Barden v Walgett Shire Council

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Barden v Walgett Shire Council [2022] NSWPIC 706
APPLICANT:	Christopher Dale Barden
RESPONDENT:	Walgett Shire Council
Member:	Gaius Whiffin
DATE OF DECISION:	8 December 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for psychological injury; claims for weekly compensation and treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act); consideration of applicant’s and other witnesses’ statements, medical reports and other treatment records, claim correspondence and factual material; consideration of the reliability of evidence; Withyman v State of New South Wales and Paric v John Holland (Constructions) Pty Limited considered; consideration of whether the applicant sustained a ‘disease injury’ pursuant to section 4(b) of the 1987 Act in relation to which his employment with the respondent was the main contributing factor; AV v AW and Attorney General’s Department v K considered; consideration of whether the respondent can establish (pursuant to section 11A of the 1987 Act) that the applicant's injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to discipline, termination, or the provision of employment benefits; Pirie v Franklins Limited, Department of Education and Training v Sinclair, Manly Pacific International Hotel Pty Limited v Doyle, Insurance Australia Group Services Pty Limited v Outram, Ponnan v George Weston Foods Limited, Temelkov v Kemblawarra Portugese Sports and Social Club Limited, Smith v Roads and Traffic Authority of NSW, Hamad v Q Catering Limited and ACR v Grace Worldwide Pty Limited considered; consideration of whether (and if so, to what extent) the applicant has been incapacitated for work as a result of the injury, since 14 April 2021; consideration of whether the applicant is entitled to reasonably necessary medical and treatment expenses pursuant to section 60 of the 1987 Act; Held – the applicant contracted a ‘disease’ injury pursuant to section 4(b) of the 1987 Act, in relation to which his employment with the respondent was the main contributing factor; the injury will be deemed to have occurred on 14 April 2021 (that being the first date of his incapacity) in accordance with section 15(1)(a)(i) of the 1987 Act; the respondent has failed to establish (pursuant to section 11A of the Act) that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to discipline, termination, or the provision of employment benefits; the applicant was incapacitated for work as a result of the psychological injury between 14 April 2021 and 17 September 2021; during that period he had no current work capacity; the applicant has otherwise failed to establish that he has been incapacitated for work as a result of the psychological injury since 18 September 2021; the applicant is entitled to have his reasonably necessary medical and treatment expenses pursuant to section 60 of the 1987 Act paid by the respondent, in relation to the psychological injury deemed to have occurred on 14 April 2021; award for the applicant pursuant to sections 36 and 37 of the 1987 Act between 14 April 2021 and 17 September 2021, award for the respondent thereafter; award for the applicant pursuant to section 60 of the 1987 Act.
determinations made:	1. The applicant contracted a ‘disease’ injury pursuant to s 4(b) of the Workers Compensation Act 1987 (the Act), in relation to which his employment with the respondent was the main contributing factor. The injury will be deemed to have occurred on 14 April 2021 (that being the first date of his incapacity) in accordance with s 15(1)(a)(i) of the Act. 2. The respondent has failed to establish (pursuant to s 11A of the Act) that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to discipline, termination, or the provision of employment benefits. 3. The applicant was incapacitated for work as a result of the psychological injury between 14 April 2021 and 17 September 2021. During that period, he had no current work capacity. 4. The applicant has otherwise failed to establish that he has been incapacitated for work as a result of the psychological injury since 18 September 2021. 5. In accordance with the agreement between the parties, the applicant’s pre-injury average weekly earnings is $1,123.92. 6. The applicant is entitled to have his reasonably necessary medical and treatment expenses pursuant to s 60 of the Act paid by the respondent, in relation to the psychological injury deemed to have occurred on 14 April 2021.
orders made:	7. There will be an award that the respondent pay the applicant weekly compensation pursuant to s 36(1) of the Act from 14 April 2021 to 13 July 2021, at the rate of $1,067.72 (as adjusted if necessary to apply relevant indexing) per week. 8. There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(1) of the Act from 14 July 2021 to 17 September 2021, at the rate of $899.14 (as adjusted if necessary to apply relevant indexing) per week. 9. There will be an award for the respondent in relation to the applicant’s claim for weekly compensation payments from 18 September 2021. 10. There will be an award that the respondent pay the applicant’s reasonably necessary medical and treatment expenses pursuant to s 60 of the Act.

STATEMENT OF REASONS

BACKGROUND

Christopher Barden (the applicant) is 42-years-old and commenced employment around 2015 as a full-time urban maintenance worker at the Collarenebri depot of Walgett Shire Council (the respondent). He has not however worked for the respondent or any other organisation since 14 April 2021.
The applicant alleges that he sustained a psychological injury due to events which occurred during the course of his employment with the respondent. He also alleges that due to this injury, he has been incapacitated for employment since 14 April 2021, and is entitled to payments of weekly compensation, as well as payments for his medical and treatment expenses, since that date.
On 10 August 2021, the respondent issued a notice denying liability under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the applicant's claim in relation to his psychological injury. The respondent later reviewed that notice on 26 November 2021, and confirmed its denial of liability. The applicant has as a result not received any payments of weekly compensation, or any payments for his medical and treatment expenses, since 14 April 2021.
By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (the Commission), the applicant claims weekly compensation from 14 April 2021 to date and on a continuing basis pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act). The applicant also claims medical and treatment expenses pursuant to s 60 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties agree that the issues in dispute are as follows:
(a) whether the applicant sustained a ‘disease injury’ pursuant to s 4(b) of the 1987 Act - in relation to which his employment with the respondent was the main contributing factor;
(b) if the answer to (a) is in the affirmative, whether the respondent can establish (pursuant to s 11A of the 1987 Act) that the applicant's injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to discipline, termination, or the provision of employment benefits;

(c) if the answer to (a) is in the affirmative and the answer to (b) is in the negative, whether (and if so, to what extent) the applicant has been incapacitated for work as a result of the injury, since 14 April 2021, and
(d) if the answer to (a) is in the affirmative and the answer to (b) is in the negative, whether the applicant is entitled to reasonably necessary medical and treatment expenses pursuant to s 60 of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The dispute has an extensive procedural history before the Commission. It was initially listed for a teleconference on 3 March 2022. The respondent then foreshadowed that it would seek leave to cross-examine the applicant at an arbitration hearing, and the dispute was therefore listed for conciliation/arbitration on 29 April 2022 by MS Teams platform (there being no face-to-face arbitration hearings being listed at that time due to COVID 19), rather than by telephone.
On 29 April 2022, Mr Paul Stockley of counsel appeared for the applicant, instructed by Ms Pearce. Mr Ross Hanrahan of counsel appeared for the respondent, instructed by Ms Ralph, and Messrs Underwood and Payne (directly representing the insurer) were also present. I granted leave to the respondent to cross-examine the applicant as I considered that I would be assisted if I heard oral evidence from him. A recording was made regarding discussions concerning this application. However, the applicant was experiencing considerable connection difficulties with his link to the MS Teams platform, and it was therefore agreed between the parties that the cross-examination should proceed on a further date at a face-to-face arbitration hearing, as such hearings were now able to be listed when necessary.
The dispute was therefore listed for a face-to-face arbitration hearing on 17 June 2022. On that occasion, Mr Stockley was instructed by Ms Cugalj, with the applicant being present in person and being supported by Ms Flick. Mr Hanrahan was instructed by Ms Ralph, with Mr Payne also present.
The parties identified the issues in dispute (see paragraph 5 above), and the ARD, respondent’s Reply (Reply), and the applicant’s application to admit late documents dated 22 April 2022 (applicant’s AALD) were admitted into evidence. The parties’ agreement in relation to the applicant’s pre-injury average weekly earnings (PIAWE) at $1,123.92 was noted.
The applicant gave oral evidence (which was recorded), and orders were then made for both parties to provide written submissions. The applicant provided submissions dated 25 June 2022, and the respondent provided submissions dated 19 July 2022.
Upon reviewing the evidence and the submissions, I felt compelled to express a preliminary view, which I included in a direction to the parties dated 8 August 2022 – as follows:
“In accordance with the respondent’s written submissions (paragraph 72) lodged with the Commission on 19 July 2022, the Commission affords both parties the opportunity to address it in relation to the statement evidence of George Masoudi, which it finds to be untruthful, unreliable, and self-serving. The preliminary view of the Commission in this regard is that it will be rejecting that evidence where it conflicts with the evidence given by the applicant. This opportunity is provided to accord with procedural fairness and is in accordance with Finney Pty Limited t/as Cut Price Car Rentals v Chequer [2021] NSWPICPD 13.”
I listed the dispute for a further arbitration hearing on 29 September 2022. On this date, Mr Stockley was instructed by Ms Barras, with the applicant being present on a (occasionally unreliable) MS Teams link. Mr Hanrahan was instructed by Ms Chaplin, with Mr Underwood also present. The respondent had arranged for George Masoudi (Masoudi) to also be present, and it called him to provide oral evidence. There were some robust discussions between Mr Hanrahan and myself regarding the preliminary view expressed in the 8 August 2022 direction prior to Masoudi giving oral evidence. The discussions were recorded along with the oral evidence.
During the discussions between Mr Hanrahan and myself, I clarified my preliminary view, specifically mentioning:
(a)    I was impressed with the oral evidence given by the applicant despite the distress that he was under at the time – he had calmly answered Mr Hanrahan’s questions, agreed with Mr Hanrahan when necessary, and generally given evidence consistent with his statement evidence;
(b)    I was concerned with why Masoudi (according to his statement evidence) had not advised Raju Ranjit (Ranjit) that the reason for the applicant’s behaviour on 14 April 2021 related to a timesheet of his which had (for whatever reason) not been submitted – instead, Masoudi only mentioned that the applicant had “walked out and left work” and was disrespectful - Ranjit confirms (in his statement evidence) that neither the email that he received from Masoudi on 14 April 2021 nor his subsequent conversation with Masoudi mentioned an unsubmitted timesheet, and
(c)    I was concerned with Masoudi advising (in his statement evidence) that he did “not really know the details of what Chris was alleged to have done, which was investigated by Council” and that he had not been told “anything about the allegations or what occurred”, whereas Peter Ricardi (Ricardi) had provided statement evidence that he had prepared a performance management plan for the applicant which he provided to Masoudi so that Masoudi could discuss it with the applicant.
After Masoudi’s oral evidence, the parties were then directed to provide further written submissions. The applicant provided submissions dated 7 October 2022, and the respondent provided submissions dated 20 October 2022.
I am grateful for the assistance provided to me by both parties in the provision of two sets of written submissions.
On 29 September 2022, I also made an order that the respondent lodge an Application to Admit Late Documents, and it has since lodged that application dated 6 October 2022. In the applicant’s written submissions dated 7 October 2022, he does not object to the application, and the application and its attached documents will therefore be admitted into evidence.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the ARD and attached documents;
(b)    the Reply and attached documents;
(c)    the applicant’s AALD and attached documents, and
(d)    the respondent’s application to admit late documents dated 6 October 2022 (respondent’s AALD) and attached documents.

Oral evidence

As noted, oral evidence was given by both the applicant (on 17 June 2022) and Masoudi (on 29 September 2022).

Applicant’s evidence

The applicant relies upon three statements given by him. The first statement was prepared by an investigator appointed by the respondent, following meetings with the applicant on 31 May 2021 and 3 June 2021. The statement can be found (without its annexures) at page 1 of the ARD, and (with its annexures) at page 32 of the Reply.
In the first statement, the applicant says that he has seven children, five of whom are dependent upon him. He is separated from his partner, and resides with his mother-in-law. His partner lives next door to him. They live in Collarenebri.
In the statement, the applicant says that he has been employed by the respondent for around six years as an urban maintenance worker at its Collarenebri depot. He was supervised by Masoudi.
He attended a meeting on 27 January 2021 with Ranjit (the respondent’s director of engineering and technical services) and Ricardi (the respondent’s acting urban utilities manager). A union delegate, Tony Fuller (Fuller) also attended the meeting.
The applicant was advised by Ranjit that he was being investigated for “timesheet fraud” and would be stood down from his employment while that investigation was progressing. He was told that the respondent had been using vehicle tracking on his work vehicle. He explained to Ranjit that he had worked on the days when he was being accused of timesheet fraud, but had used his personal vehicle on those days as one or more of his children were sick on those days and he had to take them with him. He was not allowed to take his children in the work vehicle, and so he used his personal vehicle instead.
Ranjit had some paperwork in front of him while he was speaking to the applicant but refused to provide the applicant with copies of the paperwork, even though the applicant asked why he had not been provided with evidence of the days when he was being accused of timesheet fraud prior to the 27 January 2021 meeting. The applicant says that Ranjit advised him that he would be provided with the evidence later.
Fuller advised the meeting that vehicle tracking could not be used “for this purpose”, and after being told by Ranjit to keep quiet, Fuller advised the applicant to terminate the meeting and seek legal advice. The applicant then terminated the meeting and was stood down from his employment with full pay. The applicant says that he felt that he was being targeted by Ranjit.
The applicant then received a letter from Ranjit confirming that he was being investigated for hours not worked, overtime claimed incorrectly, and not inspecting some facilities, during the weeks ending 22 November 2020 and 20 December 2020. The letter did not enclose any of the paperwork requested by the applicant during the 27 January 2021 meeting.
On 3 February 2021, the applicant received a letter from Michael Urquhart (Urquhart – the respondent’s general manager) requesting that he provide a response to the respondent as to why he should keep his job, prior to 17 February 2021. He was then to attend a further meeting on 24 February 2021.
The applicant obtained the assistance of his union to prepare a letter in response, which is dated 12 February 2021. The letter is annexed to the statement and at page 48 of the Reply.
In the letter, the applicant again noted that he had still not been provided with any documentary evidence as to his alleged timesheet fraud. He also noted that he had not been supplied with copies of his timesheets or vehicle tracking data, so that he could explain the “alleged discrepancies”.
In relation to the respondent’s claim that he had not worked certain hours, the letter stated:
“Not once have I claimed for hours not worked as I have stated within this letter that if I have needed to have any of my dependant children with me during the hours that I have needed to work I have used my own personal work vehicle so that I did not break any rules by having them within the work vehicles, not at any stage did my dependants go onto any workplace while preforming duties required of me whilst on call”.
In relation to the respondent’s claim that he had claimed overtime incorrectly, the letter stated that he was given a directive on 17 December 2020 that required him to submit timesheets to cover days in advance of when the timesheets were submitted – he could therefore only estimate on the timesheets the overtime hours that he would be required to work on those days.
In relation to the respondent’s claim that he had not inspected some facilities, the letter asked for more evidence and claimed that he had used his personal vehicle to inspect those facilities.
The letter concluded:
“I have a young family who are established within the Collarenebri community. If Council was to terminate my employment, this would place serious financial hardship on my family and I as employment within the community is scarce, and I feel that I would be unable to find employment elsewhere. I love my job, and have always given my fullest. I take pride in all that I do.
I now understand the importance of correctly recording plants hours on timesheets and pledge that I will correctly record this information in the future.
In closing, I would like for you to review the issues highlighted above and take into consideration all that I have said. In making your determination about my future employment with Walgett Shire Council, I ask that you consider my commitment, dedication and genuine care of Council and the Walgett Shire community.”

The applicant then attended the meeting on 24 February 2021 with a union representative, Jamie McKinnon (McKinnon). He says he was told that the respondent was no longer investigating the timesheets which had been completed in December 2020, but that it was still investigating discrepancies when he claimed to be “working on call and on overtime”. McKinnon requested more information. Urquhart said that he would continue to be stood down from his employment. The applicant says that he was upset during the meeting because he felt like Ranjit was “looking for problems to sack me”.
The applicant says that he next attended a meeting on 17 March 2021, at which McKinnon, Ricardi, Ranjit, and Urquhart were all present. He was given some vehicle tracking records at this meeting. McKinnon complained about the use of the vehicle tracking records, alleging that they “can only be used for emergency purposes and for insurance reasons”. The applicant was questioned about how he did his work if he was not using his work vehicle. The applicant replied that everything that he needed to do for his work was in the storerooms at the places where he was required to work. The applicant was then questioned as to whether he took his children onto the worksites, and he advised that he did not as they stayed in his vehicle.
The applicant says that he was at this point “getting a bit upset and cranky”, and he therefore excused himself from the meeting to go outside. McKinnon later found him outside and told him that he would be starting work with the respondent again on 18 March 2021 on a probation period, with no overtime or weekend work for three months.
The applicant says that he therefore returned to work on 18 March 2021, and was provided with a final warning letter on this date, which he signed.
On the same day, Masoudi saw him picking up rubbish as part of his employment duties. He says that Masoudi “sarcastically” told him not to pick up all the rubbish that day, but to leave some for the following day. He also says that when this comment was made, Masoudi “was intentionally trying to wind me up to get my angry so Council would then have a reason to sack me”.
On 19 March 2021 (a rostered day off of his), he says that he received a telephone call from Shannon Farr (an acting supervisor) telling him that Ranjit had telephoned wanting to know why he was on a rostered day off. He says that following this conversation, he felt like Ranjit “was trying to get information on me so that I could be sacked”.
On 23 March 2021, the applicant informed Masoudi that he may need to leave work at lunchtime as he had sick children. Masoudi said that he still had to work and accused him of shouting. He asked fellow workers if he was shouting, and they said that he was not. He continued to work, but later in the day, he heard a fellow worker (Trent Smith) and Masoudi laughing in relation to a personal errand that Smith had performed during work time. He says that he felt angry because “everything I was doing was being checked up on but Trent was laughing with George about doing errands in work time and didn’t get in trouble”.
On 25 March 2021, a fellow worker was drinking a beer during work time in front of Masoudi, and Masoudi did not discipline him. The applicant says that this was another case where he felt that he was being targeted by the respondent because fellow workers “were not getting into trouble for doing the wrong thing”. The following day, he says that Masoudi asked him who drank the bottle of beer, even though Masoudi saw who it was. He says that he believes Masoudi “was trying to get me to say that I drank it so it was an instant dismissal for me”.
On 30 March 2021, the applicant says that he informed Masoudi that his eldest child had mental health issues, and that he would therefore need to take that day and probably the following day off work. He says that there are cameras at the workplace which would show them talking.
On 12 April 2021, the applicant says that he sent a text message to the supervisor’s mobile phone advising that he was unwell and would not be at work. He was still sick and not at work on the following day when he received a telephone call from Masoudi in the afternoon, requesting that he attend the respondent’s depot. He did so, and Masoudi then handed him a letter from Ranjit requesting that he attend a meeting on 15 April 2021 at the respondent’s chambers in Walgett.
On 14 April 2021, he says that he attended work to give Masoudi a medical certificate for his sick leave during that week. He says:
“I saw my timesheet from the week before sitting on the desk right in front of George. I said, ‘How come my timesheet is still sitting on the desk?’ He said sarcastically, ‘I forgot, I’ll take it to Walgett for you.’ I said, ‘Fuck me dead George, you know I am under investigation for this, this is another law for Raju to sack me.’ I grabbed my timesheet and medical certificate off the desk and left the depot and drove my own car to Walgett to hand in my timesheet and medical certificate myself. I put the papers on the Payroll desk so I knew they got there. The medical certificate gave me the week off from the 12^th of April to the 16^th of April 2012. I had taken the certificate into work so that council knew I would not be at the meeting on 15^th of April 2021 with Raju”.
On 18 April 2021, Masoudi hand delivered to the applicant’s home a letter dated 19 April 2021 from Ranjit requesting that the applicant show cause why he should keep his job.
On 28 April 2021, the applicant says that he emailed to the respondent a record of the events which occurred on 14 April 2021 which he had handwritten. The record is annexed to the statement and at page 52 of the Reply. The record is consistent with the information given in the statement (see paragraph 45 above).
The applicant then says that he consulted with his general practitioner (Dr White) on 3 May 2021, and obtained a certificate of capacity. He was referred for counselling.
On 5 May 2021, the applicant says that he was informed by a lady working at his local service station that she had been approached by Carol Smith on behalf of the respondent to apply for his job. He considers the respondent’s actions here to be a breach of his privacy.
On 2 June 2021, the applicant says that he was asked by the respondent to indicate on a map the roads he travelled when he used his own vehicle while working for it. He did so, and the map is annexed to the statement and at page 54 of the Reply. The map shows the roads that the applicant travelled to the airport (about 3km from his home) and to the filtration plant (about 600m from his home).
The applicant says that he has been taking antidepressant medication and sleeping tablets since January 2021. His doctor told him to increase the dose of that medication in March 2021. He also says that prior to January 2021, he had not suffered any psychological illness.
He says that since he has been off work, he has been trying to keep his mind busy by engaging in activities with his children, who “give me a lot of hope and actually make me better”.
In relation to the applicant’s explanation for using his personal vehicle while performing work activities, he says:
“There were a few different dates that I have taken my littlest kids with me in my own car. I can’t remember which kids I took on which date. They have been sick with different illness at different time such as a tummy bug and had temperatures. I did not take my kids to the doctors as there are always picking up bugs that are going around the town. I don’t get my older kids to look after my younger kids cause they are my responsibility. My ex-partner does care for the kids with me but I am their father and I have very close bond with all of my children. There are times that they only want to be with me. As an Indigenous person I take my relationship very seriously with all of my kids”.
The applicant’s second statement was signed on 15 November 2021, and can be found at page 17 of the ARD. The statement includes references to events which occurred in 2018 and 2019.
On a date in 2018, he says that he was in the respondent’s depot at Collarenebri, when a number of locals were fighting and throwing rocks at each other outside. One of the locals came into the depot, and when he asked that local to leave, he was cornered by a number of locals. He found the incident very intimidating.
Following the incident (which he reported to the respondent), he was repeatedly threatened, including death threats, by some of the locals involved in it. These threats often occurred as he was performing his work duties for the respondent. He says the threats were “extremely distressing and frightening”.
He says that he was astonished when one of the locals involved in the incident served him with an application for an apprehended violence order. He requested that the respondent represent him and it refused. He says that he felt “ostracised and completely unsupported”, and he therefore accepted that the order be made against him “just to get the issue over and done with”.
When the order came up for review 12 months later, he says that he understood the order was then revoked after he employed a solicitor and statements (which had been obtained by the respondent following the incident) were submitted to the Court. He says however:
“I felt completely disillusioned and depressed about the situation. I found myself still being subject to threats and at one point I felt so low in myself that I attempted suicide”.
In the 15 November 2021 statement, the applicant also advises that since last working on 14 April 2021, he had continued to be treated by Dr White, and had also attended upon a psychologist and a psychiatrist. He was taking anti-depressant medication and sleeping medication, and he considered himself incapable of doing any work.
The applicant’s third statement was signed on 24 March 2022, and can be found at page 4 of the applicant’s AALD. In this statement, the applicant says:
(a)    the incident that he referred to in his second statement as occurring in 2018, in fact occurred in mid 2017;
(b)    Graham Murray and his daughter (as well as other friends and family of his) are identified as the perpetrators of the intimidating and threatening comments made after this incident – the threatening behaviour occurred regularly (often multiple times in a day) until 2019, and was even occurring in 2021 - the threatening behaviour was not possible to avoid in a town as small as Collarenebri – he found the behaviour made him “fearful for my safety every day I went to work”;
(c)    he was unaware of any prohibition by the respondent that prevented him from using his personal vehicle to travel to worksites;
(d)    the respondent’s procedure in relation to the submission of timesheets was that they needed to be signed in front of a supervisor, who would then submit them – he says that in relation to the timesheet that Masoudi did not submit (and that he then had to personally deliver on 14 April 2021), he signed that in front of Masoudi during the week previously;
(e)    he was unable to obtain medical certificates in late 2021 and early 2022 as Dr White was in New Zealand, and
(f)    in relation to his psychological condition, he continued to feel depressed and worthless, he was unable to concentrate or motivate himself, he was wary of other people and found it difficult to interact with them, and he had difficulty sleeping - he did not believe that he could “maintain enough concentration and motivation to stay in any job for any length of time”.
As noted, the applicant also gave oral evidence to the Commission. He was briefly examined in chief by Mr Stockley, then cross-examined by Mr Hanrahan, before a brief re-examination by Mr Stockley.

I witnessed the demeanour of the applicant while he was giving oral evidence, and I have since listened to a sound recording of that evidence again. It is my opinion that the applicant was clearly extremely nervous while giving his evidence, as he was visibly shaking throughout. He also became quite distressed while giving his evidence, which I noted on the record.
I nevertheless appreciated the opportunity to hear oral evidence from him. My overall impression of the evidence was that he answered questions without obfuscation, while doing his best to remember the circumstances surrounding events which were distressing to him. I certainly formed a positive view as to his credit after hearing his oral evidence.
In examination in chief, the applicant confirmed that he remained an employee of the respondent’s but had not worked for it since April 2021. He also confirmed that he continued to consult with Dr White (following the doctor’s return from overseas around Easter 2022), and that his symptoms and his medication had not changed during 2022. He further confirmed that Collarenebri was a small town and that the respondent’s depot was only 200m from his home. Four other employees of the respondent’s both lived in Collarenebri and worked at its depot there.
Under cross-examination, the applicant admitted that now “I do not go near Council. I do not talk to them”. However, he maintained that he had not lost respect for the respondent when he left the depot to deliver his timesheet to Walgett on 14 April 2021.
He maintained that he was not part of any Toolbox meeting on 14 April 2021 (and therefore did not ‘walk out’ of that meeting), as he had only attended the respondent’s depot in order to deliver a medical certificate to Masoudi. However, he then saw that his timesheet for the previous week was still on a table in the smoko room and “I wasn’t upset - I was just cranky that he left my timesheet there and I’ve been under timesheet investigation and George knew that”. The applicant knew how important the submission of timesheets was following his meetings with the respondent earlier in 2021. The applicant however denied yelling or being loud or aggressive to Masoudi.
The applicant was read paragraph 28 of his first statement (quoted at paragraph 45 above) and maintained that since he had commenced his employment with the respondent, it had always been the responsibility of his supervisor to ‘sign off’ timesheets, which were then put in a yellow folder (located in a desk in the supervisor’s office), before they were either driven to Walgett by the supervisor or picked up by someone from Walgett each Monday. All staff followed this procedure. He denied that the submission of timesheets was his responsibility.
He maintained that he had put his timesheet on Masoudi’s desk “with everyone else’s timesheets” the week before the events of 14 April 2021, and Masoudi was then to “sign off on them all – he puts them in a yellow envelope”. The applicant had no explanation for how the timesheet got to the smoko room on 14 April 2021 as he was not at work after leaving the timesheet on Masoudi’s desk until 14 April 2021. He advised that Masoudi had told him that he had forgotten to submit the timesheet.
The applicant was questioned about not advising the respondent as to his absence from work on 13 April 2021. He maintained that on that morning, he did advise Masoudi by text message, and Masoudi replied “ok” by text message.
The applicant was questioned about the beer drinking episode (see paragraph 42 above). He maintained that a co-worker had drunk the bottle of beer in front of Masoudi the day before Masoudi questioned him about whether he drank the bottle of beer. He said he felt “very upset about it because George singled me out”.
The applicant was questioned about the attitude of Masoudi to him, and it was put to him that Masoudi attempted to make him feel comfortable on his return to work after 18 March 2021. The applicant disagreed and claimed that Masoudi regularly checked his work not to support him but “to see if I messed up”. It was then put to the applicant that his attitude that people were ‘out to get him’ was not really the case, and the applicant replied that that was the way he felt.
The applicant was questioned generally about his explanation regarding his timesheet discrepancies, that he used his personal vehicle on the dates when there were discrepancies. He agreed that he could see that there could be “a bit of a mix-up here with what is personal and what is work”.
The applicant was finally questioned about the Murray episode (see paragraphs 55-58 above) in 2017. He was still under the understanding that the apprehended violence order protected Murray, rather than himself. He claimed that the episode still impacted him, even four years later, as he still did not ‘go near’ the Murrays, or talk to them, or even visit their street.
The episode happened at work - the applicant confirmed that he was attacked by Murray during the course of doing his work when Murray chased his grandson-in-law into the respondent’s depot, and he told them to leave the depot. The applicant however also conceded that his issues with the Murrays were “aside from your job at the Council”.
In re-examination, the applicant confirmed:
(a) Masoudi had not been his supervisor prior to 18 March 2021 – in fact he had never worked with Masoudi prior to that date, and
(b) following the Murray episode, he requested help from the respondent and asked for a transfer, but no help or transfer was given.
In the ARD, the applicant also relies upon two letters sent to the respondent by his union, the United Services Union. The first letter (page 34 of the ARD) is dated 8 March 2021, and alleges that:
“Given the period of time that Mr Barden has been suspended and the nature of the investigation has now changed from the initial letter dated 22 January 2021, the Union alleges that Council is in breach of the aforementioned clause by not properly conducting the investigation and continually changing the terms of reference of the investigation, and also by not speedily concluding the investigation”.
In this regard, the “aforementioned clause” was cl 37C(vi) of the Local Government (State) Award 2020 which imposes on employers an obligation to properly conduct and speedily conclude workplace investigations concerning unsatisfactory work performance or conduct. The reference to the respondent changing the nature of its investigation referred to the respondent advising on 25 February 2021 that it would not be “looking into any of the working hours allegations and would investigate Mr Barden’s ‘Call outs’ and ‘Weekend’ timesheets”.
The letter specifically notes that the applicant had been suspended “with pay” since 28 January 2021, and that the union would seek the assistance of the New South Wales Industrial Relations Commission if the applicant was not allowed to return to work immediately. It also advises:
“The whole process up to this point has placed a serious burden on Mr Barden mentally and has impacted on his family life”.
The second letter (page 36 of the ARD) is dated 22 April 2021. It notes that:
(a)    the applicant had provided the respondent with a medical certificate stating that he was unfit for work between 12 April 2021 and 16 April 2021;
(b)    the respondent in any case sent Masoudi to collect the applicant in order to take him to a meeting in Walgett on 15 April 2021, and
(c)    after the applicant failed to attend that meeting, Ranjit advised that Masoudi would be hand delivering a Notice to Show Cause to him on Sunday, 18 April 2021.
The union requests that the Notice to Show Cause be withdrawn, failing which it would seek the assistance of the New South Wales Industrial Relations Commission. The letter notes:
“The Union finds this process unreasonable and provocative. We allege that Council has not provided Mr Barden with any procedural fairness by not rescheduling the meeting and instantly issuing a Notice to Show Cause”.
Turning to the medical evidence relied upon by the applicant, there is a brief report from his general practitioner (Dr White) dated 29 July 2021 at page 47 of the ARD.

The report opines that the applicant is suffering from severe anxiety and depression, with poor sleep, memory and concentration. It also opines that the anxiety and depression has been caused “exclusively” by his employment with the respondent. His treatment was to consist of counselling, rest and medication, and he was “certainly not fit at present to go back to work because of his condition and I am unsure when he will be fit to start work again”.
There is also a more recent certificate of capacity from Dr White (dated 19 April 2022) found at page 1 of the applicant’s AALD. That certificate certifies the applicant as having no current work capacity between 11 November 2021 and 3 March 2022, as a result of his anxiety and depression. It recommends medication and “psychiatry referral”, and states that it is uncertain as to when the applicant will be able to return to any type of employment.
Curiously (considering the opinions in the doctor’s 29 July 2021 report), the certificate of capacity states that the applicant was first seen by the doctor for his anxiety and depression on 11 November 2021, and it answers the question “How is the injury related to work or the motor vehicle accident?” with simply the answer “no”.
The clinical notes from Dr White’s practice are to be found at pages 48-195 of the ARD. The notes cover the period between 5 April 2004 and 25 August 2021. I have considered the notes in detail, and will refer to them further when specifically directed to aspects of them during the parties’ submissions. I do note however that the notes contain:
(a)    records of consultations between the applicant and Dr White in relation to his psychological condition and his workers compensation claim for it, on 28 January 2021, 14 April 2021, 19 April 2021, 3 May 2021, 14 May 2021, 20 May 2021, 28 July 2021, 29 July 2021, and 18 August 2021;
(b)    a mental health plan developed by Dr White on 19 April 2021;
(c)    the medical certificate issued by Dr White on 12 April 2021, and
(d)    certificates of capacity covering the period between 17 May 2021 and 17 September 2021 - stating that the applicant had no current work capacity during that period, as a result of anxiety and depression - and also stating that the anxiety and depression was due to “workplace bulleying by supervisor and superiours” in answer to the question “How is the injury related to work or the motor vehicle accident?”
The applicant’s solicitors qualified a psychiatrist (Dr Chow) to examine the applicant, and his report (dated 14 October 2021) is at page 42 of the ARD.
The history taken by the doctor refers specifically to:
(a)    the incident when the applicant was cornered by locals, who were fighting and throwing rocks outside his depot - as well as his ongoing harassment following this incident by one of the perpetrators – as well as the respondent’s lack of support when he was served with an application for an apprehended violence order following the incident;
(b)    a disagreement that the applicant had with another co-worker (no further details provided);
(c)    harassment from the applicant’s supervisor, involving unfair criticism and false accusations, including that he had misused the respondent’s work vehicle and claimed payment for hours that he did not work;
(d)    the applicant being accused of drinking beer during work hours, and
(e)    a meeting where further false allegations against the applicant were discussed - following which he received a show cause letter for employment termination.
The applicant had not worked since 15 April 2021 and had been prescribed anti-depressant medication and sleep medication. He reported to the doctor that he had sleep difficulties, anxiety, and a poor appetite. He rarely engaged in house chores, but he was able to grocery shop, mow the lawn, kick a ball with his children, take his children to activities, and maintain contact with his friends and family.
He denied having any previous psychiatric history.
The doctor conducted a mental state examination and found:
“His speech was normal in rate, rhythm and tone. His affect was restricted. His mood was described as low and anxious. He reported ongoing fluctuating low mood, anxiety, sleeping disturbance, reduced appetite, reduced interest in activities, poor motivation and energy.
There was no evidence of formal thought disorder, psychotic symptoms or melancholic features. He cognitively appeared grossly intact. He denied having suicidal ideation. He had some insight into his condition”.
The doctor diagnosed that the applicant was suffering an adjustment disorder, for which he needed ongoing treatment with a psychologist (on a fortnightly basis) and a psychiatrist (on a monthly basis), as well as medication. When asked to provide an opinion regarding fitness for employment, the doctor provided the briefest answer of “Mr Barden remains totally unfit for work”, without any further explanation or comment.
When asked to opine as to whether the applicant’s experiences at work represented a substantial contributing factor to his adjustment disorder, the doctor stated:
“According to the history provided by Mr Barden, he was attacked at work by a group of public individuals. He felt unsupported by the employer and an AVO was placed against him unfairly for 12 months.
He stated that since then, he has been bullied, harassed and targeted by his supervisor with unfair criticism and false allegations. He eventually ceased work in April 2021.
Assuming his version of events is valid, I would consider his experience at work represents a substantial contributing factor to his condition”.

Respondent’s evidence

The respondent relies upon statements from Ricardi, Ranjit, Urquhart, Masoudi, and Julie McKeown (McKeown - the respondent’s human resources manager).
The statement from Ricardi is dated 1 June 2021 and found at page 2 of the Reply.
Ricardi was present at the 27 January 2021 meeting between the applicant and Ranjit. His recollection of the meeting was that Ranjit asked the applicant about his whereabouts on 14, 15, and 16 December 2020, as well as some other dates. Ranjit referred to the applicant’s timesheets as well as vehicle tracking data. The applicant maintained that he used his personal vehicle on the dates referred to as he had sick children and could not take them with him in his work vehicle. The applicant requested copies of the documentation being referred to by Ranjit. The meeting was stopped by Fuller at 2:51 pm. The outcome of the meeting was that the applicant was stood down from his employment on full pay pending further investigations.
Ricardi says that he considers that the meeting was conducted in accordance with the respondent’s policies and processes, and that there was no bullying or inappropriate behaviour by Ranjit towards the applicant. He says:
“Raju is a very mild mannered, very polite, softly spoken and professional person, which is how he acted throughout the meeting”.
Ricardi says that similar issues to those that Ranjit discussed with the applicant were also discussed with two other employees of the respondent’s from its Collarenebri depot, including a Patrick Willis.
Ricardi then attended the 24 February 2021 meeting between the applicant, Ranjit, and Urquhart. Ranjit questioned the applicant about some further discrepancies between his timesheets and vehicle tracking data, and Ricardi remembers McKinnon asking Ranjit to expand his investigation to a larger date range, and to provide further information. Ricardi says that he cannot remember the exact conversation that took place, and defers to Urquhart in this regard as he was taking notes. The outcome of the meeting was that the applicant continued to be stood down from his employment on full pay.
Ricardi says that Ranjit was “professional and appropriate” during the meeting, and that the applicant needed to leave the meeting on one occasion “as he was becoming frustrated and agitated”.
Ricardi then attended the 17 March 2021 meeting between the applicant, Ranjit, Urquhart, and McKeown. He again says that Ranjit acted professionally towards the applicant during the meeting. McKeown took notes of the meeting.
Ranjit advised the applicant that he was now reviewing six months worth of his timesheets against vehicle tracking data. The applicant accused Ranjit of a personal attack, but Ranjit advised that several staff were also being investigated. The applicant became quite agitated and upset during the meeting but appeared “quite happy with the outcome” when Urquhart advised that a return to work letter would be drafted.
Following the applicant’s return to work, Ricardi delivered the applicant a final warning letter and prepared a performance management plan for the applicant, which he emailed to Masoudi for him to discuss its contents with the applicant. The plan was to be in place for 12 months with quarterly reviews, and no overtime was to be performed by the applicant in the first quarter.
Ricardi says that he was advised by Masoudi that the applicant informed Masoudi that he was having family issues and needed to take the day off work on 30 March 2021. He then did not work on 31 March 2021 and 1 April 2021, but did not inform Masoudi or any other representative of the respondent in this regard.
The statement from Ranjit in the Reply is undated and unsigned, and does not have its annexures attached to it. This issue was raised at various points on the dates when arbitration hearings in this dispute were scheduled. The issue was finally remedied by the respondent’s AALD, which attaches both a signed copy of the statement (pages 4-17) and its annexures (pages 18-179). The first 10 pages of the statement are undated, and the last four pages of the statement are dated 5 October 2022. The respondent’s AALD also contains a statement from Mr Underwood dated 6 October 2022, which fully explains the difficulties which he experienced in obtaining a signed copy of the complete statement from Ranjit, and the appropriate steps which he took to remedy those difficulties. It provides an explanation which I accept as to why some pages of the statement are dated and some are not. In the circumstances (and having regard to the applicant’s lack of objection to the respondent’s AALD), I accept that Ranjit has appropriately adopted the version of his statement contained at pages 4-17 of the respondent’s AALD and I propose to rely upon that particular statement.
Ranjit refers to the 27 January 2021 meeting which lasted about 25 minutes. He says that he advised the applicant:
“’I am investigating three alleged issues which includes your normal work hours being recorded incorrectly on your timesheet for the week ending 22 November 2020 and 20 December 2020, the overtime worked in this same period being claimed incorrectly and the essential services including the airport and oval toilets not being inspected as instructed. I have reviewed your timesheets and comparative data from the GPS tracking system which has identified serious discrepancies’”.
The applicant explained that he used his personal vehicle on the relevant dates, and Ranjit says that he advised the applicant:
“’This is a serious matter involving a potential breach of the code of conduct…. You were given an office vehicle for office purposes. If you drive your own car, Council cannot see where you have been. If something goes wrong who is responsible?’”.
Ranjit then says that Fuller alleged the vehicle tracking data could not be used “for this purpose”, whereupon he told Fuller not to provide comments during the meeting. However, Fuller continued talking and directed the applicant to leave the meeting. The applicant was told that he was being stood down from his employment on full pay pending further investigations. Fuller told the applicant not to speak any further as “we will have to go to court”.
Ranjit says that he did not bully, harass or intimidate the applicant during the meeting.
Ranjit reveals that a complaint by a member of the public had caused him to review timesheets in order to confirm that tasks were being completed by the applicant. He also reveals that the applicant had been given a copy of the respondent’s vehicle tracking policy, which allowed him to verify the whereabouts of vehicles if “there is a serious discrepancy recorded around times”.
Ranjit then refers to the fact that he sent a letter to the applicant dated 28 January 2021. The letter can be found at page 115 of the Reply. It confirmed that the respondent alleged the applicant had claimed for hours not worked, claimed overtime incorrectly, and provided inspection information for facilities that he had not inspected. It also confirmed that the respondent therefore alleged a serious breach of its code of conduct, and that the applicant would be stood down on full pay until the respondent’s investigation had been completed.
Ranjit says that he discussed the 27 January 2021 meeting with Urquhart, who advised him to continue his investigation into the applicant’s timesheet discrepancies. Urquhart also advised him that he would be sending a letter to the applicant requesting that he show cause as to why his employment should not be terminated. The applicant’s response to Urquhart’s letter (see paragraphs 29-34 above) dated 12 February 2021 was then read by Ranjit.
Ranjit says that he intended to provide the applicant with documentation regarding his allegations at the 27 January 2021 meeting, but that the applicant and Fuller walked out of the meeting before he could provide the documentation. He therefore sent the documentation by email to McKinnon prior to the 24 February 2021 meeting. Ranjit’s statement then annexes that documentation (pages 21-179 of the respondent’s AALD), being vehicle activity reports, timesheets of the applicant’s, and an overtime spreadsheet in relation to the applicant. I have considered this documentation, and will refer to it further when specifically directed to aspects of it during the parties’ submissions.
Ranjit then refers to the 24 February 2021 meeting which lasted about 30-40 minutes. He gave the applicant examples of discrepancies between the applicant’s timesheets and the vehicle tracking data for his work vehicle. In relation to one example, the applicant claimed that he walked for half an hour from Collarenebri to clean the toilets at the oval, to which Ranjit says that he thought it would take the applicant two hours to walk that distance, clean the toilets, empty the bins, and pick up rubbish on the way. In relation to other examples, the applicant claimed that he used his personal vehicle because he had to take his children with him, but left them in the vehicle while he was performing his work duties.
The applicant was advised that he remained stood down from his employment on full pay until further notice, and McKinnon advised that if the applicant’s employment was terminated, court proceedings would be taken. Ranjit says that he was aware that Urquhart wished to seek further advice in relation to what action could be taken against the applicant.
Ranjit says that during the meeting, the applicant “became heated and he actually left for about ten minutes to go and calm down”.
Ranjit says that the respondent received a letter from the applicant’s union dated 8 March 2021 (see paragraphs 76-78 above), which he read. He denies the allegation in the letter of a ”farcical witch hunt” as other employees were also being investigated for timesheet discrepancies.
Nevertheless, Ranjit advises that Urquhart consulted with a “NSW Local Government Advisor” and it was subsequently decided that the applicant would be returned to work and a final warning letter issued to him. The applicant would be informed as such during a meeting on 17 March 2021.
Ranjit then refers to the 17 March 2021 meeting when the applicant was advised by Urquhart that he could return to work on 18 March 2021 under a performance management plan. Ranjit observes:
“Chris was happy about coming back to work and was smiling and said, ‘Oh, I can come back to work’”.
Ranjit says that he attended Collarenebri with Ricardi on 18 March 2021 when Ricardi handed the applicant his final warning letter. He and the applicant said no more than hello to each other on that occasion. Later however on that date, Masoudi contacted Ranjit complaining about the applicant “not wanting to work with any of the other staff and not wanting to do what he had been tasked”. Ranjit says that he instructed Masoudi:
“’George give instructions to Chris in writing and keep records of Chris’ behaviour’”.
Ranjit then denies that he enquired about the applicant during his telephone conversation with Shannon Farr on 19 March 2021 (see paragraph 40 above).
Ranjit says that he was informed by Masoudi that the applicant attended work on 30 March 2021 but then advised Masoudi that he needed to take the day off for family reasons. He then did not attend work on 31 March 2021 and on 1 April 2021 without advising Masoudi, but later provided a medical certificate for this absence. He then again did not attend work on 12 April 2021 and on 13 April 2021 without advising Masoudi, but later provided a medical certificate for this absence. As a result, Ranjit says that he wrote a letter to the applicant (to be delivered by Masoudi) requesting his attendance at a meeting on 15 April 2021 to discuss these absences. The letter is at page 126 of the Reply, and alleges that the applicant was absent from work on 31 March 2021 and on 13 April 2021 without notifying his supervisor.
Ranjit says that on 14 April 2021, he received a message from Masoudi along the lines of “Chris was aggressive toward me and team members today and he abruptly left the meeting”. Then, when he later contacted Masoudi, he was advised:
“George told me that during the Toolbox meeting Chris was behaving badly with everyone and just walked away from the meeting and did not tell George where he was going”.
Ranjit says that the 15 April 2021 meeting did not proceed, nor did a replacement meeting on 3 May 2021. He says that to his knowledge, the applicant has provided medical certificates stating him to be unfit for work until July 2021.
There is another letter from Ranjit to the applicant dated 19 April 2021 at page 127 of the Reply. This is the letter that called the replacement meeting on 3 May 2021, and it also requests that the applicant show cause as to why his employment with the respondent should not be terminated, by providing a written response to allegations that he was absent from work without notice on 31 March 2021, on 1 April 2021, on 12 April 2021, and on 13 April 2021; that he was disrespectful and exhibited inappropriate behaviour to colleagues and management during a Toolbox meeting on 14 April 2021; and that he departed from that 14 April 2021 meeting without notice.
The statement from Urquhart is dated 31 May 2021 and 24 June 2021, and found at page 55 of the Reply.
He refers to a letter that he sent the applicant dated 3 February 2021, which is at page 116 of the Reply. That letter essentially repeats the allegations contained in the letter from Ranjit to the applicant dated 28 January 2021 (see paragraph 110 above) and asks the applicant to show cause as to why his employment should not be terminated. It asks for the applicant’s response prior to 17 February 2021 and directs the applicant to attend a further meeting on 24 February 2021.
He then refers to the 24 February 2021 meeting, at which the applicant maintained that any discrepancies between his timesheets and the vehicle tracking data was due to him using his personal vehicle, or (in relation to 18, 19 and 20 December 2020) was due to him being instructed to estimate his hours on his timesheet. Ranjit then advised the applicant that there were still a number of discrepancies that he had identified in relation to the applicant’s on-call and overtime recordings from the vehicle tracking system, that he wanted to discuss. The applicant was however “agitated” and McKinnon requested further documentation regarding these additional discrepancies. The meeting concluded with the applicant remaining stood down from his employment on full pay.

Urquhart then sent a further letter to the applicant dated 24 February 2021, which is at page 121 of the Reply. That letter simply confirms that following the meeting, the applicant remained stood down from his employment on full pay until further notice.
He next refers to the 17 March 2021 meeting, at which the applicant was again questioned by Ranjit as to dates when the vehicle tracking data did not support the timesheets put in by the applicant for those dates. The applicant again advised that on those dates he had used his personal vehicle.
He says that the applicant “was becoming quite agitated” and McKinnon therefore suggested that the applicant leave the room. While the applicant was outside, McKinnon suggested that the applicant be placed on a 12 month performance management plan with no overtime being performed by him for three months. When the applicant returned to the meeting, he was questioned further by Ranjit about what he did with his children at worksites if he was using his personal vehicle to get to those worksites. The applicant again left the room “as he had again become agitated and was making claims that he was being bullied and targeted by Raju”. A plan was then discussed with McKinnon, and Urquhart says:
“The plan included agreeing to Chris returning to work on 18 March 2021. Julie was to compile a Final Warning letter for me to sign and be provided to Chris, and a Performance Management Plan was to be implemented for 12 months and Chris was not to perform On-Call or Overtime for three months…. I can certainly state that during the meeting there was absolutely no bullying or inappropriate behaviour by Raju, Peter, Julie or myself toward Chris”.
The final warning letter that Urquhart sent to the applicant is at page 124 of the Reply. It confirms the terms of the performance management plan, confirms that the applicant was not allowed to work any overtime for three months, and confirms that the applicant was required to be respectful to his work colleagues and management. It deems his response to the 3 February 2021 letter requesting that he show cause as to why his employment should not be terminated, to be unsatisfactory. It advises that he is expected in the future to accurately record his correct hours worked and his overtime, and to carry out inspections of the respondent’s facilities as instructed.
Urquhart advises that the final warning letter was necessary as the applicant had previously been sent a first warning letter on 13 February 2020. That letter is at page 112 of the Reply. The letter was sent following a 3 February 2020 meeting at which the applicant exhibited unacceptable behaviour towards Ranjit. The meeting was called to investigate an altercation between the applicant and a work colleague at a pub while the applicant was on-call, and had drunk a beer whilst on-call.
Urquhart concludes:
“During each meeting that I have been at present in with Chris, I would comment that Raju Ranjit has spoken absolutely professionally and appropriately. Each of the attendee’s at the meetings have been professional and considerate towards Chris. There was never any raised voices, inappropriate language used or aggression shown toward Chris. It was purely a case of getting an explanation from Chris so that an informed decision could be made. He was advised that he was able to bring a support person, was given prior notice to formal meetings, he was stood down on full pay so that he was not disadvantaged and was given sufficient time to prepare his responses and gather any supporting documentation to present. The process complied with Council’s processes and procedures. In relation to suggestion by the USU that the investigation was not conducted in a timely manner this is not correct, rather it was a case that a significant amount of data had to be reviewed and in order to maintain the confidentiality of the investigation and Raju and I made a decision that other staff would not been involved in the investigation. This did slow the investigation down but Chris’ confidentiality was considered the higher priority”.
There is also email correspondence between Urquhart and McKinnon at pages 129-133 of the Reply. Included in the correspondence is an email from McKinnon to Urquhart on 30 April 2021 advising as to the applicant’s fragile mental health. McKinnon advises that the applicant should not attend any meeting on 3 May 2021 if he is not well.
The respondent’s AALD also attaches an email from Urquhart dated 6 October 2022 in relation to the applicant’s performance management plan that the respondent instigated following the 17 March 2021 meeting – the email advises as follows:
“When we commenced the performance management of Mr Chris Barden we had his supervisor Mr George Masoudi issued with a form whereby he recorded a number of points about Mr Barden’s performance….Mr Masoudi completed these forms and handed them back to Mr Peter Ricardi who is no longer with Council….The Information Technology Coordinator has reviewed the organisations Electronic Document Management System to find the electronic records but to no avail….She has also checked the office of Mr Raju Ranjit however she has not been able to locate the documents”.
The statement from Masoudi is dated 1 June 2021 and 24 June 2021, and found at page 64 of the Reply.
He first met the applicant on 18 March 2021 when the applicant returned to work, and he became the applicant’s direct line of report. He only worked with the applicant for around three weeks, and makes the following observation:
“Chris can work really well at times but he has fiery temper and blows up over small issues which impacts on his overall work performance”.
In relation to the applicant’s allegation that he was told by Masoudi on 18 March 2021 to leave some of the picking up of rubbish for the following day (see paragraph 39 above), Masoudi denies making that comment.
In relation to the applicant’s allegations on 23 March 2021 (see paragraph 41 above), Masoudi confirms that he asked the applicant why he was shouting, but he advises that he can no longer remember the interaction alleged with Trent Smith on that date.
In relation to the beer drinking episode (see paragraph 42 above), Masoudi advises that he did not see the beer being drunk on 25 March 2021, and he confirms that he asked the applicant about the bottle of beer that was now missing from the fridge on 26 March 2021. He says:
“I was not attempting to get Chris into trouble when I asked about the bottle of beer, rather I was asking if he knew who owned the beer as it was no longer in the fridge”.
He then advises that on the morning of 30 March 2021, the applicant asked to take the day off work for family issues, and he approved that request. However, on 31 March 2021 and 1 April 2021, the applicant did not come into work and the applicant did not contact him. He informed Ranjit in this regard, but he did not speak to the applicant in relation to failing to inform him of his work absences.
He then received a text message from the applicant on 12 April 2021 informing him that the applicant would not be at work that day, but would be at work the following day. However, the applicant did not attend work on 13 April 2021, although he does not say whether the applicant advised him in this regard. He says that later on 13 April 2021, he had a telephone conversation with Ranjit and was asked to deliver a letter to the applicant about attending a meeting with Ranjit on 15 April 2021. He therefore telephoned the applicant and arranged for the applicant to attend the respondent’s Collarenebri depot at 5.00pm. When the applicant did so, he handed the applicant two letters from Ranjit, and he advised the applicant that he would go with the applicant to the 15 April 2021 meeting. The applicant then agreed to go with him.
In relation to the Toolbox meeting on 14 April 2021 (see paragraph 45 above), Masoudi advises that the applicant initially appeared happy and relaxed. However:
“All of a sudden Chris jumped up out of his seat and was standing over me as I was still sitting at the table. He yelled, ‘You didn’t take my time sheet in.’ Chris was very clearly angry and was talking loudly and yelling at me. I said, ‘I did not know it was there cause you weren’t here yesterday or Monday to hand your time sheet in. I’m going to Walgett today for a meeting at 9.00am, I can take it in.’ Chris said, ‘No fuck this, I’m taking Walgett Shire to court. They won’t have a Shire after I’m done with them.’ He was really angry and worked up. I said, ‘I am going to take it in.’ I stayed really calm whilst I was talking to Chris and I kept repeating, ‘I’m going to Walgett, I’ll take it.’ Chris kept yelling at me, ‘They are not going to be happy with me for not taking my timesheet in.’ I said, ‘Mate, it will be fine.’ I was trying to stay calm so it would calm Chris down. Geoff Lowe just continued sitting at the table whilst Chris was yelling at me. Chris took his timesheet with him and walked off out of the crib room. As he was walking I could hear him yelling out, ‘See ya’s in court.’ Chris left the depot and walked to his home and this was the last I saw him on this date. I was pretty annoyed and disappointed by Chris’s behaviour, which I likened to him having a tantrum and being completely unreasonable. I dispute that I spoke to Chris in a sarcastic or condescending manner about his timesheet, and in fact I was trying my hardest to speak calmly to him so that he would calm down. During this verbal incident I do not recall Chris making the comment as alleged in his hand written statement, which read, ‘Fuck me dead, you know I was under accused timesheet allegations, that’s another log on the fire for them to sack me.’ I certainly did not know the nature of the issues that Chris was being investigated over by Council.”
Masoudi then explains that the timesheet was underneath a pile of papers on a table in front of a chair that the applicant normally sits on. He had no reason to look through the pile of papers. He denies that the applicant told him that his timesheet was on the table, and he advises that the normal procedure is for staff to bring their timesheets into his office and leave them on his desk, so that he can check and submit them.
He then says that he sent an email to Ranjit at 8:25 am on 14 April 2021 advising that the applicant had “walked out and left work”, and that he thought that the applicant’s behaviour was not respectful. The email (in which Urquhart and Ricardi are also copied in) can be found at page 3 of the respondent’s AALD - it reads:
“Just want to inform you Chris is not at work today he thru a tantrum this morning during tool box talk this morning and walked out….This behaviour is not respectful to be a part of my team”.
On 15 April 2021, he advises that he attended the applicant’s house in order to drive the applicant to the meeting arranged for that date. The applicant told him that he was not going to the meeting as it had been called off. Masoudi informed Ricardi and Ranjit in this regard.
He concludes:
“I do not really know the details of what Chris was alleged to have done, which was investigated by Council. No one has really told me anything about the allegations or what occurred so I cannot offer any comment about this.
I do not consider that Chris has been bullied or harassed by any member of management, rather he has been requested to attend formal meetings due to his own actions and behaviours, which have not been in accordance with Council’s policies and procedures.”
As noted, Masoudi also gave oral evidence to the Commission. He was examined in chief by Mr Hanrahan, then cross-examined by Mr Stockley, before a brief re-examination by Mr Hanrahan.
I witnessed the demeanour of Masoudi while he was giving oral evidence, and I have since listened to a sound recording of that evidence again. It is my opinion that he was rather vague while giving his evidence, and did have some problems in remembering exactly what occurred in his interactions with the applicant. I do accept however that while he was giving his evidence, he was doing his best to remember.
I appreciated the opportunity to hear oral evidence from him. My overall impression of the evidence was that he answered questions as best as he could. I make no adverse credit findings against him. While I may prefer the evidence of the applicant to his evidence on certain matters, I do so on the grounds of reliability, rather than Masoudi being untruthful or self-serving. To the extent that it is necessary, I confirm that the preliminary view which I expressed in the Commission’s 8 August 2022 direction should be retracted.
In examination in chief, Masoudi advised that as the applicant’s supervisor his intention was to “make him part of the team and we all work together”.
Masoudi also advised that he was not given a copy of any performance management plan in relation to the applicant. He was not aware of the allegations against the applicant that had led to the development of that plan. His role in relation to the plan was to “report what’s happening” and make sure that the applicant was “doing jobs right, doing it on time, and wants to co-operate with the team”. He had no issues or hidden agenda in relation to the applicant.
Masoudi then confirmed that the procedure for submitting timesheets was that they would be brought to him on Monday mornings and placed on his desk in his office. They could not be submitted during the week before as overtime could be worked on Saturdays and Sundays.
He confirmed that the applicant did not provide him with a timesheet in relation to the week prior to 12 April 2021, until the events that occurred on 14 April 2021. He also confirmed that on 14 April 2021, the applicant swore at him, was “standing over” him, and yelled at him. He further advised that when he informed Ranjit about the applicant’s behaviour, he also told him “about the timesheet and Chris was going off about it and he never handed it into me”.
Under cross-examination, Masoudi agreed that if one of his staff was having a day off work on a Monday, that staff member’s timesheet would be given to him or left in his office before the Monday.
I then asked Masoudi some questions about the applicant’s performance management plan. He advised that “all that was given to me was just dates and times, that’s all – it wasn’t like a full detailed report what to do”. He was given a piece of paper to complete about what the applicant was doing. The piece of paper did not have any questions on it, but had room for comments. He remembers listing the days that the applicant was absent from work on the piece of paper, but cannot remember other comments that he might have made on it, and he advised that “it was some time ago”. He also used the phrase “very vague” in relation to the performance management plan.
In the Reply, there are two statements from McKeown. The first, dated 3 June 2021, is found at page 26 of the Reply. She had not been involved in the investigation into the applicant’s alleged timesheet discrepancies until she attended the 17 March 2021 meeting. She admits that as a result much of what was said “did not make a lot of sense to me”, although she does recall the applicant advising that “’ I took my kids with me in my own car’”, and she also recalls McKinnon “questioning the process”. By the end of the meeting, Urquhart had agreed to the applicant returning to work on 18 March 2021, and he requested that she prepare a final warning letter to be provided to the applicant. She advises that Urquhart said:
“’I’ll agree to let him return to work, one foot out of place, one cross word and he’s gone’”.
Her second statement, dated 13 December 2021, is found at page 78 of the Reply. The statement deals with the events that the applicant believed occurred in 2018 (see paragraph 55 above), but which it seems actually occurred on 20 July 2017 and 21 July 2017. The statement identifies the “local” referred to by the applicant as Graham Murray. The statement contains a different history as to what occurred to that provided by the applicant at paragraph 55 above, but it also annexes statements provided by the applicant (on 20 July 2017) and Patrick Willis (on 24 July 2017).
McKeown was advised about an incident that occurred between the applicant and Graham Murray on 20 July 2017, on that date. Then, on 21 July 2017, she was advised by James Earl (then the team leader at the respondent’s Collarenebri depot) that:
“’Chris is really upset, he’s going off. He has taken his shirt off. Graham Murray and his family were going at him. Chris was picking up rubbish. Chris had enough and I try to get him in the car.’”
She told James Earl to advise the applicant to contact the police.
The same day, she received a telephone call from Graham Murray, advising that the applicant had threatened him. She says that he was “rambling”, and much of what he was saying “did not make a lot of sense at the time”.
She contacted James Earl again on 24 July 2017 and was advised that both the applicant and Patrick Willis (who was working with the applicant at the time of the incident) were preparing statements.
The applicant’s statement is at page 96 of the Reply. He says that on 20 July 2017, he was at the respondent’s Collarenebri depot and could see Corey Murray and Graham Murray outside. They were both holding bricks, yelling and swearing. Graham Murray was chasing Corey Murray. He “asked them nicely to leave the yard”. Later on that day, he was cleaning park toilets with Patrick Willis, and Graham Murray drove past, swearing and spitting at him. After finishing the cleaning, he approached Graham Murray (who had parked in an adjacent car park) but Murray “continued to yell and abuse me and make threats towards me and my family”. The abuse continued even later in the day when the applicant was parked in front of a drink store, while Willis was purchasing drinks.
The statement from Patrick Willis is at page 93 of the Reply. He says that on 20 July 2017, a young man entered the respondent’s Collarenebri depot in an agitated state. The applicant spoke to the man in a friendly manner and “sent him on his way”. Later on that day, he was cleaning park toilets with the applicant, when he heard the applicant and Graham Murray “talking in an agitated state”. The applicant told him that Graham Murray had spat at the applicant. He heard abusive language again while he was purchasing drinks for himself and the applicant, and was told by the applicant that the abuse had been from Graham Murray. Then, when the applicant and himself were returning to the respondent’s depot, Graham Murray “nearly hit us with his car”.
McKeown then says that Graham Murray approached her at the respondent’s main building in Walgett, asking her what she was going to do about “the incident with Chris”, advising her that the applicant took drugs, and then alleging that she was a liar. She called the respondent’s general manager due to Graham Murray’s level of aggression. She says that he was intimidating and aggressive towards her.
She says that at some point, she was provided with a copy of an apprehended personal violence order, listing Graham Murray as the defendant, and the applicant as the protected person. Her statement annexes that order, dated 22 July 2017, and it can be found at page 101 of the Reply. The order contains an account from the police in relation to events which occurred on 21 July 2017. The applicant told the police that while he was working for the respondent collecting litter, Graham Murray verbally abused and threatened him, and then drove close to him. Graham Murray however provided a different version of events to the police, and the police were therefore unable to determine exactly what occurred. The police did however apply for the order on behalf of the applicant as he had provided a statement.
McKeown says that the respondent did not investigate this incident between the applicant and Graham Murray, as the police were investigating it. She does remember however the applicant contacting her on “more than one” occasion complaining about the lack of support which he received from the respondent in relation to the incident.

The circumstances surrounding the incidents with Graham Murray are described in a contemporaneous statement provided by the applicant (see paragraph 162 above) as well as a corroborative statement provided by Patrick Willis (see paragraph 163 above). McKeown provides evidence (see paragraph 159 above) as to the applicant’s agitation immediately following those incidents, and she also provides evidence as to how aggressive Graham Murray was towards her (see paragraphs 160 and 164). The applicant also advised during his oral evidence that the incidents still impacted him, although it was also clear from that oral evidence that personal antagonisms within the Collarenebri community were also perpetuating the impact.
It does not seem that the applicant sought medical attention following the incidents with Graham Murray. The evidence is that he first sought psychological attention from Dr White on 28 January 2021 (the date after his first disciplinary meeting with Ranjit regarding his alleged timesheet discrepancies).
The applicant relies upon all the events summarised at paragraph 233 above to prove his psychological injury.
“Injury” is defined in s 4 of the 1987 Act as follows:
“In this Act: injury means:
(a) personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
The applicant therefore needs to prove that the events summarised at paragraph 233 above were the main contributing factor to the contraction of his disease.
The definition of ‘main contributing factor’ is discussed at length by Snell DP in AV v AW [2020] NSWWCCPD 9 (AV), where various authorities are reviewed and where the Deputy President summarises (at [77]-[78]):
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
In Attorney General’s Department v K [2010] NSWWCCPD 76 (K), Roche DP discusses the issue of establishing psychological injury in circumstances regarding a worker’s perception of real events at work – the Deputy President summarises the relevant authorities as follows (at [52]):
“The following conclusions can be drawn from the above authorities:
(a)employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in 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 Sheridan);
(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 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.”
Applying these conclusions, I find that the applicant’s perception of the events which occurred between himself and Masoudi in the period from 18 March 2021 to 14 April 2021 affected his psyche.
Turning to the medical evidence, unfortunately neither Dr Bertucen nor Dr Chow seem to have obtained a particularly accurate history of events.
Dr Bertucen at least obtained a history of the events which occurred on 14 April 2021, although he also obtained (see paragraph 171 above):
(a)    a history of an altercation with a co-worker at a local club – which is not addressed in either the applicant’s or the respondent’s statement evidence, save by Urquhart at paragraph 132 above;
(b)    a history that it was this altercation that led to him being stood down from his employment between January 2021 and March 2021, and
(c)    a history that he was harassed by Ranjit from March 2021 about timesheet irregularities.
Dr Chow on the other hand obtained the history referred to at paragraph 87 above. That history also mentioned the altercation with the co-worker at the local club, but otherwise concentrated upon the incidents with Graham Murray (albeit the doctor obtained an incorrect date for those incidents), and the accusations (described as false by the applicant) made in relation to him misusing his work vehicle and claiming for hours that he did not work (albeit the doctor states that the allegations were made by his supervisor but does not differentiate between Ranjit and Masoudi in this regard). In relation to the applicant’s issues with Masoudi, the beer drinking episode is mentioned, but not the events on 14 April 2021.
The evidence presented by the applicant’s general practitioner, Dr White, is also rather vague. He refers to the applicant’s psychological condition being due to bullying at work exclusively, stating that the bullying came from the applicant’s supervisor and superiors.
Dr Bertucen (see paragraph 174 above) diagnosed the applicant as suffering what could be regarded as an adjustment disorder with features of depressed mood and anxiety. Dr Chow (see paragraph 91 above) also diagnosed an adjustment disorder, and Dr White (see paragraph 169 above) diagnosed a major depressive disorder.
What can be seen from the above analysis is that all three doctors diagnosed the applicant as developing a psychological injury as a result of events at work, even though they have obtained different histories of those events. Dr Bertucen opined that the applicant’s adjustment disorder was substantially caused by his perception that he was being targeted or persecuted in the workplace, and Dr Chow considered his experience at work to represent a substantial contributory factor to his adjustment disorder.
In summary, although the medical evidence presented could be more detailed and accurate, when the opinions of all three doctors are considered, I am comfortably satisfied that employment events were the main contributing factor in the development of the applicant’s adjustment disorder. In weighing up the competing causative factors referred to in AV, I cannot find any convincing evidence of non-work factors. In this regard:
(a)    Dr Chow does not mention any non-work factors;
(b)    Dr White refers to the applicant’s psychological condition as being due exclusively to work, and
(c)    Dr Bertucen (when specifically asked by the respondent as to whether there were other issues which could have contributed to the applicant’s mental state) advised that the applicant told him that there were no extraneous factors involved, such as, inter alia, family issues.
In its submissions (see paragraphs 195-197 above), the respondent suggests that there were non-work factors (specifically family responsibilities and personal issues within the Collarenebri community) involved in the causation of the applicant’s psychological condition. I regard these submissions as largely speculative and not based on any specific medical evidence. The applicant was also not cross-examined as to stress involved with his family responsibilities.
He did concede in cross-examination that he had personal issues within the Collarenebri community in that he had antagonisms with the Murrays outside of work. However, the extent of these issues is unclear, and not addressed in the medical evidence. I have not been able to find any mention of them in the applicant’s general practitioner’s clinical notes. In contrast, I have accepted the evidence of the applicant as to the significant event at work involving Graham Murray on 20 July 2017. The evidence of McKeown as to Graham Murray’s aggression towards her supports the applicant’s concerns in this regard.
Similarly, the respondent’s submission at paragraph 216 above that the applicant had a pre-existing oppositional disposition is not supported by medical or other evidence.

Whether the respondent can establish (pursuant to s 11A of the 1987 Act) that the applicant's injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to discipline, termination, or the provision of employment benefits

Section 11A of the 1987 Act reads as follows:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable essentially essentially action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent bears the onus of proof in establishing its defence under s 11A: Pirie v Franklins Limited [2001] NSWCC 167 and Department of Education and Training v Sinclair [2005] NSWCA 465.
In Manly Pacific International Hotel Pty Limited v Doyle [1999] NSWCA 465 (Doyle), Fitzgerald JA said:
“4 Before this Court, it was not disputed that Mr Doyle's employment was a substantial cause of his psychological injury. That being so, the Compensation Court was required to decide whether (i) the whole or predominant cause of Mr Doyle's psychological injury was the appellant's action with respect to Mr Doyle's transfer from one position to another, and, (ii) if so, whether the appellant's action with respect to Mr Doyle's transfer was reasonable.”
The respondent’s main defence to the applicant’s claim is that the actions that it took regarding the investigation into the applicant’s timesheet discrepancies were the whole or predominant cause of his psychological injury, and that those actions were reasonable. They were actions taken by it with respect to discipline or termination.
My interpretation of the reasoning in Doyle is that I need to determine the first issue raised by Fitzgerald JA before determining the reasonableness of the respondent’s actions. I believe that this interpretation is consistent with the decision of Wood DP in Insurance Australia Group Services Pty Limited v Outram [2019] NSWWCCPD 44 (Outram). For the reasons that follow, I do not intend to determine the reasonableness of the respondent’s actions regarding its timesheet discrepancies investigation as I will be determining the first issue raised by Fitzgerald JA in favour of the applicant.
In relation to whether the whole cause of the applicant’s psychological injury was the respondent’s actions regarding its timesheet discrepancies investigation, I am satisfied that there were a number of other causes or events involved, as discussed above at paragraph 233. There were events that occurred before the investigation, as well as events which occurred between 18 March 2021 and 14 April 2021.
In relation to whether the predominant cause of the applicant’s psychological injury was the respondent’s actions with regard to its timesheet discrepancies investigation, in Ponnan v George Weston Foods Limited [2007] NSWWCCPD 92, Handley ADP considered the phrase ‘predominantly caused’ and interpreted it according to its dictionary meaning of ‘mainly or principally caused’. That interpretation has been approved on multiple occasions since: see Temelkov v Kemblawarra Portugese Sports and Social Club Limited [2008] NSWWCCPD 96 and Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130.
In Outram, Wood DP said:
“The fact that there were other incidents that contributed to the injury is not sufficient to negate the possibility that certain actions, described by the Arbitrator as having made a ‘major’ contribution to the injury, could not be the predominant cause. Whether an action is a predominant cause must be ascertained by weighing the evidence of the effect of each of those incidents on the respondent’s psyche and the consequences that flowed from the incident. In many cases, medical evidence in respect of causation is required. As observed by Candy ADP in ISS Property Services Pty Ltd v Milovanovic, what is required is a comparison between all of the employment related contributions to the injury and those contributions that resulted from reasonable actions by the employer in respect of discipline, transfer, or other actions specified in s 11A(1).”
A comparison is therefore required between the effect of the timesheet discrepancies investigation upon the applicant’s psyche and the effect upon that psyche of the other work events that I have found occurred.
To summarise, there is evidence before me of the following events:
(a)    the incidents with Graham Murray on 20 July 2017;
(b)    the timesheet discrepancies investigation – which involved meetings on 27 January 2021, 24 February 2021, and 17 March 2021, correspondence between the applicant and the respondent, and the applicant being stood down from his employment during the investigation;
(c)    the implementation of a performance management plan for the applicant from 18 March 2021;
(d)    the events which occurred between the applicant and Masoudi on 18 March 2021, 23 March 2021, and 14 April 2021 – as well as the beer drinking episode, and
(e)    the letter from Ranjit requesting that the applicant attend a meeting on 15 April 2021.
In relation to the incidents with Graham Murray, it does not seem that the applicant needed any psychological treatment. Dr Chow believes the incidents to be significant, but the applicant does not even provide a history of them to Dr Bertucen. I accept the applicant’s evidence as to his ongoing agitation from the incidents, but consider them to be a minor cause of the psychological injury I have found.
The timesheet discrepancies investigation was clearly distressing to the applicant, especially when he attended the necessary meetings. He admits that he was upset during the 24 February 2021 and 17 March 2021 meetings, and he consulted with Dr White for the first time following the 27 January 2021 meeting. Ricardi records him as leaving the 24 February 2021 meeting as he was becoming frustrated and agitated, and he also records him as been quite agitated and upset during the 17 March 2021 meeting. Ranjit provides a similar history to Ricardi in relation to the 24 February 2021 meeting, as does Urquhart. However, both Ricardi (see paragraph 101 above) and Ranjit (see paragraph 118 above) record the applicant as happy and even smiling at being able to return to work (according to Ranjit) when the 17 March 2021 meeting concluded.
Importantly, according to Dr White’s clinical notes (see paragraph 85 above), the applicant did not seek attention for his psychological injury during the timesheet discrepancies investigation (except for initially on 28 January 2021). His next appointment with Dr White did not occur until 14 April 2021, following the events which occurred at work on that date.
Considering Masoudi’s oral evidence in relation to the performance management plan (see paragraphs 152 and 156 above), I find the respondent’s actions in implementing the plan to be unreasonable. Masoudi was responsible for implementing the plan, but according to his evidence, he was not provided with a copy of the plan or any background to it. The evidence of Urquhart (see paragraph 135 above) that documents regarding the plan can no longer be found, does not assist the respondent in this regard. However, the implementation of the plan does not seem to have been complained about by the applicant, except insofar as it was Masoudi who was implementing the plan, and the applicant began to experience episodes of distress in his dealings with Masoudi from his first day with Masoudi as his supervisor on 18 March 2021.
It is clear from the applicant’s statement and oral evidence that the main causative factor in him leaving work on 14 April 2021 was the events that occurred on that date. Masoudi even advises (see paragraph 143 above) that when the applicant attended work on that day, he appeared happy and relaxed.
It is also however clear from the applicant’s statement and oral evidence that interpersonal conflict had been present (at least as far as he was concerned and perceived it to be the case) between himself and Masoudi since 18 March 2021. The applicant refers to episodes on 18 March 2021 and 23 March 2021, as well as the beer drinking episode, as examples of his perceived distress at the actions of Masoudi.
In my opinion, none of the events that occurred between the applicant and Masoudi in the period from 18 March 2021 to 14 April 2021 could be described as actions taken by the respondent with respect to discipline, termination, or the provision of employment benefits.
In relation to the letter from Ranjit requesting that the applicant attend the meeting on 15 April 2021, there is little evidence to suggest that the letter caused the applicant any significant distress. Masoudi says (see paragraph 142 above) that he delivered the letter to the applicant on 13 April 2021 and the applicant agreed to travel with him to the meeting. Then, as noted, the applicant turned up for work on the following day appearing happy and relaxed to Masoudi.
In summary, when considering the statement and oral evidence submitted by both the applicant and the respondent, it would appear that the applicant was happy to be back at work on 18 March 2021, but then became distressed following his interpersonal conflicts and interactions with Masoudi. It was these interpersonal conflicts and interactions which led to his psychological injury incapacitating him for work from 14 April 2021. The interpersonal conflicts and interactions occurred on the background of the respondent’s timesheet discrepancies investigation but they were separate causative events and not defensible by the respondent as actions to which s 11A of the 1987 Act would apply.

In now considering the medical evidence presented by the parties, I have considered Hamad v Q Catering Limited [2017] NSWWCCPD 6, in which Snell DP said:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
Neither Dr Chow nor Dr White have specifically addressed the issue as to whether the applicant’s psychological injury was predominantly caused by the respondent’s timesheet discrepancies investigation. Dr Chow does not seem to have been asked, and Dr White (see paragraph 169 above) does not seem to have understood the question.
Dr Bertucen however addresses the issue (see paragraph 175 above) and opines that the applicant’s adjustment order was wholly or predominantly caused by the respondent’s actions with regard to discipline and proposed dismissal. He bases this opinion however on his review of the statements provided to him from the applicant and Ranjit. There is no mention of him reviewing Masoudi’s statement. He has also not had the benefit (unlike myself) of hearing oral evidence from the applicant and Masoudi.
Importantly, Dr Bertucen’s history is that Ranjit was continuing to harass the applicant about timesheet irregularities from when he returned to work in March 2021, which is incorrect. The events which occurred after the applicant returned to work did not involve Ranjit, but involved Masoudi.
The doctor does mention the events which occurred with Masoudi on 14 April 2021, as well as the fact that the applicant maintained that his symptoms regressed after these events (see paragraph 172 above), but he does not explain the relevance of these events (which were obviously significant to the applicant since he considered that his symptoms regressed after them) in the causation of the applicant’s psychological injury.
In those circumstances, I do not propose to give significant weight to Dr Bertucen’s opinion on this matter.
Relying upon my acceptance of the applicant’s perceptions in relation to the events which occurred between himself and Masoudi between 18 March 2021 and 14 April 2021, my acceptance that there was interpersonal conflict between them during this period which caused agitation to the applicant, my acceptance that the applicant was happy to be back at work after 17 March 2021 following the last meeting on that date regarding the respondent’s timesheet discrepancies investigation, the lack of reliable medical evidence concerning whether that investigation was the predominant cause of the applicant’s injury, and the fact that the applicant did not seek psychological attention after 28 January 2021 until 14 April 2021; I find that the respondent has failed to discharge its onus of proof regarding its defence to the applicant’s claim pursuant to s 11A of the 1987 Act. In conducting a comparison between the applicant’s reaction to the respondent’s timesheet discrepancies investigation between 27 January 2021 and 17 March 2021, against all other work-related factors which contributed to his psychological injury (especially those events which occurred with Masoudi between 18 March 2021 and 14 April 2021), I find that the timesheet discrepancies investigation was not the main, principal, or predominant cause of the injury.
Finally, I will address the respondent’s submission (see paragraphs 200 and 217 above) that whatever actions Masoudi took or failed to take in relation to the applicant’s timesheet on 14 April 2021 were reasonable actions with respect to the provision of employment benefits to workers.
The respondent has provided no explanation as to how the submission of a timesheet could be considered to be an employment benefit, and I reject its submission.
In ACR v Grace Worldwide Pty Limited [2021] NSWPICPD 44, Wood DP (in determining that the provision to an employee of JobKeeper payments constituted the provision of an employment benefit) stated (at [276]):
“It is common knowledge that the JobKeeper scheme was implemented by the Australian Government to help support businesses and keep workers in employment during the COVID-19 crisis. That is, it was a benefit provided to employers which was passed on to their employees and was intrinsically linked to ensuring that the workers remained in employment. The benefit was not payable outside of an employment relationship and was not reward for work done.”
The submission of the timesheet was an administrative action required by the respondent, so that it could accurately pay the applicant’s wage. It was of no other benefit to the applicant. It was not intrinsically linked to the applicant remaining in employment, and to the extent that it benefited the applicant, it related to rewarding him for work done. That is, it related to the respondent’s contractual obligation to pay the applicant wages, rather than any other non-wage benefit.

Whether (and if so, to what extent) the applicant has been incapacitated for work as a result of the injury, since 14 April 2021

I have already commented about the inadequacy of the medical evidence presented by both parties. Unfortunately, evidence in relation to the applicant’s incapacity is also scant and not well explained.
The applicant of course bears the onus of proving the level of his incapacity (if any) since 14 April 2021.
The applicant’s general practitioner at the time of his injury was Dr White, and there are certificates of capacity from that doctor covering the period between 17 May 2021 and 17 September 2021, and certifying the applicant as having no current work capacity during that period (see paragraph 85 above). The applicant then says (see paragraph 60 above) that Dr White went overseas in late 2021 and early 2022. He does not explain why he did not see a different doctor during that period, in order to obtain certificates of capacity if he was in fact incapacitated.
Dr White (after returning to Australia) does provide the applicant with a further certificate of capacity on 19 April 2022 (see paragraph 83 above), but that certificate relates to a backdated period (11 November 2021 to 3 March 2022) when, according to the applicant, the doctor was overseas. The certificate leaves the period between 17 September 2021 and 11 November 2021 as unexplained, and it also does not provide any opinion as to the level of the applicant’s incapacity on the date that it was prepared. I find the certificate to be of virtually no assistance to me, especially considering the other issues with the certificate raised at paragraph 84 above.
Dr White also provides reports dated 14 May 2021 (see paragraph 169 above) and 29 July 2021 (see paragraph 82 above) which both opine that as at those dates, the applicant was not fit for work.
Otherwise, I am unassisted by Dr White. This is especially unhelpful considering the applicant’s oral evidence that he continues to consult with the doctor and that his medication (presumably prescribed by the doctor) had not changed during 2022.
The only other medical evidence relied upon by the applicant is Dr Chow’s report, which was prepared following a consultation with him on 29 September 2021. Unfortunately, the doctor’s opinion as to the applicant’s capacity was expressed in the most brief of terms (see paragraph 91 above), and without any further comment or explanation. Importantly, the doctor did not explain his opinion as to the applicant’s lack of work capacity, even though he took a history (see paragraph 88 above) that the applicant was able to shower, grocery shop, drive around by himself, fish, take his children to activities, and maintain contact with family and friends; and even though his only findings on mental state examination (see paragraph 90 above) were reports of low mood, anxiety, sleep disturbance, reduced appetite, reduced interest in activities, and poor motivation and energy – otherwise, he was neat, his speech was normal, he was cooperative, there was no evidence of thought disorder or psychotic symptoms or melancholic features, he was cognitively intact, he had insight into his condition, and there was no evidence of suicidal ideation.
Dr Bertucen’s opinion (see paragraphs 178-179 above) in relation to the applicant’s capacity is not much more helpful to me. He does however provide more comment than Dr Chow to support his opinion that when he examined the applicant, the applicant was both fit to work in his pre-injury duties as well as in a wide variety of full-time employment. The doctor also takes an account that the applicant was able to coach and umpire a rugby team, as well as engage in recreational activities such as fishing.
The main issue with Dr Bertucen’s report again is that in providing conclusions as to why the applicant was “making a conscious decision to avoid returning to work”, he has not in my opinion obtained a correct history of the applicant’s interactions with both Ranjit and Masoudi (see paragraphs 243 and 273-275 above). Although this failure does not affect the doctor’s opinion as to capacity as much as it affects his opinion as to causation, it would certainly have provided more weight to the doctor’s opinion if he had fully appreciated the interpersonal conflict which arose between the applicant and Masoudi between 18 March 2021 and 14 April 2021. His view regarding why the applicant did not wish to return to work needed in my opinion to also consider that the applicant’s pre-injury duties involved him working closely with Masoudi.
Doing the best that I can with unsatisfactory medical evidence, I am willing to accept the opinions provided by Dr White in his reports and certificates of capacity up to 17 September 2021. He was the applicant’s general practitioner, and seems to be the only practitioner to have treated the applicant during that period. He was certainly in the best position to provide opinions regarding the applicant’s capacity during the period.
However, I find the only medical evidence presented by the applicant in relation to his capacity after 17 September 2021 (Dr White’s backdated certificate of capacity dated 19 April 2022 and Dr Chow’s report) to be unreliable, especially in the context of Dr Bertucen’s opinions. Neither Dr White nor Dr Chow deal with those opinions, and there is no recent evidence from Dr White despite the applicant continuing to consult with him.
In those circumstances, I find that the applicant has not discharged his onus of proof to allow me to make any award for weekly compensation payments in his favour after 17 September 2021.

Whether the applicant is entitled to reasonably necessary medical and treatment expenses pursuant to s 60 of the 1987 Act.

The applicant only seeks a ‘general order’ pursuant to s 60 of the 1987 Act. Considering my findings in relation to him sustaining a psychological injury pursuant to s 4 of the 1987 Act, he is entitled to such an order.
In this regard, I note that both Drs Chow and Bertucen (when they consulted with him) believed that he then needed ongoing treatment for the injury. There is no more recent medical evidence regarding his treatment needs.

SUMMARY

I find that the applicant contracted a ‘disease’ injury pursuant to s 4(b) of the 1987 Act, in relation to which his employment with the respondent was the main contributing factor. The injury will be deemed to have occurred on 14 April 2021 (that being the first date of his incapacity) in accordance with s 15(1)(a)(i) of the 1987 Act.

I find that the respondent has failed to establish (pursuant to s 11A of the 1987 Act) that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to discipline, termination, or the provision of employment benefits.
I find that the applicant was incapacitated for work as a result of the psychological injury between 14 April 2021 and 17 September 2021. During that period, I find that he had no current work capacity in accordance with the reports and certificates of capacity issued by Dr White.
I otherwise find that the applicant has failed to establish that he has been incapacitated for work as a result of the psychological injury since 18 September 2021.
In accordance with the agreement between the parties, I find that the applicant’s PIAWE is $1,123.92.
I find that the applicant is entitled to have his reasonably necessary medical and treatment expenses pursuant to s 60 of the 1987 Act paid by the respondent, in relation to the psychological injury deemed to have occurred on 14 April 2021.
There will be an award that the respondent pay the applicant weekly compensation pursuant to s 36(1) of the 1987 Act from 14 April 2021 to 13 July 2021, at the rate of $1,067.72 (as adjusted if necessary to apply relevant indexing) per week.
There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(1) of the 1987 Act from 14 July 2021 to 17 September 2021, at the rate of $899.14 (as adjusted if necessary to apply relevant indexing) per week.
There will be an award for the respondent in relation to the applicant’s claim for weekly compensation payments from 18 September 2021.

There will be an award that the respondent pay the applicant’s reasonably necessary medical and treatment expenses pursuant to s 60 of the 1987 Act.

[2022] NSWPIC 706

8 December 2022