Barrott v RTC Facilities Maintenance Pty Ltd - [2015] NSWWCCPD 21

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Barrott v RTC Facilities Maintenance Pty Ltd [2015] NSWWCCPD 21
APPELLANT:	Mark Anthony Barrott
FIRST RESPONDENT:	RTC Facilities Maintenance Pty Ltd
SECOND RESPONDENT:	Complete Staff Solutions (4) Pty Ltd
INSURER:	GIO General Limited
FILE NUMBER:	A1-5044/13
ARBITRATOR:	Mr J Phillips SC
DATE OF ARBITRATOR’S DECISION:	10 November 2014
DATE OF APPEAL DECISION:	17 March 2015
SUBJECT MATTER OF DECISION:	Section 11A of the Workers Compensation Act 1987; whether employer’s actions concerning discipline and transfer were reasonable; obligation to provide adequate reasons for decision; whether error by Arbitrator affected the decision; s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Whitely, Ironside & Shillington
Respondents:	Rankin Ellison Lawyers
ORDERS MADE ON APPEAL:	1. The award in favour of the first respondent is revoked. 2. The Arbitrator’s entry of an award in favour of the second respondent is confirmed. 3. The proceedings as against the first respondent are remitted to another Arbitrator for re-determination.

INTRODUCTION

Mr Mark Anthony Barrott alleged injury in the course of his employment with RTC Facilities Maintenance Pty Ltd (the first respondent) and alleged a further injury in the course of employment with a subsequent employer, Complete Staff Solutions (4) Pty Ltd (the second respondent). The injury received in each case was alleged to have been a psychological injury. Claims made by Mr Barrott with respect to workers compensation benefits were declined by each employer, following which proceedings were commenced in the Commission. The claim was limited to a claim for weekly compensation against each respondent.
The proceedings came before Arbitrator Jeffrey Phillips SC on 30 July 2014 at which time the matter proceeded to arbitration. Following submissions put on behalf of each party the Arbitrator reserved his decision. On 10 November 2014 a Certificate of Determination was issued by the Commission, which document was accompanied by the Arbitrator’s Statement of Reasons for his determination. That Certificate records the following matters:
“The Commission determines:
1. There will be an award for the first and second respondents.
2. No order as to costs.”
Mr Barrott challenges the factual findings made by the Arbitrator and the award made in favour of each of the respondents.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the Workplace Injury Management and Workers CompensationAct 1998 (the 1998 Act) have been met.

ON THE PAPERS

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

EMPLOYMENT HISTORY AND ALLEGATIONS OF INJURY

Mr Barrott was employed by the first respondent from 2 November 2009 as a project supervisor. The first respondent had regional offices in Bathurst and Orange. Mr Barrott was assigned to duties which concerned supervision of construction and maintenance work being carried out on behalf of the New South Wales Department of Housing in that region.
Mr Barrott performed that work until, on 16 December 2011, it came to his employer’s notice that he had been engaged by a subcontractor of the first respondent to carry out lawn-mowing duties at a time when he was on sick leave. Mr Barrott resigned from his position on that day. Following a meeting between Mr Graeme Hall, manager of the first respondent, and Mr Barrott at a hotel during the afternoon of 21 December 2011, an agreement was reached, which appears to have made provision for the withdrawal or disregard of Mr Barrott’s resignation, and his immediate suspension for a period of three weeks. Following that period of suspension, Mr Barrott, who had earlier been placed in Bathurst, returned to work, but was based at the Orange office. His income was reduced by reason of the transfer.
Mr Barrott continued working until 27 February 2012 at which time he presented a written formal resignation, directed to the attention of Mr Graeme Hall, in the following terms:
“Following on from the stressful events of the last 3 months, and on advice from my doctor following a recent hospitalisation for a heart problem resulting in an angiogram, I am hereby giving two weeks written notice of my retirement.
I have been issued with a medical certificate from 27/2/2012 to 12/3/2012 for my condition so I will not be returning to RTC prior to my retirement.
Please confirm my retirement details with my superannuation company when they contact RTC.
Please forward all future payslips and payout entitlement details to the following email [redacted].
Please ensure my group certificate is forwarded to the above post office box at the end of the financial year.”
The medical certificate referred to in Mr Barrott’s correspondence was issued by Dr Brown of the Greater Western Area Health Service NSW Health, dated 21 February 2012, which included a notation of diagnosis being “acute coronary syndrome”.
The injury alleged as against the first respondent as particularised in the Application filed with the Commission is “psychological, psychiatric, depression, anxiety”. The description as to “how the injury occurred” appears there as follows:
“The workplace was unreasonably stressful, unreasonable demands placed on the worker, the worker was required to perform other underperforming co-workers’ tasks, victimisation by supervisors and management, bullying and harassment, being pressured unreasonably to resign, being suspended without pay for three weeks with no reasonable cause, constant yelling and cursing by supervisors and management, unrealistic time pressures and deadlines being imposed.”
In March 2012, Mr Barrott successfully applied for a position as temporary/casual technical officer employed with the second respondent. He commenced that work on 26 March 2012. At that time he was assigned to the Department of Housing. The evidence is not entirely clear but it seems that on that day objection was taken by that department to Mr Barrott’s employment. His employment was immediately terminated. The evidence concerning the circumstances giving rise to that termination of employment is addressed below.
The injury alleged as against the second respondent appears at Pt 4 of the Application as being “psychological, psychiatric, depression, anxiety”. The description of “how the injury occurred” is as follows:
“The employer wrongfully terminated the applicant by relying on information from a previous employer that made allegations that the applicant had engaged in fraudulent conduct. Ms Lois Booth informed the applicant that his employment was no longer required. This information was relayed by Lois Booth in the presence of the worker and Ross Kerwick.”

AMENDED SECTION 74 NOTICES

The insurer of each of the respondents gave notice to Mr Barrott of the reasons liability had been disputed, as is required by the provisions of s 74 of the 1998 Act. Both respondents denied the occurrence of injury as alleged and further, in the alternative, relied upon the provisions of s 11A of the Workers Compensation Act 1987 (the 1987 Act), that is, that any psychological injury proven was “wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of each of the respondents with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers”. Incapacity was also denied.

THE ARBITRAL PROCEEDINGS

Each party was represented by counsel before the Arbitrator. No oral evidence was adduced at that hearing. Submissions put on behalf of the parties were recorded and a transcript (T) has been produced and provided to each party. The documentary evidence before the Arbitrator was summarised by him at the commencement of the hearing (T1–2). A document was tendered on the day of hearing which had recently been produced in response to a notice requiring production of documents. That tender was undoubtedly made on behalf of Mr Barrott, however the transcript is somewhat confusing as to the identities of counsel during the recorded exchanges relating to the tender. The document was described as being “apparently an email from a Graham [sic] Hall, Facilities Maintenance Unit” (per counsel at T2.32). The document was admitted and marked exhibit H. The Arbitrator gave leave to the respondents to file any evidence in response to the content of that document within seven days of the hearing. No further evidence was put before the Arbitrator. The content of that exhibit is addressed below.

Evidence concerning allegations against the first respondent

Mr Barrott relied upon a statement made by him dated 27 March 2013. Mr Barrott described relevant economic circumstances which concerned the global financial crisis and the economic stimulus package implemented by the Australian Government. Mr Barrott was working under a lot of pressure, had time constraints and was constantly given directions to get jobs done quickly. The main pressure, stated Mr Barrott, was applied by Mr Graeme Hall and Mr John Jones, his superiors. Directions from those individuals were conveyed by telephone call or email. Both Mr Hall and Mr Jones would visit Orange and Mr Barrott states that each would “yell and scream generally and often directly at me and they would be abusive and be very belittling to me. They would not accept any explanations as to the status of jobs not being complete”.
Mr Barrott further stated that at the end of the day’s work he felt “very deflated and depressed and [he] would question why [he] was working for [the first respondent]”. That pressure continued and Mr Barrott became very anxious and stated that he “really did not want to be at work because of the pressure”.
Mr Barrott said that he had a conversation with Mr Jones concerning difficulties having lawns mowed as part of the contracted work. He explained to Mr Jones that he was going for a holiday and would like to get some extra money and enquired as to whether there was “any way [he could] do the lawns and get paid for it”. Mr Barrott stated that Mr Jones indicated three options, either being paid an hourly rate which would be recorded in his time sheet, alternatively the existing contractor remains in place and the company pays the contractor and they would pay Mr Barrott, the third option being that Mr Barrott obtained an ABN and set up a contract and the company would pay him directly. Mr Barrott stated that he said to Mr Jones that he would “just go through [the contractor]”. Mr Jones is stated to have responded “ok that sounds good”. Subsequently Mr Barrott made arrangements with the contractor to mow the lawns for payment.
Mr Barrott further stated that he did the mowing work with his partner on weekends. Mr Barrott said that on a day in December 2011, in a reaction to being directed to “cover” for a non-performing fellow worker, he decided that he would “just take the afternoon off work and mow a few lawns”. Mr Barrott acknowledged that it was a bad decision. On 15 December 2011 Mr Barrott stated that he did mow a lawn in Orange whilst on sick leave. Mr Barrott narrates in that statement a discussion he had with Mr Jones who had said that he, Mr Barrott, “had been fraudulent” and that if he wanted any of his entitlements he would need to resign. Mr Barrott responded by saying to Mr Jones “ok I will go down to the office and do it now”. Mr Barrott thereafter sent an email to Mr Jones tendering his resignation.
Mr Barrott said that on 21 December 2011 he met Mr Hall at the Ophir Tavern in Orange. Mr Hall made no reference to the resignation but indicated that he was suspending Mr Barrott’s employment for a period of three weeks. That suspension was in response to Mr Barrott’s taking unauthorised sick leave. Mr Barrott states that he was “absolutely devastated by the events of 15–21 December 2011”.
Mr Barrott stated that he returned to work on 9 January 2012, at which time he was directed to supervise the properties located in Orange. He received lower pay than before his suspension. Mr Barrott said that in late January 2012 he “decided to seek legal advice from [his] present solicitors”. He stated that he was subjected to pressure concerning completion of jobs and that he felt intimidated when Mr Jones requested that a document be signed acknowledging that he had agreed to be transferred to Orange and to a reduction in his pay. Mr Barrott stated that that experience was “really the last straw”. He was admitted to Orange Base Hospital shortly after that occasion with chest pain and anxiety. He did not return to work with the first respondent because he “could not face the conditions of employment there”.
A copy of the compensation claim form, dated 23 November 2012, addressed to the first respondent signed by Mr Barrott states the manner in which he was injured as “I was intimidated, harassed and bullied at work and suspended without reasonable cause”.
Mr Barrott relied upon the evidence of his partner, Ms Megan Rout, which is found in a statement made by Ms Rout on 28 March 2014. Ms Rout has known Mr Barrott for a period of 20 years. It was stated that before late 2011 or early 2012 Mr Barrott was “an extremely normal person”. He was described by Ms Rout as being a “happy go lucky, outgoing, sociable person with a lot of interests and a wide group of friends”. He was interested in sport and displayed no signs of depression or anxiety. Ms Rout was employed by the first respondent until January 2012. She stated that she resigned because she was “sick of the work place conditions, the harassment, intimidation and bullying”. Ms Rout stated that Mr Jones and Mr Hall were both rude and abusive towards workers at the Orange office. Ms Rout stated that she observed Mr Jones and Mr Hall being abusive and bullying towards Mr Barrott (on countless occasions). At first that treatment had no effect on Mr Barrott, but over time, Ms Rout noticed that Mr Barrott would speak to her about Mr Hall and Mr Jones and how unreasonable they were. He was unable to forget about his work and he was constantly thinking about it and talking about it. He experienced trouble sleeping. Ms Rout noticed a physically observable improvement in his “demeanour and behaviour” when Mr Barrott left the employ of the first respondent.
Ms Rout further stated that when Mr Barrott returned home on 26 March 2012 after being dismissed from his position, “he was devastated”. Mr Barrott was crying and speaking about “what Graeme Hall had done to him at the Department of Housing by sending an email making allegations about him”. Ms Rout stated that Mr Barrott “has never recovered to [her] observation after this day”.
Mr Barrott relied upon the evidence of Mr Stephen Coles. Mr Coles is the proprietor of a business known as DGS Property Maintenance. Mr Coles stated that he had, on a number of occasions, rejected offers of work to perform lawn-mowing tasks made to him on behalf of the first respondent by Mr Paul Glynn. He further stated:
“Sometime in either 2011 or 2012 Mark Barrott came to me and said words to the effect ‘we are really having trouble finding someone to do the lawns on these public houses. I said ‘we cannot do it because there’s no money in it.’ He said to me words to the effect ‘but the lawns need to be mowed because they are all out of control. What if I issue the orders to DGS and I will then do the lawns so they will get done.’ I said ‘Yes that won’t be a problem’ and that is what occurred. DGS did not make any money to speak of out of the transaction and I simply did it to help out Mark.”
Mr Coles further stated that Mr Barrott had informed him on a number of occasions that he, Mr Barrott, was feeling “under pressure from his employer [the first respondent] and was having trouble coping with the pressure”. Similar comments had been made to Mr Coles by “various people who work for [the first respondent]”.

Evidence concerning allegations against the second respondent

In his statement Mr Barrott records that he worked for one day for the second respondent. At 4.00 pm on that day he was in the office of the Department of Housing in Orange. He was approached by Ms Lois Booth who stated that she needed to speak to Mr Barrott. A discussion then took place in an office where Mr Ross Kerwick was present. Ms Booth stated “I can’t have you back in the job. Housing has received an email from Graeme Hall and I don’t know what’s in the letter and I can’t tell what is in the letter but I just know we can’t have you back”. Mr Barrott stated that he was “incredulous”. He was very shocked and upset and immediately left the building. He further stated that he was “absolutely devastated by this incident”. After that incident he “went back down to feeling very poor”. Mr Barrott stated that he subsequently made enquiries as to what was in the “letter” without success.
Exhibit H referred to at [15] above does not include any notation of the addressee and is as follows:
“As per our phone conversation this morning, I find it totally disrespectful that Lois Booth would consider the employment of Mark Barrot [sic] after the information supplied re his conduct while employed by RTC.
I witnessed a conversation between Lois and John Jones where John informed Lois that Mark had in fact resigned/retired due to health reasons after he initially resigned re fraudulent activities. John Jones had previously highlighted to both Lois and Laurie Tiller that Mark resigned due to the inappropriate use of sick leave. It was further discovered that Mark was in collusion with sub contractors regarding the issuing of RTC works orders for personal benefit.
It is not a tenable outcome to have Mark working within the SWGA4 contract area managed by RTC.
Regards,
Graeme Hall Manager”

The expert medical evidence

Mr Barrott tendered the clinical notes of his general practitioner, Dr Genie Poh, which relate to attendances between 24 February 2012 and 15 October 2012. Dr Poh recorded on 24 February 2012 that Mr Barrott had presented recently to the emergency department with chest pain, had undergone an angiogram at which time no major stenosis was seen and that he experienced no chest pain since that presentation. It is recorded that Mr Barrott attributed his chest pain to “stress from job”. Dr Poh recorded that Mr Barrott intended to resign. It is further noted that Mr Barrott was “planning to retire for a while and then start working again”.
Dr Poh’s notation made on 19 March 2012 was that Mr Barrott’s mood had been declining, that he was teary, had low self-esteem and that there had been no diagnosed depression in the past. On 2 April 2012, Dr Poh recorded that Mr Barrot had been drinking “more alcohol” and that his mood had progressively declined since mid-December last year when he was suspended. Dr Poh also noted “went back to work last week and his old boss sent a nasty email to the boss he was working for that day. Mark felt he could not work there so he left. Has been getting tightness in his chest. Most likely anxiety as angiogram was clear.”

Dr Poh recorded on 10 April 2012 that Mr Barrott’s mood had not improved. Mr Barrott reported chest tightness whilst sitting talking to Dr Poh about the “unfair treatment at work”. It was noted that Mr Barrott was to see a psychologist.
On 14 June 2012 Mr Barrott requested that Dr Susan Knox of Dr Poh’s practice complete some insurance forms. Dr Knox recorded in her notes “acute anxiety/depression due to unresolved conflicts with previous employer RTC – resigned 20/2/12. Seeing psychologist not improving.”
On 25 June 2012 Dr Poh was consulted but no notation was made as to mood other than that his diet had not been ideal since his mood has been low. On 16 July 2012 Dr Poh recorded that Mr Barrott’s mood “has continued to decline”. On 7 September 2012 Dr Poh recorded that an insurer who “covers his income protection” had organised an assessment. It was also noted that Mr Barrott’s mood was “not getting better”.
At consultations on 26 September 2012 and 5 October 2012 Dr Poh recorded that Mr Barrott’s mood had continued to deteriorate.
Mr Barrott relied upon a report prepared by Yin Hourigan, psychologist, dated 27 July 2012. Ms Hourigan records that “the reason for the referral was to address symptoms of depression and anxiety associated with a work related incident which resulted in his resignation”. Ms Hourigan at [4] of his report appears to have accepted that Mr Barrott’s symptoms of psychological distress were indeed associated with a “work related incident which resulted in his resignation”.
Mr Barrott tendered a number of WorkCover NSW medical certificates, the first of which is dated 5 October 2012 issued by Dr Poh. That certificate records that the injury occurred as a result of “harassment at workplace” and the date of injury is recorded as being 26 March 2012.
Mr Barrott tendered a report of Dr Graham Vickery, psychiatrist dated 19 December 2012. That consultation had been arranged by the workers compensation insurer of both respondents. Dr Vickery, when recording the history of the presenting complaints, noted the circumstances concerning the lawn-mowing incident in December 2011 and the subsequent resignation. It was also recorded that in March 2012, Mr Barrott had been informed by the acting area manager of the Department of Housing “that she had been sent an email by HR that he was unable to be employed by government agencies”. Dr Vickery expressed his view that the current diagnosis was “Major Depressive Disorder”. Dr Vickery also expressed the view that Mr Barrott’s cessation of employment was the substantial contributing factor to his condition. It is also noted in that report that there were “nil pre-existing factors reported”.
Mr Barrott relied upon the evidence of Dr Andrew Frukacz, psychiatrist, found in two reports which are dated 2 June 2014 and 9 July 2014. Dr Frukacz was qualified by Mr Barrott’s solicitors to prepare the reports for the purposes of this litigation. Dr Frukacz in the first of those reports recorded a history that Mr Barrott had experienced “a lot of pressure” during his employment with the first respondent by reason of time constraints concerning completion of jobs and difficulties securing sufficient tradesmen to execute the work. The history of the lawn-mowing incident is recorded in that first report and is recorded by Dr Frukacz that that incident “led to [Mr Barrott] being put in a position where he had to resign. However, he was then told he would be suspended for three months without pay instead”. The subsequent history as recorded in that first report, includes a notation that Mr Barrott experienced a panic attack which led him to go to hospital. Mr Barrott had felt intimidated when he was pressured to sign a document that related to transfer and reduction in pay. The panic attack was manifested by chest pain and anxiety.
Dr Frukacz recorded further history that Mr Barrott subsequently obtained work with the Department of Housing and that he was told on the first day that his employment could not continue “because of what was written in a letter from his previous employer”. Mr Barrott reported to Dr Frukacz that he was “absolutely ropeable” and that “[he goes] through it every day”. Dr Frukacz diagnosed Mr Barrott as suffering from a major depressive disorder according to the DSM criteria.
Mr Barrott’s solicitors wrote to Dr Frukacz in July 2014 requesting comments concerning the relevance or otherwise of the nature and conditions of Mr Barrott’s employment from 2009 to 2012 as detailed in his statement referred to at [16] above. Dr Frukacz stated that, upon the assumption that Mr Barrott’s employment as described in his statement was accurate, he expressed the opinion that:
“… in view of the fact that Mr Barrott described no past psychiatric history nor is there any family psychiatric history that would indicate a vulnerability to developing a psychiatric illness, that he developed symptoms soon after the incident at work where he was firstly asked to resign and then secondly asked to accept a transfer which involved a reduction in pay, and that this had all built up in the context of the increasing stress, pressure, intimidation and bullying, it is my opinion that the nature and conditions of his employment from 2009 to 2012 were a substantial contributing factor to his injury.”
Mr Barrott has been treated by Dr Tristram Duncan, consultant psychiatrist, since May 2013 following referral by Dr Poh. A report prepared by Dr Duncan dated 18 June 2014 was tendered in evidence by Mr Barrott. Dr Duncan recorded that Mr Barrott reported to him signs and symptoms consistent with anxiety disorder and primary depressive disorder “in the context of multiple adverse encounters and situations at work. This includes, as he reported, an initial dispute in December 2011 that resulted in his initial resignation however this was downgraded to a suspension, ongoing difficulties and frustrations within the workplace sector, and then a sense he was being undermined and could not be employed by a government agency”. Dr Duncan’s diagnosis was that of Major Depressive Disorder with secondary anxiety features. Dr Duncan expressed the view that Mr Barrott’s employment with the first respondent, having regard to the information provided by Mr Barrott, was a substantial contributing factor to his current decline.
The respondents tendered a report from Dr Graham Vickery dated 19 February 2014. As noted above, Mr Barrott relied on the evidence of Dr Vickery as found in his earlier report. Dr Vickery re-examined Mr Barrott in February 2014 following which he expressed the opinion that “there was no objective diagnosable DSM-IV psychiatric diagnosis”. The respondents’ solicitors requested Dr Vickery’s view as to whether employment with the first respondent was or was not a substantial contributing factor to “his injury”. Dr Vickery stated (at [d]):
“Mr Barrott’s employment with [the first respondent] was not a substantial contributing factor to his injury. It was his resignation from [the first respondent] in February 2012 following his three week suspension for disciplinary reasons and prior to further disciplinary proceedings which resulted in his distress.”
Also tendered by the respondent is a copy of a report dated 2 October 2012 prepared by Dr Michael Hong, consultant psychiatrist, who had examined Mr Barrott on behalf of Australiasuper. Dr Hong recorded no history of any difficulties experienced by Mr Barrott at work prior to the lawn-mowing incident. Dr Hong expressed the opinion that Mr Barrott’s symptoms “fulfil the DSM diagnostic criteria of an Adjustment Disorder.”

Respondents’ lay evidence

The respondents relied upon a number of written statements which had been obtained by an investigating firm Maurice J Kerrigan, Investigators and were attached to its report dated 18 February 2013. The following is a summary of that evidence:
(a)     Mr Paul Gerard Glynn, Area Manager of the first respondent. Mr Glynn stated that Mr Barrott “handled his work duties with no problems”. Mention is made by Mr Glynn of the “lawn-mowing” incident. It was stated that Mr Barrott “was never intimidated or harassed by anybody in the Orange office and there was no other person in the Bathurst office other than Mark Barrott. Mark never spoke to me about any problems that he was having either with the company or with any one particular person.”
(b)     Mr John Delwyn Jones, Contract Manager with the first respondent. Mr Jones stated that “Mark never submitted any communication to [the first respondent] outlining any worries that he may have had regarding being harassed or intimidated at work. When Mark signed on with [the first respondent] the grievance procedure was set out in his contract”. Mr Jones further stated that, upon Mr Barrott’s resumption of work in January 2012, certain matters came to the attention of management at the first respondent concerning Mr Barrott’s dealings with a contractor identified as “DGS”. Those matters were not discussed with Mr Barrott given that, at that time, Mr Barrott advised that he was “retiring due to ill health and stressful events of the past three months”.
(c)     Mr Graeme Mark Hall, Manager Facilities Maintenance with the first respondent. Mr Hall stated that he had not “seen any documentation from [Mr Barrott] informing us that he had any problems with any member of our staff or that he was suffering stress from any work related issues”. Mention is made of the lawn-mowing incident and Mr Hall’s meeting with Mr Barrott at the Ophir Hotel. Mr Hall offered Mr Barrott “the chance to come back to work on the understanding that he would have three weeks’ suspension without pay. I also told [Mr Barrott] that he would have to come back and work in the Orange office so that he could be more closely supervised and that the promotion in Bathurst was off and he was put back on his initial salary.” Mr Hall stated that it appeared that Mr Barrott had accepted what had been proposed. Mr Hall recalled that Mr Barrott had tendered his resignation after citing ill health and stressful events of the last three months. Mr Hall was not aware of what stressful events Mr Barrott was referring to.
The report also includes statements from three employees of the second respondent. There is a statement by Mr Clint Ashley Lamb who was not employed by the second respondent at the time of Mr Barrott’s one day engagement. There is a statement by Mr Damien John Brand. Mr Brand recalls Mr Barrott being employed “for casual work”. He stated that on the same day Mr Barrott started work he was assigned to NSW Housing in Orange. Mr Brown states that “housing found out that there was a possible conflict of interest with him working there as he had previously been working for another housing contractor”.
There is a statement by Ms Beverly Merle Parrott, Director of the second respondent. Ms Parrott confirmed that Mr Barrott was employed on 26 March 2012 by the second respondent as a temporary/casual staff member. Mr Barrott was assigned to NSW Housing. Ms Parrott stated that she believed that NSW Housing “was not able to use Mark Barrott as they saw a conflict of interest between his previous employer and NSW Housing … [Mr Barrott was advised] that he was not suitable for the client but we would keep him on our books.”

Submissions before the Arbitrator

Mr Barrott’s case against the first respondent was, it was submitted by his solicitor Mr Tancred, as was set forward in the Application and which is noted at [11] above. Mr Tancred took the Arbitrator to the evidence which was said to support that allegation. Reliance was placed upon Mr Barrott’s evidence, the evidence of Ms Rout and the evidence of Mr Coles. It was asserted in argument that “it’s well known that Australian males don’t like going to the doctor and don’t like complaining about depression”.
It was argued that the circumstances concerning the “lawn-mowing incident” were a distraction. It was accepted during exchanges with the Arbitrator that there was no evidence of Mr Barrott seeking medical treatment before the incident concerning the lawn-mowing.
Mr Tancred argued that the evidence presented by the respondents did not “squarely address” Mr Barrott’s particular complaints. It was argued that the absence of complaint concerning the alleged behaviour is to be explained on the basis that Mr Barrott chose to avoid the issue and that ultimately “it all subsequently got too much for him”. Reliance was placed upon the evidence of Dr Frukacz. It was further argued that the Arbitrator should give considerable weight to the evidence of Dr Duncan. The evidence of Dr Vickery was addressed in the course of argument and it was put that Dr Vickery had not been given sufficient information to understand the nature of the allegations made by Mr Barrott.
It appears from the early portion of the transcript that no particular submission was, at first, put concerning liability of the second respondent. That subject was raised by the Arbitrator later during argument as is noted below.
Counsel appearing on behalf of the respondents, Mr Hunt, argued that the description of injury as appears in the claim form sent to the first respondent “relates to issues arising from the suspension of his employment”. It was further argued that histories recorded by the various medical practitioners did not support the existence or relevance of working conditions which existed before the lawn-mowing incident. It was put that, in the absence of such corroboration concerning experience of symptoms, a finding would be made against Mr Barrott with respect to his allegation of being harassed and bullied. Submissions were at this point interrupted by the Arbitrator and a question was directed to Mr Tancred concerning the allegations made against the second respondent. It was put on behalf of Mr Barrott that the decision to terminate employment by the second respondent was “based on unreasonable grounds”. It was put that no evidence was presented that establishes that any enquiry was made concerning the allegations found in Mr Hall’s email. It was put that the absence of evidence prevents reliance by the second respondent upon the provisions of s 11A.
Attention was given in the course of submissions put by Mr Hunt to the lawn-mowing incident and the reasonableness of the conduct of the first respondent in suspending Mr Barrott and having him transferred to Orange. The respondent’s argument was summarised (at T37) as being that if any incapacity was found, it “flowed as a result of reasonable action taken in relation to – as a result of the lawn mowing incident that attracts a benefit of s 11A”.
With respect to the allegations against the second respondent it was argued that the medical evidence does not support any allegation of injury as against that employer. It was further emphasised that Mr Barrott’s engagement with the second respondent was “a typical labour hire arrangement. It’s a day by day arrangement…”.
It was argued on behalf of Mr Barrott in reply that the absence of corroboration from the clinical notes of Dr Poh would not be “fatal” to his case. Argument was also advanced that Mr Barrott’s state of mind at the time he was consulting Ms Hourigan might explain the absence of relevant history.

The Arbitrator’s decision

At the outset of his Reasons (at [5]) the Arbitrator identified the issues for determination by reference to a notice issued by the insurer on 24 December 2012. That notice asserted that liability was declined because “there is evidence to suggest that your injury is not related to your employment”. That “evidence” was stated to be the opinion of Dr Graham Vickery expressed in his report dated 19 December 2012. The Arbitrator set forth the text of the notice which is as follows:

“There is evidence to suggest that your injury is not related to your employment...
You attended an Independent Medical Examination with Dr Graham Vickery, Psychiatrist on 19 December 2012. Dr Vickery has now provided us with his report and he states on examination there was no evidence of clinically significant anxiety, major depression, paranoid delusional ideation, formal thought disorder or any gross cognitive impairment in concentration or memory. Dr Vickery states your current diagnosis is major depressive disorder, however the cessation of employment was the substantial contributing factor to his [sic] disorder, not your workplace, Dr Vickery states you [sic] condition is related to your loss of employment.
Therefore, based on the above on the above [sic] information we are of the opinion that your psychiatric disorder is not related to your employment.”

The alleged incapacity was also disputed.

It must be recorded that this somewhat abstruse statement of the respondent’s grounds of denial of liability was, as noted above at [14], subsequently amended. The amended notices are each dated 3 April 2014. Those notices make clear that liability was declined because each of the respondents denied the occurrence of injury and, further, placed reliance upon s 11A “should it be accepted” that psychological injury had been received.
No point is taken by any party to the appeal concerning the Arbitrator’s apparent oversight of the amendment of those notices nor of his identification of the issues in dispute.
The Arbitrator proceeded (between [12] and [52] of Reasons) to summarise submissions put on behalf of each party. Attention in that summary was given to some of the evidence upon which the parties relied in support of argument advanced.
The Arbitrator’s “findings and reasons” are set forth between [53] and [70] of Reasons. The first matter noted by the Arbitrator was that “in early [sic] 2012 [Mr Barrott] was suffering from a known psychological condition” (at [53]). Reference was made to the report of Dr Vickery dated 19 December 2012 in which the diagnosis of “Major Depressive Disorder” was recorded. The Arbitrator noted Dr Vickery’s opinion that the diagnosed condition had come about because of Mr Barrott’s loss of employment. The Arbitrator recorded that Mr Barrott’s case was that before the “lawn-mowing incident” he had been subject to constant “work pressures and deadlines” as well as “bullying by his superiors to get work completed on time and to budget”.
The Arbitrator immediately proceeded to consider the provisions of s 11A and certain authorities, following which he stated (at [56] and [57]):
“56. Having considered the principles as outlined in [Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1] it is apparent to me that one must consider the test of ‘reasonable action’ in a way that balances the interests of the employer with that of the employee. This is so that one needs to determine whether the process leading to any disciplinary action accords ‘a fair go all round’ to quote the old Industrial Commission of New South Wales case of Re Loty v AWU 1971 AR 95.
57. However when one considers what the applicant had done in relation to the ‘lawn mowing incident’ there is no contest what he did was misconduct and in my opinion serious misconduct probably liable to summary termination of the contract. This is particularly so when he claimed a sick day which was paid as sick leave by the first respondent whereas in fact on that same day working for a contractor to the first respondent mowing lawns.”
The Arbitrator noted that Mr Barrott had not been dismissed for his actions but that the employer “adopted a less punitive course” being suspension. The Arbitrator expressed the view that termination of employment would be justified in the circumstances. It was further stated “however not to dismiss [Mr Barrott] when it clearly had a right to do so was ‘reasonable action’ on behalf of the first respondent” (at [59]).
The Arbitrator acknowledged Mr Barrott’s argument that the psychological injury was caused or contributed to by other “stressful employment factors” and that it could not be said that the injury was, in terms of s 11A, “wholly or predominantly caused by” reasonable action taken by the first respondent.

The Arbitrator considered the first respondent’s arguments, founded upon the medical evidence, which emphasised the absence of history of “cumulative stress” prior to the lawn-mowing incident. Following a consideration of authority concerning proof of facts in issue, the Arbitrator stated (at [68]):
“The medical evidence does not come into play until after the lawn mowing incident leading to disciplinary action. One is left with the applicant believing that the stresses at work were a factor in his psychological decline. If that was able to be proved in accordance with the test set out in Shore then the first respondent’s reliance upon the defence set out in section 11A would fail. To say that at the end of a day’s work one was feeling ‘very deflated and depressed’ (Exhibit A page 38 [12]) hardly proves a medical case or assists in causation without corroborating contemporaneous medical support or even evidence of symptoms experienced at the time.”
The Arbitrator stated immediately following the matters quoted above (at [69]):
“In relation to the evidence against the second respondent in summary it is insufficient to prove anything as happening on that day of work which would establish that an injury occurred.”
Orders as recorded at [2] above were then made by the Arbitrator.

DISPOSITION OF THE APPEAL

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
Mr Barrott’s submissions put in support of the appeal enumerate no less than 17 grounds upon which reliance is placed in seeking to have the awards entered by the Arbitrator revoked. Each of those grounds, with the exception of ground 16, appear to challenge the award entered in favour of the first respondent. The ground relied upon in respect of the challenge to the award made in favour of the second respondent (ground 16) asserts “failure to make any finding at all in relation to the claim against the second respondent”. So far as the first respondent is concerned, the first ground asserts “failure to provide adequate reasons”. The balance of the “grounds” appear to be the identification of alleged oversight or failure to give sufficient or proper weight to particular evidence.
I have reached the view that the appellant’s assertion that the Arbitrator has failed to provide adequate reasons for his determination concerning the claim against the first respondent is well founded. Before addressing the arguments and outlining my reasons for so concluding, it is necessary to identify what seems to me is a misapprehension on the part of the parties as to what exactly was decided by the Arbitrator with respect to s 11A. It must be said that the manner in which the Arbitrator approached the fact finding process has given rise to considerable confusion, however it appears to me, having regard to the matters which I have attempted to outline at [60] and [61] above, that the Arbitrator had in fact concluded that injury had been received and that the conduct of the first respondent concerning suspension and transfer to Orange was reasonable action within the meaning of s 11A. As is noted by the respondents (at [3] of submissions on appeal):
“Having considered the reasonableness of the first respondent’s actions in accordance with the s 11A defence, the Arbitrator embarked on a consideration of whether the reasonable action was wholly or mainly responsible for the appellant’s injury.”
As is noted by the respondents in that submission the task which then faced the Arbitrator was to determine whether the evidence established that Mr Barrott “suffered an injury through circumstances other than the disciplinary action following the lawn mowing incident”.
The respondents, when dealing with the appellant’s arguments advanced on the appeal, assert (at [12] of submissions) that the Arbitrator “…ultimately made no finding in respect of the s 11A issue. 11A is a defence and would only come into play if the Arbitrator was satisfied that the appellant had suffered injury arising out of or in the course of employment with the first and or second respondents.” That submission demonstrates, in my view, the confusion which has arisen by reason of the manner in which the Arbitrator has expressed his factual conclusions.
I conclude that it is reasonably clear that the Arbitrator treated the disciplinary and transfer circumstances as affording the first respondent a defence to the allegation of injury arising out of those circumstances. That those circumstances caused injury as diagnosed by Dr Vickery, which is discussed below, is implicit in the Arbitrator’s statements.
It should be recorded that Mr Barrott in his submissions in reply on this appeal asserts that the respondents “concede that s 11A … is irrelevant”. Whilst the respondents may have made such a suggestion in argument, it may not be accepted given that, as I read the Arbitrator’s reasons, he considered it necessary to determine the question of the reasonableness or otherwise of the first respondent’s actions before turning attention to the question as to whether injury, resulting from the nature and conditions of employment generally, had been proven.

The challenge to the award entered in favour of the first respondent

The Arbitrator (at [53] of Reasons) recorded that Mr Barrott was, in 2012, “suffering from a known psychological condition: see report of Dr Graham Vickery dated 19 December 2012… where it is described as a ‘Major Depressive Disorder’”. That statement made by the Arbitrator must be taken as a finding that Mr Barrott suffered the condition as described. It seems that Mr Barrott’s allegation of injury resulting from employment conditions other than the disciplinary action was rejected by the Arbitrator as expressed by him at [68] of Reasons which is noted at [63] above. Mr Barrott had argued before the Arbitrator that, whilst there was no contemporaneous medical evidence to support his allegation of such injury, he placed reliance upon his own evidence, as well as the evidence of Ms Rout and Mr Coles.
It is Mr Barrott’s complaint on this appeal that the Arbitrator had failed to have regard to the evidence of Ms Rout and Mr Coles when reaching his apparent conclusion as to injury. The submission of error by reason of failing to provide adequate reasons must be accepted. Whilst the Commission is not bound by the rules of evidence, it is clear that evidence such as that given by Ms Rout and Mr Coles concerning Mr Barrott’s state of mind and health at relevant times is admissible at law: Ramsay v Watson (1961) 108 CLR 642. Such evidence may be persuasive and it was incumbent upon the Arbitrator to make reference to that evidence and to evaluate its relevance and weight. Failure to do so constitutes error and such error has in my view affected the Arbitrator’s decision concerning the liability of the first respondent. It is thus necessary that the award entered be revoked. As was stated by McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110:
“The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes ‘a sense of grievance’ and denies ‘both the fact and the appearance of justice having been done’, thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 (at 728); Beale (at 442) per Meagher JA.
The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: Mifsud (at 728) per Samuels JA; Hull v Thompson [2001] NSWCA 359 (at [53]) per Rolfe AJA (Sheller JA and Davies AJA agreeing). While a judge is not obliged to spell out every detail of the process of reasoning to a finding (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171) per Mahoney JA, (at 182) per Handley JA), it is essential to expose the reasons for resolving a point critical to the contest between the parties: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis (at 259) per Kirby P, (at 270) per Mahoney JA, (at 280) per McHugh JA; applied in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; 216 CLR 212 (at [40]) per Gleeson CJ, Gummow and Heydon JJ.
The reasons must do justice to the issues posed by the parties’ cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge ‘‘enter into’ the issues canvassed and explain why one case is preferred over another’; see also Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [1999] EWCA Civ 811; [2000] 1 All ER 373 (at 377-378) per Henry, Laws LJJ and Hidden J.”
The first respondent seeks to support the Arbitrator’s reasoning and apparent conclusion as to injury by emphasising the existence of a significant body of evidence which suggests that no such injury had occurred. Those submissions do not touch on the Arbitrator’s failure to deal with the evidence which, had it been considered, may have been treated as corroborative of Mr Barrott’s allegation.

The challenge to the award entered in favour of the second respondent

The error asserted in ground 16 is that the Arbitrator failed “to make any finding at all in relation to the claim against the second respondent.” As noted above at [64] the Arbitrator’s finding was that the evidence was “insufficient to prove anything … happening on that day at work which would establish that an injury occurred”. Mr Barrott’s case was that he was wrongfully dismissed on that day and, as a consequence (although not expressly stated), suffered an exacerbation of a psychiatric condition.
The second respondent argues on this appeal that the manner in which the Arbitrator addressed the question of the second respondent’s liability was appropriate having regard to Mr Barrott’s concession “that the medical evidence would not assist the Arbitrator in reaching a finding of injury against the second respondent”. Whilst the absence of reasons for the Arbitrator’s conclusion, other than a statement that there was no evidence, may give rise to some criticism, any error which may be perceived as arising from the Arbitrator’s failure to consider the consequences of the second respondent’s conduct and its reasonableness (see Jeffery v Lintipal Pty Ltd [2008] NSWCA 138) would not lead me to conclude that such error had relevantly affected his decision concerning the second respondent’s liability. I reach this conclusion by reason, in particular, of the concession, properly made, by Mr Barrott earlier noted concerning the state of the medical evidence. The award in favour of the second respondent should be confirmed on this appeal.
Having regard to my conclusions outlined above, it is unnecessary to address the other “grounds” raised on the appeal. This is particularly so given that those “grounds” generally fail to identify error but rather constitute submissions concerning the manner in which the Arbitrator addressed, or failed to address, the evidence before him.
Whist I am mindful that the Court of Appeal has expressed the view that, should an appeal be upheld, it is preferable, if possible, that the Presidential Member finally determines the matter (see Chubb Security Australia Pty Limited v Trevarrow [2004] NSWCA 344; 5 DDCR 1 per Santow JA at [28] and [29]) I do not consider that to be the appropriate course in the present matter. I so conclude having regard to the somewhat confused state of argument and the fact that the issue of causation involves questions of credit which should be addressed on re-determination.
The appeal concerning the order made with respect to the first respondent is upheld. The appeal against the order concerning the liability of the second respondent fails. Appropriate orders appear below.

DECISION

The following orders are made on this appeal.
1.       The award in favour of the first respondent is revoked.
2.       The Arbitrator’s entry of an award in favour of the second respondent is confirmed.
3.       The proceedings as against the first respondent are remitted to another Arbitrator for re-determination.

Kevin O'Grady
Deputy President

17 March 2015

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

ASSOCIATE