hasn’t done that. It would be something of a nonsense to suggest that section 11A applies.

Mr Grant finally submitted, in addition to the order sought by Mr Hickey, that the application to set aside the section 145 notice should be refused; an order made that the monies the subject of the notice should be paid to the first respondent; and there should be an award for the third respondent.

Second respondent

Mr Hickey referred to the second respondent’s evidence and submitted the deemed date of injury is 19 June 2020. It is clear that Ms Clare did not continue to work the balance of her notice.
Mr Hickey submitted that Ms Clare’s injury is in the nature of an aggravation or exacerbation of a pre-existing psychological state. It is a section 4(b)(ii) case. The interplay of that section with section 16 of the 1987 Act calls upon examination of the first date of incapacity, that is financial incapacity, referring to decisions such as GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187.
Mr Hickey submitted that a careful approach has to be taken as to how Mr Harris has sought to tailor his responses to Ms Clare’s statement. He has a response to most, if not all, of her allegations and puts a different slant on them. In some respects, he conceded she was truthful, but things were taken in a different way.
Mr Hickey referred to Ms Clare’s perception of the invitation to the boat outing, citing State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 (Chemler).
Mr Hickey submitted that Ms Clare’s injury occurred as a result of overwork, poor training, lack of attention to her failure to be able to do all her tasks in a timely manner and putting pressure on her in that way, in addition to remarks about her clothing. These remarks were made in front of other staff, which was embarrassing for her. Mr Hickey submitted that when one looks at the attempt by Mr Harris to rectify a non-insurance situation and attempt to submit in a tangential way that Atlas was not the employer, I would treat with some care all the evidence put on by Mr Harris.
As for the applicant’s submission that it is uncontradicted that Born and Raised was the employer, Mr Hickey referred to the payslip to which the first and third respondents referred in their submissions. He submitted coverage for Atlas was urgently organised by Mr Harris and everything occurred on 19 June 2020.
Mr Hickey referred to the document Schedule A, which provided answers to questions relating to Ms Clare. The question as to whether she had provided a medical certificate is answered “no”. He submitted I would treat some of the answers with care, because Ms Clare saw Dr Kot on 19 June 2020. She stated that she provided the medical certificate to the applicant on that date. We know Mr Harris saw fit to urgently arrange insurance for Atlas on that date. We have a nonsensical submission from the applicant that she was in fact employed by Born and Raised.
Mr Hickey submitted there was an attempt to cloak Born and Raised with the insurance coverage for Ms Clare. Mr Harris has put in Schedule A the policy number for Born and Raised. Mr Hickey asks why at the same time he rushed out and effected insurance for Atlas? He submitted that these were acts of significant suspicion. Mr Harris has contradicted himself, having stated on 20 August 2020 that the second respondent was employed by the Atlas Agency. He has referred to Atlas’s ABN. The payslip confirms it.
Mr Hickey described the “veiled attempt” by Mr Harris in his statement dated 14 February 2020 to direct attention to the employer being Born and Raised as a nonsense. This is why he submitted I need to be very careful as to what I accept in any of the statements filed by
Mr Harris. He submitted I would treat with the utmost suspicion his intentions, that is, whether the intent to effect insurance on 19 June 2020 was bona fide or attempted with the sudden realisation of an injury suffered by Ms Clare. He had notice of a certificate of that date from Dr Kot regarding the injury and he saw fit to urgently try to rectify the situation.
Mr Hickey submitted that if I accept the above submissions, notice of injury and injury become non-issues. Employment cannot be an issue, other than which is the employer, which he had addressed.
Mr Hickey submitted that section 11A is non-issue. If I accept Ms Clare’s evidence as to how she was treated, then on an objective examination of whether the employer’s actions were reasonable, it can be determined they were not at all reasonable. He referred to the decision in Hamad v Q Catering Limited [2017] NSWWCCPD 6 (Hamad) that there must be some medical evidence to determine whether psychological injury is wholly or predominantly due to employment. He submitted I could not determine the section 11A onus without some psychiatric evidence from the applicant addressing that issue. Section 11A is a nonsense as well.
Mr Hickey referred to the certificates and reports of Dr Radovic, the evidence of Dr Adendorff and the certificates of Dr Kot in submitting that the treatment Ms Clare has undergone was reasonably necessary. He conceded she had pre-existing anxiety, but the significance of the injury was that it was superimposed on that pre-existing latent condition.
Mr Hickey submitted that employment was the main contributing factor to the aggravation of Ms Clare’s psychological injury, to a degree that incapacity was realised on 19 June 2020. There is no other evidence in the period between 22 January 2020 and 19 June 2020 of factors other than employment that would cause her to decompensate to the degree she did on 19 June 2020.
Mr Hickey submitted that the employer at the time was Atlas. That entity was not insured. He submitted a general order for reasonably necessary medical treatment expenses ought be made, and I would find that the expenses paid by iCare relate to reasonably necessary medical expenses for the injury sustained with the first respondent. He submitted I could also make an order for the specific amount set out in the list of payments.

Applicant in reply

In reply to the respondents, Mr Macken submitted that it was entirely improper and unfair for Mr Hickey to submit that Mr Harris’s evidence should be treated with care. Nothing has been put in response to his statements. None of these matters has been raised with him. Cross-examination was not sought. While the second respondent was making submissions,
Mr Harris had been emailing to Mr Macken material that was not before me, that calls into the question the matters raised, all of which would have been raised were he the subject of cross-examination.
Mr Macken submitted that the only way to deal with the matter, other than an adjournment, was to admit further material or ignore, as I should, any submissions by Mr Hickey seeking to cast aspersions on the evidence of Mr Harris. It was “most inappropriate and it’s most unfair”. If Mr Hickey wanted to impugn Mr Harris’s evidence, he should have sought to cross-examine him and put those matters to him.
After seeking instructions from Mr Harris, Mr Macken submitted that the payslip indicating that Ms Clare was paid by Atlas is not inconsistent with his evidence that different parts of the 360 Group pays people at different times. He submitted Ms Clare was paid by Born and Raised, with similar payslips saying she was paid by it. Mr Macken further submitted this is consistent with Schedule A, which states work is cross-billed between entities.
As regards the payslip, Mr Macken submitted it refers to the pay period from 22 June 2020 to 28 June 2020. As Mr Hickey had submitted, the relevant deemed date of injury starts from the first period of financial incapacity. Mr Macken submitted that on the basis of that payslip alone, financial incapacity could not have commenced until after 28 June 2020, because
Ms Clare was in paid employment, whether with Atlas or Born and Raised, to 28 June 2020. The first period of financial incapacity is 29 June 2020.
Mr Macken submitted there is no doubt that Born and Raised was insured. Mr Harris has indicated that it is still insured, and the suggestion that the business has gone is incorrect. Insurance has been paid, the policy has been renewed and wages declarations have been provided. Mr Macken submitted that iCare, as the first respondent, is aware of this.
Mr Macken submitted that it is clear on all the material that Born and Raised was the employer and was insured. As from 19 June 2020, Atlas was insured, and it was because there was some doubt about whether the grouping of the companies covered all the businesses that Mr Harris moved to remove any doubt by also executing a policy for Atlas, in case there was some lacuna in the coverage. Mr Macken submitted there is nothing inconsistent with what Mr Harris said about that.
Mr Macken submitted that the terms of the contract of insurance are for insurance from 19 June 2020. ICare accepted the policy and payment that covers that date. He submitted it can’t accept payment for that date but refuse to indemnify or honour the contract, even if the deemed date of injury is 19 June 2020, which it is not. The Schedule A documents could not be clearer.
Mr Macken submitted the matters referred to Mr Hickey that sought to impugn the evidence of Mr Harris, supported his evidence. He referred to Schedule A, completed by Mr Harris “or someone”, in which Ms Clare’s employment was described, which he submitted was consistent with what Mr Harris said.
Mr Macken referred to Mr Harris’s evidence with respect to Ms Clare’s allegations of his treatment of her. As regards the application of section 11A of the 1987 Act, he submitted
Mr Harris’s statement is quite clear that there were issues relating to Ms Clare’s performance. It was clearly performance appraisal. Mr Harris disputes that there was any bullying, harassment, belittling or other negative treatment of Ms Clare.
Mr Macken referred to the history recorded by Dr Kot of bullying for the last six months. He submitted Ms Clare’s treating specialist had recorded an incorrect history of three years.
Dr Kot recorded that the abusive CEO made comments about what she was wearing and her work. Mr Macken submitted that the CEO says the comments were performance appraisal about deficiencies in Ms Clare’s work. The first thing Dr Kot recorded was precisely that, which he submitted was more than sufficient medical evidence as to “wholly or predominantly caused…”.
Mr Macken submitted that Hamad does not say that specific forensic medical evidence is required, and in this case it’s not possible. The employer does not have the means to get the evidence because it’s not managing the claim.
Mr Macken conceded that the applicant cannot say anything about the necessity of medical treatment, as it is not managing the claim, but he submitted that the treatment was not reasonably necessary as a result of injury. The question is whether the treatment was directed to PTSD, which Ms Clare has suffered since childhood, or to injury in the course of employment.
Mr Macken submitted that Mr Harris’s evidence was uncontradicted, he was not cross-examined, and nothing has been put in reply to his statement. The respondent(s) could have asked any of the many other employees of the 360 Group by whom they were paid. He submitted that Mr Harris’s evidence as to who the employer was should be accepted.
Mr Macken submitted that the applicant should not be penalised by the inadequate material as to Ms Clare’s capacity for work.
Mr Macken finally submitted that no general order for section 60 expenses should be made, as there is no dispute between Ms Clare and iCare as to the payment of expenses. The only issue to address is the section 145 issue.

FINDINGS AND REASONS

It is appropriate that I first consider the issues of employment and insurance, I will refer to the relevant evidence and submissions in my reasons.

Employment

The applicant maintains that Ms Clare was employed by Born and Raised, while the respondents maintain that she was employed by Atlas.
Mr Harris has stated that Born and Raised ceased trading in May 2019. If that were the case, it could not have employed Ms Clare after that date. It appears from other evidence that he may have been referring to a company called Born & Raised Creative Group Pty Ltd (Born and Raised Creative Group), but that is unclear.
Ms Clare, in a statement to an investigator retained by iCare, stated that she commenced work for Atlas as an account coordinator in October 2018. She had been put in touch with its owner, Mr Harris (to whom she refers as Chris) by a friend. She was the only account coordinator employed by Atlas. It shared space with the other agency owned by Chris, Born and Raised, which was a branding agency (emphasis added). “The company” employed about 20 full time staff, which included those employed by Born and Raised. Ms Clare did not say she was one of those employed by Born and Raised.
Ms Clare also stated that the staff of Born and Raised moved to work in Surry Hills, after the company was bought out. She did not move to Surry Hills, which I would assume would have occurred had she been one of its staff.
Ms Clare stated that in about November 2019, she was promoted to account manager. She resigned her position on 16 June 2020.
Schedule A appears to be a response to a request for particulars from iCare “relate[d] to the claim made by the claimant Laura Clare that an injury was received while in the employment of Atlas Digital Group Pty Ltd on 22/01/2020 being an injury described as Anxiety, stress, depression”.
It appears that the particulars were provided by Mr Harris, although there is no direct evidence to that effect. The name of the employer is stated to be 360 Digital Group, including Atlas Digital, Born and Raised and Living Data. The ABN/ACN are stated to be 632 261 575 and 22 632 261 575, respectively. They belong to Atlas. The trading name of the business is stated to be Atlas. There is no suggestion that Ms Clare was employed by Born and Raised.
The particulars state that the policy of insurance for the business was 192893301, and it expired on 30 June 2020. The policy number is that of Born and Raised. The estimated gross wages were $525,000. The number of employees was “TBC”.
Ms Clare was stated to be worker, who had been employed full time for 1.5 years, from 3 October 2018. Her employment had ceased on 19 June 2020.
The particulars state that “we cross bill our work between entities and business within the group sharing clients and resources. Born and Raised was the trading entity for Atlas”.
Mr Harris said in a statement dated 20 August 2020 provided to iCare’s investigator that
Ms Clare was employed by “The Atlas Agency” from about 3 October 2018 to 26 June 2020.
In a statement dated 14 February 2022, Mr Harris said that he maintained “(and have always maintained)” that Ms Clare’s correct employer, having regard to the structure of the group of companies, was Born and Raised. He has not always maintained this, given his previous evidence, including that Born and Raised ceased trading in May 2019; that Ms Clare was employed by The Atlas Agency; and that her employer’s ABN and ACN were those of Atlas.
Mr Harris went on to state that last year (that is, 2021) the premium payable for Born and Raised was adjusted to take account of actual wages paid by that company relevant to the policy period from 16 July 2019 to 30 June 2020. The adjustment followed the provision of actual wages paid relevant to that policy period. It included wages paid to Ms Clare and a final premium was issued and paid, based on those wages.
Mr Harris “maintain[ed]” the view” that Ms Clare’s correct employer, Born and Raised, was not uninsured, a premium has been paid for that company, including on the basis of wages paid to Ms Clare, and accepted and acknowledged by iCare in respect of Policy Number 192893301.
Mr Harris has also given evidence that in his view Ms Clare was employed by the 360 Group, although payment was made to her at various times by Atlas and also, for example, the Social Party and Born and Raised.
The applicant has adduced no wage records, group certificates, payslips, or any other documentary evidence to support Mr Harris’s assertion that Ms Clare was employed by Born and Raised or paid at times by The Social Party or Born and Raised. It is obviously in a position to provide that evidence if it exists. It bears the onus in this matter.
Mr Gearside from iCare emailed Mr Harris on 26 August 2020, thanking Mr Harris for providing the section 141 notice. He asked for copies of Ms Clare’s payslips as soon as they were received. He pointed out that the policy number provided by Mr Harris was for Born and Raised, which had a different ABN from that of Atlas, whose ABN was on the form. He also noted that the policy for Born and Raised was cancelled from 2 March 2020, as it was in delinquency.
Mr Harris emailed Mr Gearside on 26 August 2020, when he advised that there was a letter coming from “the accountancy firm” (PKF) that could explain cross billing and accounting for the group.
Mr Harris also sent an email to iCare on 7 September 2020, advising that “the advisory team is getting back to you on the company/group structure, payment of employees and insurance cover explaining how the policy covered all employees”. There is no evidence that any of this information was provided to iCare. None of it is in evidence before me.
Mr Macken submitted that the respondents could have provided evidence from other employees of the 360 Group as to the identity of their employer. Mr Harris has given evidence, as has Ms Clare, that those employed by the various entities worked in the same office space. The employees are obviously available to Mr Harris. It may be assumed they would be prepared to assist him had they been asked to do so. In addition to payslips and wage records, the applicant could have provided such statement evidence itself, if it believed it would assist its Application. It has not done so. It has not explained the absence of such evidence.
The only payslip in evidence has been lodged by the first and third respondents. It covers the period from 22 June 2020 to 28 June 2020. Wages were paid to Ms Clare by “Atlas Digital Group Pty Ltd”. The ABN recorded on the payslip is that of Atlas. The year to date earnings are stated to be $68,054.30, which suggests that all the payments to her for wages were made by Atlas. The fact that she resigned her employment on 16 June 2020 and gave notice on 19 June 2020 that she had sustained an injury does not deprive the payslip of its evidentiary value. Atlas was paying her wages. There is no evidence that she was paid by Born and Raised.
I do not accept the submission that, because Ms Clare was paid for a period after 19 June 2020, the date of the injury must be after 19 June 2020. She was certified as unfit for work on and from that date. The fact that she may have received some payment after that date does not alter the fact that she was incapacitated for work from that date, which is deemed to be the date of injury, pursuant to sections 15 and 16 of the 1987 Act. Her evidence is that, when she resigned, Mr Harris said she could work the rest of the week and be paid for the following week.
The businesses may have cross billed, or shared resources, as Mr Harris has maintained. However, the evidence, apart from that of Mr Harris, weighs in favour of Ms Clare having been employed by Atlas. Mr Harris, as I have noted, has given contradictory evidence, and it is not supported by documents that I would have expected to be available to the applicant, and which he in fact advised iCare would be provided.
I am satisfied on the evidence that Ms Clare was employed by Atlas, and I make that determination.

Insurance

As I have determined that Atlas was Ms Clare’s employer, it is not necessary to consider in detail the insurance position of Born and Raised. However, I note the following.

Born & Raised Creative Group (ABN 43 606 182 094) (not the third respondent) was insured under policy number 158613001. Its statement of coverage for the period to 31 July 2019 stated that it had six workers, and wages of $510,000.
A Certificate of Currency was issued to the third respondent, Born and Raised (ABN 99 632 062 698) on 16 July 2019. The policy, number 192893301, was valid to 30 June 2020. Born and Raised declared five workers and wages of $497,267.76.
On 3 April 2020, iCare received a cancellation request for Born and Raised. The proposed cancellation date was 2 March 2020. The reason provided was that it had ceased to trade in New South Wales. This request was made by Mr Harris, in an email that described him as Group CEO “Atlas | Born and Raised | Living Data | The Social Party | SEO Fanatics”. As
I have noted, iCare advised that this policy was cancelled from 2 March 2020, because it was in delinquency.
ICare issued a 2020/21 renewal information pack to Born and Raised for the period from 30 June 2020 to 30 June 2021. It is undated.
Attached to an email from iCare dated 8 March 2021 is a Declaration of Wages for Born and Raised, for the period from 16 July 2019 to 2 March 2020. The trading name is stated to be “Atlas | Born and Raised”. The number of employees was 13, and total gross wages were $747,183.85.
Turning to the insurance position of Atlas, a certificate of currency was issued to it on 19 June 2020, under policy number 203697801. There is evidence that the time of inception was 6:02:41pm. The number of workers was recorded as four, with wages of $473,972.60. It was valid to 31 May 2021.
There is no evidence that Atlas was insured at any time before 6:02:41 pm on 19 June 2020. At that stage, Ms Clare had already provided notification that she claimed to have sustained injury in its employ. Her evidence is that she emailed a Certificate of Capacity to Mr Harris on 19 June 2020 and informed him she would not be returning to work. He has given evidence that he learnt of the claim when he received an SMS from Ms Clare on 19 June 2020, asking him not to contact her again, and advising she had filed a claim with iCare.
If, as Mr Harris has stated, he always believed Ms Clare was employed by Born and Raised, it is difficult to understand why he felt it necessary to obtain insurance for Atlas. It appears to be more than a coincidence that this occurred on the very day on which Ms Clare gave notice of a work-related injury.
Mr Harris has given evidence that iCare advised only one entity could be named in the policy. The transcripts of telephone calls between him and iCare do not reveal any such advice.
There is a copy of an email from iCare to Mr Harris which appears to have been sent on 20 May 2021. Its subject is “iCare Grouping”. The email states that “As discussed, you will need to register your related policies together for grouping purposes. Please find attached a copy of the grouping registration form. Please complete a copy of this form for each entity that is part of the Workers Insurance group, and return via email…” Alongside the copy of the email is stated “203697801 – ATLAS DIGITAL GROUP PTY LTD – Grouping Request”. This is the policy number issued to Atlas. There does not seem to have been any impediment to the various entities being grouped together.
I am satisfied on the evidence that Atlas was not holding a policy of workers compensation insurance at the time that Ms Clare sustained injury arising out of or in the course of her employment with it.
Turning to the other issues raised by the applicant, it is necessary to set out the evidence of the second respondent, Mr Harris and iCare. What follows is not intended to be a comprehensive survey of the evidence. Rather I have set out the salient points of that evidence, so that the parties can understand the way in which the Commission has resolved the dispute.

Evidence of the second respondent, Laura Clare

As I have noted above, Mr Gearside has made a file note of a conversation with Ms Clare on 25 June 2000. That is not, of course, direct evidence from her. I will refer to only some of what Mr Gearside recorded. The employer is referred to only as “the Employer”.
Mr Gearside recorded that Ms Clare had chosen 22 January 2020 as the date of injury, as “this was roughly the time things started escalating for her”. She had resigned on Tuesday 16 June 2020 and provided two weeks’ notice. She had taken Friday (which was 19 June 2020) as a sick day. After seeing the doctor, she advised her boss she wasn’t coming in the next week.
Ms Clare advised that she was being treated for PTSD before 19 June 2020. She had been working 40 hours per week and her gross weekly earnings were $1,404.99.
Ms Clare made a statement dated 7 July 2020 to an investigator retained by iCare. Her employment background included retail and receptionist. She was a contestant on the television show “Big Brother” for about three months, after which she did some promotional work for the show. She then travelled overseas with a friend.
Ms Clare commenced work for Atlas in October 2018. She had suffered from alcohol abuse, and had been diagnosed as an alcoholic, but had been sober since 12 September 2008. She did not find that the PTSD a great effect on her, but on occasions when she saw physical aggression it could make her feel quite anxious and hyperactive, or dissociative.
Ms Clare was employed as an account coordinator. She had a group of clients whose websites she supported and would liaise with the developer about the website. She had been put in touch with Mr Harris, who was the owner of Atlas, by a friend. She commenced work full time, being paid $65,000 per annum, with no overtime. The office was on the Pacific Highway at Crows Nest.
The company employed about 20 full time staff working at Crows Nest. This included the other agency owned by Mr Harris, Born and Raised, which was under the same roof. Born and Raised was a branding agency. Ms Clare was the only account coordinator at Atlas. Her direct report was Mr Harris. She worked with account manager Amy (Hauber) who was her trainer on commencement. Ms Hauber also had no experience.
Mr Harris promised Ms Clare training for 90 days and ongoing support, which did not happen. Ms Hauber was very good in her role and Ms Clare shadowed her as much as possible.
On her first day of employment, Ms Clare had lunch with Emma (D’Amor) an employee who was leaving. Mr Harris later sent her a message telling her not to speak to Ms D’Amor, as he didn’t want her to take on her jaded energy and wanted her to have a fresh start. This made Ms Clare feel uncomfortable.
There was no formal training. Ms Clare learned on the go and felt she was making good progress. There was no HR department, and she does not recall any policy and procedures manual. Ms Hauber performed an informal induction.
Ms Clare understood she was on a 90 day probation period. During this time, Mr Harris was often in bad moods and the whole office would be aware the staff had to deal with him. He was very charismatic. He could lift the mood on good days, and the opposite would occur when he was having a bad day.
The business went quiet in about early 2019. Ms Clare was aware that as a recent employee she would be the first to go. She tried to be proactive and became Mr Harris’s “quasi PA”. He treated her quite well and she learnt to navigate his mood swings and frustration with the business as best she could. He favoured her a little, disclosing things about other staff and offering her tickets to events. She felt comfortable with his actions and behaviours around her.
Ms Clare was offered a promotion to account manager, and a wage rise, in March 2019. She declined. She told Mr Harris she felt she had more to learn and was happy to wait. She also felt it may be seen as favouritism. There was no further discussion about the issue.
Mr Harris began to give Ms Hauber a hard time, confiding in Ms Clare that she was hopeless in her role. Ms Hauber became upset and confided that she was treated badly. Ms Clare later had a falling out with Ms Hauber, although they were able to work in a professional manner. Ms Hauber told her she seemed to be the golden child, and when someone moved up the ladder, Mr Harris would turn on her. Ms D’Amor had said something similar.
Ms Clare made multiple informal complaints about another employee, Alex (Whalley), who often had fits of rage and made inappropriate comments to and in front of female staff.
Mr Harris said they just had to give him time to manage it. She eventually made a formal complaint when Mr Whalley directly swore and screamed at her.
Mr Harris investigated and told Ms Clare he had to let Mr Whalley go, but she had had problems with Ms Hauber before and she had to stay in line. She was shocked that Mr Whalley’s behaviour was connected to the issue with Ms Hauber, and that Mr Harris was trying to threaten and discredit her. In about November 2019, Ms Hauber resigned, telling
Ms Clare she felt bullied by Mr Harris.
Ms Clare approached Mr Harris about the previous offer of a promotion. She received a salary increase to $80,000 and the new title. She was very happy and felt appreciated. Her workload increased as she was the only one in the accounts department.
Fairly soon after, Ms Clare noticed a change in Mr Harris’s demeanour towards her. She spoke to him about not having had any training in her role, and not having Ms Hauber’s support. He said she would receive what she needed, including a replacement for
Ms Hauber. This didn’t happen for five months. She asked numerous times for a job description as she wanted to ensure she knew what was expected of her.
In January 2020, a client complained about Ms Clare, and Mr Harris informed her of this in an email. She asked for details of the complaint, and he said they would discuss it on his return from leave. This did not happen. She had two clients taken from her. She had to accept the decision, and did not believe it was fair, as she was not given the opportunity to discuss the complaint, or details of the issue.
During January 2020, Mr Harris began making comments about Ms Clare’s dress. He said her shoes were too loud and she should not wear a hat to work. He made a comment in front of others that she looked like she was going to Mardi Gras, making gag noises and motioning to the back of his throat. She felt he was doing this to insult and belittle her and was really shocked.
Ms Clare and “Dean” (Stagg) had to facilitate a zoom meeting with a new client, as Mr Harris had a back injury. They went into the meeting without the back story or full scope of the client. Mr Harris joined towards the end of the meeting. He asked Ms Clare to “read the fucking scope”, among other abusive messages, while she was trying to run the meeting and speak with the client. Ms Clare felt Mr Harris was very unsupportive and felt very anxious. He told her he was “off his head on drugs”, which made her very uneasy.
Around this time, Born and Raised was bought out by Enigma and they were leaving to work from Enigma Surry Hills office. Ms Clare was concerned, as the director of Born and Raised, Chris Laws, was the only person who seemed able to stand up to Mr Harris. She was worried about how he would behave.
Ms Clare was asked by “Mairead” (Comerford) to provide some details for the staff Instagram profile. Mr Harris put up a message on Asana saying it was inappropriate, and rejected her photo. In March 2020, Ms Clare noticed her title had been edited by Mr Harris from account manager to account coordinator. She felt really anxious as he had not discussed it with her. She felt that he was trying to humiliate her, she was a failure, and he was trying to push her out.
Ms Clare was not confident enough to discuss this with Mr Harris, as when she tried to speak, he would make her feel very anxious. He would try to hurry her up, circling his arms and saying “hurry up, I’ve got shit to do”. She would then stutter and freeze up as the pressure and aggression was too much.
In April 2020, the alarm was not activated at the end of the day. Ms Clare understood “Louis” was still there when she left, but they had left at the same time. Mr Harris messaged that he was “over people who can’t tell me the truth”. She replied she had no reason to lie and would talk to him tomorrow. Louis accepted it was a misunderstanding and Mr Harris did not bring it up again.
Ms Clare had started to make errors. Her anxiety continued to rise, and she felt intimidated by Mr Harris’s micromanaging. She accepted she was not perfect, but he belittled and tried to humiliate her. She was starting to second guess her abilities. His requirements would constantly change. When she asked for help, he would throw up his hands and say he would do it himself and he could get rid of them all.
Due to Covid 19, the staff worked from home. Ms Clare felt great relief at not having to face Mr Harris daily. She operated productively from home. They were required to fill in daily time sheets. Mr Harris criticised her work, saying she was not working to capacity, using her time sheets as an example. Her role meant it was difficult to show on a time sheet. His language in the messages was very bullying and offensive, accusing her of not working.
In May 2020, they returned to the office. Mr Harris continued to make derogatory comments about Ms Clare’s clothing and appearance. He made degrading comments in front of others.
Mr Harris started to comment that Ms Clare had “checked out”. No matter what she did, he would berate her. He was communicating with her clients, which affected her relationship with them. Her anxiety increased to the point where she didn’t know what was going to happen to her. She felt each day there was the possibility of Mr Harris sacking her and she would be helpless to do anything about it.
While they were working from home for four weeks, the staff was asked to take a 30% pay cut. Ms Clare felt this was unreasonable, as they were still working the same hours and seemed to have more work than the year before. The staff did not accept. She offered to work four days for the pay cut, but as the clients needed them for five days, she remained on the same rate and hours.
Ms Clare received numerous calls in 2020 from clients and suppliers, asking for their invoices to be paid. Mr Harris would not take a lot of these calls. They could become abusive, which increased her anxiety. He had made up an accounts person, “Sally”, who was actually Mr Harris. Callers would get frustrated when they couldn’t talk to Sally and she wasn’t answering emails.
Ms Clare was aware Mr Harris owed people money and was avoiding paying them. He discussed his financial problems and pressured them to sign clients. If they didn’t sign on the next account, they would be in a dire way and may have to close. He also said they would close if they didn’t launch the Atlas website in a timely manner.
An account director, “Sultan” (Atycli) commenced in late May 2020. Ms Clare had a meeting with Ms Atycil in which she was really positive. They discussed the messages Mr Harris was sending her and Ms Atycil said she would never belittle her and would have her trust. She felt she would finally get the support, trust and respect she deserved. She became tearful.
The next day, Mr Harris asked why she cried in front of Ms Atycil. Ms Clare replied that she saw the way he talked to her and understood it was not appropriate. He said Ms Atycil had noticed she was showing signs of stress and she should not be offended by his behaviour, as he had been stressed with the workings of the business and Covid.
Mr Harris said Ms Atycil had said Ms Clare was not qualified and questioned why she had been employed. Ms Clare asked how she knew after three days. He replied that “she just knows”. He said Ms Clare was being paid at the rate of other seniors in the team and wasn’t up to the job. He needed to pare back her position, which she understood to be a demotion. She again asked for an outline of her position. He said he would send her an outline, but she never received it.
Mr Harris would say Ms Clare was on an $80,000 package, and she would remind him it was $73,000, as he was not paying her superannuation. He sent her a screen shot of her pay breakdown, showing it as $80,000, and showing the superannuation amount, although it was never paid.
During May 2020, Ms Clare, who is part Aboriginal, attended the Black Lives Matter (BLM) rally in Sydney. She wore a face mask and hand sanitised, posting on Facebook. Mr Harris posted the next day that anyone who attended would possibly need to be stood down for two weeks while self-isolating. She replied that she took precautions and it seemed unfair not to ask others what they had done over the weekend.
Mr Harris decided Ms Clare would work from home for the foreseeable future. She accepted this and was happy to work from home, although he again targeted her for no reason. He announced on the team message that she had attended the BLM rally and the need for her to work from home and isolate.
Ms Clare did not get tested, as if it was negative, she would have to return to the office and be around Mr Harris. She worked from home for two weeks, during which she commented about slavery in Australia on her personal Facebook. Mr Harris replied, contradicting this. A friend questioned him about his response, to which he replied “fuck off”. This showed
Ms Clare he had no respect for her and didn’t care about how she felt about her Aboriginality. She started to feel she could not continue dealing with him.
Ms Clare was getting more and more stressed, wasn’t eating or sleeping, and was feeling really anxious. Mr Harris had blocked her on Facebook and Instagram and deleted all their emails before March 2020 on the work account. This usually occurred when someone had resigned. She felt like something was about to happen.
Ms Clare was due to return to the office on about 20 June 2020. Due to her levels of stress and anxiety, she resigned on 16 June 2020. She had spoken to Fair Work Australia, as she was confused as to what she should do. Due to her fears of how Mr Harris spoke to and treated her, she emailed her resignation. He replied, saying a phone call would have been nice, though he accepted her resignation, and said she could finish at the end of the week and get paid for the following week. This confirmed to her that he wanted her gone as soon as possible. She said she was happy to stay, and he announced to the team she was leaving on 26 June 2020 and there would be a farewell for her that day.
Ms Clare received an invitation to her farewell, which Mr Harris said would last one minute. She pointed this out and he replied “do you need more time?”. She said she would like to make a speech. He replied she could have 45 seconds, as they only needed 15 seconds.
Mr Harris sent out an invitation for a boat trip on 28 June 2020. Ms Clare was surprised but excited and accepted. He wrote back that she should read the details. The invitation was for after she’d left, to celebrate her leaving. She wrote “why invite me then?”, to which he didn’t respond. It was humiliating that he sent these messages to the team. She felt he despised her.
On 18 June 2020, Ms Clare made a Tik Tok video about her experience with Mr Harris, without naming him or the company. It went viral and she was concerned he would become aware of it. She did not feel well enough to face him, so called up sick the following day.
Mr Harris called Ms Clare on 19 June 2020, but she didn’t answer. He also sent a text asking her to call him. He was apologising about the invitation to celebrate her departure. She did not return his call and he continued to message her about Ms Atycil handling her work and offering further apologies and support. She felt he was trying to defend his position and cover himself.

Ms Clare spoke to a “Union person and HR person” through Tik Tok, and to a solicitor who advised her of her rights. She received a message from Mr Harris on 19 June 2020 instructing her to take the video down or he would take legal action. She did not take it down and it remained on the site.
After the laptop was picked up on 22 June 2020, Mr Harris sent Ms Clare an extensive email claiming she had tampered with and encrypted the hard drive, threatening her with legal action unless she provided the passwords. She did not tamper with or encrypt the laptop and felt that although she had left, he was still trying to bully and intimidate her.
Mr Harris also emailed Ms Clare about her termination pay, questioning her about her sick days. She explained she was not aware it was her responsibility to record them. She had not yet received her final payout. Some staff members had told her Mr Harris said they weren’t allowed to contact her, or they would be fired. She did not want to disclose their names.
On 19 June 2020, Ms Clare attended her medical centre, as she was very upset. She was given a certificate of capacity (COC), lodged her workers compensation claim and advised Mr Harris of this.
Ms Clare made a further statement dated 14 April 2021. She continued to consult
Ms Coetzee. She was also being treated by psychiatrist Dr Mark Whittington and GP Dr Rachel Adendorff.
Ms Clare referred to her departure from Atlas. She confirmed that she handed in her resignation on 16 June 2020, due to her worsening stress and anxiety levels. On 19 June 2020, she contacted the team by Slack and advised she had a migraine and would not be attending work. She called Ms Atycil to advise that the reason was because of her treatment by Mr Harris.
On 19 June 2020, Ms Clare was contacted on multiple occasions by Mr Harris, demanding that she call back, apologising and threatening defamation. She did not answer any calls or messages.
Due to the distress caused by the combination of this contact, the invitation to the boat party, and verbal abuse and bullying over the course of her employment, Ms Clare attended her medical centre and was given a COC stating she had no capacity for work. She then emailed Mr Harris, advising that she would not be returning to work, and sent him the COC. She did not return to work after attending the medical centre on 19 June 2020. Her last day in the office was 18 June 2020. Any and all references to personal/carer’s leave in her payslips of June 2020 are sick leave, taken due to incapacity for work as a direct result of her workplace injury.

Evidence of Christopher Harris

Mr Harris, CEO of the applicant, made a statement dated 20 August 2020 to the investigator retained by iCare.
The company (referred to as The Atlas Agency) is owned by Warren Harding. Mr Harris has been CEO since 2018. It employs approximately four employees, plus Mr Harding. It has been operating since May 2015, and its main activity is website development. There is another business within the agency, The Social Party, with which they cross over, and often deal with the same clients. There are two employees in that section.
As they have a small team, they don’t have formal HR, but Mr Harris has one-on-one meetings with staff and an ad-hoc meeting if he has any concerns about their work. If they need to talk to him, he is always available.
Ms Clare was employed by The Atlas Agency from about 3 October 2018 to 26 June 2020. She officially reported to Mr Harris. She had also reported to Ms Hauber and Ms Atycli, both of whom reported to him.
To the best of Mr Harris’s recollection, Ms Clare was employed as a “front of house” person. She had no account management experience but was very keen and they were happy to give her the opportunity to progress. She moved into several different roles.
Ms Clare was a permanent employee, under a contract of employment, which Mr Harris was to provide. They have a platform called “Xero” where staff can request leave, which works on an honour system, as he is not always in the office. There is a system called “Harvest” for daily time records. When Ms Clare started, she had “onboarding” conducted by either
Mr Harris or another staff member. There is an onboarding document, but it may have come in after she started.
Mr Harris did not generally socialise with Ms Clare but had attended business-related functions with her and given her tickets to functions. They have had many personal conversations, and he thought they got on very well, which makes this claim so shocking. He had actively promoted her songs when she released them.
Although Ms Clare is likeable and the clients generally liked her, Mr Harris found her performance lacking. There were a couple of occasions where clients asked to have her removed from their accounts. He was willing to give her hints and tips. She had admitted in emails lacking focus and having a bad eye for detail. He was to provide those emails.
Ms Clare wasn’t able to perform her job without direction and never performed to the point where she could work autonomously. Mr Harris struggled to find something she was good at and had numerous complaints from the team about her. She had disagreements with account managers Ms Hauber and Ms Charlotte Whelan, both of whom told him they found it difficult to work with her.
Mr Harris gave Ms Clare some lower level clients and offered to pay for online courses. She said she was good at sales, which was incorrect, and he had to take her out of that area.
Mr Stagg, head of strategy, worked closely with her to help her improve, but commented she was not competent.
On 16 March 2020, Mr Harris was advised that Ms Clare had left the office because of a run-in with Mr Whalley. When he arrived at the office, she looked shaken, and he was told that Mr Whalley had yelled at her. Ms Comerford confirmed the event and said Ms Clare was scared for her safety. Mr Harris asked Ms Clare if she wanted to make a formal complaint and she agreed. He contacted Fair Work and a third party for advice and completed an investigation. Several staff told him Ms Clare had goaded Mr Whalley. Mr Harris met
Mr Whalley to advise him of the complaint, and that he was going to act formally to respond to it, with assistance from Fair Work. Mr Whalley resigned and left immediately.
The staff worked remotely during Covid 19. The office was closed for about six weeks. They had returned to working from the office, with appropriate rules and processes. Mr Harris had read a warning from NSW Health about the BLM rally, so sent an alert to all staff asking anyone who had attended to let him know, as he did not want to put any staff at risk.
Ms Clare advised she had attended, and he asked her to self-isolate.
Ms Clare had suffered a number of illnesses, and Mr Harris had offered to pay for medical treatment. She suffered from very bad migraines, and they made a lot of exceptions for her. She had shared that she had some personal issues in her past and on numerous occasions took a “mental health day”. Numerous employees gave negative feedback about her, which could be confirmed.
Ms Clare submitted her resignation by email on 16 June 2020. She gave two weeks’ notice, saying she intended to move north, and would look back on her time at Atlas “fondly”. She appeared to be struggling with some personal and health issues, so Mr Harris accepted her resignation with regret. She continued to work out her notice period from home.
They use “Slack” as a communication channel. There was a lot of friendly banter after
Ms Clare resigned, and she engaged actively in this. Mr Harris made a joke about a boat day on the Monday after she left, for “employees only”. The joke was that they are frantically busy on a Monday and all the staff knew it couldn’t happen. “Employees only” was an obvious joke for the first day after Ms Clare left the business. He deleted the invitation shortly after, but the other staff took it in a light-hearted way. He was to provide these exchanges.
Mr Harris had a sense that Ms Clare may have taken the invitation the wrong way. She still had eight days of employment and clients were chasing up matters. He tried to contact her by phone and email, with no response. He could see she was opening his emails. He contacted her and said it was only a joke. He genuinely apologised if she had taken it the wrong way. After a number of contact attempts, he became concerned.
Mr Harris learnt about this claim when he received an SMS from Ms Clare on 19 June 2020, asking him not to contact her again, and advising she had filed a claim with iCare. On 19 June 2020, he received a call from a reporter from The Daily Mail, asking for comment on a video posted by a “disgruntled employee”, Laura Clare. He was shocked and responded “no comment”.
Mr Harris watched the video and found Ms Clare was making derogatory references about her employer, her “boss” and making factually incorrect claims. She did not mention his or the agency’s names, but it was clear it was to do with their business, as she mentioned the boat day email. It was a curated video, with multiple edits. He believes it was to grab attention, as she had attached one of her songs, and there was an underlying motive to her posting it. It is the matter of a defamation legal process.
Mr Harris has responded to Ms Clare’s allegations.
Mr Harris often commented to Ms Clare on how great she looked, as he did with all staff. He cannot recall making fun of the way she dressed. He did comment that her shoes were loud, because they have concrete floors in an open office. He had asked other staff to wear shoes that considered this. No one made an issue of it. He does not recall saying Ms Clare looked like she was going to Mardi Gras. He had never made gag noises or motioned with his finger at his throat, and believed Mr Harding, Mr Stagg and Ms Comerford would confirm this. He does not believe he ever made degrading comments to Ms Clare and denies targeting her. He believes he had preferenced [sic] her and given her too much favour.
Mr Harris does not recall sending Ms Clare a message to “read the fucking scope”. He admits she was expected to have read the brief and he can get distressed if work is not going well. He uses such colourful language, but only with people who speak in the same manner. If he used such language, it was from sheer frustration at her poor performance.
Mr Harris agrees having said to Ms Clare that he was “over people who can’t tell me the truth”, but it was not directed at her not telling the truth. All staff denied being the last to leave. The comment was not directed specifically to her, but a general comment of frustration.
Mr Harris helped Ms Clare on an ongoing basis. She may have been referring to a time when he asked her numerous times to do the same task, it wasn’t completed, and she was on her mobile consistently. He was frustrated and said he would do it himself. It is possible he threw his hands up.
Mr Harris does not recall Ms Clare asking him to write down her duties. He never stated she was wearing multiple hats. He did discuss expectations when she became an account manager and was given a pay rise of $20,000. He took some responsibilities from her once he identified her weaknesses. When he moved her sideways, she would have been well aware of what she was required to do. He didn’t have time to train her, so he took some duties away and recommended some online training. He told her he would hire a senior to mentor her. He hired Ms Atycil and Ms Clare resigned three weeks later. Ms Atycil told him Ms Clare seemed overwhelmed, with skills gaps, and she had asked Ms Clare “what are you doing here?”
Mr Harris denies his language was bullying or offensive, but he checked timesheets on the profitability of a job. He raised with all staff the importance of logging their hours. He denies having used the words “checked out” and does not agree that he berated Ms Clare. He was becoming frustrated with her. He consistently asked her several times to do something and let him know if she could not do it. He would walk through the work with her and often the work he was sent to approve was not as he requested.
Mr Harris believes in referring to him communicating with her clients, Ms Clare was referring to a client who was a friend. As they had discussions outside work, and the client wanted to give them new business, he was best positioned to deal with it. A couple of clients left after being assigned to Ms Clare and they couldn’t hire new staff due to Covid, so it was important that they not lose any more. They were not “her” clients, but those of the business.
At no time in 2020 was any employee stood down or had their hours or salary cut. As Covid worsened, Mr Harris wanted to have an action plan. He put the staff onto what everyone could do to assist to keep the business viable. They came back confidentially and individually. Some could not take pay cuts or reduced hours. He emailed Ms Clare to let her know she did not need to take a pay cut or reduction of hours. She noted how much she appreciated his assistance.
All staff took calls from clients and suppliers, as there was a central number. Some people were looking for payments. Mr Harris did not make up a person called Sally. They had an external bookkeeper called Sally and hadn’t removed her name from the messaging system. When staff asked to speak to Sally, he would ask them to have the client send an email. He then referred it to PKF for settlement of the account. “Send it to Sally” became a running joke. He told the team they needed to manage their debtors well, get their creditors paid, and work hard to ensure the clients paid their accounts on time.
Ms Atycil alerted Mr Harris to matters Ms Clare had not attended to. She had approximately 500 emails that needed review and action. He had a discussion with her about her salary, following her being given a pay rise. She was being paid as a senior account manager, while in the role of an account manager. As she was not performing, he had to reduce her workload.
It is incorrect that superannuation was not paid. PKF had been assisting and had an arrangement with the Australian Tax Office to ensure payments were being made. Since
Ms Clare resigned, numerous attempts had been made to contact her regarding her final entitlements, without a response. They need to account for the six working days she did not attend after resigning and confirm her superannuation account details. She was paid $80,000 per annum, inclusive of superannuation. She was well aware of how Xero operates, and it was her responsibility to log leave days.
Mr Harris denies having told any staff they cannot contact Ms Clare. Because of the legal implications of the video posted on Tik Tok, he had advised staff to let him know if she contacted them. He blocked her on Facebook after she started posting things he didn’t wish to see. It had nothing to do with work but was a personal decision. He disagrees that all emails were deleted. Ms Clare’s business email account access was removed. This was done on 19 June 2020 when she wasn’t responding.
It is correct that Mr Harris threatened Ms Clare with legal action unless she provided passwords. It may be used in the defamation proceedings. He contacted her on a “without prejudice” basis, copying their lawyers, asking for the passwords. She refused to reply. He advised that if she did not provide the password, they would use several options to unencrypt the laptop, that could incur cost to her. There was no response.
There is a third business occupying the office space, called Born and Raised. It ceased trading in May 2019. Mr Harris received a call two weeks ago from an insurance company, advising that Ella Campbell, who was employed by Born and Raised, had lodged a WorkCover claim that seemed similar to that of Ms Clare. Although Ms Campbell worked in the same space, in a business of which he was a director, she reported to another managing director.
Mr Harris had provided the names of a number of staff, who had been requested to assist the investigator. Ms Atycil had requested that she not be contacted.
Mr Harris finds the claim difficult to understand, given how little time he spent in the office and his direct interaction with Ms Clare. He has had multiple absences, including annual leave, overseas trips, and after a heart attack on 3 April 2019. The office is open plan, but he has his own office and spends much time there. He was away from the office from 23 December 2019 to 7 January 2020. Taking into account Ms Clare’s multiple annual leave, he does not believe they worked together enough to justify her claims.
Mr Harris rejects any allegation that he changed Ms Clare’s title in Asana, their project management tool. From time to time they adjusted titles to pitch to clients or run projects, as many of them are multi-disciplinary.
Mr Harris has made a second statement dated 10 March 2021.
Mr Harris stated that Atlas is one part of a business known as “The 360 Group”, which consists of four separate businesses – Atlas, Born and Raised, The Social Party and Living Data. They were created to allow the Group to market its services to specific audiences via their websites. The Social Party and Living Data have never traded or issued an invoice. Primarily, it was Atlas and Born and Raised.
All employees of the 360 Group worked as a team under one roof, in one space and under one manager. All the advertising listed all the companies and their contact details. The Group consisted of from 6 to 20 people, depending on the clients/projects. It was a small office and team.
Employees of the Group would, from time to time, work across various clients and within various brands. They were all considered to be employees of the Group. Payments to employees were made by various companies, depending on which part of the Group they were working for, but at all times work was carried out on behalf of the 360 Group.
For all insurances taken out for the Group, all policies listed all the companies within it, except the workers compensation policy. The reason for this is because iCare advised it could not be done that way and only one entity could be named in the policy. However, insurance was paid in respect of the wages of all employees, no matter which part of the business they worked for.
It is Mr Harris’s view that Ms Clare was employed by the 360 Group, although payment was made to her at various times by Atlas and also, for example, the Social Party and Born and Raised. Her wages were included in the Wages Declaration provided to iCare to secure workers compensation insurance for the Group. Nothing was mentioned by iCare about grouping of policies or any other way of structuring the insurance for the Group.
Mr Harris has been advised that there is provision for grouping, with a threshold of $750,000 in wages required. The company does not satisfy that threshold. He understands all the companies are considered related, as they have a common shareholding of more than 50% and share employees.
On the first occasion it was suggested Mr Harris needed separate insurance for Atlas, arrangements were immediately made, and that policy took effect on and from 19 June 2020. Having taken out two policies, they are over-paying workers compensation insurance as there had not been an amendment to the policy for Born and Raised (the entity that held the policy for the Group).
Mr Harris disputes Ms Clare’s allegation of injury, and that there was any bullying, harassment, belittling or other negative treatment of her. Their only interactions that could be considered negative were occasions when he had to address her performance. His actions were reasonable in all respects. He was always polite and directed his focus to providing tips and training on the most appropriate way to deal with issues that resulted in inefficient performance.
Mr Harris was surprised at the suggestion that Ms Clare was unable to work after resigning. She put together a heavily edited video and took steps to promote herself and her music. She was on “Big Brother”, claimed to have broken up a celebrity marriage, and was obviously seeking attention and notoriety. Shortly after her claim, her social media profile showed content presenting someone happy and enjoying life. He is aware that she had a long history of working for a business operating out of Byron Bay, and it is difficult for him to understand why there would be a problem returning to that business or other work.

Finally, Mr Harris made a statement dated 14 February 2022 and I have referred to that evidence above.

Evidence of iCare

There are three transcripts of telephone conversations between Mr Harris and iCare call centre operators, the first two of which were on 22 March 2019, and the third on 17 September 2020.
These calls were identified by Peter Meighan, Underwriting Operations Manager Workers Compensation, of iCare. He emailed various employees of iCare on 29 June 2021. He advised a policy, which he called Policy 1, had been identified. This was policy 158613001 – Born & Raised Creative Group Pty Ltd (in liquidation). The policy was cancelled effective 31 July 2019.
Mr Meighan advised that Mr Harris called to advise of a new ABN and legal name to replace Policy 1 from 18 March 2019. He referred to the calls and noted there was no mention in any of them about not being able to insure two entities. On 10 July 2019, iCare received an email requesting cover for Born and Raised Brand Group Pty Ltd.
The email was from Mr Harris. It advised he had a new company name and ABN and needed “workers comp in place today please. Same details as this but in the name of ‘Born and Raised Brand Group Pty Ltd’”.
ICare requested more information, and on 16 July 2019, Mr Harris set up the new policy – 192893301, in the name of Born and Raised Brand Group Pty Ltd (Policy 2) online.
On 22 March 2019, Mr Harris spoke to Leanne Hosking. He advised he had an existing policy but there had been a slight name change with a new ABN. The insurance was staying the same, but it was a new legal name and ABN, so he was unsure whether to update the existing policy, or “what the protocol is”.
Ms Hosking asked if wages were being paid out of a new ABN, and Mr Harris confirmed that was the case, from 18 September 2019. Ms Hosking advised he would need to cancel this policy and take out a new one. It could be backdated so there was no gap in coverage.
The name of the business for which a policy was held was Born and Raised, with policy number 158613001, and its address was suite 6, level 1, 360 Pacific Highway, Crows Nest.
Ms Hosking advised that the policy was renewable on 31 July, so she needed a declaration of wages from 31 July 2018 to 18 March 2019, as well as a cancellation form. She could email those and do a new policy. When they were sent in, there would be an adjustment on the cancellation, and if they had paid more than they should, they would get a refund “and vice versa”.
Mr Harris asked if he had to pay for a whole new one on top. Ms Hosking said he would because it was a completely different entity and would start from 18 March and renew at the end of February, unless he wanted a different end date. He said the end date would be the same, as they were hoping this one would just take over from the other, and there would be no additional costs. “That means we’ve gotta go into budget requests and all sorts of stuff this end and it’s going to be a disaster”.
Ms Hosking said at the end of the day it was a totally different ABN, so they had to finalise one and take out a new one. Mr Harris said to send him the “cancellation stuff” and he would get it straight back to her. She asked if he had sent in the declaration of wages for 2017/2018, and he didn’t know.
Ms Hosking looked at the policy. She said she would need declaration of wages from 8 August 2017 to 31 July 2018. She would check to see if it had come back and just hadn’t been processed. If not, she could email that too and get them done at the same time, because they were two different periods when he took out the policy.
Mr Harris received the email from Ms Hosking. He read aloud from the form and said “Oh Christ, this is going to be bigger than Ben Hur”. He had thought it would be quick and easy. “We may just have to forget this and keep it as it is. I don’t have time to do all of this. We might just have to open the new…” He advised he would have to call back. Ms Hosking advised he could do it on the website if it was easier. He could “jump on there” and take out the new one. At least he had the cancellation documents “for this one”.
Also on 22 March 2019, Mr Harris spoke to Thomas Webb. He advised they had had a policy for a couple of years and didn’t get a renewal. It expired a couple of days ago and he was trying to renew it online with the policy number, but it was not coming up with any options to renew.
Mr Webb requested the policy number, which was 158613001. The primary contact should be Christopher Harris, Born and Raised. Mr Webb had a different contact but verified details to his satisfaction with Mr Harris. The people named were, according to Mr Harris, administrators for a very old and completely different company.
Mr Webb advised he would re-send the documents and make sure the renewal had gone through. Mr Harris requested a certificate of currency, which he needed to get to a client. The renewal had not gone through, and Mr Webb would “push it through today”. Mr Harris confirmed six employees and estimated wages of $510,000.
It was agreed that the premium would be paid quarterly, and bank details were confirmed.
Mr Webb advised he would issue the policy and could send a copy of the certificate of currency, which Mr Harris confirmed he had received.
On 17 September 2020, Mr Harris advised that he needed to pay an invoice for Born and Raised, whose main business address was 6/360 Pacific Highway, Crows Nest. He wished to pay the full amount by credit card. The transaction was processed.
There is an email from Mr Harris to iCare dated 13 January 2021. He had just seen a bounced email to a “no reply” email he had sent a couple of months back. He had attached information requested by iCare.
Mr Harris noted there was a “Group” form that should be completed. He was told they couldn’t have multiple names on the policy, “as long as all employees working for us were covered then that was okay”. He advised he would have that completed too.
The attached document described the legal name of the employer as Born & Raised Brand Group Pty Ltd. Its trading names were “Born and Raised/Atlas/ The Social Party/Living Data: 360 Group.” The employer’s ABN was 99 632 062 698.

Medical evidence

Star City Medical Centre

On 25 September 2018, Dr Varun Nanda recorded that Ms Clare was “stressed as told by her flatmate to move out by 6^th Oct as her daughter moving in”. She was not sure where she would go. She was counselled. Dr Nanda completed a Mental Health Plan on 26 September 2018.
There is a record on 27 September 2018 of “Psychologist – Jagdish Dua”.

Mind Your Health Medical Centre

Ms Clare attended Dr Jill Sullivan on 27 December 2018. Dr Sullivan recorded a migrainous episode most days for the last nine days.
Ms Clare attended the Centre again on 9 April 2019, reporting clusters of migraines with no clear trigger. Dr Karina Jain recorded that she was an anxious person with a history of alcohol dependence. She was 10 years sober. She had lost nine friends, one of whose birthdays was one week ago, over a two year period, but did not think this was a trigger. She had not seen a psychologist.
On 23 April 2019, Dr Jain recorded that Ms Clare’s migraines were not improving and were worse than usual.
Dr Sullivan recorded on 22 July 2019 “migraine again”. Ms Clare was psychologically struggling in Sydney. She had minimal friendships or support and stayed “holed up in her apartment over weekends”. She didn’t have a car to go anywhere and was 20 minutes from the station. She was tearful and was aware she needed lifestyle changes but could not get herself to do this. Dr Sullivan planned to commence low dose SSRI and consider Mental Health Plan and referral to a psychologist.
Dr Sullivan recorded on 27 August 2019 that Ms Clare had not taken the SSRI.
On 19 June 2020, Dr Kot recorded that her notes had been created from a pre-consultation questionnaire completed online. She recorded bullying at work for the last six months; abusive CEO; made comments about what she was wearing; about her work. Ms Clare had work overload, working for three people as two people left and no one was recruited. She felt hopeless and her sleep was very bad. Her concentration was bad. She was not suicidal.
Dr Kot diagnosed anxiety/depression due to bullying at work.
Dr Kot issued Ms Clare with a COC on 19 June 2020. The date stated by Ms Clare as the date of injury was 22 January 2020.
The COC diagnosed anxiety/depression/stress. This was related to work due to “abusive comments by email and in person, massages [sic: messages], sworn at and humiliated in front of staff by CEO”. There was a pre-existing condition of anxiety. Ms Clare was certified as having no work capacity from 19 June 2020 to 26 June 2020. There is a referral to
Dr Karen Cohen, but Dr Kot later recorded that Dr Cohen did not take workers compensation patients.
On 25 June 2020, Dr Kot recorded that Ms Clare did not feel well. She could not sleep and was crying a lot. She lived near her workplace and did not want to go shopping, as she worried she could meet people from work. She was not suicidal. She was going to Queensland next week and would like to see a psychologist before.
Dr Kot referred Ms Clare to Dr Gill S H Walker for opinion and management of anxiety/depression/stress. “Bullying at work”. On the same date, she referred her to
Ms Rebecca Anderson, a psychologist.
Ms Clare consulted Dr Kot on 2 July 2020 by telehealth. The reason for her visit was anxiety/depression.
Dr Kot recorded that Ms Clare was in Byron Bay and was going to the Gold Coast. She was feeling down and could not sleep well. She could not concentrate and was feeling hopeless and tired. There was a history of childhood trauma. She had been diagnosed with PTSD but had never seen a psychologist. She was trying to find one, but the first available appointment was in August. She was advised about Beyondblue and given “WC” for one week. She would find a GP and psychologist on the Gold Coast.

Gold Coast University Hospital

Ms Clare was admitted to Gold Coast University Hospital (GCUH) on 15 May 2021, following a suicide attempt. It was noted that this was on a background of an emotionally unstable personality disorder.
The hospital notes record that Ms Clare had overwhelming thoughts in regard to her “ex-boss”, who was fighting her WorkCover claim, as he was not insured and was a bad payer “re their supers?”. She mentioned being watched by “insurance people on his side of things”.
Ms Clare reported a diagnosis four months ago by a private psychiatrist, of chronic PTSD with personality markers of borderline. There had been a previous hospital admission three years ago, following a best friend’s death, “likely adjustment disorder”. She had misused alcohol in her teenage years, causing depression and self-harm. She did not drink for 12 years, and her mental health was “pretty good”.
It was noted that Ms Clare was on WorkCover for workplace harassment and bullying. This had been very stressful, with “court cases, media”. The ongoing court cases were causing major stress.
Ms Clare was asked what made her suicidal. She responded that she felt overwhelmed and as if she did not know what to do with her life. There were many problems at once, including finding a new place, WorkCover, and court proceedings, which were all major stressors. She was focused on finding a new job and finalising court matters. Her mother had forgotten to wish her happy birthday.
Ms Clare stated that she believed the borderline markers were “left-over traits from childhood”. Her mother had bipolar disorder. She had been treated in Byron Private for PTSD. She described her mother as “the reason why I’m so fucked”. She was very violent and abusive through childhood, a “master manipulator, game player, narcissist”, who enjoyed inflicting pain.
Before coming to the hospital, Ms Clare’s only intervention was from Sandra Coetzee, psychologist, whom she last saw in June (2020) when she developed issues at work. She felt it was helpful and it started to get better, but the current court case with her ex-boss started to bring things back up and did not help.
Ms Clare was discharged on 24 May 2021.
The Discharge Summary states that Ms Clare was brought in by ambulance, after an intentional overdose of temazepam and alcohol. She had a background of complex PTSD with borderline/ EUPD (emotionally unstable personality disorder) traits and was known to her private psychiatrist, Dr Whittington, and psychologist.
Ms Clare had totally abstained from alcohol for 12 years and started drinking for the first time in this period. She could not give a reason and denied stressors or issues. In recent times things had been OK, with some issues due to being on WorkCover for almost a year, due to bullying. She denied any other recent stressors.
Ms Clare admitted previous problems and numerous presentations with SI (suicidal ideation) and AUD (alcohol use disorder), from teenage years until age 22, when she became abstinent. She had a lot of trauma growing up, due to her mother having bipolar disorder and schizophrenia. Ms Clare identified as C-PTSD (complex PTSD).
A recent stressor was that Ms Clare was kicked out of Byron Private three weeks ago, due to poor behaviour. She had had a month long admission to Tweed about three years ago, “for similar”.
Ms Clare admitted she had planned to kill herself, which is why she had drunk the alcohol. This was a culmination of all her life stressors, and she had decided to complete suicide when discharged. She was therefore unable to be discharged and became angry.

Dr Zoran Radovic – Psychiatrist/Robina Private Hospital

Ms Clare was admitted to Robina Private Hospital (Robina) on 24 May 2021.
Dr Radovic completed an initial assessment on 24 May 2021. He noted that a full evaluation could not be completed, due to high anxiety.
Ms Clare’s presenting symptoms were depression, anxiety, suicidal ideations “(significant attempt 2/52 ago)”, nightmares, flashbacks, increased arousal, PA, episodes of dissociation and unresponsiveness.
Ms Clare had been admitted to GCUH on 10 May 2021, following an intentional diazepam and alcohol overdose. She sent her psychologist a text mentioning her plans to end her life and gave her the PINs to her phone and personal accounts. She cited multiple ongoing stressors as potential triggers for the overdose.
Ms Clare’s past psychiatric history was recorded as PTSD in the context of workplace bullying that lasted for two years. WorkCover accepted liability. Treatment with psychotherapy was partially beneficial, while anti-depressants were not beneficial at all. The last attempt with Sertraline aggravated suicidal ideas.
Dr Radovic recorded that Ms Clare reported sad and anxious mood. Her affect was depressed, anxious, restricted, minimally reactive, stable and appropriate to the topic. There was no evidence of content thought disorder or suicidal ideations, with no planning or intention.
Dr Radovic concluded that suicide risk was medium to high, due to anxiety and unresolved suicidal ideations, with a significant attempt two weeks ago. The diagnosis was PTSD; depression; and Cluster C personality traits.
Dr Elizabeth Colebourne completed an assessment on 26 May 2021.
Dr Colebourne recorded a provisional diagnosis of PTSD. She noted a history of a suicide attempt on 10 May 2021.
Ms Clare had been seeing a psychologist weekly since June 2020 and had been on WorkCover from June 2020 – “workplace harassment and bullying, Another girl on WorkCover from the situation”.
Dr Colebourne recorded that Ms Clare had been diagnosed with PTSD with borderline personality markers. She had PTSD from childhood – “abusive, absent father”. There had been a lot of court issues and insurers.
Ms Clare had been admitted to Byron Bay but knew a lot of staff members and “went downhill after that”. She used to get aggressive when she was young and got in trouble. There was some binge eating and impulsive shopping. She had started restricting more recently.
Ms Clare had been treated for ED (emotional disability/disorder) form the age of 11 “by Mum misreporting her symptoms to psychiatrist”. She was of indigenous background. She was a binge drinker when younger but had been sober from the age of 21.
On 21 June 2021, Dr Radovic sent a Discharge Summary to Dr Conall O’Murchu at GCUH.
Dr Radovic recorded the discharge diagnoses as PTSD; borderline personality traits; and polysubstance misuse, in remission.
Ms Clare had a background of PTSD. She was initially treated at GCUH as an involuntary patient, due to high risk of suicide. Once her status was changed to voluntary, she was transferred to Robina.
Dr Radovic reported that Ms Clare had PTSD in the context of workplace bullying for two years. Premorbidly, she displayed borderline personality traits and potentially post-traumatic stress symptoms due to childhood trauma, absent father, attachment problems “etc”.
Ms Clare initially found it difficult to settle, mostly due to significant ongoing anxiety and emotional instability/dysregulation. She gradually settled and was compliant with her treatment plan, including medications and psychotherapy. She was being discharged in significantly improved condition, with low levels of anxiety and stabilised moods to a good degree.
Ms Clare was to attend post-discharge review with Dr Radovic within two weeks and hoped to continue working with him in the long term, for which he was requesting WorkCover approval.
Dr Radovic reported to iCare on 5 July 2021. Ms Clare had been discharged from Robina on 21 June 2021 in improved condition.
Ms Clare had opted to continue outpatient management with Dr Radovic within the scope of the Day Program. He certified her as having no work capacity to 31 August 2021.
Dr Radovic certified Ms Clare as having no work capacity to 30 November 2021. On 5 October 2021 he certified that she would benefit from a further period of at least four weeks of the Day Program at Robina to treat her PTSD.

Dr Rachel Adendorff – General Practitioner

Dr Adendorff has been treating Ms Clare in Surfers Paradise. She has issued COCs that certify the diagnosis as anxiety/depression/stress due to workplace bullying. Ms Clare has consistently been certified with no work capacity to 31 May 2021.
There are no reports from Dr Adendorff.

SUMMARY

Notice

The applicant placed “notice” of injury in issue but made no submissions on the issue.
Ms Clare gave notice of the injury to Mr Harris on 19 June 2020, according to his own evidence.
To the extent that it is necessary, I determine that notice of the injury was provided at the time that it occurred.

Injury

I am satisfied that the second respondent, Ms Clare, sustained injury on 19 June 2020, that is aggravation, acceleration, exacerbation or deterioration of a disease, pursuant to section 4(b)(ii) of the 1987 Act, arising out of or in the course of her employment with Atlas. I will refer for convenience to aggravation. I am also satisfied that employment with Atlas was the main contributing factor to the aggravation.
The evidence of Dr Kot, GCUH, Dr Radovic, Robina and Dr Adendorff all supports the case that Ms Clare sustained an aggravation of a pre-existing psychological condition, as a result of her experiences in the employ of Atlas. There is no medical evidence that contradicts this conclusion. It is evident that Ms Clare had a significant pre-existing psychological condition.
There is no doubt that many of the events of which Ms Clare has given evidence occurred, whether or not they would be characterised by others as bullying. Some of these events, which have either been confirmed or not addressed by Mr Harris, include lack of training (which Mr Harris said he did not have time to provide); the confrontation with Mr Whalley; comments about Ms Clare’s clothing; checking her timesheets; that she had been told to read the scope while she was running a meeting (while Mr Harris does not recall sending her a message to “read the fucking scope”, he admits she was expected to read the brief and to using “colourful” language); the issue with the alarm not having been set; discussion about staff payment and hours during Covid (although Mr Harris denies staff was directed to take a pay cut); “Sally” the accounts person; Ms Atycli’s criticism of her abilities; attendance at the BLM protest; Mr Harris blocking her on social media; and the boat trip (which Mr Harris “sensed” she had taken the wrong way).

There is a useful discussion of the case law relating to psychological injury in Attorney General’s Department v K [2010] NSWWCCPD; (2010) 8 DDCR 120.
Acting President Roche, as he then was, drew the following conclusions from the authorities:
(a)     employers take their employees as they find them. There is an “egg-shell psyche” principle which is the equivalent of the “egg-shell skull” principle (Chemler);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Chemler);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Chemler);
(d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (Leigh Sheridan v Q-Comp [2009] QIC 12; 191 QGIG 13);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an “objective measure of reasonableness” (Wiegand v Comcare Australia [2002] FCA 1464), and
(f)     it is not necessary that the worker’s reaction to the events must have been “rational, reasonable and proportionate” before compensation can be recovered.
There seems little doubt that Ms Clare had an “egg-shell psyche”. However, the events recorded above were real events that were perceived by her as creating an offensive or hostile working environment. It is not necessary that her perception be “rational, reasonable and proportionate”.
Ms Clare’s employment need only be the main contributing factor to the aggravation of her disease, not to the disease itself. The Star City Medical Centre records note that she was stressed about her housing situation in September 2018. She had migraines and was “psychologically struggling” in July 2019. However, she did not cease work until June 2020, almost 12 months later. Her evidence, which I accept, is that Mr Harris’s attitude towards her began to change soon after Ms Hauber resigned in about November 2019. There was therefore a period of approximately seven months when she was subjected to the behaviour of which she has given evidence.
I note that Dr Kot has recorded a history of bullying at work for six months, whereas
Dr Radovic has recorded the duration as two years. The discrepancy in the histories does not cause me to discount the opinion of either doctor. There is, in my view, a “fair climate” for their opinions. Dr Radovic, in particular, was well aware of Ms Clare’s long previous psychological history.

Section 11A

The applicant asserts that, if Ms Clare sustained a psychological injury in its employ, it has a defence to any claim, pursuant to section 11A of the 1987 Act. It bears the onus – Pirie v Franklins Ltd [2001] NSWCC 167 and Department of Education and Training v Sinclair [2005] NSWCA 465; (2005) DDCR 206.
Deputy President Snell held in Hamad said:
“There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
There is no medical evidence in this matter that addresses what Snell DP referred to as “the causation issue”, with respect to section 11A.
The applicant relies on its reasonable action with respect to performance appraisal, discipline and provision of employment benefits. It made submissions only on performance appraisal.
“Performance appraisal” was held in Irwin v Director-General of Education NSWCC 1406897, 18 June 1998 (Irwin) to mean something “formal, somewhat like an examination or a test rather than an extended and continuing assessment”.
There is no evidence of any formal appraisal process. The submission made by the applicant was that on numerous occasions Mr Harris had to correct, direct and advise Ms Clare, and as his evidence was that his behaviour was entirely reasonable, there was reasonable action with respect to performance appraisal.
In the absence of any evidence regarding performance appraisal in the sense in which it was defined in Irwin, I am not satisfied that the applicant has met its onus with respect to a defence to the claim pursuant to section 11A of the 1987 Act, relying on performance appraisal.
There is no evidence that Ms Clare was the subject of any disciplinary action by the applicant. I do not know whether the applicant relies on “discipline” as it was defined by Neilson CCJ in Kushwaha v Queanbeyan City Council [2002] NSWCC 25 (Kushwaha). His Honour held that the primary meaning of discipline is “learning or instruction imparted to the learner and the maintenance of that learning by training, by exercise or repetition”.
The only evidence before me of Mr Harris applying “discipline” in the sense in which it was used in Kushwaha is that he stated he helped Ms Clare on an ongoing basis, took some responsibilities away from her and recommended some online training. He stated he did not have time to train her but has given contradictory evidence that he was focused on providing her with tips and training. He has also given evidence that he spent little time in the office and had little direct interaction with her, in which case it would have been difficult for him to train her.
As regards “provision of employment benefits”, the applicant made no submissions as to what those benefits may have been, or how they relate to a defence pursuant to section 11A of the 1987 Act. I am not in a position to speculate in this regard. I cannot find that Ms Clare’s injury was wholly or predominantly caused by the applicant’s reasonable action with respect to provision of employment benefits.
Snell DP held in Hamad the need for medical evidence in cases where section 11A is relied upon depends on the facts and circumstances of the case. In a case such as this, where there are a number of potentially causative factors and the factual evidence is contradictory, the absence of medical evidence is in my view fatal to the section 11A defence.
As I have determined that Ms Clare’s psychological injury was not wholly or predominantly caused by the applicant’s actions with respect to performance appraisal, discipline or provision of employment benefits, it is not necessary that I consider the reasonableness of its actions.

Incapacity

The only medical evidence before me supports the conclusion that at all relevant times,
Ms Clare has had no capacity for work. I will not reiterate the evidence in this regard, except to note that she has attempted suicide, been hospitalised, and was certified by Dr Radovic as having no work capacity to 30 November 2021 and requiring further treatment at Robina.
The applicant submitted that as Ms Clare was able to put together and post videos, she had some capacity for work, including in the entertainment industry. I do not accept that the fact that she was able to post a video in June 2020 is evidence of capacity for work. There is no evidence on which I could conclude that she has had any capacity for work since 19 June 2020, and the evidence suggests that there has been a significant worsening of her condition, at least since she moved to northern New South Wales/Queensland.
I have therefore determined that Ms Clare has had no capacity for work since 19 June 2020.

Medical expenses

I accept that the medical treatment afforded to Ms Clare has been reasonably necessary as a result of the injury. The medical evidence to which I have referred supports the conclusion that she has required psychological treatment, including periods of hospitalisation and outpatient treatment by Dr Radovic.
I accept the applicant’s submission that, in the absence of any dispute between Ms Clare and iCare as to the reasonable necessity of medical expenses, it is not appropriate to make a general order for payment of those expenses.
I determine the following:
(a)     that the second respondent, Ms Clare, has sustained psychological injury, deemed to have occurred on 19 June 2020, arising out of or in the course of her employment, as a result of aggravation of a disease; and her employment was the main contributing factor to the injury;
(b)     that notice of the injury was given within the time required by section 254 of the 1998 Act;
(b)     that Ms Clare was employed on the date of injury by the applicant, Atlas;
(c)     that Atlas did not hold a policy of workers compensation insurance as at the date of Ms Clare’s injury;
(d)     that Ms Clare’s injury was not wholly or predominantly caused by the reasonable action of Atlas with respect to performance appraisal, discipline and/or the provision of employment benefits;
(e)     that Ms Clare has had no capacity for work since 19 June 2020;
(f)     that the medical, hospital and related treatment afforded to Ms Clare was reasonably necessary as a result of the injury;
(g) that the application to set aside the section 145 notice is refused; and Atlas is to pay the monies that are the subject of notice to the first respondent, iCare, and
(h)     there will be an award for the third respondent.
The orders are as set out in the Certificate of Determination.

Atlas Digital Group Pty Ltd v Workers Compensation Nominal Insurer (iCare)

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Background to the litigation

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