Baikie v Goodman Fielder Pty Ltd
[2006] NSWWCCPD 164
•27 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Baikie v Goodman Fielder Ltd [2006] NSWWCCPD 164
APPELLANT: Malcolm Baikie
RESPONDENT: Goodman Fielder Ltd
INSURER:Goodman Fielder Ltd
FILE NUMBER: WCC2087-05
DATE OF ARBITRATOR’S DECISION: 26 May 2005
DATE OF APPEAL DECISION: 27 July 2006
SUBJECT MATTER OF DECISION: Section 11A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: Makin & Co
Respondent: Sparke Helmore Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 26 May 2005 is confirmed.
No order as to the costs of the appeal.
BACKGROUND TO THE APPEAL
On 23 June 2005 Malcolm Baikie (‘Mr Baikie’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 26 May 2005.
The Respondent to the Appeal is Goodman Fielder Ltd (‘Goodman Fielder’).
Mr Baikie was born on 21 September 1954 and is 51 years of age. He is single and at the time of the Arbitration hearing claimed no dependents. Since leaving school Mr Baikie has worked for several employers in the accounting services area.
Mr Baikie commenced employment with Goodman Fielder in March 1998 and was made permanent in March 1999. His health was good when he commenced employment with Goodman Fielder, although his general practitioner, Dr Kariappa, has noted that he was always an anxious person.
At Goodman Fielder Mr Baikie worked in accounting services. He regularly gave a fellow employee, Aurora Buenventura, a lift to Revesby Railway Station after work. Mr Baikie claims that in January 2001 there was a disagreement between himself and Miss Buenventura whilst travelling in his car after work and thereafter their friendship ended.
In the months after this disagreement Mr Baikie felt he was the subject of a campaign by Miss Buenventura to intimidate him. In May 2001 Miss Buenventura made a written complaint about Mr Baikie to his supervisor, John Hall. Mr Baikie was not provided with a copy of this complaint and felt victimised. He consulted Dr Kariappa on 24 May 2001 complaining of stress and stomach pains.
A series of meetings were arranged by management to deal with the problem between Mr Baikie and Miss Buenventura and things seemed to settle down. In November 2001 a further issue developed between Mr Baikie and Miss Buenventura over the positioning of a Christmas tree in the office which resulted in a further meeting arranged by management in late November 2001.
Again matters settled down until 7 May 2002 when Mr Baikie attended an annual work performance review with his supervisor, John Hall. Mr Baikie was told at this meeting there had been some adverse comments about him from fellow staff.
On 22 May 2002 a further meeting was called and Mr Baikie was issued with a formal written warning and advised that he would be counselled weekly over a three monthly period. The warning refers to Mr Baikie leaving a meeting before its conclusion and refusing requests from his manager to return to the meeting.
On 12 August 2002 a further meeting was called and a final written warning was issued to Mr Baikie. This warning refers to Mr Baikie not complying with reasonable directions of his manager and not demonstrating appropriate business behaviour to the Accounting Services Director. Again counselling was to take place over a three-month period.
Goodman Fielder were taken over by Burns Philp on 15 December 2002 to take effect from 19 March 2003. As a result of this takeover Mr Baikie, together with a number of other staff, were made redundant on 7 April 2003.
On going off work Mr Baikie claimed workers compensation from Goodman Fielder on the basis of a psychiatric disorder resulting from bullying and harassing. No compensation was paid as liability was denied from the outset. Proceedings were commenced in the Commission on 11 February 2005 and an Arbitration hearing took place on 13 May 2005 resulting in an Award for Goodman Fielder. Mr Baikie has appealed from that decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 26 May 2005 records the Arbitrator’s orders as follows:
“(1) Award for the Respondent.
(2) No order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
1.whether the Arbitrator made an incorrect finding of fact;
2.whether the Arbitrator erred in finding that Mr Baikie’s injury was caused by the reasonable activities of Goodman Fielder; and
3.that the Arbitrator failed to properly consider the medical evidence of Dr Chee.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Even though there was no award of compensation, the appeal is still allowed (Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD5) and accordingly I grant leave to appeal.
FRESH EVIDENCE
Neither party seeks to introduce fresh evidence.
EVIDENCE AND SUBMISSIONS
Finding of Fact
The central issue in both the Arbitration hearing and the appeal is section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’). Sub-section (1) provides as follows:
“(1)No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
Mr Baikie submits that as there was no oral evidence at the Arbitration hearing, no inference was drawn from the demeanour of any person. He concludes from this that the Presidential Member dealing with the matter on appeal is therefore in as good a position as the Arbitrator to consider and draw inferences from the material in evidence.
Goodman Fielder submit that Mr Baikie is, in effect, seeking a hearing de novo, which is not allowed. Goodman Fielder are correct in that the role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Mr Baikie must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD1).
Mr Baikie submits that the Arbitrator failed to take into account the bullying nature of the actions of his supervisor, Mr Hall. Further that the Arbitrator has erred in entirely dismissing the history of bullying as set out in Mr Baikie’s statement or incorrectly characterised it as criticism. In support of this submission Mr Baikie refers to paragraph 18 of the Reasons for Decision:
“The Applicant describes a number of instances where he considered he was unfairly treated. The incidents were each trivial in nature though it is understandable that the Applicant may become distressed by what he perceived to be repeated action to criticise him on a repeated basis. The Applicant reached the conclusion that Mr Hall did not wish the Applicant to continue working for the Respondent.”
The Arbitrator found at paragraph 30 of the Reasons for Decision:
“Having considered all of the evidence I am satisfied that whatever condition the Applicant suffers from is due to a combination of the 2 formal warnings, the counselling sessions and the redundancy. All of those matters fall within the provisions of s11A of the 1987 Act. The question to be considered is whether those actions were reasonable.”
The Arbitrator having made this finding that Mr Baikie’s condition was caused by matters that came within the provisions of section 11A(1) of the 1987 Act then proceeded to find that the actions taken by Goodman Fielder were reasonable and as such Mr Baikie was not entitled to compensation.
Mr Baikie submits therefore that if the Arbitrator had given due weight to the facts, he would have found that the cause of Mr Baikie’s condition was due to ‘bullying conduct’ and not, as the Arbitrator found, the reasonable action taken by Goodman Fielder in regard to two formal warnings, the counselling sessions and the redundancy.
Mr Baikie’s submission is in effect that the Arbitrator, after having found that Mr Baikie’s injury was caused by the bullying of co-workers, section 11A of the 1987 Act was not applicable and therefore would not exclude his claim for compensation.
Goodman Fielder submit that the Arbitrator considered not only the statements of Mr Baikie, but also the statements of Mr Gillis, Mr Powell and Miss Buenventura who were representatives of Goodman Fielder. Goodman Fielder further submit that the Arbitrator did not accept or find on the evidence that the actions of either Mr Hall or Mr Powell amounted to bullying or harassing.
Ultimately it was a question of fact for the Arbitrator as to what was the cause of Mr Baikie’s injuries. The Arbitrator found as I stated above that Mr Baikie’s condition was due to a combination of the two formal warnings, the counselling sessions and the redundancy. In my view it was open to the Arbitrator on the evidence before him to make this finding.
To reach the finding on causation that I have referred to above, the Arbitrator took into account and recorded the following facts in his Reasons for Decision:
·in May 2002 Mr Baikie attended an annual performance review, where he was told that there had been adverse comments about him from fellow staff;
·on 22 May 2002 Mr Baikie was issued with a formal warning;
·at a meeting on 24 July 2002 Mr Powell (Accounts Services Manager) states Mr Baikie walked out of a meeting. Mr Baikie disputes there was a meeting on this day and the Arbitrator refers to this disagreement;
·on 6 August 2002 [the correct date is 12 August 2002] Mr Baikie was issued with a final warning;
·the evidence of Mr Powell that after the second (final warning) that Mr Baikie’s performance improved; and
·on 7 April 2003 Mr Baikie was made redundant along with a number of other employees.
Having read all of the material before the Arbitrator I am of the view that these findings of fact as to the cause of Mr Baikie’s injury were open to the Arbitrator on the evidence available and that there was no legal, factual or discretionary error.
Reasonable Action of the Employer
At paragraphs 31 and 32 of the Decision the Arbitrator made the following findings in regard to the issue of whether the action taken by the employer was reasonable:
“The redundancy was clearly a genuine one. There had been a takeover and a number of people were made redundant. There is no evidence to show that the redundancy was anything other than part of the natural process. As I understand the evidence it was the fact of redundancy that caused the Applicant distress because it confirmed in his mind what he had been fearing for some time.
The 2 formal warnings require careful consideration. The Applicant alleges that they were part of a plan of action by Mr Hall. Whatever the motivation of Mr Hall with respect to the performance appraisal in 2002 the formal warnings were given for specific episodes that were not disputed by the Applicant. In my view the Respondent was entitled to take the action that it did when confronted with a challenge to authority. The Respondent approached the matter fairly by holding meetings and ultimately having a series of counselling sessions which appear to have been successful in that the performance of the Applicant improved. It follows that I am satisfied that the actions in respect of the warnings and the counselling were reasonable. The consequence is that s11A operates to deny compensation to the Applicant.”
Mr Baikie submits that it was unreasonable for Goodman Fielder to issue a formal written warning due to his leaving the meeting in May 2002 and not returning. It is submitted it was unreasonable because Mr Baikie had suffered a panic attack which caused him to leave the meeting.
It is further submitted that Goodman Fielder was unreasonable in not taking steps to investigate Mr Baikie’s allegations of bullying. Further it is submitted that it was unreasonable to require Mr Baikie to attend weekly meetings over a lengthy period after the warnings were issued.
Goodman Fielder submit that the Arbitrator, after weighing up all the evidence, was entitled to conclude that the performance reviews and written warnings were warranted in the circumstances of Mr Baikie’s employment performance and that such actions taken by his superiors were reasonable.
As Deputy President Fleming stated in Abdul-Rahman v Allied Pickfords Pty Ltd [2005] NSWWCCPD107:
“Mr Abdul-Rahman is correct in submitting that the determination of whether an employer’s actions are reasonable involves a question of fact. The determination of this question of fact is to be made by the Arbitrator. The term ‘reasonable action’ should be given a broad construction, and “…simply depends upon the intrinsic reasonableness of the employer’s action, taking into account relevant matters pertaining to the employee and known to the employer”, Commissioner of Police v Minahan [2003] NSWCA 239 at [6]; see also Dunn v Firth [2003] NSWCA 280.”
The Arbitrator found the following facts which in my opinion were open to him on the evidence and satisfied the term reasonable action in section 11A of the 1987 Act:
·the formal warnings were given for specific episodes that were not disputed by Mr Baikie;
·the meeting and counselling sessions appeared to have been successful in that the performance of Mr Baikie improved;
·the matter was handled fairly by the holding of meetings and a series of counselling sessions;
·the redundancy was a genuine one where there had been a takeover and a number of people were made redundant with no evidence to show that the redundancy was anything other than part of the natural process; and
·Mr Baikie did not seek medical attention, despite being distressed to the point where he could not attend the meeting.
In my opinion the Arbitrator was entitled to come to the view that he did, having regard to the evidence, and again there was no legal, factual of discretionary error.
Dr Chee’s evidence
Mr Baikie submits that the Arbitrator does not seem to have considered the report of Dr Chee and that this doctor, having read Mr Baikie’s statement, was the only doctor to have the opportunity to consider the entire history of Mr Baikie’s employment with Goodman Fielder. This submission is not entirely correct as Dr Chee did not have the statements of Goodman Fielder’s witnesses.
The Arbitrator in his Reasons for Decision does not mention Dr Chee, although in the transcript of the addresses at the Arbitration hearing on 13 May 2005, both parties made submissions on Dr Chee’s medical report of 16 April 2005.
Although Goodman Fielder have made no submissions in response to this submission by Mr Baikie, at the Arbitration hearing they submitted that Dr Chee’s report was flawed because the doctor did not have the correct pre-morbid psychological history.
The Arbitrator in finding that the cause of Mr Baikie’s condition was due to a combination of the two formal warnings, the counselling sessions and the redundancy took into account the medical reports of Mr Baikie’s general practitioner, Dr Kariappa, and Dr Parmegiani, psychiatrist, who saw Mr Baikie at the request of his solicitors. The Arbitrator also took into account the medical report of Dr Akkerman, psychiatrist, who examined Mr Baikie at the request of Goodman Fielder.
The Arbitrator in his Reasons for Decision noted that all three doctors took a history from Mr Baikie of the counselling sessions that were instituted by Goodman Fielder and that he complained to Dr Kariappa of anxiety symptoms due to the fact that he was repeatedly counselled.
Dr Chee was of the opinion that “work had been a substantial contributing factor to his current Psychiatric Disorders” and in fact took a history of episodes of anxiety resulting from the written warnings.
Although the Arbitrator didn’t refer to Dr Chee in his Decision, I have already found that he did not err in finding that the cause of Mr Baikie’s injury was due to the reasonable actions of Goodman Fielder. Nonetheless in reading Dr Chee’s medical report there is a history taken of increased anxiety as a result of the written warnings issued to Mr Baikie and as such is further support for the Arbitrator’s finding that the cause of Mr Baikie’s injury results from matters that fall within the provisions of section 11A of the 1987 Act.
DECISION
The Decision of the Arbitrator dated 26 May 2005 is confirmed.
COSTS
No order as to the costs of the Appeal.
Julian Martin
Acting Deputy President
27 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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