Baker v Southern Metropolitan Cemeteries Trust - [2015] NSWWCCPD 56

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56
APPELLANT:	Wayne Thomas Baker
RESPONDENT:	Southern Metropolitan Cemeteries Trust
INSURER:	Employers Mutual (NSW) Ltd
FILE NUMBER:	A1-6554/14
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	16 June 2015
DATE OF APPEAL HEARING:	18 September 2015
DATE OF APPEAL DECISION:	24 September 2015
SUBJECT MATTER OF DECISION:	Whether worker suffered a psychological injury; whether Arbitrator erred in assessing claim as two separate and discrete injurious events rather than as the cumulative effect of many events over time; absence of complaint to general practitioner; application of principles in Attorney General’s Department v K [2010] NSWWCCPD 76; assessment of evidence; credit findings; whether credit findings contrary to incontrovertible facts; application of principles in Fox v Percy [2003] HCA 22; 214 CLR 118; failure to consider expert evidence from treating psychiatrist; assessment of expert evidence generally; relevance of worker’s application for re-employment with respondent after ceasing work
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral

REPRESENTATION:	Appellant:	Mr L Morgan, instructed by Walkom Lawyers
Respondent:	Mr H Halligan, instructed by Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	The Arbitrator’s determination of 16 June 2015 is revoked and the matter remitted to another Arbitrator for re-determination.

INTRODUCTION

This matter involves a challenge to an Arbitrator’s finding that the worker did not suffer a psychological injury in the course of or arising out of his employment. For the reasons explained below, the appeal is successful. The Arbitrator’s determination is revoked and the matter remitted to another Arbitrator for re-determination.

PROCEDURAL BACKGROUND

The appellant worker, Wayne Baker, worked as a general hand with the respondent employer, Southern Metropolitan Cemeteries Trust. His main duties included mowing and general cleaning and maintenance at the respondent’s Woronora Cemetery.
Mr Baker alleged that he suffered major depressive disorder due to numerous events that occurred in the course of, or arose out of, his employment with the respondent from 5 March 2012 (wrongly pleaded as 5 March 2013) to 25 September 2013. He alleged that, in this period, he was subjected to numerous instances of bullying and harassment, particularly (but not only) at the hands of a Tod Brown, a co-worker at the cemetery.
The problem came to a head on 26 September 2013. On that day, a Constable Taylor from Miranda Police Station contacted Mr Baker, investigating an allegation by Mr Brown that Mr Baker had falsely reported him to the police for carrying a gun in his vehicle and of having had an association with a bikie group. Mr Baker immediately stopped work and attended his general practitioner. He has not returned to work since.
In support of his case, Mr Baker relied on evidence from Dr Goran Stevans, his treating psychiatrist, and Dr Bruce Westmore, forensic psychiatrist qualified by his solicitor.
The respondent’s insurer disputed liability.
Relying on statements from several co-workers, which disputed some of Mr Baker’s assertions but (significantly) conceded many others, the insurer asserted that no bullying or harassment had occurred. In the alternative, relying on evidence from Dr Newlyn, consultant psychiatrist qualified by the insurer, it asserted that Mr Baker had not suffered a psychological injury.
After a hearing over two days, during which Mr Baker was cross-examined about an application for re-employment he made on 14 April 2014 for the position of Grounds and Facilities Manager with the respondent, the Arbitrator found that the “perceived slights, snubs, discrimination and victimisation” alleged by Mr Baker “did not occur” ([70]). He added that, irrespective of that finding, Mr Baker suffered no psychological injury, which was “evidenced by the fact that he did not consult his general practitioner at any time in respect of such injury up until 26 September 2013” ([70]).
The Arbitrator also found, accepting the evidence from Dr Newlyn, that the police contact with Mr Baker on 26 September 2013 would not explain his reported symptoms. He said that Dr Newlyn’s finding that Mr Baker was fit for work was consistent with the fact that Mr Baker had applied for a job with the respondent on 14 April 2014.
The Commission issued a Certificate of Determination on 16 June 2015 in the following terms:
“1.The applicant did not suffer injury arising out of or in the course of his employment with the respondent.
2. Award for the respondent.”
Mr Baker has appealed.

FACTUAL BACKGROUND

In view of the length of Mr Baker’s statement (74 pages), which he gave to an insurance investigator over several days, and which does not follow any coherent or logical order, I will only refer to a few of the more significant events necessary to give context to the issues on appeal.
Mr Baker is currently 59. Since leaving school in 1971, after obtaining the School Certificate, he has undertaken dozens of different courses, mostly at TAFE colleges, and worked in a variety of occupations. It is not necessary to set out the whole of his work history, but he has worked as a chef, a deck-hand, a powderman/miner, in different positions for the Department of Juvenile Justice, an art teacher, a kitchen designer, an “extra” in television and movies, a director of his own company, and a swimming coach.
He started work with the respondent at Woronora Cemetery on 5 March 2012. He worked as a full-time general hand. His duties involved mowing, using a whipper snipper, edging, blowing/sweeping, pruning, cleaning and maintaining the northeast quarter of the cemetery. For 12 months prior to starting with the respondent, Mr Baker had regularly attended the cemetery asking Jim Ramsey, the respondent’s manager, for a job. When another employee left, the respondent hired Mr Baker for a three-month trial. That trial was presumably successful.
Mr Baker said that, since his employment at the cemetery, his work colleagues, supervisors and management had subjected him to multiple incidents of bullying and harassment.
Mr Baker felt that there were issues at work from the start of his employment with the respondent. This is corroborated by a statement from Michael John Kennedy, a general hand at the cemetery (it should be noted that there were two Michael Kennedys working for the respondent at the relevant time. References in this decision to Mr Kennedy are to Michael John Kennedy, unless otherwise stated). Mr Kennedy said that the Gay and Lesbian Mardi Gras had been held on the weekend immediately before Mr Baker started with the respondent. Mr Kennedy did not go, but had planned to.
At “smoko” on Mr Baker’s first day, Mr Baker said to Mr Kennedy “What are you going to do with your gay suit now?”. Mr Kennedy took offence and left the room. Mr Baker claims he later apologised for his comment, something that Mr Kennedy denies. Because of Mr Baker’s comment, Mr Kennedy moved to another smoko room to avoid contact with him. He felt, from day one, that “there was something wrong with [Mr Baker]” and he “stayed away from” him. Michael Joseph Kennedy recalled Mr Baker’s comment about the gay suit and said that Mr Kennedy “took it a bit personally”.
Mr Kennedy added that, after two or three months, he “started to work [Mr Baker] out”. He felt that there was “something not right about him”. He said that Mr Pascoe, Mr Baker’s initial supervisor, moved out of the tearoom Mr Baker used and that Michael Joseph Kennedy would often drive to the shop for lunch. Mr Pascoe confirms that he “removed” himself from the meal room Mr Baker used, because Mr Baker asked him a lot of questions he did not want to answer. Mr Ramsey said that Mr Baker started eating his meals in the meal room with six or seven people, but there ended up being one, because “they didn’t want to sit with [Mr Baker]”. Michael Joseph Kennedy said that he never saw Mr Baker’s work colleagues ostracising him.
Each worker had his own chair in the tearoom. Mr Baker used a colleague’s chair until that person returned from leave. He then obtained another chair. However, each day his chair would be removed and he had to get another from somewhere. He eventually secured his own chair on 17 April 2012. Mr Tiley, then a general hand at the cemetery, told Mr Baker that he thought that Mr Kennedy had been removing his chair (something that Mr Kennedy denied), but the rest of the men were happy for Mr Baker to share the tearoom. Mr Baker said that he started feeling “ostracised” by his work colleagues.
In May 2012, Mr Baker applied to the respondent for a position as “manager of change”. This was not a position that had been advertised, but Mr Baker felt that the work practices at the cemetery were decades behind other industries and would soon be forced to catch up. With a “change manager” in place, the changes could be implemented in the best possible way.
Mr Ramsey advised Mr Baker that the cemetery did not need any more managers. Mr Baker felt that, due to his application to be the change manager, his popularity declined and the attitude of the managers and other workers was “less friendly”. The respondent’s witnesses denied this allegation. However, Mr Pascoe described Mr Baker as a worker who was “choosy” and wanted to do things his way. He added that Mr Baker always had an opinion and that he found it hard to do his job because of Mr Baker’s “attitude”. Mr Tiley said that Mr Baker “was a guy that didn’t fit in real well with his work colleagues”. He found him “a bit strange”.
On 25 June 2012, Mr Pascoe gave Mr Baker extra duties pruning trees in the car park near the tea rooms, which he wanted done for winter, though it was already winter. Mr Baker alleged that Mr Pascoe was very abusive towards him. He felt that Mr Pascoe was “baiting” him to say, “do it yourself”. Mr Baker reported the matter to Mr Ramsey.
Mr Pascoe said that this incident occurred on 29 June 2012. He said that Mr Baker “argued back on how we were going to do the trees”. He said it was a “straight forward direction” and that he had his reasons for the trees being pruned in such a way. He told Mr Baker that if he was not happy to do the job he could go back to his section.
This incident followed an earlier incident in June 2012, when Mr Pascoe asked Mr Baker and another worker (Simon Cox) if they had been pruning trees (as part of a TAFE course) with a chain saw while on a stepladder. On Mr Baker’s evidence, both workers denied having done so. Mr Pascoe believed, from an examination of the cut, that a chain saw had been used and that that was a breach of safety regulations.
Mr Pascoe agreed that he “probably showed some signs of annoyance”. He added that he would have “been upset and disappointed in myself that [Mr Baker] and [Mr Cox] would have done something so dangerous whilst under instruction by a TAFE teacher”. Mr Baker said that this incident made him feel “bullied, intimidated and verbally abused by [Mr Pascoe] and it was very depressive because I was just trying to do a good job and improve my area”.
On 17 July 2012, Mr Baker was having a break in the tearoom. Mr Brown was sitting opposite him playing with a paperclip. Mr Baker’s evidence was that Mr Brown reached across the table and placed the paperclip a few inches from his plate. Mr Baker placed the paperclip on a newspaper Mr Brown had on the table and said, “I do not want this thanks”. Mr Brown then flicked the paperclip at Mr Baker, hitting him on the arm. Mr Baker said, “Stop throwing shit at me”. Mr Baker reported the incident to Mr Ramsey, saying that Mr Brown was trying to pick a fight with him. He wanted Mr Ramsey to know that, if it got “physical”, he had done his best to avoid it on multiple occasions. Mr Ramsey said he would speak to Mr Brown.
Mr Brown’s version was that there was a paperclip on the lunchroom table, which he flicked across the other side so he could put his lunch down. Though Mr Brown did not intend it, the paperclip landed on Mr Baker’s lap. Mr Brown said Mr Baker “got the shits” and “got aggressive”, throwing the paperclip back at him. Mr Ramsey spoke to Mr Brown about the incident. After hearing Mr Brown’s version, no further action was taken. Mr Brown maintains that, since this incident, Mr Baker tried to get him sacked.
On 18 July 2012, Shane Donaghy, the respondent’s financial controller, wrote an email to Graham Boyd, the respondent’s chief executive officer, about a human resources meeting on that day. He said:
“Wayne Baker is making claims to Jim [Ramsey] and Maris [Azzi] that he is a victim of bullying at work. [Mr Baker] has made phone calls to Maris and Jim regarding this. [Mr Baker] is also texting Maris with claims that staff are acting inappropriately during work hours. Jim is also aware of the texting and now we need to step in and mediate the situation before it escalates. We can discuss further when you are back at work.”
Ms Azzi was a human resources consultant with the respondent between 2012 and 2013. She confirmed that Mr Baker approached her and complained about bullying and intimidation, starting in July 2012. She said he never put his complaint in writing, but she escalated the complaints to Mr Ramsey. She said Mr Baker “was making people feel uncomfortable at work” and that “his behaviour was unprofessional and he made people feel awkward”. She said there was a “structured meeting held with [Mr Baker]” and lots of phone calls and text messages from him to her regarding bullying and harassment. She confirmed that Mr Baker said Mr Brown and Peter Robinson were intimidating him. She said that he became persistent and was unprofessional and going overboard. She let the management know that Mr Baker’s contact had to stop.
On a date in 2012, Mr Baker alleged that he was in his car leaving work when Mr Brown reversed out of his car space at a very fast speed, stopping inches from his car. He felt that that was an intimidating act of aggression by Mr Brown and it made him concerned for his safety. It confirmed to him that he was at “risk of some harm”. Mr Brown’s version was he reversed out of the staff car park, saw Mr Baker driving towards him, stopped and drove forward. He said he did not see Mr Baker coming because it was a blind corner. Prior to relating this incident, Mr Brown said that the workers had talked about Mr Baker and he came to the conclusion that Mr Baker was “a bit of a dangerous person”. He said that he and another worker (Peter) decided to stay away from him and not let him know about their social life.
Mr Baker said that, on 7 August 2012, he went into the washroom. He went to wash his hands next to Mr Brown who “growled at [him] like a dog”. He said that the incident made him feel intimidated, bullied, threatened and provoked. Mr Brown’s version is that he was sick and that he was trying to cough something out of his chest. He said that he “may have growled or coughed” but it was not at Mr Baker. He was trying to clear his throat.
Mr Baker said that, on 24 August 2012, Mr Brown passed him and was glaring at him for no apparent reason. Mr Baker felt “at risk” and that Mr Brown’s behaviour was “threatening”. Mr Brown’s response was that he had not threatened Mr Baker with violence and that his behaviour towards him had not been threatening. He said that he has a “blank look” on his face and people think “I’ve got the shits but I haven’t”.
Mr Baker said that, on 11 June 2013, Mr Brown said to him, “Your [sic] gone cunt”. Mr Brown admits that he made this statement and that it was directed to Mr Baker. He said he was “pissed off” with Mr Baker because he believed Mr Baker had rung up the police about him. (Mr Baker has denied having contacted the police about Mr Brown. Mr Brown admitted that the police had not told him that Mr Baker was the informant. He had concluded that it was Mr Baker.) Mr Brown agreed that it was a stupid thing to say. He added that he did not threaten Mr Baker with any physical harm.
Mr Baker reported the offensive comment to Mr Tiley, who by this stage had become Mr Baker’s supervisor, believing it to relate to a complaint received a few days previously about a grave in Mr Brown’s section that had sunk. Mr Tiley gave evidence that, sometime late in June 2013, Mr Baker spoke to him about “serious bullying allegations”. Mr Tiley said that Mr Baker complained that Mr Brown was a bully and a “standover”. Mr Baker wanted Mr Brown sacked.
Mr Tiley rang the manager, Steve Donaldson, and arranged a meeting for the following day. Mr Baker, Mr Brown, Mr Tiley and Mr Donaldson attended the meeting. Mr Baker gave evidence, but it is not agreed, that he was not told that Mr Brown would be at the meeting. Mr Donaldson agreed that Mr Baker had said the harassment and bullying had been going on for over one year. Mr Donaldson said that the harassment and bullying must stop or action would be taken. He acknowledged that Mr Baker and Mr Brown had “a big personality problem” and that, from his observation, they did not like each other.
Mr Baker alleged that, on 4 July 2013, Mr Brown said to another worker (Mr Kennedy), but in the presence of Mr Baker, “this cunt is going”. Neither Mr Kennedy nor Mr Brown has dealt with this allegation in their statements, but I note that paragraphs [115]–[121] are missing from Mr Brown’s statement.
Mr Baker alleged that, when returning to the compound on 5 July 2013, Mr Ramsey said to Mr Brown “here comes your mate”. Mr Brown allegedly looked at Mr Baker and laughed. This matter is not dealt with in the statements from Mr Brown or Mr Ramsey and the respondent does not concede its accuracy.
Mr Tiley gave evidence that, after this meeting, he did not put Mr Brown and Mr Baker in the same team, except when they were ripping down a temporary fence on 2 August 2013. He added that he and Mr Donaldson “basically told [Mr Brown] and [Mr Baker] they had to get along” and that he did not want to hear of any bullying.
On 2 August 2013, Mr Baker injured his back lifting concrete blocks while moving a temporary fence.
On 16 August 2013, Mr Tiley asked if Mr Baker could do him a favour. Mr Baker replied “not more turf” (which was a reference to Mr Baker having moved turf at work the previous day). Mr Tiley is alleged to have then abused Mr Baker, saying, “you will do what I say. If I tell you to do something you will do it”. Mr Baker replied, “There’s [no] need to talk to me like that and my name is not Baker but it is Wayne”. Mr Tiley then asked Mr Baker to collect some chairs from the crematorium.
Mr Tiley’s version of this incident was that he had a “run in” with Mr Baker. He said he was going to ask Mr Baker to do a job, but before he even asked him, Mr Baker said he did not want to do it. Mr Tiley asserts that Mr Baker asked not to be called “Baker”, but it was on a different occasion. He agreed that he said, “if I ask you to take off turf[,] you take off turf”. Mr Baker said “Matt I don’t like the way you just spoke to me”. Mr Tiley asked Mr Baker to see him after he had moved the chairs. Mr Tiley asserts that Mr Baker was aggressive to him.
On 17 August 2013, Mr Baker saw his general practitioner and complained of having hurt his back at work doing heavy lifting “due to [an] aggressive supervisor”. He was off work, because of his back injury, until 19 September 2013, when he returned on light duties.
Consistent with Mr Baker’s WorkCover certificate, Mr Tiley gave Mr Baker watering duties and provided him with a chair on which he could sit while he did them. Mr Baker did those duties on 19, 20 and 23 September 2013. He felt the work was “a punishment like ‘psychological punishment’”. He did more watering, but without a chair, on 24, 25 and 26 September 2013. Mr Baker felt that these duties were “boring, humiliating and punishing”.

Mr Tiley gave evidence that he checked on Mr Baker several times and found that he was not watering. He said the first watering period (on 19, 20 and 23 September) was for “2 or 3 days tops” and the second period was at the direction of another worker, Ross Stack. When Mr Tiley checked on Mr Baker, the hose was hooked up but Mr Baker was not there. When Mr Baker was there, he was talking to a member of the public and the hose was “stuck in a tree”.
Mr Donaldson gave evidence that, on 26 September 2013, Constable Taylor contacted him stating that he was investigating an allegation by Mr Baker against Mr Brown. The allegation, which was false, was that Mr Brown carried a gun in his vehicle and had an association with a “bikie group”. Constable Taylor said that his enquiry followed a report that Mr Brown believed Mr Baker had made the allegation to the police. Mr Donaldson’s evidence was that Constable Taylor requested Mr Baker’s phone number so he could speak with him and “inform him that he could be charged for making false claims”.
At 11.10 am on 26 September 2013, while at work, Mr Baker received a phone call from Constable Taylor accusing him of making a false report to the police about a person (Mr Brown), something Mr Baker strongly denied. After this conversation, Mr Baker said he felt unwell and “downed tools”. (Somewhat surprisingly, the respondent has not conceded that these events occurred. The evidence from Mr Donaldson noted below provides ample corroboration that they clearly did occur.)
When leaving work, Mr Baker said to the manager, Steve Donaldson, “the Police have rang [sic] me and taken in my opinion the level of bullying to another degree”. He spoke to Mr Donaldson for about an hour and a half, telling him about all the bullying and harassment he had been subjected to at work. Mr Donaldson said he needed a witness to the conversation and got Liberty Homeres, the respondent’s accountant, to sit in while Mr Baker again recounted his complaints. Mr Baker said he found Mr Homeres to be sympathetic, but Mr Donaldson mocked him.
Mr Baker said to Mr Donaldson “I have complained about bullying and harassment the entire time I have worked here at Woronora Cemetery at every level, every supervisor and every manager. I am not satisfied with the support I received so I will be seeking support [from] outside the cemetery”. Mr Donaldson asked if Mr Baker was going to see a doctor, to which Mr Baker said “yes”. Mr Donaldson asked him to fill in a WorkCover form before he left, which he did. Mr Baker has not returned to work since. (At this stage of the interview with Mr Baker, the investigator stopped the interview because Mr Baker was “feeling agitated talking about this matter” and he took Valium. The interview resumed several days later.)
Mr Donaldson agreed that Mr Baker said the phone call from Constable Taylor had taken the bullying and harassment to another degree. He thought that Mr Baker was in a “slightly distressed state”. Mr Baker denied having reported Mr Brown to the police. Mr Donaldson said that Mr Baker was “concerned that the Police had phoned him” and “stressed at having to put up with the bully boys here”. Mr Donaldson said Mr Baker complained that he had been bullied and harassed ever since he started work at the cemetery.
Mr Baker saw his general practitioner, Dr Abdullah Zobair, on 26 September 2013. Dr Zobair’s notes record:
“bullying at wortkplace [sic] by his colleagues and supervisors, causing intense anxiety, sadness, anxiety, palpitation, choking sensation and paimful [sic] rercollections [sic] of events that has [sic] happened earlier this morn, has been going on for the las [sic] year half [sic], this morn was the most serious one
tearful, anxious, sad and depressed, hopeless about the whlole [sic] thing, no risk of self harm or harm to others dsic [sic] re WCMC, psychiatrist referral, risk issues discussed.”
On 27 September 2013, Mr Baker saw Dr Goran Stevans, psychiatrist at the same practice as Dr Zobair, who diagnosed him to have major depression and prescribed medication. Dr Stevans continued to treat Mr Baker until at least 4 August 2014.
Mr Baker gave oral evidence that, on 14 April 2014, he applied in writing for re-employment with the respondent as the Grounds and Facilities Manager.

THE ARBITRATOR’S REASONS IN SUMMARY

The Arbitrator summarised Mr Baker’s oral evidence, which dealt only with his application for re-employment dated 14 April 2014, at [16]:
“(a)he had maintained to doctors, including Dr Westmore, that he was incapable of returning to work as a result of a psychiatric condition;
(b)this psychiatric condition came out of the bullying and harassment that occurred at the workplace;
(c)he did not include in his job application any conditions about his acceptance to the position if offered;
(d)     he said that, whilst there was no suggestion in the (job) application to
Ms [Cheryl] Williams [the respondent’s human resources manager] that he could only work in the event, for example, that certain other employers [sic] of the cemetery were not employed there, this matter would have come up if he had received an interview. However his application did not get to that stage;
(e)he did not include any conditions in his written job application because at that time he was not thinking clearly;
(f)at that time had [sic, he] had been speaking to Cheryl Williams a couple of times on the phone and she encouraged him to put that application in. However he said he did not remember doing the application. He also said that he had always hoped to be part of the cemetery because when he was younger both his grandfather and great grandfather were managers of the cemetery and he wished to follow in their footsteps;
(g)     he had the qualifications to do the job but they were never recognised;
(h)if he had been offered the position there would have had to be more conciliation about it because (as he had previously said) he was heavily medicated at that time and could not even remember applying for it or preparing the job application;
(i)he acknowledged that the application was written in fairly precise and eloquent terms and was a very well constructed document;
(j)in the application he had gone to pains to point out that he had a flair for certain relevant skills including writing and constructing written material;
(k)     whilst in the course of preparing the letter he did not reflect upon or remind
Ms Williams of anything that was in his immediate employment history including leading up to September 2013, but said that this had been discussed with Ms Williams on the telephone, and
(l)it was not appropriate to put something like that in the application as, if he did, he might as well not have made the application.”
The Arbitrator said that Mr Baker’s oral evidence, which was that he discussed his immediate past employment with Ms Williams on the phone prior to 14 April 2014, was inconsistent with Ms Williams’ note in Ex A, which was to the following effect:
“At no time throughout the process did Wayne Baker indicate that if he were the successful applicant that there would be any conditions imposed by him.”
The Arbitrator was “troubled by [Mr Baker’s] evidence that he did not remember making the [April 2014] job application” ([63]) and he said (at [64]) that he did not accept Mr Baker’s evidence on that point. He accepted that there was a long history of discord between Mr Baker and his fellow workers and supervisors, which commenced almost from the beginning of his employment. He said that this culminated in the meeting in June 2013 and the subsequent incident involving Constable Taylor and Mr Brown leading up to September 2013.
When Ms Williams approached Mr Baker, after September 2013, and invited him to apply for a position with the respondent, Mr Baker made such application “without pre-conditions” ([65]). This indicated, in the Arbitrator’s view, that Mr Baker was not “psychologically ill at that time such as to prevent him from resuming employment with the respondent” ([66]).
Dealing with the allegations of bullying and harassment “throughout [Mr Baker’s] employment”, the Arbitrator accepted the respondent’s submissions that, irrespective of the rights and wrongs of the plethora of complaints by Mr Baker as to harassment and bullying, there was no complaint of those matters to his doctor until 26 September 2013. The Arbitrator added, at [70]:
“70.Quite obviously [Mr Baker] had significant personality differences with virtually all of his co-employees, and he perceived slights, snubs, discrimination and victimisation, where in my view having regard to the whole of the evidence, these did not occur. Mr Baker did not see himself as a general labourer at the cemetery and perhaps this was the reason why his co-employees found him so difficult to get along with. It was submitted on behalf of [Mr Baker], relying on what was said in Attorney General’s Department v K [2010] NSWWCCPD 76 that it is a person’s perception of real events which can satisfy the test of injury arising out of or in the course of employment. However such perception must be as a result of events which actually occurred in the workplace, were perceived as creating an offensive or hostile working environment and resulted in psychological injury. Having regard to the whole of the evidence I have significant doubt as to whether many of the events complained of by [Mr Baker] actually occurred, or occurred in the way in which [Mr Baker] relates. However irrespective of that, in my view [Mr Baker] suffered no psychological injury, evidenced by the fact that he did not consult his general practitioner at any time in respect of such injury up until 26 September 2013. I do not therefore accept [Mr Baker’s] submission that it was the cumulative effect of such incidents that caused his psychological injury.
Under the heading “26 September 2013”, the Arbitrator then dealt with the phone call from Constable Taylor to Mr Baker on that date. He said there was insufficient evidence to enable him to make a finding that Mr Baker contacted the police and complained about Mr Brown. He seemed to accept that Mr Baker was upset by the call from Constable Taylor, but the notes from Dr Zobair (see [50] above) made no specific reference to it.
At [72], the Arbitrator found, relying on evidence from Dr Newlyn, that the phone call from Constable Taylor did not cause a psychiatric injury. After examining Dr Newlyn’s evidence, the Arbitrator said, at [74]–[75]:
“74.I agree with Dr Newlyn’s observation as to the lack of substantive contemporaneous documentation of either psychiatric symptoms or the diagnosis of a psychiatric disorder before 26 September 2013. I have noted above my reservations as to [Mr Baker’s] oral evidence on 22 March 2015. I agree with Dr Newlyn’s finding of the lack of evidence of any psychiatric disorder before 26 September 2013.
75.I also agree with Dr Newlyn’s assessment that the police contact with [Mr Baker] on 26 September 2013 would not explain his reported symptoms. The two workplace investigations currently in progress relate to [Mr Baker’s] physical injury sustained in August 2013 and the claimed psychological injury.”
The Arbitrator noted that Dr Newlyn’s conclusion, expressed after having seen Mr Baker on 11 February 2014, that Mr Baker was fit for work, was consistent with Mr Baker’s application for employment on 14 April 2014.
The Arbitrator said (at [79]) that it was “notable and significant” that, by 22 July 2014, Mr Baker was abusive when he consulted Dr Rajan, a general practitioner in the same practice as Dr Zobair and Dr Stevans.
The Arbitrator considered the evidence from Dr Westmore should be treated with caution, because that doctor did not have a history of Mr Baker’s job application of 14 April 2014. He added that Dr Westmore did not seem to have been provided with the statements of the co-workers. For these reasons, he accepted the evidence from Dr Newlyn.
In conclusion, the Arbitrator found, at [85]–[86]:
85. In my view [Mr Baker] neither:
(a)suffered psychiatric injury arising out of or in the course of his employment up until 26 September 2013, or
(b)suffered such injury as a result of events on or about that day, including a telephone call from Constable Taylor of the Miranda Police.
86.[Mr Baker] was frustrated and upset with events which occurred over the course of his employment with the respondent involving significant discord with his co-employees and supervisors. I do not accept [Mr Baker’s] version as to many, if not most of those events, having regard to the totality of the evidence before me. In any event, what happened in that employment was not productive of psychiatric injury. To repeat, I also accept what Dr Newlyn found, that the police contact with Mr Baker on 26 September 2013 would not explain his reported symptoms.”

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(1)     considering whether Mr Baker suffered injury by reference to two distinct periods, namely the period up to 26 September 2013 and the incident on that day;
(2)     relying on the absence of any complaint by Mr Baker to his treating general practitioner up to 26 September 2013, as the sole basis for finding that Mr Baker suffered no psychological injury during that period;
(3)     failing to give adequate reasons for not accepting that many, if not most, of the events complained of by Mr Baker actually occurred, or occurred in the way in which Mr Baker related, and his finding in that regard is against the weight of evidence;
(4)     misapplying the test in Attorney General’s Department v K [2010] NSWWCCPD 76 (K);
(5)     accepting the opinion of Dr Newlyn over those of Mr Baker’s experts;
(6)     palpably misusing his advantage (in seeing Mr Baker give evidence) in making adverse findings as to Mr Baker’s credit, and
(7)     admitting into evidence part of a letter from Cheryl Williams (the respondent’s human resources manager) dated 13 May 2015, after evidence had closed and Mr Baker’s solicitor had made his submissions.
At the oral hearing of the appeal, it was alleged that the Arbitrator erred in two additional respects: first, in finding that Mr Baker’s application for re-employment indicated that he was not psychologically ill such as to prevent him from resuming employment with the respondent and, second, in finding that Mr Baker’s oral evidence about that application was inconsistent with Ms Williams’ statement in Ex A.

PRELIMINARY POINT

Before considering the grounds of appeal in detail, it is appropriate to set out the general principles concerning psychological injury cases. Those principles were summarised in K at [52]:
(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 (Spigelman CJ in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 (Chemler) at [40]);
(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 (Spigelman CJ in Chemler at [54]);
(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 (Basten JA in Chemler at [69]);
(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 (President Hall in 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” (Von Doussa J in Wiegand v Comcare Australia [2002] FCA 1464 at [31]), 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.
These principles are relevant in this case.

GROUND 1: THE TWO DISTINCT PERIODS

Submissions

Mr Baker’s solicitor, Mr Walkom, has prepared the written submissions in support of the appeal. At the oral hearing of the appeal, Mr Morgan, barrister, appeared for Mr Baker. For convenience, I will refer to submissions in support of the appeal as Mr Baker’s submissions.
Mr Baker submitted that his case was that the events throughout the employment, up to and including the phone call on 26 September 2013, caused the injury and the Arbitrator erred in considering the issue of “injury” in respect of two separate periods. Mr Baker contended that, in approaching the matter in this way, the Arbitrator applied the incorrect test. He said the test should have been whether Mr Baker suffered an injury arising out of or in the course of his employment. The Arbitrator therefore failed to adjudicate on the case put by Mr Baker.
Counsel for the respondent, Mr Halligan, submitted that Mr Baker’s evidence was not accepted. He said that the “Arbitrator had the advantage of assessing [Mr Baker’s] credit and credibility through the cross examination, comparing the content [sic] with the witness [sic] statements, many of which contained denials [of] the allegations made against them”. He said the Arbitrator was entitled to draw adverse inferences about Mr Baker’s credit and his findings were compelling and should not be disturbed. He said that nothing sinister came from the Arbitrator considering separately the events up to 26 September 2013 and the phone call on that day.

Discussion and findings

The Application to Resolve a Dispute pleaded that Mr Baker suffered his injury as a result of events at work between 5 March 2013 and 25 September 2013. However, the case as argued at the arbitration relied on all events at work from 5 March 2012 up to and including 26 September 2013. The respondent took no issue with the inaccurate pleadings. That was appropriate. Cases are decided on the evidence tendered and arguments presented, not on the pleadings (per Dawson J in Banque Commerciale SA (In Liquidation) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 at 296–7). That is especially so in the Commission, which has a statutory obligation to act according to the substantial merits of the case (s 354(3) of the Workplace Injury Management and Workers Compensation Act 1998).
It was therefore necessary for the Arbitrator to determine the case presented to him. He did not do that. He approached the case on the basis that Mr Baker alleged that he suffered injury due to two separate and discrete injurious incidents or episodes. The first was the bullying and harassment up to 26 September 2013. The second was the phone call from Constable Taylor on 26 September 2013, which the Arbitrator considered separately and independently from the first. Neither side submitted that that was the correct approach, though Mr Halligan submitted that if Mr Baker was the person who reported Mr Brown to the police, he was the “architect of his own misfortune” (T15.22 – 15 May 2015).
The Arbitrator erred in considering the case as one involving two separate and discrete incidents or episodes. He said (at [61]) that he was satisfied that Constable Taylor spoke to Mr Donaldson, Mr Brown and Mr Baker. However, contrary to Mr Halligan’s submissions, he was not able to find that Mr Baker had reported Mr Brown to the police. Neither of these matters was of any significance to the outcome of the case.
The Arbitrator added (also at [61]) that Mr Baker was upset by the phone call from Constable Taylor and that it was the catalyst for him going off work on 26 September 2013. He did not accept Mr Baker’s assertion that the phone call took the bullying and harassment to a new level. His reason was that there was insufficient evidence to find who made the phone call to the police (in which false allegations were made against Mr Brown that led to him being questioned by the police). This statement missed the critical point.

Mr Baker relied on the phone call from Constable Taylor as evidence of one of the many events that happened at work that created what he perceived as a hostile work environment. In determining that issue, it did not matter who made the false complaints to the police about Mr Brown. The evidence established that Mr Brown told the police that he believed the false complaint came from Mr Baker (see [45] above). That was no doubt because of the animosity between the two men, which resulted entirely from events at work (there being no evidence that the men had any contact outside work). This is consistent with Mr Brown’s evidence that Mr Baker could not get him sacked so “he tried to interfere in my outside life”. That led Constable Taylor to contact Mr Donaldson to obtain Mr Baker’s phone number, which led to Constable Taylor contacting Mr Baker.
It was in this context that Mr Baker believed the phone call took the bullying to a new level. He clearly perceived the giving of his name to the police (by Mr Brown) to be a hostile action by a co-worker with whom he had been in conflict at work over a considerable period. It was for the Arbitrator to assess the relevance of the phone call against that background. He failed to do that. Instead, he focused on the phone call as if it was a separate and isolated event unrelated to the problems at work over the preceding 18 months. That he took this approach is confirmed by his acceptance of Dr Newlyn’s evidence that the phone call (on its own) would not have caused Mr Baker’s condition. That was not Mr Baker’s case and the Arbitrator erred in treating it as if it was.

GROUND 2: ABSENCE OF COMPLAINT

Submissions

Mr Baker submitted that the Arbitrator erred in determining the issue of injury for the period up to 26 September 2013 solely on the ground that Mr Baker did not complain to his general practitioner of any psychiatric symptoms prior to that date. He said the fact that he did not complain to his general practitioner of symptoms of depression was not evidence that he was not suffering from depression up to 26 September 2013.
Mr Halligan submitted that Mr Baker sought medical advice from his general practitioners on 19 occasions between June 2012 and 26 September 2013 and he did not raise any concern he had about his work environment. He said it was curious that Mr Baker left work on the day Constable Taylor phoned him and only then, for the first time, suggested bullying. In any event, the Arbitrator found that the phone call on 26 September 2013 was not causative of an injury.

Discussion and findings

Dealing with the consequences of the alleged bullying and harassment up to 26 September 2013, and therefore (wrongly) excluding the phone call from Constable Taylor and failing to consider the cumulative effect of the events at work, the Arbitrator found that, irrespective of whether the events complained of occurred, Mr Baker suffered no psychological injury. That was, he said, “evidenced by the fact that [Mr Baker] did not consult his general practitioner at any time in respect of the injury up until 26 September 2013” ([70]).
It was correct that Mr Baker did not complain to his general practitioner of bullying until 26 September 2013. However, that fact was not determinative of whether Mr Baker suffered a psychological injury as a result of events at work up to and including that date. The lack of complaint to a general practitioner is a factor an Arbitrator is entitled to take into account in considering whether to accept a worker’s assertion that certain events occurred and that they affected the worker in a certain way.
However, on its own, the absence of such a complaint to Mr Baker’s general practitioner until 26 September 2013 was not decisive of whether the events complained of caused a psychological injury and the Arbitrator erred in treating it as if it was. That is especially so in circumstances where there is evidence, not referred to by the Arbitrator, that Mr Baker had complained to the respondent’s representatives of bullying and harassment from as early as July 2012 (see [28]–[29] above).
Whether Mr Baker suffered a psychological injury as a result of the events at work up to 26 September 2013 depended on an assessment of all the evidence. This included the evidence of the co-workers that there were significant issues between them and Mr Baker that created conflicts at work, which the Arbitrator failed to consider properly (see [101] and [104]–[105] below), and the evidence from Dr Stevans, which the Arbitrator failed to consider at all (see [139] below). In the circumstances, it was not appropriate to conclude that Mr Baker suffered no injury solely because he did not complain of bullying to a general practitioner until 26 September 2013.
The Arbitrator’s conclusion, on this issue, really amounts to a finding that he did not accept that Mr Baker suffered a psychological injury because there was no corroboration of his complaints, from a general practitioner, until 26 September 2013. There is no requirement for corroboration in a civil case (Chanaa v Zarour [2011] NSWCA 199 at [86]) and, to the extent that the Arbitrator thought that such corroboration was necessary, he erred.
Moreover, as Beazley JA (as her Honour then was) (Campbell and Macfarlan JJA agreeing) explained in Patrech v State of New South Wales [2009] NSWCA 118 at [77], [91] and [105], it is unlikely that it is necessary (or even a relevant consideration) that a person must identify themselves as psychologically ill (that is, to have understood or believed his or her symptoms to constitute a mental illness) to find a psychological illness. The true question is whether the person was suffering symptoms, which properly diagnosed, constitute an illness. Dr Stevans made that diagnosis on 27 September 2013 and the Arbitrator did not properly consider that evidence.
I make one last observation in passing on this issue. Several of the events about which Mr Baker has complained occurred within a few months or days of 26 September 2013. The absence of complaints to a general practitioner may have been entitled to significant weight if Mr Baker had failed to complain of bullying and harassment for several months after he ceased work. That is not what happened. He complained on the day he stopped work. The Arbitrator failed to give any weight to that complaint, apparently because of his acceptance of Dr Newlyn’s evidence, which is discussed below.

GROUND 3: FAILURE TO GIVE ADEQUATE REASONS/WEIGHT OF THE EVIDENCE

Submissions

Mr Baker submitted that the Arbitrator failed to engage in any fact finding exercise as to which events occurred and how. While the Arbitrator was not obliged to make a finding as to what occurred in respect of every incident referred to by Mr Baker, he was required to make findings as to whether some of the more significant events occurred and were perceived by Mr Baker as harassment or bullying.
Mr Baker contended that, in submissions at the arbitration, he submitted in detail on the events from June 2013, particularly those involving Mr Brown. He said that the occurrence of most of those events was not disputed and the Arbitrator’s decision has left Mr Baker unaware as to whether he accepted these events or not.
Mr Baker submitted that, given the events that occurred at work which were not disputed, the Arbitrator’s findings at [70] were against the weight of the evidence that he was bound to accept. Those findings were that:
(a)     the perceived slights, snubs, discrimination and victimisation “did not occur”;
(b)     he had “significant doubt as to whether many of the events complained of by [Mr Baker] occurred, or occurred in the way in which [Mr Baker] relates”, and
(c)     he “did not accept [Mr Baker’s] version as to many, if not most of those events, having regard to the totality of the evidence”.
Mr Halligan submitted that the Arbitrator summarised the witnesses’ statements, dealt with Mr Baker’s oral evidence, referred to the bullying allegations, and discussed the events of 26 September 2013. He therefore discharged his obligation to give reasons.

Discussion and findings

Under “Findings and Reasons”, from [35] to [61] of the decision, the Arbitrator set out a few of the events that occurred at work and about which Mr Baker complained. He referred to the following:
(a)     Mr Baker’s application to be the change manager and Mr Ramsey’s response, which was that Mr Baker should never have started with the respondent if he wanted to work in the office;
(b)     Mr Baker felt that, due to his application to be the change manger, his popularity declined, because the attitude of the co-workers and managers was less friendly. He said that prior to that application, his relationship with co-workers and managers was normal and without incident;
(c)     the direction Mr Pascoe gave Mr Baker on 25 June 2012, when Mr Pascoe was alleged to have been abusive;
(d)     the back injury on 2 August 2013;
(e)     the watering duties in September 2013, which Mr Baker found boring, humiliating and punishing;
(f)      the phone call from Constable Taylor on 26 September 2013;
(g)     Mr Baker’s conversation with Mr Donaldson and Mr Homeres on 26 September 2013;
(h)     that Mr Brown (wrongly referred to as Mr Baker at [47] and [48] of the decision) worked in a different part of the cemetery to Mr Baker;
(i)      the paperclip incident and the complaints that followed it;
(j)      that Mr Brown admitted saying to Mr Baker “your [sic] gone cunt”;
(k)     that Mr Ramsey denied that Mr Baker’s popularity declined after Mr Baker applied for the change manager position;
(l)      that Mr Baker was unsuccessful when he applied to be a grounds supervisor in October 2012;
(m)   Mr Donaldson related a report by Mr Tiley of a problem between Mr Baker and Mr Brown and a meeting in June 2013 when he discussed bullying and harassment in a general sense. Mr Donaldson said that Mr Baker did not officially report a complaint about bullying and harassment at that meeting, and
(n)     Mr Donaldson said that Mr Baker was more physically upset that he had received a phone call from the police (on 26 September 2013) than anything else.
The Arbitrator referred (at [62]–[66]) to Mr Baker’s oral evidence. He concluded (at [70]) that the perceived snubs, etc did not occur and he had significant doubts as to whether many of the events complained of actually occurred, or occurred in the way in which Mr Baker stated. He also concluded (at [70] and [74]) that Mr Baker had not suffered a psychiatric injury.
The Arbitrator’s reasons for his conclusions were:
(a)     in “very large measure” ([46]) the co-workers refuted most of Mr Baker’s allegations of bullying and harassment;
(b)     he did not accept that Constable Taylor’s phone call to Mr Baker took the bullying and harassment to a new level. That was because there was insufficient evidence for him to find who first called the police (with the false allegations about Mr Brown) ([61]);
(c)     Mr Baker’s evidence that he discussed his immediate past employment over the phone with Ms Williams was inconsistent with her evidence in Ex A ([62]);
(d)     he did not accept Mr Baker’s statement that he did not remember making the job application on 14 April 2014 ([64]) and had “reservations” as to Mr Baker’s oral evidence ([74]);
(e)     Mr Baker was never happy as a general labouring hand but aspired to managerial positions, which did not eventuate ([65]);
(f)      Mr Baker’s job application of 14 April 2014 indicated that Mr Baker was not psychologically ill at that time such as to prevent him from resuming employment with the respondent ([66]);
(g)     irrespective of the rights and wrongs of the plethora of complaints made by Mr Baker, he made no complaints to his doctor until 26 September 2013 ([69]);
(h)     the perceived snubs, etc did not occur ([70]);
(i)      he had significant doubt as to whether many of the events complained of by Mr Baker actually occurred, or occurred in the way in which Mr Baker related ([70]);
(j)      he accepted Dr Newlyn’s evidence as to the lack of substantive contemporaneous documentation of either psychiatric symptoms or the diagnosis of a psychiatric disorder before 26 September 2013 ([74]);
(k)     he agreed with Dr Newlyn’s assessment that the police contact with Mr Baker on 26 September 2013 would not explain Mr Baker’s reported symptoms ([75]);
(l)      irrespective of the finding in the preceding paragraph, Mr Baker suffered no psychological injury, evidenced by the fact that he did not consult his general practitioner at any time in respect of such injury up until 26 September 2013 ([70]);
(m)   Dr Westmore did not have the co-worker’s statements and did not have a history of the 14 April 2014 job application and his assessment of Mr Baker’s employability should be viewed with caution ([81]–[82]);
(n)     for the reasons summarised in the preceding paragraph, the Arbitrator accepted the assessment of Mr Baker by Dr Newlyn in preference to that of Dr Westmore and Dr Stevans ([83]), and
(o)     simple disgruntlement or upset is never enough to ground a case for a psychiatric condition supporting a claim for compensation ([84]).
The above summary of the Arbitrator’s decision demonstrates that, though the Arbitrator did not deal with each of the alleged instances of bullying, for reasons stated, he did not accept Mr Baker’s case as to the alleged bullying and harassment. On this issue, he discharged his obligation to explain the basis for his conclusions (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). (I add that the alleged failure to give reasons or consider evidence arises again when considering the expert evidence, which is considered at [133]–[139] below).
Mr Baker’s real complaint was that the Arbitrator’s findings are erroneous on several key issues. More specifically, under this heading, he asserted that the findings at [70] were against the weight of the evidence. This complaint is made out.
There are a number of difficulties with the Arbitrator’s reasons at [70]. The first sentence at [70] properly acknowledged that Mr Baker had significant personality differences with virtually all of his co-employees. However, the next statement in that sentence, that Mr Baker perceived slights, snubs, discrimination and victimisation where “these did not occur”, is inconsistent with an objective view of the evidence.
That is because, while several of Mr Baker’s complaints were challenged in statements by co-workers, many others were conceded. For example, the evidence from Messrs Kennedy, Pascoe and Ramsey, summarised at [17]–[18] above provides overwhelming support for Mr Baker’s assertion that, from the start of his employment with the respondent, he had been ostracised and snubbed by co-workers.
Further, Mr Brown admitted that the paperclip incident occurred. Whether he intended to flick the paperclip onto Mr Baker, and whether the incident was trivial or serious, is not the point. Mr Baker took offence at what happened, as is evidenced by his complaint to Mr Ramsey about it. The incident was a real event that occurred at work during work hours.
More significantly, the incident on 11 June 2013, when Mr Brown directed grossly offensive and threatening language at Mr Baker, also happened. The fact that Mr Brown did not threaten Mr Baker with physical harm is irrelevant. Mr Baker reported the incident to Mr Tiley and, on Mr Tiley’s evidence, described the incident as “serious bullying allegations”. At the ensuing meeting, Mr Donaldson agreed that Mr Baker complained that the harassment and bullying had been going on for over a year, which is confirmed by Ms Azzi’s evidence at [29] above. He also agreed that Mr Brown and Mr Baker had a “big personality problem”. The animosity between the two men was such that Mr Tiley saw fit to attempt to keep them apart.
Next, Mr Tiley conceded that he had had a “run in” with Mr Baker on 16 August 2013. The exact circumstances of the “run in” are not of critical importance. The fact is that, as Mr Baker asserted, there was a terse exchange between himself and Mr Tiley to which Mr Baker took offence. That Mr Baker considered Mr Tiley’s conduct to be “aggressive” is corroborated by the general practitioner’s notes of 17 August 2013 (see [42] above).
Last, Mr Tiley conceded that Mr Baker was given watering duties on his return to work on light duties in September 2013. Whether those duties were directed by Ross Stack or by Mr Tiley was irrelevant. Whether Mr Baker stayed in one spot or not was also irrelevant. The undisputed evidence was that he was given a watering job over several days. He perceived those duties to be “boring, humiliating and punishing”.
In light of the above matters, it was not open to the Arbitrator to conclude that the perceived snubs, etc “did not occur” and he erred in doing so. It is clear beyond doubt that, even leaving aside the phone call from Constable Taylor (which the Arbitrator should not have dealt with separately), numerous conflicts occurred at work that created significant tensions. This is confirmed by the evidence from the respondent’s witnesses and by Mr Baker’s numerous complaints about bullying and harassment, which complaints commenced in July 2012. This error alone is sufficient to justify the matter being set aside and re-determined. That is because it goes to the heart of the first step in the assessment of a psychological injury claim, namely, whether real events occurred at work that the worker perceived as creating a hostile work environment.
The next difficulty is in the second sentence at [70], where the Arbitrator said that Mr Baker did not see himself as a general labourer at the cemetery, and that was why his co-workers found him “so difficult to get along with”. It may well be that Mr Baker did not see himself as a general labourer at the cemetery and that, by reason of his experience and background, he was not suited to the position. However, the statement that the co-workers found Mr Baker “difficult to get along with” acknowledged that there were conflicts and tensions at work. It is irrelevant that those conflicts may have resulted from Mr Baker’s unsuitability for the job.
In the third sentence at [70], the Arbitrator noted Mr Walkom’s reliance on what was said in K, namely that it is a person’s perception of real events which can satisfy the test of injury arising out of or in the course of employment. He correctly stated, in the fourth sentence, that “such perception must be as a result of events which actually occurred in the workplace, were perceived as creating an offensive or hostile working environment and resulted in psychological injury”.
However, in the fifth sentence, the Arbitrator said that, having regard to the whole of the evidence, he had “significant doubt as to whether many of the events complained of by [Mr Baker] actually occurred, or occurred in the way in which [Mr Baker] relates”. This was a different finding to the one the Arbitrator made in the first sentence at [70], where he said, “these [snubs, etc] did not occur”. As previously explained, many significant events complained of by Mr Baker did occur. Whether they occurred exactly as Mr Baker described them was not, in the circumstances, critical. What was critical was whether Mr Baker perceived them as creating a hostile work environment. His many complaints to his supervisors about the conduct of the co-workers strongly suggest that he did.
Even if the Arbitrator found that many of the things alleged by Mr Baker did not occur, or did not occur exactly as he recounted them, that did not mean that the claim had to fail, as the Arbitrator appears to have concluded. The evidence from Messrs Brown, Kennedy, Tiley and Donaldson established beyond doubt that several events occurred at work that, on any view, created a hostile work environment and the Arbitrator’s apparent finding to the contrary was against the overwhelming weight of the evidence and was erroneous.

In the sixth sentence at [70], the Arbitrator said that “irrespective of that”, in his view Mr Baker suffered no psychological injury, as evidenced by the fact that he did not consult his general practitioner until 26 September 2013. This suggests that the Arbitrator was intending to make an alternative finding to the effect that, even if the work events complained of occurred, they did not cause a psychological injury. This view of the Arbitrator’s reasons is supported by his statement (at [80]) that “whatever events happened between [Mr Baker] and his co-workers in the course of his employment, they were not productive of a psychiatric injury”.
However, for the reasons given earlier in this decision, to the extent that the Arbitrator relied solely on the absence of complaint to the general practitioner to support his finding that Mr Baker suffered no injury, the Arbitrator erred.

GROUND 4: ATTORNEY GENERAL’S DEPARTMENT v K

Submissions

Mr Baker contended that the Arbitrator’s reasons at [70] appear to assume that if an event did not happen in the manner asserted by Mr Baker, it was not a “real” event. That, Mr Baker argued, misapplied K. That is because the test is not whether the events occurred in precisely the way described by Mr Baker, or whether the Arbitrator viewed the incidents as not constituting harassment and bullying, it is whether the Arbitrator accepted that events occurred and were perceived by Mr Baker in that manner.
Mr Baker argued that it was clear that many events occurred in Mr Baker’s employment that he perceived to be harassment or bullying but other workers did not. He said that the Arbitrator (at [70]) focused on whether events occurred in the way related by Mr Baker and could be seen as conduct of a certain type and that “misapplied the test”.
Mr Halligan submitted that the critical question for determination was whether the events complained of occurred in the workplace. He submitted that the Arbitrator correctly identified the principle in K and, in doing so:
“made a finding that [Mr Baker’s] perceived victimisation etc. did not occur. Importantly[,] in the context of [Mr Baker’s] history[,] no psychological injury was suffered, ‘evidenced by the fact that [Mr Baker] did not consult his general practitioner … until 26 September 2013.” (emphasis included in original)
Mr Halligan contended that Mr Baker’s argument demonstrated confusion “between the test applicable to proving facts on the one hand, leading to a finding of causation[,] and the test applicable to the concept of perception of events leading to a psychological injury, on the other”. He said that the Arbitrator’s decision was based on a finding that the “fundamental facts were not proved” and it was “therefore irrelevant to consider the significance of [Mr Baker’s] perceptions”.

Discussion and findings

I have already dealt with whether the events complained of occurred in the workplace. The evidence from the respondent’s own witnesses establishes beyond doubt that many of the significant events complained of by Mr Baker did occur (see [16]–[49] above) and that Mr Baker perceived that those events created a hostile work environment.
In other words, to the extent that the Arbitrator based his conclusions on a finding that “fundamental facts were not proved”, he was wrong. The respondent’s witnesses established the “fundamental facts”. They established that real events occurred at work and that Mr Baker perceived those events as creating a hostile work environment. Given the large number of events complained of by Mr Baker, it does not matter that some of the events may not have occurred, or that some did not occur in the way related by Mr Baker. Though the Arbitrator referred to K, he failed to apply the principles discussed in it.
In a case where, as here, it is alleged that a hostile work environment resulted from numerous events over a long period, the claim does not fail because one or two of the alleged events may not have occurred, or may not have occurred exactly as alleged. In such a case, an Arbitrator must assess whether, considering the evidence overall, the worker perceived that a hostile work environment existed. The Arbitrator failed to undertake that exercise.

GROUND 5: OPINIONS OF DRS NEWLYN, WESTMORE AND STEVANS

Submissions

Mr Baker submitted that the Arbitrator erred in accepting Dr Newlyn’s evidence because, first, the doctor wrongly separated the allegation of injury into two separate periods (the phone call and the period up to the phone call).
Second, Dr Newlyn’s opinion on causation was based on the false premise that Mr Baker’s reported emotional problems resulted from his anxiety concerning the outcome of two investigations (one concerning his back injury and one concerning his alleged psychological injury), which were still in progress.
Mr Baker argued that this was inconsistent with the history Dr Newlyn took from him of events at work over 18 months up to 26 September 2013, which he perceived to be bullying and harassment culminating in the police phone call on 26 September 2013, and which were the cause of his symptoms.
A fair reading of Dr Newlyn’s history is that Mr Baker was reporting his problems as being due to events at work and that his recovery from those problems was being affected by having to recall the events to the investigators.
Third, Dr Newlyn said that there was no contemporaneous documentation of any significant psychiatric symptoms or the diagnosis of a psychiatric disorder before 26 September 2013 and there were “no substantiated indications of workplace bullying or harassment provided in the document I have reviewed”.
Last, Dr Newlyn did not give any rational explanation for his assertions that:
(a)     Mr Baker’s history was not reliable when compared to the statements of co-workers;
(b)     Mr Baker’s presentation was not consistent with the provided documents, medical reports and opinions;
(c)     the police contact with Mr Baker on 26 September 2013 would not explain his reported symptoms, and
(d)     the worry about the outcome of the investigations has caused Mr Baker to report multiple symptoms but the symptoms do not represent a psychiatric disorder.
In addition, Dr Newlyn did not explain how it was that Mr Baker’s symptoms were caused by worry about the outcome of the investigations when he was reporting symptoms sufficient for Dr Stevans to conclude he had a depressive illness in September 2013, prior to any investigation commencing.
Dealing with Dr Westmore’s evidence, Mr Baker submitted that the Arbitrator erred in saying that the doctor had not been supplied with the statements of the co-workers when he had in fact referred to them. He further contended that the Arbitrator erred in categorising Dr Westmore’s report as having been made “in the context of an assessment of whole person impairment” ([82]).
Mr Baker asserted that the Arbitrator failed to give adequate reasons for rejecting the opinion of Dr Stevans, which opinion was supportive of Mr Baker’s claim. He then made detailed submissions, both in writing and at the oral hearing, as to why the Arbitrator should have accepted Dr Stevans’ evidence and why he erred in rejecting it.
Mr Halligan submitted that the Arbitrator closely examined and assessed the content of the medical opinions. He noted that Dr Westmore regarded Mr Baker as totally unemployable, but was not apprised of the fact that he had applied for work with the respondent in April 2014. Mr Halligan submitted that the Arbitrator was entitled to prefer one expert to another.

Discussion and findings

For reasons expressed earlier, when dealing with the first ground of appeal, Dr Newlyn was wrong to separate the allegation of injury into two discrete periods or events. That was not Mr Baker’s case. That did not necessarily mean that Dr Newlyn’s evidence had no probative value. It merely meant that the Arbitrator had to consider Dr Newlyn’s evidence with that caveat in mind. He did not do that. Instead, he accepted Dr Newlyn’s evidence that Mr Baker’s psychological condition did not result from the phone call on 26 September 2013. It was wrong to consider the effect of the phone call as a separate and distinct cause of injury. The Arbitrator had to consider the cumulative effect of all of the events at work over the whole period of employment.
The second and third points on this issue are also made out. Dr Newlyn’s opinion on causation was based on a false premise. His statement that Mr Baker’s symptoms appeared to be related to anxiety concerning the outcome of the workplace investigations was not an accurate summary of the history. Dr Newlyn’s history was that Mr Baker’s symptoms developed as a result of the workplace bullying and that the investigations merely affected his recovery. Thus, it was inconsistent to conclude that Mr Baker’s problems related to the outcome of the investigations into the claims. Though it is unclear exactly what weight the Arbitrator placed on this part of Dr Newlyn’s evidence, it is clear that he gave it some weight because he quoted (at [76]) Dr Newlyn’s statement that Mr Baker “worries about the outcome of the investigations” and the doctor’s further statement that it was “[t]his worry” that caused him to report multiple symptoms.
Dr Newlyn’s opinion that there was no “substantive contemporaneous documentation of any psychiatric symptoms or the diagnosis of a psychiatric disorder before 26 September 2013” seems to have assumed that, for Mr Baker to succeed, such documentation had to be available. Such an assumption was erroneous. To succeed, a claim does not have to have substantive contemporaneous documentation of psychiatric symptoms or diagnosis prior to the initial attendance on a doctor. After noting his “reservations” about Mr Baker’s oral evidence, which went only to whether Mr Baker recalled completing the application for re-employment, the Arbitrator (at [74]) expressly agreed with this part of Dr Newlyn’s evidence. He erred in doing so without first considering properly the lay and expert evidence that gives substantial support to Mr Baker’s claim.
The Arbitrator also agreed with Dr Newlyn’s finding of a lack of any psychiatric disorder before 26 September 2013. Whether Mr Baker had a psychological disorder before 26 September 2013 was not determinative. The relevant question was whether Mr Baker had a psychological disorder on 26 September 2013 and thereafter. If he did, the next question was what caused it.
There are a number of difficulties with Dr Newlyn’s statement that there were “no substantiated indications of workplace bullying or harassment” in the documents he reviewed. First, it is not necessary for there to be such evidence before a claimant can succeed. Second, whether a claimant has established the factual basis for his or her claim is for the Commission to determine based on all the evidence, not a medical practitioner. Last, for the reasons previously explained in this decision, there is abundant evidence from the respondent’s own witnesses that events occurred at work that created a hostile work environment. Whether, in the documents Dr Newlyn reviewed, those events were described as “substantiated indications of workplace bullying and harassment” was irrelevant. The issue was whether Mr Baker suffered a psychological injury as a result of the events that occurred at work, however those events were described.
Whether Dr Newlyn gave a rational explanation for the assertions set out at [120]–[121] above must be considered at the next arbitration. In assessing a doctor’s reasons for his opinion, and the assessment of expert evidence generally, it is necessary to keep in mind the principles discussed in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43, which have been applied in numerous Presidential decisions (see, for example, Moriarty-Baes v Office Works Superstores Pty Ltd [2015] NSWWCCPD 28 at [112]–[114]). In summary, a doctor does not have to give a detailed explanation for his or her opinion before it can be considered.
With regard to Dr Westmore’s evidence, the Arbitrator erred in discounting that doctor’s opinion on the ground that he did not have the co-workers’ statements. In his report of 15 November 2014, Dr Westmore referred to a letter from Mr Walkom dated 6 November 2014, which attached the co-workers’ statements. Dr Westmore said:
“I note these are statements prepared by Mr Baker’s co-workers and I note they provide their accounts of what allegedly occurred in the workplace. Obviously, as a psychiatrist, I am heavily reliant on the history and clinical presentation provided to me by the person I am assessing and I am not in any position to determine what actually occurred in the workplace and obviously, as occurs in all of this [sic] matters, there are varying and sometimes conflicting accounts as to precisely what did occur at work.”
After acknowledging that it was for “the relevant body” to consider and balance the various accounts given by the different parties in this matter, Dr Westmore concluded:
“The opinions expressed in my report, 8 November 2014, certainly in relation to Mr Baker’s current mental state and the psychiatric diagnosis and his functional capacity, have not altered following my review of the more recent documents and, regardless of what actually did occur in the workplace and how it came about, has had and continues to have a significant impact on Mr Baker’s psychological and psychiatric condition.”
The next point under this heading relates to the Arbitrator’s rejection of Dr Stevans’ evidence. I agree that the Arbitrator erred in failing to properly consider this important evidence. The Arbitrator noted (at [29]) Mr Baker’s reliance on Dr Stevans’ evidence. He noted (at [68]) Mr Halligan’s submission that Dr Stevans was part of Dr Zobair’s practice and, therefore, any opinion expressed by Dr Stevans, as a treating psychiatrist, should be looked at against the background of the fact that he could have, at any time, obtained a copy of Mr Baker’s clinical notes, which would have revealed a lack of complaint of bullying and harassment until 26 September 2013. (I note that it is simply not known if Dr Stevans looked at the general practitioners’ records and Mr Halligan’s submission was entirely speculative. In any event, whether he did or not was not determinative.)
The Arbitrator’s next reference to Dr Stevans’ evidence was at [78]:
“78.The respondent submitted that the opinion of the treating psychiatrist, Dr Stevans, should be accepted if at all with caution because that doctor was reliant simply on what the applicant told him as to his employment history. In this regard[,] I note [Mr Baker] first saw Dr Stevans on 27 September 2014 [sic, 2013], the day after he first consulted Dr Zobair. The history recorded by Dr Stevans on 27 September is:
‘Has developed Major depression as a result of Workplace bullying.
Needs workcover certificate – 1 month to start with.
Commence fluoxetine 20mg mane
Review mental state in 2 weeks and consider increase to 40mg.’” (I have corrected errors in the Arbitrator’s quote from Dr Stevans so that it accords with the doctor’s notes.)
The Arbitrator then said (at [79]) it was “notable and significant” that, by 22 July 2014, Mr Baker had been abusive when he consulted Dr Rajan, a general practitioner in the same practice as Dr Zobair, when that doctor advised that he was unable to issue further WorkCover certificates for him. That was, according to the doctor’s notes, “after discussion with the other drs [sic] who have dealt with him and was found to be fit to return to work”. The Arbitrator said that Mr Baker was noted to be very abusive (and to have said) that Dr Rajan would not be his workers’ compensation doctor and (that he) left angry. The Arbitrator did not clarify why this evidence, the context of which Mr Baker fully explained, was “notable and significant”. In these circumstances, to the extent that the Arbitrator relied on it as a ground for rejecting Mr Baker’s claim, he erred because he took into account an irrelevant matter.
The Arbitrator then (at [80]) dealt with Mr Halligan’s submissions about Dr Westmore’s evidence. The Arbitrator related Mr Baker’s history to Dr Westmore that the events at work had had a cumulative effect on his mental status, and that Mr Baker had complained to managers and supervisors on numerous occasions and could not cope with it. The Arbitrator said that whatever events happened between Mr Baker and his co-workers in the course of employment, they were not productive of a psychiatric injury. This conclusion was, it seems, based on the Arbitrator’s earlier statement (at [70]) that, irrespective of what happened at work, Mr Baker suffered no psychological injury, as evidenced by the fact that he did not consult his general practitioner until 26 September 2013. I have previously explained why that conclusion was erroneous (see [80]–[85] above).
Next, the Arbitrator said (at [81]) that Dr Westmore did not appear to have been supplied with the statements of the co-workers. As previously noted, this statement was incorrect (see [131]–[132] above). He then said that Dr Westmore’s opinion on Mr Baker’s employability was made in the context of an assessment of whole person impairment and was “instructive”. He said (correctly) that Dr Westmore did not have any history from Mr Baker of the April 2014 job application and that he found Mr Baker to be totally unemployable. The Arbitrator said that that assessment “should be viewed with caution having regard to the lack of a full history” by Mr Baker as to his attempt to return to work earlier in 2014.
The Arbitrator concluded (at [83]) that “[f]or these reasons I accept the assessment of [Mr Baker] by Dr Newlyn in preference to that of Dr Westmore and Dr Stevans”.
This analysis demonstrates that, when considering the medical evidence, the Arbitrator focused his attention on the evidence from Dr Westmore and Dr Newlyn. He gave no reasons for rejecting Dr Stevans’ evidence. Though he quoted (at [79]) an extract from Dr Stevans’ clinical notes, he did not consider the doctor’s reports of 11 October 2013 and 14 November 2014. That is, he did not consider the doctor’s history, findings on examination or his diagnosis. It follows that, as Mr Baker has complained, the Arbitrator failed to consider properly Dr Stevans’ evidence or give any reasons for rejecting that evidence. Whether Dr Stevans’ evidence should be accepted or rejected is a matter for the next arbitration and I express no concluded view on that issue.
It is convenient to deal at this stage with another matter, which was developed at the oral hearing of the appeal, and is related to the assessment of the medical evidence. That is Mr Baker’s contention that the Arbitrator erred in finding that the April 2014 job application indicated that he was “not psychologically ill at that time such as to prevent him from resuming employment with the respondent” ([66]). Mr Halligan submitted that, on a reading of the whole of the decision in context, this finding was open to the Arbitrator. He relied, in particular, on the incongruity of a claimant seeking to return to a place where, a few months earlier, co-workers had allegedly bullied and harassed him.
Mr Baker’s complaint is made out. The fact that a worker has applied for re-employment with the respondent will rarely establish that the worker is not psychologically ill “such as to prevent him from resuming employment”. As explained above (at [84]), the question is whether the person was or is suffering from symptoms, which properly diagnosed, constitute an illness and the effect of that illness. That question requires a proper assessment of the lay and expert evidence. For the reasons explained above, the Arbitrator did not conduct that assessment. Though he considered Dr Westmore’s evidence, he erroneously said that Dr Westmore did not have the co-worker’s statements. More importantly, he did not consider Dr Stevans’ evidence.

Further, the application for re-employment was in the context that Mr Baker said he was “clutching at straws at that time” (T13.7 – 23 March 2015) and “not thinking clearly” (T8.4 – 23 March 2015). The Arbitrator failed to consider the significance of this evidence. He said (at [65]) that Mr Baker made the application “without pre-conditions”. That was correct, but it overlooked Mr Baker’s evidence that, if he had been offered the position, there would have had to be more conciliation about it.
On the issue of whether the illness was such as to prevent Mr Baker from resuming employment, a worker’s subjective view of his or her fitness for work will rarely be determinative, especially in a case involving a psychological injury (Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41 at [38]). The Arbitrator had to consider the evidence of the job application, and the context in which it was made, together with the other evidence in the case, especially the evidence from Dr Stevans. He did not do that.

GROUND 6: MR BAKER’S CREDIT

Submissions

Mr Baker submitted that the Arbitrator made adverse findings about Mr Baker’s credit based on the incorrect assumption that he gave evidence that he could not recall “making” the application for employment dated 14 April 2014. He said that his evidence was that he could not recall “doing” the application and that his answer was qualified.
It was submitted there is no doubt that Mr Baker conceded that the application was his and his reference to not recalling was simply him explaining the fact that he could not recall preparing the document. The Arbitrator’s finding was accordingly vitiated, so it was argued, by a misapprehension and it was not open to find that Mr Baker was not a witness of truth.
Mr Halligan submitted that, because of Mr Baker’s failure to recall compiling the job application and his failure to raise concerns about his workplace environment until 26 September 2013, the Arbitrator was entitled to draw adverse inferences about Mr Baker’s credit. He emphasised that two points swayed the Arbitrator: first, that Mr Baker made the April 2014 job application so soon after leaving work on 26 September 2013 and, second, the attempt by Mr Baker to say that he had no memory of having made that application. He said that the Arbitrator was entitled to form a view as to whether he accepted Mr Baker or not. He did not.

Discussion and findings

Mr Baker’s relevant oral evidence on this point started at T7.13 – 23 March 2015:
“Q. When you made your job application on 14 April 2014, you, as it appears on any reading of the document, were ready, willing and able to undertake the work that was outlined in the positions vacant, in the event that you were successful?
A. Look, that’s not a short answer. I can’t go yes or no to that.
Q. Well, Mr Baker, when you made the job application, it did not include any conditions about your acceptance to the position, if it was offered to you, did it?
A. No.
Q. For example, there was no suggestion made to Ms Williams that you could only work in the event, for example, that certain other employees of the cemetery were not employed there?
A. Well, that would have come up if I had an interview. But it didn’t get to that stage.
Q. Well, did you not think it important to make it clear what the conditions of your job application were, in those terms?
A. At that time, I was not thinking clearly.
Q. And certainly from a psychological viewpoint, you’ve made no indication to Cheryl Williams that there was any difficulty in your performing the job that you applied for?
A. At that time, I had been speaking to Cheryl Williams a couple of times on the phone and that took me an hour to - I don’t remember doing that application. Cheryl had encouraged me to put that application in and I thought, okay, there’s a glimmer of hope. I had always hoped to be part of the cemetery, not just in later years, but even when I was young, because my grandfather was a manager of the cemetery and my great grandfather was the manager of the cemetery. And I thought it would be a really, really good thing if I could keep that alive. You know, finish there and take up - you know, I thought it would be a great thing to follow in the footsteps of my grandfather and great grandfather.”
The evidence continued, at T8.32 – 23 March 2015:
“Q. Mr Baker, be that as it may, had you been offered the position, you would have taken it, wouldn’t you?
A. If I was offered the position, then there would have had to have been more conciliation about the position, but as I said before, I was heavily medicated at that time and I couldn’t even remember applying for it. I honestly couldn’t remember applying for it. But there’s my application and … (not transcribable).”
Mr Baker said that he had mentioned memory deficit to doctors in the past and referred to Dr Westmore having a list of questions for him to answer. In response to the suggestion by Mr Halligan that Dr Westmore did not mention a history of Mr Baker complaining of a poor memory, Mr Baker said that Dr Westmore probably did not ask him if he had a good memory. He did not know that it was correct that he had never been treated for or given advice about a memory deficiency. He said, “memory deficiency, they said well it’s kind of common when you clock up a few years, that can happen. That’s why I keep a diary” (T12.21 – 23 March 2015). (It should be noted that Dr Stevans recorded in his report of 11 October 2013 that Mr Baker’s “concentration and memory are impaired and he feels spaced out sometimes”. Further, on the issue of Mr Baker being medicated, Dr Newlyn recorded in February 2014 that Mr Baker was taking Efexor and Valium.)
The Arbitrator recorded (at [30(d)]) Mr Halligan’s submission that Mr Baker’s evidence that he had an imperfect memory of making the job application and the circumstances surrounding it “weighed heavily against his credit”. The Arbitrator said (at [63]) that he was “troubled by [Mr Baker’s] evidence that he could not remember making the job application”. At [64], he noted that Mr Baker recalled the telephone conversations he had with Ms Williams prior to the submission of the job application, that he recalled the encouragement given by Ms Williams to lodge the application, and gave reasons why he wished to pursue it. The Arbitrator concluded, at [64]:
“In those circumstances and having regard to that evidence I simply do not accept Mr Baker’s statement when he says he does not remember making the application. In my view he was probably surprised when the job application surfaced in evidence and sought to explain it away by a loss of memory thereof.”
At [74] the Arbitrator said that he had “noted above [his] reservations as to [Mr Baker’s] oral evidence”. In addition to his finding that the snubs, etc did not occur, the Arbitrator said (at [70]) that he did not accept Mr Baker’s “version as to many, if not most of” the events at work.
I accept that the Arbitrator’s finding that he did not accept Mr Baker’s evidence that he did not remember making the job application was an adverse credit finding. He effectively found that part of Mr Baker’s sworn evidence could not be accepted. Two issues arise from this: first, was that finding open to the Arbitrator and, second, what part did that finding play in his overall assessment of the claim.
Dealing with the first point, Mr Baker has submitted that it was not open to the Arbitrator to make an adverse credit finding. The distinction sought to be drawn about Mr Baker “making” the job application and “doing” the application does not advance Mr Baker’s position on appeal. The Arbitrator was well aware that Mr Baker conceded that he applied for re-employment. This is obvious from his reasons at [62] and [64], where he discussed Mr Baker’s evidence about the application.
The issue was whether Mr Baker could be accepted when he said that he could not remember completing the letter that contained the application for re-employment. Having regard to the matters Mr Baker did recall, namely the telephone conversations with Ms Williams, the encouragement from Ms Williams to submit the application (which I note appears to be disputed by Ms Williams), and his reasons for wanting to pursue it, it was open to the Arbitrator to reject Mr Baker’s evidence that he did not recall completing the job application. I do not accept that, in making that finding, the Arbitrator “failed to use or palpably misused his advantage” (Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 at 479).
The second question goes to the weight the Arbitrator attached to this finding that he could not accept that part of Mr Baker’s evidence. This question is more complicated. That is because the Arbitrator did not say that he rejected Mr Baker’s case because he found him to be a witness who lacked credit or who, generally, could not be believed. He rejected the claim for the several reasons listed at [92] above. Those reasons included the fact that he had “reservations” about Mr Baker’s oral evidence. That evidence only went to Mr Baker’s application for re-employment.
However, critical parts of the Arbitrator’s reasons, in particular the Arbitrator’s statement that the perceived snubs, etc did not occur were, for the reasons explained earlier in this decision, inconsistent with “incontrovertible facts or uncontested testimony” (Fox v Percy [2003] HCA 22; 214 CLR 118 at [27]) from the respondent’s own witnesses. The Arbitrator’s findings, on those matters were therefore erroneous, even if they were based on a credibility finding. For the same reason, the Arbitrator was wrong to express doubt as to whether many of the events complained of by Mr Baker “actually occurred, or occurred in the way in which [Mr Baker] relate[d]” them. Therefore, if the Arbitrator relied on the adverse credit finding to reject Mr Baker’s assertion that bullying and harassment occurred at work, he erred.
It is prudent to remember that an adverse credit finding does not mean that the whole of the relevant witness’s evidence must be rejected. In Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117, a case where a claimant had lied on oath, and I hasten to add that that was not the finding here, Handley JA observed that the balance of the testimony called for careful assessment to determine whether it could properly be accepted. Leaving aside Mr Baker’s evidence, a careful assessment of the balance of the evidence in the present case demonstrates that, based on real events, there were tensions at work that created a hostile work environment.
The relevance of Ex A to Mr Baker’s credit is discussed below.

GROUND 7: CHERYL WILLIAMS’ LETTER

Submissions

Mr Baker repeated the submissions made at the arbitration, by Mr Walkom, as to why the letter should not have been admitted. On appeal, Mr Baker contended that the Arbitrator admitted page one of the letter and used its contents as part of his reasoning for making an adverse finding about Mr Baker’s credit. He argued that, because Mr Baker did not have the opportunity to test the evidence, the admission of page one of the letter was grossly prejudicial to Mr Baker. He added that the admission of that document was an abuse of the Arbitrator’s discretion.
Mr Halligan submitted the letter was tendered in response to Mr Baker’s oral evidence that he had discussed on the phone with Ms Williams his immediate past history with the respondent. He said the respondent could not have anticipated, until Mr Baker’s oral evidence, the need for Ms Williams to give evidence about what was discussed in the job application. He noted that Mr Baker did not apply to test Ms Williams’ evidence.

Discussion and findings

In light of the above findings, it is not necessary to consider this ground in detail. The admission or rejection of late evidence is a matter for an Arbitrator’s discretion. There is no evidence that the Arbitrator misused his discretion or that Mr Baker suffered any prejudice because of the admission of Ex A. Mr Walkom made no application to call evidence in reply, nor did he seek an adjournment to deal with the contents of the letter. The submission that the admission of the letter was grossly prejudicial to Mr Baker is without substance and is rejected.
The real complaint under this heading, as developed at the oral hearing, was that the Arbitrator wrongly relied on Ex A as evidence of an inconsistency with Mr Baker’s oral evidence. The Arbitrator said that Mr Baker’s oral evidence was that he discussed his immediate past employment with Ms Williams on the phone prior to 14 April 2014 and that that was inconsistent with Ms Williams’ note in Ex A. The Arbitrator erred on this point.
Mr Baker’s relevant oral evidence on this issue, which I have quoted at [147]–[148] above, may be summarised as follows:
(a)     he agreed that his job application of 14 April 2014 did not include any conditions about acceptance of the position, if it was offered;
(b)     the question of only working in the event that certain other employees were not there would have come up at an interview, but it did not get to that stage;
(c)     he was not thinking clearly at the time he made the application;
(d)     Ms Williams encouraged him to put the application in (as noted earlier, this was not Ms Williams’ evidence) and he thought there was a “glimmer of hope”, and
(e)     if he had been offered the position, there would have had to have been more conciliation about the position.
Mr Baker gave the following further evidence on this point, at T10.1 – 23 March 2015:
“Q. And at no stage, of course, in the course of preparing the letter did you reflect upon or remind Ms Williams of anything that was in your immediate employment history, leading up to September of 2013?
A. No, I had discussed that with Ms Williams on the telephone.
Q. Yes.
A. It’s not appropriate to put something like that in an application. You might as well not do an application.” (emphasis added)
Mr Baker added (at T13.7 – 23 March 2015) that he believed he was “clutching at straws at that time”.
Nothing in Mr Baker’s evidence suggested or implied that he claimed he told Ms Williams that “if he were the successful applicant that there would be any conditions imposed by him”. He agreed that the application itself did not include any conditions about acceptance of the position. The question put by Mr Halligan (quoted at [164] above) was not directed to “conditions” alleged to have been put on re-employment. It was in general terms about “anything that was in” Mr Baker’s “immediate employment history leading up to September 2013” about which he reminded Ms Williams. Mr Baker’s answer was merely that he had discussed “that”, that is, his “immediate employment history”, with Ms Williams on the phone. It follows that Ms Williams’ statement, quoted by the Arbitrator, was not inconsistent with Mr Baker’s evidence and the Arbitrator erred in saying that it was.

SUMMARY AND CONCLUSION

For the reasons given above, the Arbitrator erred in:
(a)     considering the case as one involving two separate and discrete incidents or episodes, rather than one involving the cumulative effect of many incidents up to and including 26 September 2013;
(b)     determining that Mr Baker suffered no psychological injury, as a result of events up to 26 September 2013 (excluding the telephone call from Constable Taylor on that day), solely on the basis that Mr Baker had not complained to his general practitioner of bullying and harassment until that day;
(c)     finding, contrary to the incontrovertible evidence of several of the respondent’s lay witnesses, that the perceived snubs, etc did not occur;
(d)     failing to correctly apply the principles in K;
(e)     accepting (for the reasons stated by the Arbitrator) the evidence from Dr Newlyn;
(f)      discounting Dr Westmore’s evidence on the ground that that doctor had not seen the co-workers’ statements, when he had seen them and commented on their significance;
(g)     failing to consider the evidence from Dr Stevans;
(h)     taking into account, without explanation, an apparently irrelevant matter, namely the conflict between Mr Baker and Dr Rajan on 22 July 2014;
(i)      concluding, without proper regard to the lay and expert evidence, that because Mr Baker applied for re-employment with the respondent, he was not psychologically ill such as to prevent him from resuming employment with the respondent, and
(j)      finding that Mr Baker’s oral evidence was inconsistent with Ms Williams’ evidence in Ex A.
In view of the above errors, the Arbitrator’s determination cannot stand and the matter must be re-determined. Because of the credit issues involved, it is not appropriate that I conduct that re-determination and the matter will be remitted to another Arbitrator for that purpose.
It is not my job to prepare the parties’ cases for them, but I note that there were several aspects of the preparation and presentation of the case on both sides of the record at the arbitration that left much to be desired. At the re-determination, both sides will be at liberty to tender such evidence as they consider appropriate and necessary for the proper determination of the matter, subject to compliance with the Rules and any direction that the next Arbitrator may issue.

DECISION

The Arbitrator’s determination of 16 June 2015 is revoked and the matter remitted to another Arbitrator for re-determination.

Bill Roche
Deputy President

24 September 2015

I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE