Baptist Community Services NSW & Act v Smith - [2012] NSWWCCPD 5

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Baptist Community Services NSW & ACT v Smith [2012] NSWWCCPD 5
APPELLANT:		Baptist Community Services NSW & ACT
RESPONDENT:		Nichole Smith
INSURER:		Employers Mutual NSW Ltd
FILE NUMBER:		A1-4235/11
ARBITRATOR:	Mr C Tanner
DATE OF ARBITRATOR’S DECISION:		11 October 2011
DATE OF APPEAL DECISION:		2 February 2012
SUBJECT MATTER OF DECISION:		Psychological injury; evidence; alleged failure to determine issues; assessment of medical evidence
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Edwards Michael Lawyers
Respondent:	Schofield King Lawyers
ORDERS MADE ON APPEAL:		Paragraph 2 of the Arbitrator’s determination of 11 October 2011 is revoked and the following order made in its place: “2. The respondent is ordered to pay weekly compensation to the applicant pursuant to section 37 of the Workers Compensation Act 1987 from 19 January 2011 to date and continuing at the rate of $381.20.” All other orders made in the determination of 11 October 2011 are confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

BACKGROUND

The respondent worker, Nichole Smith, worked with the appellant employer, Baptist Community Services NSW & ACT, as a community carer from 28 November 2005 until her termination on 21 July 2010.
In her Application to Resolve a Dispute (the Application) filed on 24 May 2011, the worker alleged that she received psychological injuries on 27 July 2009 as a result of “ongoing workplace bullying, harassment and unfair treatment” in the course of her employment from November 2005 until July 2010. Though the date of injury was pleaded as 27 July 2009, a letter from the worker’s solicitor dated 4 August 2010 alleged that her psychological injuries occurred on dates when she was “bullied, intimidated and harassed throughout 2008, 2009, until her eventual termination in July 2010”.
The worker claimed weekly compensation in the sum of $600 from 21 July 2010 to date and continuing for herself and one dependent child. She also claimed lump sum compensation in respect of an alleged 27 per cent whole person impairment. That claim was not pursued in the present proceedings.
The appellant’s insurer denied liability on the following grounds:
(a) the worker had not suffered an injury on 27 July 2009 or at all;
(b) if the worker suffered an injury, her employment was not a substantial contributing factor to the injury, and
(c) if the worker suffered an injury, it was wholly or predominantly caused by reasonable action taken by the appellant with respect to performance appraisal, discipline, the provision of employment benefits or dismissal under s 11A of the Workers Compensation Act 1987 (the 1987 Act).
At an arbitration on 25 July 2011, the Arbitrator heard submissions from both sides, but neither side sought leave to call any oral evidence. In a reserved decision delivered on 11 October 2011, the Arbitrator accepted that the worker suffered a psychological injury, an adjustment disorder with depression and anxiety, as a result of her treatment by the appellant in March and April 2009 and in a series of incidents in the remainder of 2009 and 2010, and that her employment was a substantial contributing factor to that injury.
The Arbitrator rejected the appellant’s s 11A defence on the ground that the evidence did not establish that the worker’s injury was wholly or predominantly caused by reasonable action taken with respect to discipline. He felt that the onset of her psychological problems could be traced to an incident on 21 March 2009 and her suspension in the wake of that incident, which he felt was grossly unreasonable.
The Commission issued a Certificate of Determination on 11 October 2011 in the following terms:
“The Commission determines:
1. The respondent is ordered to pay weekly compensation to the applicant pursuant to section 36 of the Workers Compensation Act 1987 at the rate of $381.20 per week, from 21 July 2010 to 18 January 2011.
2. The respondent is ordered to pay weekly compensation to the applicant pursuant to section 37 of the Workers Compensation Act 1987, at the maximum rate payable to a worker without dependants, as gazetted periodically, with effect from 19 January 2011 to date and continuing.
3. The respondent is ordered to pay the applicant’s reasonably necessary medical expenses associated with treatment of her psychological condition, pursuant to section 60 of the Workers Compensation Act 1987, on production of accounts and or receipts.
4. The respondent is ordered to pay the applicant’s costs, as agreed or assessed.
5. The respondent’s costs are to be treated, pursuant to Clause 9 of Schedule 6 of the Workers Compensation Regulation 2010, as having been incurred in separate resolutions (under Matter No 716/11 and Matter No 4235/11), for the purposes of the calculation or assessment of costs.
6. The applicant is given leave to request reconsideration of the issue of whether she has a dependent child, and shall, to that end lodge a statement and supporting material within 14 days of issue of this Certificate of Determination.
Certification as to Costs
I certify that the matter was complex and that the costs of the parties incurred under Matter No 4235/11 shall be subject to an uplift of 30%.”

The appellant has challenged the Arbitrator’s determination.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

FACTUAL BACKGROUND AND THE ARBITRATOR’S FINDINGS

The worker’s first complaint arose out of an incident on Saturday 21 March 2009. On that day, she took a client with an intellectual disability to a social activity. The client told her “a male had broken into his house and forced him to have sex with him” and stolen money from him. The worker immediately called the appellant’s “on-call” coordinator, Mr David Hughes. She said that he was unsure about the procedure regarding sexual assault and he would call the community manager, Julie Parry, and get back to her.
The worker said that Ms Parry rang her and said that the client should be kept in his routine so as not upset him. The worker said that, given the circumstances, she did not think that was appropriate and she suggested that the client be taken home “in view of getting police and ambulance assistance”. Because she considered the allegation of rape was “too serious to just continue on as if nothing had happened”, the worker went against Ms Parry’s advice and took the client home and contacted emergency services.
The worker also complained on 21 March 2009 to Len Creamer, the appellant’s “quality representative”, about the way the incident had been handled. Ms Parry said that Mr Creamer had advised that the worker had disclosed information about the incident to him because he was the quality representative and to “get support”. The Arbitrator accepted (at [39]) that the worker was communicating with a representative who could assist her and take up her complaint.
When the worker returned to work the following Monday (23 March 2009), she made a formal complaint to Ms Parry about the inability of the appellant’s procedures to handle an allegation of sexual assault of a client. She said that her complaint was accepted and nothing was said.
On Tuesday 24 March 2009, Sarah Shaddock, a team leader with the appellant, contacted the worker and told her she was to be stood down effective immediately because she had “breached policy”. The worker understood that she was stood down because she had disclosed the sexual assault matter to her “OHS representative” (presumably Mr Creamer) and had allegedly breached the client’s privacy. The worker regarded the appellant’s actions as “a personal attack because [she] had made a complaint about procedure”.
The worker said it was “humiliating and emotionally draining due to the ‘gang up’ mentality that presented itself as coordinators and management joined together to divert attention away from their incompetence and point the finger at [her] instead”. She said that it was a “problematic time for her psychologically” and “she felt the need for medical attention”. She saw Dr Swe at Wyoming Medical Centre, who certified that she was psychologically unfit for work from 25 March 2009 until 5 April 2009. The worker said that her psychological problems were directly related to the harassment and bullying she was suffering at work. She felt extreme anxiety and deep depression at the time. Ms Parry confirmed that, following communications between herself and the worker on 25 March 2009, the worker went on sick leave supported by a general medical certificate.
The communication of 25 March 2009 was a letter from Ms Parry to the worker in which it was alleged that the worker had breached a client’s “privacy and dignity” without seeking permission to do so from the client and the client’s caseworker/coordinator, and had behaved in a manner inconsistent with the appellant’s Mission and Values.
Though Dr Swe’s certificate was not tendered, the Arbitrator accepted (at [30]) the worker’s evidence that she sought medical treatment and obtained a medical certificate certifying her unfit in March 2009. He also accepted that the treatment and certification related to “psychological problems” that developed in the wake of the worker reporting the alleged sexual assault of one of the appellant’s clients.
The events on 21 March 2009 were the subject of conflicting evidence from Ms Parry and Mr Hughes. It is not necessary to explore those conflicts in detail. What is significant is that Ms Parry said that records indicated Mr Hughes had telephoned the worker after her shift to inquire how she was and that she had said she was “not well” and “became angry about the situation”. The worker also referred to a previous incident that involved a client that had not been dealt with and “this should not have happened again”. The Arbitrator said (at [38]) that this account from Ms Parry was not compatible with the evidence from Mr Hughes, who said that he had telephoned the worker several times through the remainder of the day and she did “not indicate in any way that she was distressed or needed support”. The Arbitrator found (at [38]) that account from Mr Hughes “not plausible”.
Ms Parry gave evidence that Mr Creamer had contacted Christine Stickley, the coordinator of the client who had allegedly been sexually assaulted, to “ask why nobody had been willing to assist [the worker] on Saturday 21 MARCH 2009” and had “questioned the emergency response and time taken during the incident”. She also said that Mr Creamer “suggested that [the appellant] had a duty of care to let all staff who work with the client to know about the incident”. The Arbitrator agreed with Mr Creamer. Mr Hughes said that Mr Creamer had told Ms Stickley “he believed we had not adequately supported [the worker]”.
The Arbitrator also noted (at [41]) that the worker had made a formal complaint. His “sense” was that she “became the subject of unreasonable retaliation, and an abuse by the [appellant] of its authority”. He said that an incident in which the worker had felt a lack of support was “construed by the [appellant] as giving it cause not for self-reflection and review of its own conduct, but as the basis for taking action against the applicant”.
The Arbitrator regarded the allegations in the letter of 25 March 2009 as “grossly unreasonable” ([43]). The worker’s communication with a fellow employee (presumably Mr Creamer) was with the objective of addressing both the unsatisfactory manner in which management had dealt with the matter and her own distress. That communication did not go outside the appellant. He felt the suggestion that the worker had breached the client’s “privacy and dignity” by discussing the matter with a colleague was “absurd”.
The letter of 25 March 2009 also recorded that the worker said she was unable to attend a meeting scheduled for 26 March because of her “emotional state following an incident on 21/3/09”. The intention of the meeting was to provide the worker with an opportunity to respond to and resolve the allegations with the least distress to all involved as soon as possible.
The Arbitrator regarded the institution of disciplinary proceedings, which contemplated the imposition of disciplinary sanctions, as “inappropriate”. He regarded what had occurred on 21 March 2009 as an “issue of organisational failure” that placed the interests of a client at risk and caused distress to an employee. He said that the failure called for an objective investigation of the events, not the singling out of a wrongdoer who was required to face allegations of misconduct. He added that the appellant’s “heavy handed” approach was particularly unacceptable given the distress the worker experienced in her endeavour to attend to the client’s interest in the absence of proper support.
Ms Parry met the worker on 6 April 2009. There is no record of the detail of that meeting. After referring to the proceedings before Fair Work Australia, the Arbitrator referred to this meeting as the first time since starting with the appellant in November 2005 that the worker had received disciplinary attention. He felt that the incident, and the appellant’s response to it, was the turning point in the relationship. It was not surprising that the worker felt humiliated and that the managers had “ganged up on her”. He said that, from that moment on, the worker would have had reason to regard the appellant’s management with “circumspection if not distrust”.
The Arbitrator then referred to evidence that the worker found it “too intimidating” to attend the appellant’s offices for a meeting on 4 June 2009. In his view, this confirmed the effect on the worker’s psyche of the appellant’s conduct in March and April 2009.
The worker met with Catherine Smith, community manager, on 5 June 2009 at the appellant’s Kariong regional office to discuss “communication, rosters, [the worker’s] refusing to speak with Team Leader and office staff” and the worker’s leave. Other issues related to the worker refusing to speak to Sarah Shaddock, a team leader, responding in an aggressive manner when speaking with office staff and only partly completing her rostered day. The Arbitrator understood the worker’s issue with Ms Shaddock was that it was Ms Shaddock who told the worker on 24 March 2009 that she was to be stood down.
The worker said to Ms Parry that her unexpected leave was because of her difficulty dealing with alienation and lack of support since the March incident. She often felt unable to get out of bed to go to work. She said that she had recovered from the upset of the 21 March 2009 incident but had not overcome the distress caused because of her treatment by staff following that incident. Ms Parry said that, though the worker’s complaint had been dealt with by the manager and the human resources consultant, the worker was “having trouble moving forward”.
The meeting on 5 June 2009 also dealt with the worker’s rostered hours. The worker said that her disciplinary treatment and reduction in hours was a result of a dispute between herself and two coordinators that occurred three years earlier. The worker wanted a “fair share of work”.
The Arbitrator was satisfied that the “foundations of the applicant’s psychological condition were laid in March 2009, and were firmly in place when she disclosed details and the source of her continuing distress at the meeting on 5 June 2009” ([60]). He felt that the worker’s further experience “should be seen from the perspective of her experience of, and reaction to, the [appellant’s] treatment of her in March and April 2009” ([61]), and she would not have reacted as she did to the subsequent events had she not been treated as she was in March and April 2009. She had reasons to feel she had been targeted and the Arbitrator understood her alienation and persecution. There was a clear “escalation” in the appellant’s attention to the worker after the March 2009 incident.
There was a meeting between the worker, Catherine Smith, Mariam Khan and Amanda McShane on 19 June 2009 about correct use of communication channels, use of inappropriate communication styles, not wanting to complete rosters and taking unplanned leave. This meeting also changed the status of the meeting of 5 June 2009 from “counselling session” to “record of interview”. The worker was required to provide “an emotional clearance certificate confirming her fitness for work”. The other outcomes were that the worker was:
(a)      to have her hours increased for one month, with a review after that;
(b)     required to be flexible regarding travelling to areas of work, and
(c)     to give notice of any leave.
The Arbitrator said that this meeting illustrated the appellant’s “sense of power to increase or decrease the [worker’s] hours of work” and hence her income. It also evidenced the appellant continuing to monitor the worker following the March 2009 incident. The worker regarded the appellant’s actions in relation to the allocation of work as unfair.
On 21 July 2009, Penny DeCarle, an on-call coordinator, lodged a formal complaint against the worker about her attendance record, which was alleged to have affected a client. The worker complained about Ms DeCarle on 26 July 2009. The worker’s complaint was that Ms DeCarle had told the client that she (Ms DeCarle) was unhappy with the worker and she asked the client “if he was interested in backing up her complaint”. The Arbitrator said that this incident confirmed the continuing monitoring of the worker, and the appellant’s “resolve to take disciplinary action against her” ([67]).
On 4 August 2009, a client’s son tried to have a conversation with the worker about the size of his penis and pornographic magazines he was getting in the mail. He also tried to put his arm around her. She reported this to Catherine Smith. At a meeting of the coordinators and Mr Hughes it was decided that the worker was to be removed from any further respite services and replaced by a male worker.
Despite this, and despite the worker putting the client on her “Do Not Send List”, the worker was required to attend the client for personal care service. When the worker was rostered to attend this client in the next fortnight, the worker spoke to Catherine Smith, who said, “nothing has happened while you have been there for personal care, so you should be ok”. The worker felt that the failure to remove this client from her roster made her feel that they did not care if she was put in that situation again. It made her feel “worthless” and that they did not believe her or take her seriously.
The appellant’s version of this incident was quite different and was based on a version recorded by Ms Parry of a file note kept by Catherine Smith. Ms Parry recorded that Catherine Smith made a note that the inappropriate comments had been made by the client’s husband (not the son) and that the worker was not worried and wanted to continue. Catherine Smith did not refer to the incident in her statement and the file note was not tendered.

Given that the worker experienced the incident on 4 August 2009, the Arbitrator said that her account was “bound to be more reliable than the second-hand version” on which the appellant relied and failed to attempt to substantiate. He therefore accepted (at [77]) the worker’s account of what happened, Catherine Smith’s response, and that the worker felt a sense of worthlessness.
The worker referred to a meeting on 6 August 2009 and said that. every time she tried to contribute, Mr Hughes ignored her. When she said that she was available for any weekend work, Mr Hughes looked up and said, “OK, has anyone got anything they want to talk about?” She felt “isolated and humiliated”. She tried a couple of times to be included, but was ignored. She spoke to Catherine Smith and showed her the way Mr Hughes had released her roster for the next fortnight, which had approximately 20 hours less than in the previous fortnight, and had six days shaded (which indicated the employee was not available to be contacted for extra work).
The worker was “embarrassed, shocked and mortified at the brazen manner in which he treated [her]”. She considered that the roster was a deliberate attempt by Mr Hughes to target and victimise her. She was “humiliated and embarrassed” and had great difficulty attending future staff meetings because of the treatment by Mr Hughes on 6 August 2009. At a subsequent staff meeting, she stood for 15 minutes outside where the meeting was to be held and eventually went home feeling “deeply anxious and tearful”.
Catherine Smith’s statement acknowledged the worker’s distress at the meeting on 6 August 2009 and confirmed that the worker had complained that Mr Hughes had been disrespectful to her. Catherine Smith had been at a meeting where the worker had been promised at least 50 hours work per fortnight. She said she would look into the rostering and get back to the worker. On Saturday night, she received a phone call from the worker’s friend, Amanda McShane, who said she was concerned about the worker, who was distressed and depressed. Catherine Smith rang the worker and spoke to her. The worker said that she felt she was being undermined, being shown a lack of respect by Mr Hughes, that he had not listened to her when she was talking about clients and, when she asked for Saturday work, he gave it to someone else.
The Arbitrator felt that Catherine Smith’s evidence was significant in that she was aware:
(a)     the worker was in a very distressed state;
(b)     the worker’s agitation was not the result of disciplinary action or performance appraisal, but was related to her perception of being treated disrespectfully by Mr Hughes and being given fewer hours than she expected;
(c)     the worker had a sense of having been unfairly treated in relation to the rostering of work;
(d)     the worker “perceived mistakes in rosters as personally trying to take hours from her”.
The Arbitrator regarded the worker’s distress in August 2009 as being consistent with her sense of alienation and persecution “that became a feature of her interaction with those in authority following the incident on 21 March 2009” (at [80]). Though Mr Hughes said that management decided to ring the worker to make sure she was available to do any extra shifts she was offered, that decision had not been mentioned by any other member of management and no document to support it has been produced.
The Arbitrator referred to an account from Mr Hughes about the worker’s availability for work that he found “implausible”. That account was that the best thing for the worker was that she not make herself available for any extra shifts due to family issues. After referring to Catherine Smith’s evidence that the “overriding main issue” for the worker related to the unfair rostering of work, the Arbitrator found it “wholly improbable” (at [83]) that the worker was making herself unavailable. He felt that the worker’s real wishes were corroborated by Catherine Smith’s evidence that the worker had been promised at least 50 hours work per fortnight. The worker’s version was also corroborated by her distress on learning that her hours were down.
The worker met Mr Hughes on 15 September 2009. According to Ms Parry, as a result of a misunderstanding of the purpose of this meeting, it disintegrated in conflict. Mr Hughes became confused and upset, and the worker was distressed. The Arbitrator noted (at [86]) that the worker’s distress was not related to discipline or performance appraisal. It was a “further episode in a process of disintegration in the relationship between the worker and those in authority over her”.
On 1 October 2009, the worker noticed that every second permanent Thursday was missing from her roster. Her hours were not replaced and the appellant’s management refused to discuss it any further. The worker was upset and regarded the failure to replace her hours as “discrimination”, and as a means of getting back at her because she had complained about Mr Hughes. Given the longstanding grievance regarding the allocation of work, the Arbitrator understood her perception.
The worker also complained that her roster had been released with numerous mistakes in it. She said that was done to “boost” her hours but, when the mistakes were detected and the client removed, the lost hours were not replaced. She felt that was either incompetence or deliberate.
On approximately 13 October 2009, the worker was asked to cover a shift but, when she arrived, the work had been given to someone else. On approximately 21 October 2009, the worker found that clients who were not on the service anymore were put on her roster.
The worker felt that her psychological state was deteriorating and she met Catherine Smith in October 2009 and told her that. The worker also explained to Catherine Smith that she had days where she could not cope and that her family was so concerned that they checked on her numerous times a day. The appellant’s records confirmed this. Ms Parry said that, on 22 October 2009, Catherine Smith had documented that the worker was upset and felt unsupported. Notes the Arbitrator felt had been made by Catherine Smith recorded that the worker “became quite upset and told [her] that she was having a breakdown”. The notes added that it was difficult for the worker to have to go to work to support her financial responsibilities when she was so angry with the appellant.
Ms Parry also recorded that, on 28 October 2009, the worker had complained to Catherine Smith about mistakes made on her roster. Catherine Smith spoke to the worker about being abrupt and rude to office staff on the phone, and the worker said she spoke to them the same way they spoke to her. The Arbitrator considered this to be further evidence of the disintegrating relationship. Catherine Smith’s notes for 28 October 2009 recorded that the worker was very distressed that nothing ever got fixed up and that the appellant “had destroyed her”.
A further file note by Catherine Smith dated 30 October 2009 was noted by Ms Parry to record that the worker was “still upset about her roster and alleged mistakes”. The worker had sent a text message on that day saying that she would not do any more work until her roster problems were fixed. The worker’s distress was not related to discipline or performance appraisal. It related to her sense of unfair treatment.
On 12 November 2009, manual handling training was held at Kariong. The worker said that Mr Hughes signed her sign-off sheet to mark her “competent” when she had not even started the task. When she reached over to get her sign-off sheet, Mr Hughes said “[u]nderstand how things work around here now Dyke?” Mr Hughes denies having spoken to the worker in this way and, in the absence of corroboration, the Arbitrator was unable to prefer either version.
At the staff Christmas function on 10 December 2009, Ms Parry observed that the worker “appeared anxious and had lost weight”. The Arbitrator considered this to be further evidence of the worker’s adverse psychological condition, a condition which, at that stage, could not be considered to have been caused by action taken with respect to discipline or performance appraisal.
On 5 January 2010, Ms Parry sent an email to Olivia McGinty from human resources, stating that, at the Christmas function, the worker “appeared very anxious / unhappy and has lost weight”. It was also noted that the worker had been “fairly reliable”, despite her father’s ill health and hospitalization.
Ms Parry said that the records indicated that the worker failed to attend on clients on various dates in January and February 2010.
The worker said that, when she collected her roster on 19 February 2010, she noted that she had been given only 32 hours for the fortnight, which was in breach of her contracted minimum of 35 hours. She felt victimised, hurt and angry. She felt completely powerless and her confidence was dropping. She had felt that way since the sexual assault (presumably in March 2009) and the appellant’s reaction to it. Her continual treatment (by the appellant) was not assisting.
On 22 February 2010, the worker had a telephone conversation with an unidentified person from the appellant in which she asked why appointments with a client on 16 and 17 February 2010 had been cancelled and the hours not replaced. The author of the note recorded that the worker believed “we are deliberately keeping hours from her and will be putting it in writing”. The Arbitrator described this exchange (at [104]) as a further indicator of what Catherine Smith described as the “overriding main issue” for the worker.
On 5 March 2010, the worker attended an “interview session” with Cheyene Hawkins, a client coordinator, and Olivia McGinty, to discuss, among other things, her inappropriate workplace behaviour and her non-attendance on clients. Ms Hawkins said that “overall the meeting was quite constructive and we came to a final point”, but there were points when the worker became “quite fiery”. An “Action Plan” was discussed and “put into place” and the worker was given a final warning which she signed”. This document is not in evidence. In any event, the appellant’s response before Fair Work Australia recorded that one of the “performance management processes” included a “Warning” on 5 March 2010.
Another meeting scheduled for 24 April 2010 did not proceed because the worker felt sick driving up Woy Woy Road and did not feel she could get through the whole meeting. Ms Hawkins said she would speak to human resources for advice on how to proceed. The worker allegedly yelled angrily “I don’t give a shit”.
The appellant sent the worker an “adjusted interview letter” requesting her to attend an interview on 14 May 2010 (wrongly referred to as 14 March at [109] of the Arbitrator’s decision) to discuss:
(a)     not attending to a client on 21 April 2010 and not informing the coordinator;
(b)     not providing adequate notice for not being able to work the Anzac Day public holiday and not providing a written request for leave in line with the appellant’s policy and procedure, and
(c)     inappropriate workplace behaviour, in particular the manner in which she communicated with Ms Hawkins on “29 April 2010” (sic, 24 April).
On 3 May 2010 (wrongly referred to as 4 May in the worker’s statement), the worker saw her general practitioner, Dr Annie Ye, at Woy Woy. The worker said that, at this time, due to her treatment at work, she felt as if she was on the verge of a psychological breakdown. Dr Ye recorded in her notes:
“Depression
Duration: years
Trigger – discrimination at workplace is getting worsen [sic], she is hemosexual [sic], workplace pu[t] lots of limitation [sic] to her and keeping getting [sic] discriminated, make [sic] her depressed over the time, can not tolerate anymore, currently seek legal help as well.
Alcohol abuse: No
Other substance abuse: No
Psychological symptoms:
fatigue, tiredness
poor concentration
anhedonia: does not care about surrounding [sic], include her dt [sic], which scared herself as well”

Dr Ye’s notes also recorded that the worker should see a psychiatrist for formal assessment and the doctor strongly suggested that she see a psychologist as well.
Ms Parry said that, at the meeting on 14 May 2010, the worker received a final warning for not attending a client, as she had breached previous undertakings, and for communication mannerisms, as her behaviour had gone against previous undertakings.
On 19 May 2010, the worker saw George Salia, a psychologist. In his report of 25 October 2010, he recorded that he saw the worker on referral from Dr Ye for “assessment and treatment of anxiety and depression apparently triggered by work related stress”. He agreed with Dr Ye’s diagnosis of anxiety and depression.
On 18 June 2010, Ms Parry wrote to the worker requesting her to attend an interview with Ms Hawkins and Ms McGinty. The issues to be discussed were the non-attendance on clients on 29 March 2010 and 10 May 2010, when she claimed on her timesheet that she had attended. The worker said that these allegations were “nothing more than an attempt to further victimize” her.
Ms Hawkins wrote an email to Ms McGinty on 22 June 2010, setting out the minutes of the meeting of 22 June. The worker is recorded as having said that she did her work “as rostered” and to have questioned how she would benefit from claiming two 30-minute attendances. The worker also said, “It doesn’t matter what my response is”. The notes added that “options to resign” were discussed, but the worker said that she had decided not to resign. The Arbitrator felt it was “plain that resignation was not discussed at the worker’s instance” ([118]).
After the worker declined to resign, Ms McGinty left the room. When she returned, she said “GM decided to give one last change [sic], in a workplace where she is supervised: Will need to speak to Orana to see if work is available there”. The worker said she was threatened with transfer to the Orana aged care facility for a period until they could trust her. She said she was not going to be humiliated working in residential and have restrictions on supervision. Ms McGinty said:
“With work place disciplinary action we can adjust hours, time and duties accordingly. Another alternative is to confirm every single client you’ve been to daily. Will see if we can get you to Orana for a period of time, until we can see you can be trusted. Will need/speak confirm with Orana’s manager.”
The worker said she had no experience in residential and that her contract was not for residential. Ms McGinty said the position description was “CSE”, which was the same for residential and community services.
On 23 June 2010, Ms McGinty wrote a letter to the worker headed “Caution regarding not attending to rostered clients and claiming wages”. The letter stated:
“Following the meeting with David Hughes, you and Cheyene Hawkins on 14^th May 2010 where you were issued with a Final Warning, a complaint has been received from a clients [sic] family member that on Monday 29^th of March and Monday 10^th May that [sic] you did not attend your rostered shift, that you did not inform any staff of your absence and that you claimed wages for visiting the client.
After our investigatory meeting on June 22^nd 2010 and your statement saying that you attended the entire rostered shift we would like to remind you of your final warning you received on 14^th May, 2010 and inform you that this caution will be added to your final warning.
You are being given every opportunity to modify your behaviour so that it is in keeping with BCS Mission and Values and contributing to the high level of care provided to our clients. We remind you that not attending a shift as rostered in the future without notification to the facility or an acceptable reason will result in termination of your employment. We would also like to remind you that any inappropriate behaviour, working outside of BCS policy and procedures including fraudulently claiming of wages will result in termination of your employment.
As an outcome of this caution following your final warning you will be monitored closely and your clients will be phoned regularly to check you have attended. You will also be required to complete an individual sign off sheet for all clients visited. This sign off sheet will need to be returned to BCS Care Centre Central coast [sic] after each shift. BCS will provide you will [sic] reply paid envelopes to post these back to BCS Care Centre Central Coast. You will also need to continue to make sure you follow closely the outcomes and agreed behaviours from your warning issued 9^th March 2010 and your final warning issued 14^th May 2010.
Should you require any additional information regarding this issue, please contact me on … ”

On 20 July 2010, the appellant wrote to the worker, informing her of a meeting to be held on 21 July 2010 to discuss:
(a)     the worker claiming on her kilometres sheet she had attended a cancelled client on 30 June;
(b)     the worker’s non-compliance with the agreed behaviours outlined in the warning letter of 9 March which included responding to “redcoal and text messages”;
(c)     the worker’s non-compliance with reasonable directives as outlined in the caution following the final warning, which included completing daily client sign off sheets, and
(d)     the worker not attending a scheduled interview as directed on 20 July 2010 and not informing her coordinator or human resources of her inability to attend.
The worker met Ms Hawkins and Ms McGinty on 21 July 2010. The minutes of that meeting record that the worker admitted the claiming of kilometres when she had not attended the client was a genuine mistake. She knew the client had been cancelled. With regard to returning messages, the worker said that she did return messages, but not consistently. She gave various reasons why she might not have returned messages: no time, no credit, she forgot to respond because she was driving when she received the message, or the location had no signal. She never ignored the message. With respect to messages that the worker failed to respond to on 20 July 2010, she said that she had been on family leave. With respect to not completing the daily sign-off sheets, the worker said that she did not agree that she should have to do it if she “was found not guilty”.
The meeting adjourned for 10 minutes and Ms McGinty returned and said:
“Unfortunately given your performance management history, the counselling, the warning, the final warning, the additional caution after your final warning and given you haven’t complied with these and also have claimed kilometres when you didn’t travel we will have to terminate your employment.”
The Arbitrator felt that the worker had discharged the onus of proving injury and that her employment was a substantial contributing factor to her injury. He did not accept the evidence from the appellant’s qualified psychiatrist, Dr Lee, which he felt was “gratuitous and an exercise in advocacy for the benefit of those who sought his opinion”. His analysis of Dr Lee’s evidence is discussed further below. He preferred the evidence of Dr Akkerman, the worker’s qualified psychiatrist, Dr Ye, and Mr Salia, who diagnosed the worker to have an adjustment disorder with depression and anxiety caused by work.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)     failing to consider the worker’s allegation of discrimination;
(b)     finding that the appellant sustained injury;
(c)     finding that the appellant’s conduct in relation to the events on 21 March 2009 was unfair;
(d)     regarding the event on 21 March 2009 as significant;
(e)     concluding that a medical certificate not in evidence certified medical attendance and treatment for psychological problems;
(f)      awarding weekly compensation from 19 January 2011 at the maximum rate payable to a worker without dependants;
(g)     finding that the worker’s performance deficiencies resulted from psychological injury sustained in the course of her work, and
(h)     rejecting the evidence of the appellant’s psychiatrist, Dr Lee.

It is convenient to deal with these issues under the following headings, taken from the appellant’s submissions: the worker’s allegations, diagnosis, the events of March 2009, and award under s 37.

THE WORKER’S ALLEGATIONS
Submissions

The appellant’s solicitor, Mr Michael, who did not appear at the arbitration, has submitted that the Arbitrator misconceived the nature of the worker’s claim and failed to properly consider the relevant evidence. In particular, the Arbitrator made incorrect assumptions or conclusions about the correctness of the worker’s perception of the relevance and significance of the events in the workplace. As a result, he incorrectly rejected the appellant’s medical case.
The claim was “raised” by the tender of medical certificates from Dr Ye dated 27 July 2010 and 6 September 2010, which recited a date of injury of 27 July 2009. It was conceded that this date was in all likelihood a mistake by Dr Ye, who probably intended to record it as 27 July 2010. Under “How the injury occurred”, the certificates recorded “depression and anxiety due to discrimination at workplace”.
The Application pleaded a date of injury of 27 July 2009, and the nature and conditions of employment from November 2005 until July 2010. The description of how the injury occurred is “as a result of ongoing workplace bullying, harassment and unfair treatment”. Similar allegations were made in the letter of claim from the worker’s solicitors dated 4 August 2010.
Mr Michael then referred to the medical histories recorded by Drs Ye, Akkerman and Lee, and Mr Salia.
On 3 May 2010, Dr Ye recorded a history of “discrimination at workplace is getting worsen [sic], she is hemosexual [sic], workplace pu[t] lots of limitation [sic] to her and keeping getting [sic] discriminated”. On 24 August 2010, Dr Ye recorded a history of “workplace discrimination make [sic] her feel like sub-class, humiliated, depressed mood is getting worse over the time”.
Dr Akkerman’s history was that the worker’s treatment “happened in the background of discrimination”. He added that Ms Parry and Mr Hughes “took work off her. She said they do not like her because she is homosexual” and “a variety of false allegations were made”.
Mr Salia recorded that the worker “had various allegations made about her work and honesty and she felt she was being observed. Nichole said she was upset and angry and believed that the harassment was the result of some other staff or management believing she was ‘gay’”.
Dr Lee recorded that the worker denied any pre-existing psychological problems, though she experienced a great deal of discrimination over the years because “people think I’m a dyke when I’m not” and she “knew she was not liked by David Hughes when she first started due to her appearance”. He also recorded:
“Over the years she has experienced a lot of discrimination because of her appearance. She was once abused at the Mardi Gras. She perceives and is claiming in her legal suits, that David Hughes does not like her because someone who looked like her must have stolen his first girlfriend for him to hate her so much. She told me that Christian organisations are the most homophobic ones around.”

The worker’s statement alleged that Mr Hughes addressed her as “dyke” (see [51] above) and that she felt hurt by that. The worker’s statement made no other reference to her perceived sexuality or appearance. It was submitted that it was important to commence with an assessment of what the worker perceived to be the cause of her grievances at work.
After referring to State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 (Chemler), Mr Michael said that the worker expressed grievances about events in her workplace, in particular the number of hours that were allocated to her on her roster. However, on a proper analysis of the medical opinions, “the nexus between these events and any psychological condition suffered by the worker was her misperception that the underlying motivation of those supervising and working with her was founded upon discrimination” and there is no evidence (with the exception of the reference to the statement by Mr Hughes) that any person in her workplace:
(a)     believed the worker was homosexual;
(b)     said she was homosexual, or
(c)     took exception to or was critical of her appearance.
While the worker’s own concerns about her appearance and/or perceived sexuality may have ultimately informed her own psychological state in a significant way, such matters had nothing to do with the nature and conditions of her employment. This analysis would be sufficient basis upon which to find against the worker on the issues of injury and substantial contributing factor. The Arbitrator erred in failing to conduct this analysis.
These submissions are supported, so it was argued, by an analysis of the appellant’s conduct in its dealings with the worker. The appellant had concerns about the worker’s performance from December 2007 and onwards. The records demonstrate that it was at pains to bring its concerns to the worker’s attention, to give her an opportunity to respond, and to obtain a consensual approach to rectifying any shortcomings.
Far from demonstrating a vindictive discriminatory attitude, a great deal of the material records concern for the worker’s position and attempts to accommodate her needs within the operational requirements of the appellant organisation. Reference was made to Catherine Smith’s expression of concern on 22 October 2009 at the worker’s distress (see [48] above) and to the evidence that Catherine Smith made arrangements to tell the worker that “if she attended to all work rostered to her she would be paid for 50 hours per fortnight even if she fell short by a few hours”.
The appellant called the worker to account from time to time in respect of performance issues, in particular for failing to attend rostered jobs, failing to advise of her unavailability to attend rostered jobs, inaccuracy in time sheets, and her lack of civility in her dealings with other staff. This action was appropriate and reasonable and cannot constitute harassment, bullying or discrimination.
In addition, calling the worker to account in respect of her performance constituted discipline, the monitoring of her work constituted performance appraisal, and the allocation of shifts constituted the provision of employment benefits. If these actions were taken because the appellant had a set against the worker, or because its employees believed she was homosexual, they could not constitute reasonable action. However, such a finding was not available.

Discussion and findings

For the reasons set out below, the Arbitrator’s approach involved no error.
In determining if the Arbitrator failed to deal with the worker’s allegations, it is necessary to consider the pleadings and particulars, the evidence, and the way the parties argued the case at arbitration.
The pleadings and particulars were unsatisfactory. The Application alleged that the worker’s psychological injury occurred “[a]s a result of ongoing workplace bullying, harassment and unfair treatment”. It did not refer to discrimination. The letter of claim dated 4 August 2010 was little better. It referred to “nature and conditions of employment”, which was meaningless, but added, in the alternative, that the worker pleaded her psychological injuries occurred on dates that she was bullied, intimidated and harassed throughout 2008, 2009, until her eventual termination in July 2010.
Employers Mutual disputed liability in a s 74 notice dated 24 September 2010. One of the issues relevant to the decision to dispute liability was “the factual evidence which fails to corroborate your allegation of discrimination”. As there was no allegation of discrimination in the letter of 4 August 2010, the reference in the s 74 notice to discrimination must be a reference to Dr Ye’s certificates and hand written report in response to questions from Employers Mutual dated 19 August 2010 (Dr Ye’s response is dated 24 August 2010 at the foot of the document). In that “report”, Dr Ye said that “workplace discrimination make [sic] her feel like sub-class, humiliated, depressed”. In her first WorkCover certificate, dated 27 July 2010, Dr Ye referred to “depression and anxiety due to the discrimination at workplace”.
While the Commission is not bound by strict pleadings, applicants for compensation must properly particularise the basis of their claims. The worker’s pleadings were unsatisfactory. However, when read with the particulars and the material from Dr Ye, it is clear that Employers Mutual accepted that at least part of the claim alleged discrimination in the workplace. Whether the pleadings and particulars provided a proper basis for an allegation of sexual discrimination is doubtful but, given the way the parties argued the case before the Arbitrator, is not critical.
While Dr Ye’s notes and first WorkCover medical certificate referred to discrimination at work, which was getting worse, and then added that the worker was homosexual, she did not suggest that the worker’s psychological condition resulted from sexual discrimination. Her evidence, when read as a whole, does not support the appellant’s argument on appeal.
The appellant has selectively quoted from Mr Salia’s history. His full history in his report of 25 October 2010 is as follows:
“Nicole [sic] (DOB XXX) was referred to me by Dr Annie Ye of Woy Woy for assessment and treatment of anxiety and depression apparently triggered by work related stress. Nicole [sic] presented as a somewhat agitated and depressed woman. She said she [was] employed by Baptist Community Services as an Assistant in Nursing to care for clients in the community in the Woy Woy and Kariong areas of the Central Coast. She said she had been employed for about 4.5 years and contracted to work 35 hours per fortnight. She said she enjoyed her work and got on well with her clients. She said she had a strong commitment to her work and to her clients and felt that she had enjoyed good relationships with fellow workers. She said however that in the past year or so that things had changed. She was beginning to feel harassment in the form of bullying from her supervisor. She said that her working conditions had changed; her work hours had been gradually reduced and some of her clients and days had been given to other workers. She said she was excluded from training opportunities, had various allegations made about her work and honesty and felt she was being observed. Nicole [sic] said she was upset and angry and believed that the harassment was the result of some other staff or management believing she was ‘gay’. She felt physically unwell, cried easily and suffered disturbed sleep.
Nicole [sic] said the situation became worse after she took action in March this year to assist a male client who reported to her that he had been sexually assaulted and robbed. She said she reported the matter to a work manager but was not satisfied with the advice she was given (basically to take no action) and that she took it upon herself to organise medical and police assistance. She said she also made a complaint to her manager about lack of procedures to deal with sexual assault matters. Nicole [sic] said that she was victimised and stood down for about four days as a result of this incident and felt humiliated when allegations were made against her for fraudulent behaviour eg falsifying time sheets; not doing work as directed; not turning up to see clients and falsifying work records. Nicole [sic] said that these claims were baseless and she was outraged that these allegations could be made against her. She said that when she returned to work (because there was no evidence against her) she was told that she was being monitored and was given onerous directions to comply with such as phoning in frequently, having forms completed and signed by clients and other tasks that made her job more difficult. She said that she had lost work hours and felt that her supervisor was making things deliberately hard for her. She said she had seen this happen before to others and believed that it was being done to make her ‘quit’ but she was not a ‘quitter’. Nicole [sic] also said that she believed that the harassment against her was having a negative impact on clients and she was concerned about them. She said that two other workers had resigned over similar treatment in the past but she would not. Nicole [sic] also said that she was worried about her depression and also about her daughter’s health. She said that reduced hours meant that money was tight and she was having difficulty meeting her financial obligations. She was frustrated, angry and fearful of the future.”
Mr Salia had also been provided with the worker’s statement, which he said was generally consistent (though provided more detail) with the history he took. When read in its proper context, Mr Salia based his opinion on the totality of the history, not on the selected parts relied on by the appellant. He did not conclude that the worker suffered a psychological injury because of sexual discrimination. Rather, he concluded that the worker was clearly disturbed and affected by her “situation at work” and that “being mirco managed and having allegations made against you is inherently a stressful experience but when one believes that they are being bullied and that the accusation[s] are unfounded then the stress level is exacerbated”. In these circumstances, the alleged sexual discrimination was of little, if any, relevance to his conclusion.
While Dr Akkerman recorded a history that the appellant did not like the worker because she was homosexual, that statement must also be read in the context of his full history, which was:
“She is a 38 year old woman. She lives in Woy Woy. She lives with her daughter who is 19.
She is well.
Her GP is Dr Ye.
She worked for Baptist Community Service at Kariong since 2005 as a Community Carer.
She worked different hours and on average worked 20 hours per week.
I enquired as to what the cause of her problems were? She said it started in March 2009. There was an incident with a respite client who had been sexually assaulted by another male. She said that this was not handled properly. She said the Supervisor did not show up for 1 ½ hours. She had to deal with the Police and the client.
She was not supported and she had to continue to work the next day. She said that this happened in the background of discrimination. It happened before. She said this mainly happened from Julie Parry and David Hughes.
They took work off her. She said they do not like her because she is homosexual. She said that other workers contributed to this but to a lesser extent.
As a consequence she was alienated from the team. A variety of false allegations were made. She was told that she was not doing her work. They said she was not turning up for work and she claimed work she did not do.
As a consequence she was issued with warning letters and eventually fired on 21 July 2010.
She fought an unfair dismissal case and she says they have settled out of court. She said that her Lawyer said that the settlement was favourable but she herself was not happy with it. She did not disclose the exact terms of the settlement. However she was not reinstated.”

The worker told Dr Akkerman that she believed she had a psychological disorder and that it started in March 2009. Dr Akkerman then listed her symptoms and noted that she was seeing a psychologist (Mr Salia) for treatment and was on antidepressant medication. Dr Akkerman had also been provided with the worker’s statement and said that it was consistent with the history provided to him. He concluded that the worker’s condition had been caused by work.
As with Mr Salia’s evidence, Dr Akkerman’s reference to “they do not like her because she is homosexual” must be read in its proper context. Given that he had the worker’s statement, which, apart from the reference to Mr Hughes allegedly using the word “dyke”, made no reference to discrimination because the worker was, or was believed to be, homosexual, it is clear that Dr Akkerman did not base his conclusion on an allegation of sexual discrimination.
Dr Lee recorded that the worker denied any pre-existing psychological problems. That history was correct. He added that the worker said she had experienced a great deal of discrimination over the years because “people think I’m a dyke when I’m not”. She said that she knew she was not liked by Mr Hughes when she first started because of her appearance. Dr Lee added that “she perceives and is claiming in her legal suits, that David Hughes does not like her because someone who looked like her must have stolen his first girlfriend for him to hate her so much. She told me that Christian organisations are the most homophobic ones around”.
Dr Lee concluded that the worker’s “report with regard to symptoms is unreliable”. However, her described behaviour suggested paranoid personality traits. He said that she dismissed concerns about her performance as trivial and perceived, in a “somewhat paranoid way”, that this was due to unsubstantiated discrimination against her appearance by David Hughes, “which may be seen as an example of projection characteristic of personality dysfunction”. Whether this conclusion was correct required a detailed examination of the evidence. After conducting that examination, the Arbitrator rejected Dr Lee’s conclusions.
Turning to the submissions at the arbitration, counsel for the worker made several references to Mr Hughes allegedly using the term “dyke” (T5.18, T7.14, and T8.21). He made the following submission at T26.23:
“She felt in October 2009 she was being isolated, being discriminated against if I can use that word, again, it’s general terms, being discriminated in relation to the roster, discrimination in relation to her sexuality, the comments made by Mr Hughes and so on.”
Counsel made no submission that the worker had been discriminated against because of her appearance.
Counsel for the appellant referred to Dr Ye’s notes, which recorded a history of discrimination in the workplace and that the worker was homosexual, but properly noted that the words “she is hemosexual [sic]” (T13.44) were in commas, thus raising a doubt about the meaning to be attributed to them. He then pointed to the inconsistent histories recorded by Dr Ye and Dr Lee about whether the worker was homosexual and submitted (at T14.8) that the Arbitrator “ought to approach … what is said [by the worker] with a degree of scepticism”. Appropriately, he took the matter no further and he made nothing like the submissions Mr Michael has put on appeal.
The Arbitrator analysed the evidence in detail and, rather than accepting the worker’s complaints at face value, looked for corroboration. Critically, he felt that the incident on 21 March 2009 and its aftermath was the “turning point in the relationship” (at [50]) between the worker and the appellant and that the “foundations of the applicant’s psychological condition were laid in March 2009” (at [60]). After further analysis, he found, based on the evidence from the worker, corroborated by Catherine Smith, that the “overriding main issue” for the worker related to the unfair rostering of work (see Arbitrator’s decision at [80], [83], [104] and [161]). He described the worker as having become consumed with a sense of grievance regarding the allocation of work to her, which was “a significant contributor to [her] decompensation” (at [161]).
Dealing specifically with the allegation of discrimination, the Arbitrator said (at [87]) that the worker “regarded the failure to replace her hours as ‘discrimination’ and as a means of ‘getting back at [her], directly affecting [her] wage’ because she had complained about Mr Hughes”. He noted the evidence about Mr Hughes using the term “dyke”, but was unable to determine if he had done so. He also noted the histories recorded by Dr Ye and Dr Akkerman about the worker being homosexual, but made no specific finding on whether the worker suffered discrimination because she was, or was thought to be, homosexual.

The Arbitrator’s approach was open to him and, given the evidence and the way the case was presented, perfectly reasonable. Though the worker’s counsel did refer to “discrimination in relation to her sexuality”, that was not the whole or even the main part of her case. As the appellant has submitted on appeal, the only potential evidence of sexual discrimination was in the use of the term “dyke” by Mr Hughes. The Arbitrator was unable to determine if he had used that word and, given the evidence and the perfectly proper and appropriate submissions by the appellant’s counsel at the arbitration, it was not necessary for him to spend more time on that issue.
Having found that the incident on 21 March 2009 and the rostering issues were of critical importance, and sufficient to support the worker’s claim, it was unnecessary for the Arbitrator to deal further with the sexual discrimination “issue”. That is especially so where it did not figure in the worker’s statement, it was only part of the medical histories, and the appellant’s counsel (appropriately) dealt with it in context of viewing the worker’s evidence with “scepticism”. Given the Arbitrator’s close analysis of the evidence and his search for corroboration, he clearly viewed the worker’s evidence with a degree of circumspection. That was consistent with the approach urged by the appellant’s counsel.
The appellant’s arguments on appeal have sought to elevate the alleged sexual discrimination out of context and to run a case that was not presented by its counsel at the arbitration. The Arbitrator dealt with the issues presented and his analysis and conclusions disclose no error. The appellant’s approach on appeal was surprising, to say the least.
The remaining submissions under this heading deal with the appellant’s attempts to accommodate the worker’s needs and with performance issues, which, Mr Michael submitted, were appropriate and reasonable and could not constitute harassment, bullying or discrimination (see [87]–[89] above).
These submissions have again ignored the Arbitrator’s reasons. The Arbitrator correctly found that the worker’s injury was caused by actions that did not come within s 11A. He found, for example, that the worker’s distress in October 2009 related to problems with her roster, which was not a performance appraisal or discipline matter. Further, he found that her anxious appearance at the 2009 Christmas party could not be attributed to action taken with respect to performance appraisal or discipline. Those findings were open to him and disclose no error. In these circumstances, and noting that the appellant has not challenged the Arbitrator’s determination that the s 11A defence had not been made out, the general submission that the appellant’s actions were appropriate and reasonable does not advance the appellant’s position.
The appellant’s reliance on the evidence of Catherine Smith is surprising. Her evidence strongly supports the worker’s case that she (the worker) felt that she had been unfairly treated by the unfair allocation of work. The worker complained to Catherine Smith about mistakes in her roster and Catherine Smith confirmed that the worker was upset and felt unsupported. Catherine Smith’s notes for 28 October 2009 confirmed that the worker was very distressed that nothing ever got fixed up and that the appellant “had destroyed her”. This distress did not relate to matters relating to performance appraisal, discipline or the provision of employment benefits.

DIAGNOSIS

Submissions

The appellant’s essential challenge under this heading is that the Arbitrator erred in rejecting Dr Lee’s opinion. The point made, among others, was that his reasoning was circular: having concluded that the worker had established injury, he then considered Dr Lee’s opinion.
In addition, the following points were made under this heading:
(a)     the diagnosis to some extent depends on the respective doctors’ or psychologists’ findings on causation;
(b)     Dr Akkerman and Mr Salia both proceeded on an assumption that the worker was discriminated against on the basis of her sexuality or perceived sexuality;
(c)     Dr Ye’s first comment on causation was more guarded. She said that “so the employment maybe a contributing factor” (see the handwritten response to Employers Mutual dated 24 August 2010);
(d)     Mr Salia accepted the worker at face value when she reported discrimination and harassment, and had not been able to examine the likelihood of other contributing factors. He said that to what degree the worker’s allegations were true was not known. Dr Akkerman did not express such a caveat or reservation;
(e)     Dr Lee obtained from the worker “elements of history about discrimination against her, not necessarily in the workplace and apparently because of her appearance”. He was the only medical practitioner or psychologist who received any insight into the employer’s perspective of events in the workplace. It was upon this factual information that he formed the clinical diagnosis that the worker had paranoid personality traits and psychosocial and environmental problems;
(f)      Dr Lee’s analysis and conclusions are supported by factual assumptions that can be and have been made out, and are logical and persuasive;
(g)     the Arbitrator wrongly criticised, as unfounded speculation, Dr Lee’s suggestion that there may have been external stressors that explained, to some extent, the worker’s presentation. There is a foundation in the evidence for a finding of external stressors. There is evidence of:
(i)a threat against the worker’s daughter necessitating her attendance at a police station;
(ii)the worker saying that her life did not revolve around clients and “another [sic] things [sic] has gone wrong for her”;
(iii)her daughter being hospitalised for an operation;
(iv)her father being ill in December 2009 and having a brain tumour, and
(v)the worker saying to Mr Hughes regarding her availability to work because of “everything happening in her life with family”.

Discussion and findings

The above submissions have largely ignored the Arbitrator’s reasons.
The Arbitrator’s reasoning was not circular, as the appellant has suggested. At [134], he correctly observed that the worker carried the onus of establishing that she suffered an injury in the course of her employment and that her employment was a substantial contributing factor to that injury. He said at [135]:
“The applicant discharges her onus without difficulty. The evidence is replete with observations by the respondent’s own witnesses of a manifest distress on the part of the applicant. There is no suggestion that this distress resulted from experiences external to the applicant’s employment.”
This statement was correct and I have set out a detailed summary of the evidence in support of it earlier in this decision. While there were other potentially stressful events in the worker’s life in 2009 and 2010, the Arbitrator correctly concluded that there was no suggestion (in the contemporaneous evidence) that her distress had resulted from those events. It is of no consequence that the conclusion expressed by the Arbitrator at [135] came before his analysis of Dr Lee’s evidence. What is important is that the Arbitrator carefully considered and analysed the evidence. He gave extensive and valid reasons for rejecting Dr Lee’s evidence.
First, he said that Dr Lee’s assessment was gratuitous and an exercise in advocacy for the benefit of the insurer ([137]). Given the other criticisms the Arbitrator made of Dr Lee’s report, this conclusion was not surprising.
Second, the Arbitrator’s statement that Dr Lee’s suggestion that the decline in the worker’s work performance was “possibly due to family pressures” involved “unfounded speculation” ([139]) was open to him. The evidence referred to by the appellant on appeal does no more than establish that there were other events in the worker’s life in 2009 and 2010 that may have been stressful. There is no persuasive evidence that the worker suffered any psychological reaction to those events. Ms Parry’s email of 5 January 2010 suggested that the worker had been “fairly reliable” despite her father’s illness.
The Arbitrator correctly observed that the period to which Dr Lee referred was “the last 12–15 months”, which, based on Catherine Smith’s statement, took the time back to approximately April 2009, when the events after the incident on 21 March 2009 were still unfolding. The decline in the worker’s performance started after that incident, not after any major domestic upheaval.
Third, in response to Dr Lee’s statement that there was no evidence to substantiate that the worker had been unfairly treated, as she alleged, the Arbitrator correctly observed (at 140]) that it was not necessary for the worker to establish that she had been unfairly treated. To the extent that Dr Lee believed that she did, he took the wrong approach, and that undermined the weight to be attached to his evidence.
Fourth, the Arbitrator thought it was surprising that Dr Lee had not considered the relevance of the events on and relating to 21 March 2009 as a trigger for the worker’s descent. The Arbitrator felt that the significance of the March 2009 incident as an explanation for the worker’s distress, and the ensuing breakdown in her relationship with the appellant’s management, should have been obvious to Dr Lee.
An examination of the objective chronology of events since March 2009 supports the Arbitrator’s conclusion and I agree with it. As noted above, there is no persuasive contemporaneous evidence that family pressures caused the worker’s psychological condition. At its highest for the appellant, it might have been argued that the worker was a vulnerable personality. That does not advance the appellant’s case: employers must take their employees as they find them (Chemler at [40]). I agree with the Arbitrator’s statement (at [141]) that the worker’s suspicion and anger were “plainly a product of [the worker’s] sense of ill-treatment by the [appellant’s] management in late March and early April 2009”. Dr Lee’s failure to deal with that critical issue undermined the weight to be attached to his opinion.
Fifth, Dr Lee dismissed the respondent worker’s report with regard to her symptoms as “unreliable”. As the Arbitrator correctly observed, the appellant’s witnesses observed and noted the worker’s symptoms over a substantial period. Mr Salia also observed the worker’s agitated state. I agree with the Arbitrator that Dr Lee’s failure to acknowledge the worker’s symptoms was consistent with his failure to acknowledge the obvious relationship between the symptoms in March 2009 and the work issues at that time. It seriously undermined his opinion.
Sixth, once the “family pressures” were properly eliminated, Dr Lee failed to adequately explain why the worker’s paranoid personality traits appeared in April 2009. The only plausible explanation was that they appeared as a result of the incident on 21 March 2009 and its aftermath.
Seventh, the Arbitrator said that Dr Lee showed no appreciation of the detail, or effect, of the events experienced by the worker in March and April 2009 and took no time to consider the worker’s concern regarding rostering problems. I agree.
Last, it follows from the above analysis that, contrary to the appellant’s submissions on appeal, Dr Lee’s conclusions were not supported by factual assumptions that were made out and were logical and persuasive. By asking if the worker had been unfairly treated and by failing to consider the effect of the 21 March 2009 incident, Dr Lee’s opinion was fundamentally flawed, and the Arbitrator was right to reject it.
I do not accept the other submissions made by the appellant under this heading. Those submissions were based on the false premise that Dr Akkerman and Mr Salia assumed that the worker was discriminated against on the basis of her sexuality or perceived sexuality and that they based their conclusions wholly or mainly on that assumption. That was not correct. As explained above, the reference by Dr Akkerman and Mr Salia to any alleged sexual discrimination against the worker must be read in its proper context. That was not the basis of their conclusions.
Dr Ye’s statement that “the employment maybe a contributing factor” was one small part of the evidence. It did not reject, or even undermine, the worker’s claim. On reading all of Dr Ye’s evidence, she clearly supported the connection between the worker’s psychological condition and her employment.
Mr Salia’s acceptance of the worker’s complaints at face value was consistent with the Arbitrator’s findings and does not assist the appellant on appeal unless it is established that the Arbitrator erred in accepting the worker’s complaints. The appellant has not established any such error.
The submission about Dr Lee’s history of discrimination against the worker, not necessarily in the workplace and apparently because of her appearance, was unhelpful and did not advance the appellant’s case. Dr Lee’s reference to the worker having experienced a lot of discrimination because of her appearance, and that she was once abused at the Mardi Gras, was of limited, if any, relevance to the issues the Arbitrator had to determine.
While it is true that Dr Lee was the only expert to receive an insight into the employer’s perspective of the events at work, that did not overcome the shortcomings in his report identified by the Arbitrator and discussed above. I do not accept that Dr Lee formed his clinical diagnosis wholly or mainly on the basis of the factual information provided by the appellant. While that information was a factor, he clearly based his clinical diagnosis on his view that the worker’s “report with regard to her symptoms is unreliable”. For reasons already explained, the Arbitrator (rightly) did not accept that the worker’s complaints were unreliable.

THE EVENTS OF MARCH 2009

Submissions

The appellant has argued that the Arbitrator erred in two respects in finding that the events of 21 March 2009 and following were significant. First, “the Arbitrator incorrectly characterised the events with his analysis being laden with value judgments not supported by the objective facts”, and, second, he “afforded more significance to this single event than the evidence warrants”.
The appellant conceded that, while there was no doubt that the worker was “upset by the events which occurred on 21 March and following, that she took sick leave supported by a medical certificate, no further conclusion can be drawn as to her psychological health or otherwise” because the evidence was silent in that regard. There was no suggestion that the worker had previously made a workers compensation claim in respect of that period of absence.
In drawing the inference he drew at [30] – that the worker sought or obtained medical treatment at that time or that any treatment and certification related to psychological problems – the Arbitrator erred, and his error has resulted in a misdirection of his subsequent factual inquiry and assessment of later events. This was one reason he incorrectly attributed the worker’s subsequent performance issues to a work-related psychological condition. His error was compounded by his incorrect conclusion that the worker was the subject of unreasonable retaliation ,which constituted an abuse by the appellant of its authority.
By describing the appellant’s actions as heavy-handed, the Arbitrator “incorrectly assessed the process that was at play”.
The appellant had asked the worker to attend a meeting in relation to two allegations. The purpose of the meeting was to decide whether the allegations were correct. There was no objective basis to conclude that the request to attend such a meeting constituted harassment or intimidation. To the extent that he concluded otherwise, the Arbitrator erred.

Discussion and findings

I do not accept the appellant’s submissions.
The evidence overwhelmingly supports the Arbitrator’s conclusion that the foundations of the worker’s psychological condition were laid in March 2009. She had suffered no emotional or psychological problems prior to that date. Several of the appellant’s witnesses supported the conclusion that the worker suffered a significant reaction to the March 2009 incident. Ms Parry’s evidence confirmed that Mr Hughes had telephoned the worker after her shift to inquire how she was and that the worker told him that she was “not well”.
The worker saw Dr Swe in March 2009 because of psychological problems relating to the 21 March 2009 incident. Though Dr Swe’s certificate was not in evidence, the Arbitrator’s conclusion as to the reason for the worker’s attendance was open on the evidence. That evidence included evidence from Ms Parry that the worker went off sick on a general medical certificate after the communication of 25 March 2009. The letter of 25 March 2009 confirmed that the worker was unable to attend a meeting on that date “due to [her] emotional state following an incident on 21/3/09”.
I agree with the Arbitrator that the appellant’s actions with respect to the 21 March 2009 incident were inappropriate. Given that the appellant suspended the worker, without a hearing, because of an alleged breach of privacy when she merely spoke to Mr Creamer to “get support” in circumstances where she felt the appellant’s procedures were defective, the Arbitrator did not err in describing the appellant’s actions as “heavy handed”.
In the circumstances, the Arbitrator did not err in concluding that the incident on 21 March 2009, and its aftermath, was significant in the overall history of the matter and onset of the worker’s psychological problems. When one examines the chronology of events, as set out earlier in this decision, the compelling conclusion is that there was a serious deterioration in the worker’s relationship with the appellant after 21 March 2009. It was open to the Arbitrator to accept the worker’s evidence that, among other things, she had difficulty dealing with alienation and lack of support since the March incident and that she perceived that she had been discriminated against with respect to the allocation of work, which became the “overriding main issue”.
The evidence was not silent as to the consequences of the 21 March 2009 incident. The worker gave evidence, which the Arbitrator accepted, that she found the incident humiliating and emotionally draining due to the “gang up” mentality of the managers. She also said that she found it “too intimidating” to attend the appellant’s offices for a meeting on 4 June 2009. This evidence and the Arbitrator’s conclusions were consistent with Dr Akkerman’s history that “it started in March 2009”. The fact that the worker made no claim for compensation for the time off in March 2009 is of no consequence.
The appellant’s submissions about the Arbitrator’s reasons at [30] of his decision are surprising, to say the least. The worker’s evidence, which the Arbitrator accepted, was that March 2009 was a “problematic time for her psychologically and she felt the need for medical attention”. As a result, she saw Dr Swe who, she said, certified that she was psychologically unfit from 25 March 2009 until 5 April 2009. The Arbitrator noted that the medical certificate from Dr Swe was not in evidence, but the appellant had not contested the worker’s allegation and Ms Parry confirmed that the worker had time off supported by a general medical certificate. The Arbitrator stated that he accepted the worker’s evidence that the treatment she received and the certification from Dr Swe related to “psychological problems” which developed in the wake of her report regarding the alleged sexual assault on a client. The Arbitrator’s conclusion did not involve an inference, but the acceptance of the worker’s direct evidence.
The submission that the Arbitrator drew an incorrect conclusion that the worker was the subject of unreasonable retaliation which constituted an abuse by the appellant of its authority was not supported by any reasoned argument and I do not accept it. The reference to unreasonable retaliation by the appellant was a reference to the worker’s suspension after she had complained about the inability of the appellant’s procedures to handle the allegation of sexual assault. That conclusion was open on the evidence. Given the timing of the suspension, the Arbitrator’s conclusion was not only open but was logical and compelling.

The submission that the Arbitrator’s description (at [46]) of the appellant’s actions as “heavy handed” incorrectly assessed the process that was at play, was also not developed with any reasoned argument. It is unclear what the expression “process that was at play” meant. For the reasons explained above, the Arbitrator’s description of the events following 21 March 2009 was open to him and did not involve any error.
The next submission followed the submission dealing with the Arbitrator’s reference to the appellant’s actions in March 2009, but referred to the Arbitrator’s decision at [108]. The submission was:
“The employer had asked the worker to attend a meeting in relation to two allegations (R108), to decide whether the allegations were correct was the purpose of the meeting.”
I assume the reference to “R108” was a reference to paragraph [108] of the Arbitrator’s decision. At [108], the Arbitrator said:
“Ms Hawkins, having provided her account of the meeting on 5 March 2010, refers to the respondent’s requirement that the applicant attend a further meeting on 24 April 2010 with Ms Hawkins and Mr Hughes. The meeting did not proceed on that date. According to
Ms Hawkins, the applicant “stated she was unwell, had felt sick driving up the hill (Woy Woy Road) and did not think she could get through the whole meeting”. Ms Hawkins states that she told the applicant that she “would need to speak to HR for advice on how to proceed”. According to Ms Hawkins, the applicant “yelled very angrily and abruptly ‘I don’t give a shit’.”

The appellant added that there was no objective basis to conclude that the request to attend “such a meeting constituted harassment or intimidation” and, to the extent that the Arbitrator concluded otherwise, he erred.
The meeting on 24 April 2010 had no connection with the incident on 21 March 2009. The Arbitrator did not conclude that the request to attend any meeting amounted to intimidation or harassment and the appellant’s submission is misguided.

AWARD UNDER S 37

Submissions

By the application of s 37(2) of the 1987 Act, the total weekly payment under s 37(1) “shall not exceed the worker’s current weekly wage rate”. The parties agreed at the arbitration that the worker’s current weekly wage rate was $381.20. The appellant submitted that the Arbitrator erred in awarding compensation in an amount (the statutory maximum for a worker without dependants) that exceeded the current weekly wage rate.
The worker submitted that the award appeared to be in conflict with s 37(2) and that this aspect of the appeal was capable of determination on appeal without the need for the matter to be remitted.

Discussion and findings

Given that the parties agreed that the current weekly wage rate was $381.20, the Arbitrator erred in awarding compensation at the maximum statutory rate for a worker with no dependants from 19 January 2011 to date and continuing in breach of s 37(2) and that part of the determination must be revoked and a new determination made.
This decision should not be taken as endorsing the parties’ approach to the calculation of the current weekly wage rate.

CONCLUSION

Contrary to the appellant’s submissions, the Arbitrator considered the parties’ respective allegations. He accepted the worker’s case and rejected the appellant’s case. Neither his approach nor his conclusion discloses any error. The suggestion, made at the end of the appellant’s submissions, that the Arbitrator failed to assess the clinical material is simply false and is not supported by any reasoned argument. The Arbitrator did not pose the wrong question, but considered the issues argued by the parties and supported his conclusions with detailed reasons. Save for the correction of the s 37 issue, which could have been achieved by consent without the filing of an appeal, this appeal was without merit and should not have been filed.

DECISION

Paragraph 2 of the Arbitrator’s determination of 11 October 2011 is revoked and the following order made in its place:
“2. The respondent is ordered to pay weekly compensation to the applicant pursuant to section 37 of the Workers Compensation Act 1987 from 19 January 2011 to date and continuing at the rate of $381.20.”
All other orders made in the determination of 11 October 2011 are confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Bill Roche

Deputy President
2 February 2012

I, MARGOT UNDERCLIFFE, 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