BB v Secretary, Department of Education
[2020] NSWWCCPD 27
•7 May 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | BB v Secretary, Department of Education [2020] NSWWCCPD 27 |
| APPELLANT: | BB |
| RESPONDENT: | Secretary, Department of Education |
| INSURER: | Allianz – TMF |
| FILE NUMBER: | A1-2864/19 |
| ARBITRATOR: | Mr J Wynyard |
| DATE OF ARBITRATOR’S DECISION: | 28 October 2019 |
| DATE OF APPEAL DECISION: | 7 May 2020 |
| SUBJECT MATTER OF DECISION: | Factual error; the causation test in s 11A(1) of the Workers Compensation Act 1987 |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr B G McManamey, counsel | |
| Brydens Lawyers | |
| Respondent: | |
| Mr F Doak, counsel | |
| Bartier Perry | |
| ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 28 October 2019 is revoked. 2. The matter is remitted for re-determination by another Arbitrator. |
INTRODUCTION
BB (the appellant) worked with the NSW Department of Education (the respondent) as a high school teacher, casually from 1998 and in a permanent position from July 2005. At the time of the events giving rise to the current claim the appellant’s substantive position was a full-time head teacher at the school. He also worked on Saturday mornings as a curriculum co-ordinator at a language school. The part-time job is not alleged to be relevant to the current claim.[1]
[1] Appellant’s statement 26/2/19, Application to Resolve a Dispute (ARD), p 4.
The appellant was the Head Teacher in the Secondary Studies faculty at the school. He was also relieving Deputy Principal from 2015 to April 2016. He was unsuccessful in obtaining the temporary position of Deputy Principal after his relieving role came to an end. From April 2016, the appellant unsuccessfully sought to obtain positions at other schools. There were difficulties in his relations with the principal and the deputy principal. There was a problem with the school’s careers advisor, who the appellant shared an office with.
On 23 May 2017, the appellant had a meeting with the deputy principal, followed later in the day by a meeting with the principal. At the second of these, the appellant was given a letter containing a number of allegations. At the end of that day the appellant saw his general practitioner and went off work. He did not resume thereafter.
The allegation is one of psychological injury. The appellant made various claims for compensation, claiming separately in respect of stresses to which he was exposed in his teaching position (and associated interpersonal difficulties) at the school, stresses associated with inappropriate behaviour of students, and atrial fibrillation (which was claimed to result from the psychological condition). An arbitration hearing was held on 6 September 2019. Mr McManamey appeared for the appellant and Mr Doak for the respondent. Ultimately the respondent accepted there was a psychological injury resulting from employment, to which employment was a substantial contributing factor (or the main contributing factor if viewed as a ‘disease’). The extent of that concession is further discussed below. There was an issue regarding whether the respondent had a defence on the basis of s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act).[2] Counsel addressed and the Arbitrator reserved his decision. A Certificate of Determination was issued on 28 October 2019. The Arbitrator decided that a defence pursuant to s 11A(1) of the 1987 Act was established and entered an award in favour of the respondent. This appeal is brought against that decision.
[2] Transcript of arbitration hearing 6/9/19 (T), T 32.11–17.
THE FACTUAL BACKGROUND TO THE LIABILITY ISSUE
The following summary is drawn essentially from the appellant’s statements dated 26 February 2019 and 1 March 2019.[3] The appellant identified a number of incidents involving inappropriate behaviour by students at the school, dating back to 2015. These included verbal abuse and threats. The appellant from around April 2016 began applying for “numerous positions at other schools” but was not invited to be interviewed for these.[4] The appellant described ongoing incidents involving student discipline. He became involved in a Secondary Studies faculty review which he said increased his workload. He regarded the principal as treating him unfairly and not supporting his applications for other positions.[5]
[3] ARD, pp 1–31.
[4] ARD, pp 6–7.
[5] ARD, pp 9–12.
The appellant contacted the Teachers Federation, who advised that he should contact the Director at the respondent’s regional network office. She advised the appellant to seek counselling. The appellant shared an office at the school, with the school’s careers adviser. The appellant described her as “inconsiderate and uncooperative”. He said his request for a separate office was ignored.[6] From the start of the 2017 school year, the appellant was asked to continue meeting with the principal, as a follow up from the Secondary Studies review. The appellant described these meetings as “excessive and unnecessary”. The principal described them as a “line of support” consistent with the appellant’s request to the Director. The appellant thought he was being “unfairly targeted”. The principal referred to the possible implementation of a Performance Improvement Program, which the appellant said he regarded as a “threat”.[7]
[6] ARD, pp 12–13.
[7] ARD, pp 14–15.
At the appellant’s request, on 27 February 2017 a meeting was held with the Director and the principal. He raised concerns about “workplace bullying”, “excessive workload”, “insufficient support”, and asked that a Health and Safety Officer visit and assess his working conditions and workload. He raised the “threat” of the Performance Improvement Program. The appellant previously considered that his failure to obtain interviews for other positions was due to the principal giving negative references. The Director agreed to act as his referee instead of the principal. The appellant said that at the conclusion of this meeting he became ill, attended his doctor and went home. On 28 February 2017, he attended a counselling session with the Employee Assistance Program (EAP). The appellant said that following the meeting on 27 February 2017 the principal, the careers adviser and the deputy principal became “more vindictive” towards him. They behaved in a way that would cause him to feel “stressed, anxious and intimidated”.[8]
[8] ARD, pp 15–16.
The appellant said that he forwarded “a lengthy email” to the careers adviser, copying in the principal and deputy principal, stating he was unhappy with the careers adviser’s “inconsiderate behaviour” towards him. He raised those concerns again with the principal and deputy principal at a meeting on 16 May 2017. He was given the option of relocating to another office that was to be created. He asked why he had to be the one to relocate. The Director acted as a referee for the appellant on one occasion, but there was said to be a problem as she had “not sought permission from the Director of Staffing”. The appellant said this prevented him being offered an interview.[9] He said that prior to 23 May 2017 he had submitted “some 20 separate applications at different schools but continued to be unsuccessful in reaching the interview stage” due to the principal’s comments as a referee. He said that from February 2017 to May 2017, on “some 20 occasions”, he lodged notices of a series of work-related incidents which caused him psychological injury. He said he felt “more and more ill each day” until 23 May 2017.[10]
[9] ARD, pp 16–17.
[10] ARD, p 16.
The appellant described a meeting with the deputy principal on 23 May 2017, to discuss matters relating to the Secondary Studies faculty, of which the appellant was head teacher. He stated she had engaged in “deliberate and targeted vindictive behaviour” towards him, which he regarded as bullying. The appellant said that the deputy principal continued to interrogate and question him about all sorts of matters, he was struggling to breathe normally and had chest pain. He said the meeting went over time, into his recess break. At the end of the meeting he felt stressed, tired, his hands and legs were shaking, he was lightheaded and very weak. The appellant said the deputy principal had previously been “verbally and physically aggressive” towards him in February 2016, when police were called to the school to deal with a violent student. The appellant said he forced himself to stay at school on 23 May 2017 following the meeting with the deputy principal, as he had another meeting with the principal later that day.[11] Following the meeting with the principal, the appellant ceased active duties with the respondent.
[11] ARD, pp 19–21.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE ARBITRATOR’S REASONS
The parties lodged over 1,300 pages of material in the proceedings. The Arbitrator summarised the medical and lay evidence and the parties’ submissions, at length. I shall not seek to repeat that. The Arbitrator’s analysis of the matter appears essentially at [196] to [239] of his reasons.
The Arbitrator described the alleged deemed date of injury, 23 May 2017, as “appropriate”, being the date from which the appellant was incapacitated. He said that the principal’s letter of that date established the purpose of the meeting that day was “primarily discipline”. The Arbitrator said that it was necessary to consider the reasonableness of the respondent’s actions, including the steps involving the entirety of its conduct. The “whole or predominant cause” encompasses the history leading to the onset of the psychological condition.[12]
[12] Reasons, [199].
The Arbitrator referred to a submission that the respondent’s relevant actions (for the purposes of the defence) were not the “whole or predominant cause” of the injury, because the appellant was already suffering from a psychological condition, resulting from trauma dealing with troublesome students. The Arbitrator said he rejected this submission. He said the incident with the deputy principal (on 9 February 2016) simply involved him being asked to walk away to de-escalate a situation with a student, which the appellant did.
The Arbitrator referred to the appellant’s initial psychological complaints to Dr Nguyen and Dr Sidrak. These related to overwork, being placed on probation, being under review for professional conduct, and being harassed and bullied. The first entry in medical records that related to troublesome students was in Dr Sidrak’s note on 19 July 2018, when the appellant asked the doctor to open another “workers compensation file”. Similarly, Dr Ismail, the psychiatrist the appellant had consulted since July 2017, noted on 7 August 2018 that the appellant had “‘now’ lodged claims for psychological injury due to the aggressive behaviour from a few difficult students”.[13] Ms Dover was the appellant’s treating psychologist from June 2017. She recorded that it was after the appellant’s first WorkCover Application that he began to attribute his condition to incidents involving troublesome students. She described the appellant’s memory as having “resurfaced” for these events.[14]
[13] Reasons, [200]–[206].
[14] Reasons, [213].
The Arbitrator referred to the appellant’s statement dated 11 December 2015, which he said made no reference to “feeling intimidated, or fearing for his safety”. This contrasted with his statement dated 25 February 2019. The Arbitrator queried whether, by the time of the later statement, the appellant’s psychological injury may have caused him to reconstruct the events regarding troublesome students. The Arbitrator said that, assuming the appellant did mention the events involving troublesome students to Drs Sidrak and Ismail, the fact that the doctors did not mention such histories led to an inference these doctors did not consider the events to be relevant. It could not be said these events contributed to the psychological injury.[15]
[15] Reasons, [214]–[216].
The Arbitrator said that the “description belatedly given by [the appellant] of the student incidents, whilst unpleasant, were not described in a way that would have led to enduring psychiatric illness”. In this regard the Arbitrator accepted the opinion of Dr Martin, the psychiatrist qualified by the respondent. Dr Martin said the appellant’s “main focus was his perception of being treated unfairly”.[16] The Arbitrator described the report of Dr Gertler (the psychiatrist qualified on the appellant’s behalf) as not of assistance. He said Dr Gertler was “not fully appraised of the facts and circumstances”. He was unaware the complaints of “student aggression were made belatedly”. He was unaware of the appellant’s full history of performance reviews and failing to obtain transfers.[17]
[16] Reasons, [217].
[17] Reasons, [218].
Having rejected the allegation that the events involving troublesome students were causative of the psychological injury, the Arbitrator found that the psychological injury “was wholly or predominantly caused by the actions of the respondent”. “[A]part from the allegation of student aggression, no other cause has been advanced”.[18]
[18] Reasons, [219].
The Arbitrator referred to various concessions that he said were made by the appellant. He said the appellant had many applications for interview declined, for which he blamed the principal. He made “unsubstantiated allegations” that head teachers had accepted demotions just to be transferred away from the principal. He conceded he was involved in a Self Evaluation Review in 2016 and that he was not fully trained as a Head Teacher of Secondary Studies, for which he blamed the school. He conceded the review continued in 2017. He conceded he was told by the principal that the further meetings were to support him, although he did not believe it. He conceded he was told a Performance Improvement Program might be imposed, which he interpreted as a “threat and a form of bullying”. He conceded that the meeting on 23 May 2017 with the deputy principal was concerned with his failure to complete work previously raised. He conceded he was told by the deputy principal that her meeting with the appellant was to discuss the requirements of the appellant’s job. The Arbitrator said the meeting with the principal on 23 May 2017 was so he could be given the letter which required a response within seven days, that meeting related to discipline.[19]
[19] Reasons, [220]–[224].
The Arbitrator said that the case was one where the causation issue pursuant to s 11A could possibly be decided without specific medical evidence, referring to Hamad v Q Catering Limited.[20] He said the causation issue had been dealt with in any event by Dr Martin in his report dated 25 August 2017. He found the condition was work related, concerned with industrial and interpersonal conflict, and was “in the realms of appropriate managerial performance intervention”. In his report dated 25 May 2018 Dr Martin said “performance appraisal had been a major factor which led to [the appellant’s] sense of grievance”. The appellant’s “distress was caused by his lack of success in seeking alternative positions”. The Arbitrator said he was “satisfied that [the appellant’s] psychological injury was wholly or predominantly caused by the actions of the respondent”.[21]
[20] [2017] NSWWCCPD 6, [88].
[21] Reasons, [225]–[227].
The Arbitrator said he accepted Dr Martin’s evidence that the respondent’s relevant actions “pertained to performance appraisal and discipline” and incorporated in those actions were “issues of promotion and transfer”. The appellant “wished to advance his career by obtaining a transfer”. He failed because of his unsatisfactory performance, his failure to successfully undertake training, and “in the end because his frustration, and perhaps his psychological condition, meant that his conduct became unacceptable”.[22]
[22] Reasons, [228].
The Arbitrator said that he accepted the evidence of the principal, deputy principal and careers adviser that the appellant “was resistant to attempts by them to give him further training and to improve his performance”. He accepted “the evidence of the respondent’s witnesses … The evidence was precise, and was supported by contemporaneous documentation.”[23] The Arbitrator referred to a submission by the appellant’s counsel, that the controversy about the room the appellant shared with the careers adviser “could not be put under the umbrella of s 11A”. This was not dealt with by Dr Martin and meant the respondent could not satisfy its onus. The Arbitrator dealt with this submission, referring to the following passage from Department of Education and Training v Sinclair:
“To avoid the absurdity that arises from a literal approach, and having regard to the context of the legislative scheme and its purpose, it is necessary to understand s11A to mean that the employer is not liable where, to the extent that the employment contributed to the injury, that contribution was wholly or predominantly caused by reasonable action taken with respect to ... discipline”.[24] (emphasis in original)
[23] Reasons, [230]–[231].
[24] [2005] NSWCA 465; 4 DDCR 206 (Sinclair), [58].
The Arbitrator continued:
“I am satisfied that the respondent is not liable, to the extent that [the appellant’s] employment contributed to his injury, as that contribution was wholly or predominantly caused by reasonable action regarding performance appraisal and discipline. The interpersonal conflict with [the careers adviser] was no more than a by-product of [the appellant’s] condition. Dr Martin named the issues that were the cause of that condition. His views were clear and there was no need for him to name extraneous, irrelevant or trivial issues simply to exclude them.”[25]
[25] Reasons, [236].
The Arbitrator made a formal finding:
“I find that the psychological injury was wholly or predominantly caused by the reasonable actions taken by the respondent with respect to performance appraisal and discipline.”[26]
[26] Reasons, [238].
GROUNDS OF APPEAL
The appellant raises the following grounds:
(a) The Arbitrator erred in fact and law when he considered the question was whether the appellant was suffering from a psychological injury prior to the actions of the respondent. (Ground No. 1)
(b) The Arbitrator erred in law when he failed to consider whether each of the actions complained of was in respect of performance appraisal or discipline. (Ground No. 2)
(c) The Arbitrator erred in law when he found that the interpersonal conflict with the careers adviser was no more than a by-product of [the appellant’s] condition. (Ground No. 3)
(d) The Arbitrator erred in fact when he found that the opinion of Dr Martin established a section 11A defence. (Ground No. 4)
LEGISLATION
Section 11A(1) of the 1987 Act provides:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)
Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“(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.”
In Raulston v Toll Pty Ltd,[27] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[28] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[29]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[30]
[27] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[28] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[29] [1996] HCA 140; 140 ALR 227.
[30] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[31] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[32]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[33]
[31] [2017] NSWWCCPD 5, [67].
[32] [2001] FCA 1833, [28].
[33] Raulston, [20].
In Northern NSW Local Health Network v Heggie[34] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518–519”.[35]
[34] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[35] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were recently considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[36] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[37]
[36] [2020] NSWCA 54 (Hill).
[37] Hill, [20].
THE INJURY ISSUES AT THE ARBITRATION HEARING
It is necessary to identify the issues regarding the cause of the psychological injury, as there is some confusion between the parties’ submissions on appeal regarding what was conceded by the respondent.
The injury allegations set out in the ARD at Part 4 nominate a deemed date of injury of 23 May 2017. The description of how the injury occurred describes exposure, over an extended period of time, to violence, aggression and antisocial behaviour from students. It describes unreasonable criticism and victimisation by superiors, micromanagement, unfair treatment, bullying and harassment. The respondent’s Reply at Part 3 describes the issues being “as per dispute notice(s) attached to the Application”.
The ARD attached dispute notices dated 6 June 2018[38], 8 August 2018[39] and 10 August 2018 (x 2).[40]
[38] ARD, pp 377–388.
[39] ARD, pp 418–425.
[40] ARD, pp 428–433 and 436–444.
The notice dated 6 June 2018, relevant to injury, described and dealt with the factual matters relevant to the issues involving intimidation, bullying and the like, involving the appellant and other members of staff, including the principal, deputy principal and careers adviser. It did not relate to the incidents involving students. The notice stated the respondent accepted the appellant sustained a psychological injury but disputed the pathology was PTSD. There was more detail and recitation of factual material which I do not need to repeat here. The notice raised s 11A(1) of the 1987 Act as a defence.
The notice dated 8 August 2018 denied injuries on 21 June 2016, 9 August 2016, 11 August 2016, and 31 August 2016. These were described in the notice as being various dates when violent, aggressive or antisocial behaviour by students allegedly occurred. The notice denied that employment was the main contributing factor to a ‘disease’ injury. It denied that atrial fibrillation resulted from the psychological injury.
The first notice dated 10 August 2018 again denied various injuries involving the behaviour of students. It added reference to additional incidents of this type on 10 August 2016, 17 August 2016, 18 August 2016, 19 August 2016 and 22 August 2016. The second of the notices dated 10 August 2018 denied injury in further incidents involving the behaviour of students on 9 November 2015, 11 December 2015 and 9 February 2016. The incident on 9 February 2016 also dealt with an allegation that the deputy principal intimidated the appellant as part of an incident involving a student on that date.
It followed from the dispute notices that the respondent accepted the appellant suffered psychological injury from the events described in the notice dated 6 June 2018. The respondent did not raise any issue regarding the satisfaction of s 9A of the 1987 Act. The respondent denied that this injury involved “PTSD”. The respondent raised s 11A(1) as a defence to this injury. In respect of the multiple incidents involving the behaviour of students, the respondent denied these allegations of injury. It also denied the allegation regarding atrial fibrillation.
The issues raised by parties in their pleadings could be restricted or enlarged, depending on how the parties presented their cases.[41] There is no indication that the respondent withdrew or restricted the matters raised by it in the notices of dispute. When the respondent commenced its submissions before the Arbitrator, its counsel described the claim as falling into “two categories”. The first was a claim for “bullying and harassment, to use the label that’s been put on it”. He described this as “a variety of claims against three people that [the appellant] worked with”, the principal, deputy principal and careers adviser.[42] The respondent’s counsel described the second aspect as “a claim for psychological injury allegedly caused by exposure to ‘violent aggressive behaviour of students’”.[43] He said:
“The first of the two claims is disputed on the basis of principally section 11A although there is a component of it based on diagnosis of PTSD that’s disputed on the basis of injury. The second component or aspect of the claim, that is the, if I can use this description of it, the student behaviour claim, is denied on the basis that the [appellant] didn’t suffer any psychiatric injury caused by any exposure to student behaviour.”[44]
[41] Gould v Mount Oxide Mines Ltd [1916] HCA 81; 22 CLR 490, 517 (per Isaacs and Rich JJ), Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279, [18] (per Mason and Gaudron JJ), Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1; 14 DDCR 157, [36].
[42] T 2.12–29.
[43] T 3.10–13.
[44] T 3.14–22.
When the appellant’s counsel commenced addressing before the Arbitrator he put the issues more generally, not drawing a specific distinction between the two aspects of the claim. He said:
“… first of all just revisiting what’s actually in issue because it’s quite important. There’s no issue that the [appellant] has suffered a psychological injury as a result of his employment and to which employment was the substantial contributing factor and if the view is taken as disease which employment is the main contributing factor. So the [appellant] doesn’t have to prove any of those things. There is one little, perhaps an issue about diagnosis but I don’t propose to say much to you about that because really nothing turns on it.
The substantive issue before you is whether the respondent can make out a defence of section 11A.”[45]
[45] T 31.33–32.12.
The respondent’s counsel did not, in his submissions in reply, suggest he had withdrawn from the identification of the issues he made at the outset.
GROUND NO. 1
Appellant’s submissions
The appellant refers to his reliance on “a number of incidents as being causative of his injury”. It should be noted this is not how the allegations of injury are described in Part 4 of the Application to Resolve a Dispute (ARD), which pleads a single date of injury (23 May 2017 on the basis of the ‘disease’ provisions) and is more generally expressed. The incidents listed in the appellant’s submissions are:
(i) On 11 December 2015, the appellant was threatened with violence by a student.
(ii) In August 2016, the appellant was verbally abused and threatened by a student.
(iii) On 31 August 2016, the appellant was again threatened by a student who was behaving aggressively.
(iv) The appellant was exhausted and overwhelmed by his workload.
(v) The appellant was not given sufficient support and training to perform his work tasks.
(vi) The appellant had conflict with a co-worker, the careers adviser.
(vii) The appellant had conflict with the principal.
(viii) The appellant had failed to gain appointments or interviews in the context where he was not being supported by the principal.
(ix) The appellant had been required to attend a meeting on 23 May [2017] where he was not given notice but at the meeting required to produce evidence of work that he should have completed.
(x) The appellant was required to attend a school self-evaluation which was expressly stated not to be performance appraisal.[46]
[46] Appellant’s submissions, [6].
The appellant submits many of the above matters “do not fit within the definitions of performance appraisal or discipline”. The appellant submits the respondent “bears the onus of establishing that the injury was wholly or predominantly cause[d] by reasonable actions with respect to performance appraisal or discipline”.[47] In respect of the first three matters listed above, the appellant refers to the reasons at [200], and submits the Arbitrator approached the question as being whether the appellant “was already suffering from a psychological condition”. It submits this was “not the correct question”. The question should be whether the incidents were part of the cause of the found injury. Because the Arbitrator asked the wrong question, he considered it was answered by considering whether the appellant exhibited symptoms at the time of the incidents (reference is made to the reasons at [201]).[48]
[47] Appellant’s submissions, [7].
[48] Appellant’s submissions, [8]–[10].
The appellant also submits on an associated alleged factual error. The appellant complained to an “EAP counsellor” on 28 February 2017 of problems arising from bullying, abuse and aggression from students. The history recorded by Dr Sidrak on 19 July 2018 was not the first recorded corroboration of complaints based on incidents involving students (see [16] above).[49]
[49] Appellant’s submissions, [9].
The appellant submits the Arbitrator mis-read or misunderstood Dr Gertler’s opinion in his report dated 27 November 2018.[50] The Arbitrator said that Dr Gertler accepted the appellant developed anxiety at the time of the incidents with students. Dr Gertler did not. He took a history of the student incidents and other matters but not of complaint of symptoms at the time of the student incidents. The appellant complained of a condition at the time of his assessment by Dr Gertler. Dr Gertler diagnosed chronic adjustment disorder with depressed mood, which he attributed to the nature and conditions of employment generally, particularly from 2015 to early 2017. Properly read, Dr Gertler’s opinion is that the student incidents contributed to the condition. This did not depend on an understanding that the student incidents resulted in anxiety at the time they occurred.[51]
[50] ARD, pp 464–470.
[51] Appellant’s submissions, [11]–[14].
The appellant submits that Ms Dover similarly did not (contrary to the Arbitrator’s view) proceed on the basis the student incidents caused anxiety at the time they occurred. Ms Dover’s report dated 26 January 2019[52] said it was only later that a memory of these events resurfaced, she did not take a history of anxiety at the time of the incidents. Her diagnosis of Post-Traumatic Stress Disorder was based on the appellant’s current symptoms when she assessed him.[53]
[52] ARD, pp 42–47.
[53] Appellant’s submissions, [15].
The appellant submits that Dr Ismail also did not record a history of psychological symptoms at the time of the student incidents. He recorded them as relevant to the appellant’s current symptoms of flashbacks and nightmares. The appellant only started to speak of these incidents after commencing treatment for his overall condition.[54]
[54] Appellant’s submissions, [16].
The appellant submits that because the Arbitrator asked the wrong question, he did not engage with the evidence about whether the “student incidents had contributed to the causation of the later manifesting psychological condition”. The appellant submits that it was not for the appellant to prove the student incidents contributed to his ‘injury’ (which was conceded), it was up to the respondent to prove that they did not.[55]
[55] Appellant’s submissions, [17]–[18].
The appellant submits that Dr Martin, in the respondent’s case, did not address this question. He dealt with whether the student incidents had aggravated a psychological condition. He said they did not, because the illness came after those events. The doctor did not address whether the incidents contributed to the development of the injury. The appellant submits Dr Martin rejected the proposition that there was a causal relationship “because the injury only came after the industrial stresses”. This seemed to be based on the idea that incapacity had to result from the proximate cause to be compensable, which is not the test. The appellant submits the Arbitrator, had he considered the proper test, should have concluded the respondent had not discharged its onus of establishing that the student incidents did not contribute. Dr Martin did not consider “the respective contribution of the s 11A and the non 11A factors”. The respondent could not discharge its causal onus under s 11A, “unless the other factors were all found to be non causative”.[56]
[56] Appellant’s submissions, [19]–[20].
Respondent’s submissions
The respondent submits that both whether the appellant suffered psychological injury, and whether the respondent had made out a defence under s 11A, were in issue. Section 11A only arises after the appellant has established that the factual matters on which he relies were causative of injury. If factual matters (the student incidents) were not causative of injury, a failure to consider them in dealing with s 11A does not constitute error.[57]
[57] Respondent’s submissions, [9]–[10].
The respondent submits the reasons at [200] clearly were a reference to the appellant’s submissions and did not constitute a misdirection on the issue of injury. It submits the Arbitrator analysed the student incidents at [201] to [217] of the reasons and was not satisfied that the psychological injury was caused by the student incidents. This did not disclose error.[58]
[58] Respondent’s submissions, [11].
The respondent refers to the appellant’s submission that the Arbitrator asked the wrong question, whether the appellant exhibited symptoms at the time of the incidents. The respondent submits the Arbitrator’s finding was not based solely on this criterion. It submits the Arbitrator’s finding was open on the evidence, and the Arbitrator relied on:
(a) the absence of complaint in the reports of the student incidents;
(b) the failure to refer to the first student incident in his statement dated 11 December 2015;
(c) the failure to report adverse psychological effects from the student incidents to his treaters, Dr Sidrak, Dr Ismail and Ms Dover until mid-2018 (after his bullying and harassment claim was declined), and
(d) the appellant’s failure to mention the student incidents to his general practitioner Dr Nguyen in February 2017, when Dr Ismail subsequently recorded in August 2018 that the appellant had been “traumatised” by the incidents.[59]
[59] Respondent’s submissions, [12]–[13].
The respondent refers to the appellant’s submission that the Arbitrator erred in his consideration of Dr Gertler’s report; the Arbitrator discounted that opinion as Dr Gertler incorrectly understood that the appellant started to develop anxiety at the time of the student incidents. The respondent says that the Arbitrator’s reasons for rejecting Dr Gertler are found at [218] of the reasons. Dr Gertler recorded a history that the appellant was threatened by students on several occasions. He did not conclude (contrary to the appellant’s submissions) that the student incidents caused the psychological injury, which Dr Gertler attributed to “exposure to harassment and bullying”. The respondent submits there were omissions in Dr Gertler’s history which were significant, and the Arbitrator’s opinion about Dr Gertler’s evidence was open.[60]
[60] Respondent’s submissions, [14]–[17].
The respondent refers to the appellant’s submission, referring to the reports of Dr Ismail and Ms Dover, that the Arbitrator did not engage with the evidence that the student incidents contributed to the “later manifesting psychological symptoms”. The respondent submits the appellant does not identify any specific error.[61]
[61] Respondent’s submissions, [18].
The respondent says that Dr Ismail and Ms Dover both made a diagnosis of “complex PTSD”. Ms Dover assumed a history that the student incidents involved a threat to the appellant’s “life and safety”. Dr Ismail assumed the student incidents involved exposure to “traumatic experiences”. The respondent submits the Arbitrator correctly identified that the incidents were not traumatic. Additionally, Dr Martin and Dr Gertler gave reasons for not supporting a diagnosis of PTSD. Dr Ismail and Ms Dover failed to set out a reasoned basis for their opinions on this diagnosis, contrary to the duty of an expert witness (reference is made to South Western Sydney Area Health Service v Edmonds[62] and other authorities).[63]
[62] [2007] NSWCA 16; 4 DDCR 421.
[63] Respondent’s submissions, [19]–[20].
The respondent submits it was open to the Arbitrator to accept the appellant did not suffer PTSD and this disclosed no error. It submits it was open to the Arbitrator to find the psychological injury was wholly or predominantly caused by the respondent’s actions. This was supported by Dr Martin’s opinion and disclosed no error.[64]
Consideration
[64] Respondent’s submissions, [21]–[23].
The extent to which ‘injury’ was in issue
At the outset, it is necessary to deal briefly with the matters in issue and whether ‘injury’ was conceded in respect of the ‘student incidents’ (to employ the term adopted in the respondent’s submissions). The issues raised in the dispute notices, and the parties’ conduct of the matter, is discussed above at [33] to [42]. The respondent did not concede that injury resulted from the student incidents, that was a matter that remained in issue between the parties. It follows that the appellant’s submission to the contrary (see [49] above) is rejected.
The Arbitrator’s fact finding regarding the student incidents
It is necessary that the Arbitrator’s reasons be read as a whole.[65] The appellant submits the reasons at [200] involve application of a wrong test; whether the student incidents were a cause of the psychological injury was not dependent on when symptoms from the student incidents commenced. The appellant submits they could have made a contribution to the condition even if they produced symptoms only at some later point in time. The respondent submits, correctly, that the Arbitrator at [200] was not stating a test but rather describing a submission made on the appellant’s part. The Arbitrator at [200] rejected a submission that included the proposition that the appellant suffered from a psychological condition as a result of the trauma of dealing with troublesome students. He then proceeded to give reasons for rejecting that allegation.
[65] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 444.
The Arbitrator gave extensive reasons, at [201] to [218] of his decision, for his rejection of the appellant’s case on injury resulting from the student incidents. The respondent summarised a number of these matters in its submissions. The Arbitrator referred to the complaints recorded from time to time by treating practitioners. He noted that the recorded complaints in 2016 and 2017 predominantly involved matters such as stress at work, overwork, being placed on probation, professional development, and not having his transfer application endorsed by the principal. He noted the entry in Dr Sidrak’s notes on 19 July 2018 when the appellant requested the opening of another workers compensation file for periods covered by the incident reports (relating to student incidents). He noted Dr Ismail, who treated the appellant from July 2017, on 7 August 2018 recorded the appellant had “now” lodged claims for psychological injury due to the aggressive behaviour from a few difficult students.[66]
[66] Reasons, [203]–[212].
The Arbitrator noted the reference by Dr Sidrak (in his report dated 31 July 2018) and by Dr Ismail (in his report dated 7 August 2018) that the appellant had complained of the student incidents previously. The Arbitrator said that they were “not of sufficient interest” (Dr Sidrak) and “not much clinical relevance” was attached to them (Dr Ismail), to explain the lack of earlier recording.[67] The Arbitrator said the failure by Dr Sidrak and Dr Ismail to note the appellant’s complaints regarding the student incidents “gives rise to an inference that they did not consider them to be relevant”. The Arbitrator said: “it could not be said that these [student] incidents contributed to [the appellant’s] psychological injury”.[68]
[67] Reasons, [210]–[212].
[68] Reasons, [216].
The Arbitrator gave other reasons for his rejection of the significance of these incidents. The appellant’s description of these incidents in the incident reports was “dispassionate and professional” with no indication the appellant was “personally affected”.[69] The appellant was a teacher for over 20 years and dealing with troublesome students was an integral part of the occupation.[70] The appellant’s statement dated 11 December 2015 made no mention of any psychological disturbance as a result of that encounter, suggesting the appellant was untroubled. The Arbitrator said the incident reports showed “the behaviour of a professional teacher controlling the situation with appropriate restraint and authority”. The Arbitrator said he did “not accept that these occasions were anything more than the normal run of the occasional encounters that schools are required to deal with”.[71]
[69] Reasons, [201].
[70] Reasons, [207].
[71] Reasons, [207]–[209].
The appellant, in his submissions, refers to the record of the appellant’s consultation with “an EAP counsellor” on 28 February 2017.[72] He submits this included complaints of “both bullying and also from abuse and aggression from students”. He submits this demonstrated a complaint relevant to the student incidents before the history recorded by Dr Sidrak on 19 July 2018.[73] The EAP document records the appellant gave “detailed accounts” of “bullying and harassment in the workplace” and “abuse and aggression from students”. It also recorded the appellant “felt unsupported regarding issues of student aggression”. Issues relevant to the alleged “bullying and harassment” tend to dominate the handwritten record of the consultation. There are references to bullying behaviour escalating, speaking with the Director, and meeting with the principal and Director after being threatened with a “performance program”. Desired outcomes were described as the appellant wanting the Director to act as his referee and wishing to move to another work environment.
[72] ARD, pp 517–518.
[73] Appellant’s submissions, [9].
The Arbitrator in the reasons at [205] said there was “no evidence that [the appellant] was affected by his dealing with troublesome students until the entry in Dr Sidrak’s notes of 19 July 2018”. The appellant correctly submits that he in fact complained to the EAP counsellor on 28 February 2017 when a record was made. The appellant does not submit on how this would change the result. I have read the transcript of the arbitration hearing, and I cannot see that the appellant submitted on the record of the EAP consultation or referred the Arbitrator to it. Notwithstanding what was said in the reasons at [205], the Arbitrator referred to evidence from Dr Sidrak and Dr Ismail that the appellant mentioned the student incidents to them on various occasions. The Arbitrator inferred, given the lack of recording of these occasions, that the doctors did not consider the complaints to be relevant (see [61] above). I cannot see that the existence of a single consultation with an EAP counsellor on 28 February 2017, in which the student incidents were mentioned but do not appear to have been the dominant feature of the consultation, would be likely to change the result regarding whether the student incidents caused injury. The Arbitrator could not err in failing to deal with a submission that was not put to him.[74] It was not necessary that the Arbitrator refer to every piece of evidence.[75] The Arbitrator’s failure to deal with the EAP consultation on 28 February 2017 does not, in the circumstances, constitute appealable error. The Arbitrator did not rely on it, but I note the EAP consultation was on the day following the appellant’s meeting with the Director and the principal (see [7] above).
[74] Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111, [30].
[75] NSW Police Force v Newby [2009] NSWWCCPD 75, [150].
It follows from the above that the issue of whether the student incidents contributed to the psychological injury remained in issue. The Arbitrator decided this issue against the appellant. That decision was not simply based on the Arbitrator’s assessment of the medical evidence. It was based on an analysis of the evidence as a whole and I accept it was a result that was open to him on the evidence (see the discussion at [28] to [32] above). In those circumstances the student incidents became irrelevant to the causation issue (of ‘wholly or predominantly caused’) in s 11A(1).[76]
[76] Sinclair, [58].
Whilst the student incidents occupied much of the parties’ submissions on this ground, they did not represent the whole basis of the appellant’s challenge going to the causation issue in s 11A(1). The respondent, in its submissions, has not taken issue with the list of allegations described by the appellant as being causative of the psychological injury. As the appellant’s submissions on Ground No. 1 state, some of the matters do not on their face fall within the definitions of performance appraisal or discipline. There is considerable overlap between the submissions under the various grounds.
To the extent to which Ground No. 1 raises error in how the Arbitrator dealt with the student incidents, that ground fails. The submissions dealing with Ground No. 1 are more expansive than that. They go in a more general sense to how the Arbitrator dealt with the causation finding pursuant to s 11A(1), in circumstances where the causal matters alleged by the appellant related to matters some of which did not appear to potentially be subject to the operation of s 11A(1). The issues raised, beyond the student incidents, are more appropriately dealt with as part of the other grounds, under which the submissions more directly address them.
GROUNDS NOS. 2, 3 AND 4
The appellant addresses Grounds Nos. 2 and 4 together, a course followed by the respondent. Grounds Nos. 2, 3 and 4 raise issues that relate to the correctness of the Arbitrator’s fact finding relevant to ‘wholly or predominantly caused’. There is overlap between these three grounds and it is convenient to deal with them together.
Appellant’s submissions
The appellant submits there was a real dispute about whether certain actions of the respondent were in respect of the matters described in s 11A(1). The Arbitrator made a finding at [227] of the reasons:
“I am accordingly satisfied that [the appellant’s] psychological injury is wholly or predominantly caused by the actions of the respondent. I do not accept Mr McManamey’s submission that Dr Martin had failed to separate the causes of injury.”
The appellant submits the Arbitrator then did not identify what actions of the respondent were causative. He did not explain why any of those actions were in respect of performance appraisal or discipline. There were matters that could not be within s 11A. These included the conflict with the careers adviser, the difficulty coping with the workload, and many aspects of the appellant’s conflict with the principal. The appellant’s doctors considered all of these factors as causative. The Arbitrator accepted that the appellant complained of too much work and not being properly trained. This was the appellant’s perception. The Arbitrator dealt with this by accepting the evidence of the principal, deputy principal and careers adviser, which was to the contrary. The evidence was consistent with the fact that many of the events actually happened. It was necessary that the Arbitrator consider whether the appellant’s perception of the events was causative of injury. This he failed to do. Had he done so he would have found the events were causative of injury. Dr Martin accepted that the events at work were causative.[77]
[77] Appellant’s submissions, [22]–[26].
The Arbitrator relied on Dr Martin as supporting the proposition that the injury was wholly or predominantly caused by performance appraisal or discipline. The appellant submits this was not correct. The appellant quotes Dr Martin:
“This appears to be work related in that there has been industrial and interpersonal conflict within the workplace which he perceives as bullying, although which his employer might state is in the realm of appropriate managerial or performance intervention.”[78]
[78] Reply to Application to Resolve a Dispute (Reply), p 9.
The appellant submits the Arbitrator did not seek to identify the various matters that contributed to the injury and identify those that might be considered ‘performance appraisal’. Not all performance related matters are ‘performance appraisal’. The appellant submits that Dr Martin was asked for further comment on the contribution of various factors. He said that “Section 11A factors are highly likely to be relevant in his having developed emotional disturbance”.[79] The appellant submits that being relevant is not “even close to the whole or predominant cause”. The appellant submits that Dr Martin’s opinion is well short of what is required for the respondent to discharge its onus on ‘wholly or predominantly caused’.[80]
[79] Reply, p 16.
[80] Appellant’s submissions, [29]–[31].
The appellant refers to the Arbitrator’s finding at [236] of the reasons, that conflict between the appellant and the careers adviser was “no more than a by-product of [the appellant’s] condition”. Dr Martin did not identify that conflict as a cause of the condition. The appellant submits the evidence clearly established conflict around the use of the shared office. This was raised in the history recorded by Dr Martin. There is no medical evidence supporting the Arbitrator’s finding that the appellant’s conflict with the careers adviser was a by-product of the appellant’s condition. This was not a matter on which the Arbitrator could draw his own conclusion in the absence of medical evidence.[81]
[81] Appellant’s submissions, [32]–[34].
The appellant submits also that this finding is inconsistent with the sequence of events. The appellant first sought medical attention in 2017 and ceased work in May 2017. The conflict commenced well before this in 2016.[82]
[82] Appellant’s submissions, [35]–[37].
Respondent’s submissions
The respondent submits the Arbitrator engaged in the appropriate analysis, dealing with whether those matters causative of the injury related to performance appraisal or discipline. The Arbitrator considered the evidence of the appellant and the respondent’s lay witnesses. He accepted the events at work were causative of the injury. He accepted the respondent’s witnesses. He found that the predominant cause of the injury was the disciplinary meeting in May 2017. This was against the background of the appellant’s failed attempts to secure a transfer due to issues with his work performance. The Arbitrator’s finding was open on the evidence.[83]
[83] Respondent’s submissions, [24]–[27].
The respondent submits the appellant’s submission, that the Arbitrator should have then considered the appellant’s version to determine whether it was causative, simply sought to gainsay the finding accepting the evidence of the respondent’s witnesses.[84]
[84] Respondent’s submissions, [28].
The respondent refers to the appellant’s submission that Dr Martin’s evidence did not support the Arbitrator’s finding on onus. Dr Martin referred to the respondent’s factual material including the witnesses. He said that based on the “extra information provided” the connection between the onset of the condition and performance appraisal was “highly likely”. The doctor was not required to “slavishly follow the precise wording of legislation”. Dr Martin’s opinion, read as a whole, supported the finding on causation. The respondent submits that Dr Gertler, and the other expert witnesses on whom the appellant relied, were not “appraised of the full history” or provided with the evidence of the respondent’s witnesses for comment.[85]
[85] Respondent’s submissions, [29]–[30].
The respondent submits there is no medical evidence supporting the proposition that interpersonal conflict with the careers adviser was a cause of the psychological injury. Dr Martin took a history of it but did not express any conclusion on the point. Drs Ismail and Sidrak, and Ms Dover, did not record any specific complaint of this. Dr Gertler took a history of the conflict but did not specifically identify it as a cause of injury, which he identified as “bullying and harassment”. Dr Nguyen did not record a history of this conflict in late 2016 and early 2017.[86]
Consideration
[86] Respondent’s submissions, [31]–[34].
The statutory test
In Manly Pacific International Hotel Pty Ltd v Doyle[87] Fitzgerald JA (Mason P agreeing) said that whether the relevant conduct of the employer (in that case transfer) was:
“… the whole or predominant cause of [the worker’s] psychological injury within the meaning of subs 11A(1) is a question of fact and degree, which involves consideration of all the factors which produced [the worker’s] condition”.[88]
[87] [1999] NSWCA 465; 19 NSWCCR 181 (Doyle).
[88] Doyle, [8].
Applying this passage in Canterbury Bankstown Council v Gazi, Phillips P said:
“That required the Arbitrator to engage in an analysis of the facts as found to be causative of the injury against the relevant actions in determining the question under s 11A of the 1987 Act.”[89]
[89] [2019] NSWWCCPD 14 (Gazi), [176].
In the same decision his Honour accepted, consistent with a number of earlier Presidential decisions, that the phrase “predominantly caused” meant “mainly or principally caused”.[90]
[90] Gazi, [146].
The passage from Sinclair quoted at [23] above restricts this causal enquiry to the extent to which the employment contributed to the psychological injury.
The Arbitrator’s finding on ‘injury’
The respondent conceded the existence of psychological injury, although it disputed whether the student incidents were causally related and disputed the appropriateness of the diagnosis of Post-Traumatic Stress Disorder. In dealing with the s 11A(1) defence, it was necessary that the Arbitrator identify the causes of the psychological injury that was suffered. He dealt at length with the ‘student incidents’, finding those were not causative of the injury. The appellant submits the factual material referred to a number of other matters in the evidence, some of which it said could not fall under the umbrella of s 11A(1). The Arbitrator made the following finding at [219] of the reasons:
“I am satisfied that [the appellant’s] psychological injury was wholly or predominantly caused by the actions of the respondent. Indeed, apart from the allegation regarding student aggression, no other cause has been advanced. [The appellant’s] statements and documents are all based on the same theme of frustration with the named members of the school staff at his inability to obtain an interview to enable him to apply for positions that would further advance his career.”
This finding did not specifically distinguish between whether it was based on the ‘whole’ or ‘predominant’ cause. To the extent to which it should be read as a finding of ‘wholly’, it is erroneous for reasons that appear below. The difference is not purely theoretical. If the finding was based on the predominant cause, this would involve the presence of competing causes, not all of which fell within the ambit of s 11A(1). It would involve an assessment of the respective causes and whether those within the ambit of s 11A(1) predominated.
The finding at [219] should be read together with the following:
“226. However, the issue has been considered by the respondent’s medico-legal referee, Dr Martin. In his report of 25 August 2017 Dr Martin found that the condition was work related, being concerned with industrial and interpersonal conflict that was in the realms of appropriate managerial performance intervention. In his report of 25 May 2018, Dr Martin thought that performance appraisal had been a major factor which had led to [the appellant’s] sense of grievance. His distress was caused by his lack of success in seeking alternative positions.
227. I am accordingly satisfied that [the appellant’s] psychological injury is wholly or predominantly caused by the actions of the respondent. I do not accept Mr McManamey’s submission that Dr Martin had failed to separate the causes of injury.
228. I accept Dr Martin’s evidence that the relevant actions taken by the respondent pertained to performance appraisal and discipline. Incorporated in those actions are the issues of promotion and transfer, as [the appellant’s] evidence was that he wished to advance his career by obtaining a transfer. However it is clear that he failed in that wish because his performance was unsatisfactory because of his failure to undertake the requisite training successfully, and in the end because his frustration, and perhaps his psychological condition, meant that his conduct became unacceptable.
…
238. I find that the psychological injury was wholly or predominantly caused by the reasonable actions taken by the respondent with respect to performance appraisal and discipline.”
The evidence going to overwork
The appellant refers specifically to the complaints of overwork, and also those relating to conflict with the careers adviser. The Arbitrator described the initial relevant complaint to Dr Nguyen (the general practitioner) as “overwork”.[91] That entry on 18 November 2016 reads:
“Teacher, head of dept.
Stress [with] work
Principal keeps on piling work
Long hours 12–13 [per] day
pt wrote to Dept of Education
will be contacted for meetingM/C 18/11/16.”
[91] Reasons, [203].
Dr Nguyen’s records thereafter contain references that could be characterised as ‘discipline’ or ‘performance appraisal’, for example being on probation as performance not to standard (8 February 2017) and fortnightly meetings on an improvement program (14 February 2017). Complaints regarding working hours continued; on 21 February 2017 it was recorded:
“Long day yesterday [from] 7.30 – 9pm
Couldn’t sleep last night
has fortnightly meeting scheduled
with vice principal
feeling stressed/anxiousM/C 21/2/17.”
Dr Nguyen’s cards thereafter span 23 May 2017 (the last day of active duties) and expire on 16 July 2018.[92] The entries overall are generally consistent with being characterised as relating to ‘discipline’ and ‘performance appraisal’.
[92] Reply, pp 773–777.
The appellant’s statements make reference to overwork and long hours. In his statement executed on 26 February 2019, the appellant, dealing with his interactions with the principal during Term 4 of 2016 regarding the faculty review, said:
“However, I did at times feel overwhelmed and exhausted due to this additional workload and lack of release time or support that were made available to me in the process of completing these tasks, especially because the principal expected me to complete these additional tasks on my own and in addition to my fulltime teaching load and other duties as Head Teacher of the Secondary Studies, which in my opinion were excessive.”[93]
…
“At various meetings in 2016 I informed [the principal] that I had been working excessive hours. I informed her that I was regularly arriving to work at 6am and not leaving the school before 6pm in order to manage my excessive workload. Her responses were usually dismissive and unsupportive.
Some of [the principal’s] responses included comments such as ‘this is you[r] role as Head teacher Secondary Studies’ and ‘our hours are not 9am to 3pm’. (emphasis in original)
In one meeting in late 2016 I also complained to [the principal] about my eyesight and how I felt it had been affected due to the excessive amount of time I was regularly spending on the small computer screen in my office in managing the school’s subject and assessment data with NESA. I also informed her that I was experiencing headaches, as well as tension and pain in my body due to this excessive workload.”[94]
[93] ARD, pp 10–11.
[94] ARD, pp 11–12.
The appellant wrote to the Director on 25 November 2016, regarding his difficulties. This included reference to his workload:
“I have previously, and on a number of occasions … informed both [the principal] and [the deputy principal] that I was feeling overwhelmed with the amount of workload that I have been managing in my role as Head Teacher Secondary Studies. I have spoken to them both about the fact the Secondary Studies portfolio at [the school] in its current state is very difficult to be managed alongside a full time teaching load, due to the large number of tasks and duties that are expected.
I have also expressed my concerns about being expected to perform particular and specific tasks without having the prior training, knowledge or experience, and without being given a reasonable allocated time to allow me to cope with the workload.”[95]
[95] ARD, p 69.
Notwithstanding the lay evidence from the appellant, there is little discussion in the medical evidence of what causal role overwork played in causing the conceded psychological injury. It is not dealt with in the report evidence from the treating practitioners or Dr Martin. Dr Gertler does not record a history of overwork. Dr Gertler records the appellant is “constantly tired and feels exhausted”,[96] but this is in the context of “Present Complaints” as at November 2018, rather than as history of the appellant’s duties with the respondent. Dr Gertler’s opinion on causation was that the appellant’s “adjustment disorder has in my opinion, been caused by the general nature and conditions of his employment as described to me, particularly during the period 2015 to early 2017”. In the circumstances there is no probative medical evidence that overwork was a causal factor that contributed to the psychological injury. I cannot see that the Arbitrator erred in failing to specifically deal with overwork, in considering whether the respondent’s onus of establishing ‘wholly or predominantly caused’ was satisfied.
[96] ARD, p 466.
Interpersonal conflict with the careers adviser
The appellant specifically refers to conflict with the careers adviser as a contributing cause to the psychological injury, that could not fall under the umbrella of s 11A(1). The careers adviser and the appellant shared an office. The appellant was responsible, as Head Teacher of the Secondary Studies faculty, for the supervision of the careers adviser.[97] She stated “He was my head teacher so I reported to him.”[98] On 16 December 2016, the appellant sent an email to the principal and deputy principal, speaking of the importance of the careers adviser having a separate office “due to the nature of her role as the Career Advisor … her need to constantly meet with students, parents and visitors on a daily basis”. He said she needed “space to store all of her resources”. The appellant stated that the sharing arrangement affected his ability to “perform particular tasks and duties effectively”. The careers adviser’s resources “spread all over the office” and at times made it difficult to access his desk. The appellant said that the careers adviser spoke “on the telephone in a loud manner, and having no regard for the fact that [the appellant] was trying to focus and concentrate on [his] work”.[99]
[97] Appellant’s statement 26/2/19, ARD, p 13.
[98] The careers adviser’s statement 9/4/18, ARD, p 359, [10].
[99] ARD, p 244.
The appellant described problems with the careers adviser putting boxes and other items on his desk, using the single telephone in the office while the appellant was interviewing students and parents, putting the ceiling fans on high (which was noisy and disturbed papers) and “opening and closing the office door abruptly and aggressively”. He described following up the request for a separate office on numerous occasions throughout 2017, through emails and meetings. He said these requests were ignored, which “caused me to become more stressed”. [100]
[100] Appellant’s statement 26/2/19, ARD, p 13.
There was also personal friction between the appellant and the careers adviser. The appellant described her as “inconsiderate and uncooperative”. He referred to her “inappropriate behaviour”. The appellant described the behaviour of the careers adviser (along with the principal and deputy principal) as “increasingly vindictive” following the appellant’s meeting with the Director on 27 February 2017. The appellant said that by March 2017, he reached a stage where he “found it difficult to communicate by talking” with the careers adviser. The appellant described her “constant abrupt tone and passive aggressive behaviour”. He said that he sent an email to the careers adviser (copying in the principal and deputy principal) requesting the careers adviser behave more appropriately. The appellant said that he met with the principal and deputy principal on 16 May 2017 to discuss the situation. At the end of that meeting he was given the option to relocate to another office space, to be created in another building. He asked why it should be him that had to relocate.[101]
[101] Appellant’s statement 26/2/19, ARD, pp 16–17.
On 29 June 2017, the appellant made a complaint to the Director about workplace bullying against a combination of the principal, deputy principal and careers adviser.[102]
[102] Appellant’s statement 26/2/19, ARD, p 18.
The careers adviser’s statement dated 9 April 2018 is reflective of the appellant’s statement regarding the relationship. She said that she worked “together” with the appellant from the end of 2015, and the relationship deteriorated “throughout 2016 and 2017”. He made it clear he did not wish to share an office with her. She said she also asked for separate office space. She said the appellant’s manner was often dismissive and rude, she regarded his emails as unprofessional and hostile. The appellant sprayed deodorant in the shared room and prepared his breakfast on her desk.[103] The appellant and the careers adviser could not agree on sharing two filing cabinets in the shared office.[104]
[103] ARD, p 360.
[104] ARD, p 364. See also ARD, p 71.
Dr Martin’s reports
Dr Martin, in his report dated 25 August 2017, recorded the appellant “identified his principal, … and some other executives within the school, as having treated him unfairly. He called this ‘bullying’.”[105] In the same report the doctor described the Adjustment Disorder, which he diagnosed as “work related in that there has been industrial and interpersonal conflict within the workplace”. The doctor observed that the appellant perceived this as “bullying” but the employer “might state [it] is in the realms of appropriate managerial or performance intervention”.[106]
[105] ARD, p 295.
[106] ARD, p 297.
In his supplementary report dated 25 May 2018, Dr Martin commented on factual material sent to him by the respondent’s solicitors. This included the factual report dated 16 April 2018, of which the respondent’s lay statements (including the careers adviser) formed part. The doctor diagnosed a Chronic Adjustment Disorder. He described the condition as “arising out of perception of unfair treatment in the workplace” and said: “it is very difficult to reiterate exactly where and when this has occurred”. He referred to the principal, the careers adviser and the deputy principal as three people named in the appellant’s “extremely extensive account … essentially around events since 2016 … from a clinical perspective, he gives an account of multiple instances of unfair treatment in the workplace to which he attributes the development of emotional disturbance.” The doctor said:
“The development of his emotional disturbance does appear to be directly related to his employment in [the] sense that workplace grievance is the precipitating factor. It is clear that throughout his written complaint that he refers to the school executive, with his perception of unfair treatment being the proposed precipitant.”[107]
[107] Reply, pp 14–17.
Dr Martin reported again on 15 November 2018 following a re-examination of the appellant. In this report, the doctor commented on the student incidents (which he did not think were causative of injury). Dr Martin said that the appellant “kept referring to his perception of lack of support in the workplace and expressed grievance around the school executive, particularly the principal, whom he had blamed in a variety of ways”.[108] After referring to the student incidents, Dr Martin said “[h]is main focus continued to be his perception of being treated unfairly by the school executive”.[109]
[108] Reply, p 20.
[109] Reply, p 21.
The Arbitrator’s finding on s 11A(1) was based on two heads of action, performance appraisal and discipline. It is apparent that actions by the principal and deputy principal, who were senior to the appellant, could potentially fall into these categories. The careers adviser was junior to the appellant and answerable to him, he was her head teacher. It is difficult to identify an appropriate basis on which her actions towards the appellant could be characterised in these ways.
The history identifies three individuals who the appellant accuses of bullying, the principal, deputy principal and careers adviser. These individuals are named in Dr Martin’s report, and this is consistent with the appellant’s letter of complaint to the Director dated 29 June 2017.[110] The principal is mentioned in Dr Martin’s reports as an individual the appellant particularly blamed. Complaints about the behaviour of the careers adviser in the letter to the Director, while significantly less than those dealing with the principal and deputy principal, occupy their own section headed “Details of bullying incidents by [the careers adviser]”.[111] The careers adviser was plainly one of the people the appellant blamed for the ‘bullying and harassment’ about which he complained.
[110] ARD, pp 251–290.
[111] ARD, pp 288–290.
Dr Martin’s reports identify “executives within the school” and “the school executive” without being specific about who is identified. The doctor names three individuals, the principal, deputy principal, and careers adviser, by reference to the appellant’s written complaints he was furnished with.[112] Dr Martin excludes none of them from the descriptor of the ‘executive’, which the appellant blames for his unfair treatment. The medical opinion of Dr Martin, on which the Arbitrator relied, neither specifically includes nor excludes matters relating to the careers adviser. It is an available reading of Dr Martin’s opinion in his reports that the injury resulted from the actions and conduct of each of the three named people. This takes on significance in dealing with the issue of s 11A(1). The respondent carries the onus of proof on the s 11A(1) issue, including on the causation issue.
[112] Reply, p 15.
Dr Gertler also recorded a history regarding the careers adviser, that the appellant’s emotional state was further aggravated as he had to share an office with a person who was “quite inconsiderate, of interrupting [the appellant] when he was involved in tasks, and of not sharing the space equally”.[113] Dr Gertler’s conclusion, that the psychological injury was caused by “the general nature and conditions of his employment as described to me”,[114] clearly implicates the room sharing and friction with the careers adviser as a contributing cause.
[113] ARD, p 465.
[114] ARD, p 468.
The Arbitrator’s finding at [236] of the reasons
The finding at [236] is quoted in full at [24] above. The Arbitrator said that the interpersonal conflict with the careers adviser was “no more than a by-product of [the appellant’s] condition”. That is, the conflict regarding the careers adviser did not cause injury, but was a symptom flowing from the injury which had resulted from other factors. The conflict with the careers adviser would not, if that conclusion was correct, require consideration as a cause of the injury, in dealing with ‘predominant’ cause.
The appellant submits there was no medical evidence to support this finding at [236]. This is correct. The respondent, quite properly, has not in its submissions on this appeal sought to argue there was. Factual findings can, in an appropriate case and circumstances, be made on the basis of “common knowledge and experience”.[115] The appellant submits it was not a finding that could properly be made in the absence of medical evidence. I accept that submission. It was not a finding that could be made on the basis of common knowledge and experience. It was a finding that was inconsistent with medical evidence. The evidence from Dr Gertler was to the contrary. The opinion of Dr Martin was arguably also inconsistent with this finding.
[115] Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 (per Mason J), 724 (cited by McColl JA in Hevi Lift(PNG) Ltd v Etherington [2005] NSWCA 42, 2 DDCR 271, [91], Ramasamy v Rail Corporation of New South Wales [2009] NSWWCCPD 41, [72].
The appellant additionally submits that the finding was inconsistent with the sequence of events. He submits the conflict between the appellant and the careers adviser commenced in 2016, well before the appellant sought medical treatment for his problems in 2017. The appellant saw Dr Nguyen about psychological problems from October 2016 (see [86] above). The evidence of the careers adviser is that the relationship between she and the appellant deteriorated “throughout 2016 and 2017”. I accept the submission that the sequence of events does not support the finding at [236].
The Arbitrator made a finding at [218] of his reasons that the evidence of Dr Gertler did not assist him, referring to asserted deficiencies in Dr Gertler’s history. The first of these was that Dr Gertler was unaware that complaints by the appellant about the student incidents were “made belatedly, some two years after they occurred”. This may have been relevant in the Arbitrator’s consideration of the student incidents; it is difficult to see a basis on which it would impact the weight of the doctor’s opinion on whether the nature and conditions of employment, involving the careers adviser, were a contributing factor to the psychological injury.
The other matters the Arbitrator referred to at [218], were that Dr Gertler was unaware of the full history of performance reviews and the appellant’s continued failure to obtain a transfer. Dr Gertler took a history from the appellant at his examination on 26 November 2018. It included that the appellant applied to be transferred to other schools but his requests were not supported by the principal and he remained at his current school. The doctor was aware that the appellant ceased work after “the meetings in May [2017]” and did not return to work.[116] This history of the failure to obtain a transfer from the school was sufficiently like the facts established to render the expert opinion of value.[117] Dr Gertler’s recorded history does not refer to “performance reviews”. The appellant on this appeal submits the “school self-evaluation” the appellant attended was “expressly stated not to be performance appraisal”.[118] In any event, any deficiencies in the doctor’s history did not render his opinion inadmissible, but rather went to weight.[119] The Arbitrator, having said that Dr Gertler’s report did not assist him on the basis of asserted deficiencies in the history, essentially dealt with the medical issues without reference to, or consideration of, that doctor’s opinion. This involved error. It was necessary that the Arbitrator enter into the issues canvassed.[120] It was necessary that the Arbitrator, if he was rejecting Dr Gertler’s opinion, provide a “coherent reasoned rebuttal”.[121] This, of course, could include a consideration of any imperfections in the history and the effect of those on the weight of the doctor’s opinion evidence.
[116] ARD, p 465.
[117] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844, [9].
[118] Appellant’s submissions, [6(x)].
[119] Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11, [83].
[120] Hume v Walton [2005] NSWCA 148, [69].
[121] Eckersley v Binnie (1988) 18 Con LR 1, 77–78, applied in Charles Sturt University v Manning [2016] NSWWCCPD 10, [53].
Resolution of the arguments made under these grounds
The Arbitrator’s finding on s 11A(1) was based on ‘discipline’ and ‘performance appraisal’. The appellant submits there were matters, such as the conflict with the careers adviser, that could not fall within s 11A(1). For reasons discussed above, the conflict with the careers adviser, both at a general interpersonal level and in relation to room sharing, did not fall within s 11A(1). It was not part of the career’s adviser’s function to engage in actions relevant to discipline or appraisal of the appellant. The appellant was her immediate superior at the school. The fact that the appellant and the careers adviser shared an office, in circumstances where it pleased neither of them, was not part of the actions of the respondent in respect of discipline or performance appraisal. The Arbitrator’s finding at [236] of his reasons, to the effect that such conflict was not a contributing cause to the conceded psychological injury, was erroneous for reasons given above.
There were potentially other causes of the injury identified by the appellant.[122] The Arbitrator’s formal findings were that the injury wholly or predominantly resulted from reasonable actions of the respondent with respect to performance appraisal and discipline. It was necessary that the Arbitrator identify whether the finding was one based on ‘wholly’ or ‘predominantly’. This he did not do. If the injury resulted from a combination of causes, some falling within s 11A(1) and some not, it was necessary, consistent with the passage of Gazi quoted at [80] above, that the Arbitrator engage in an “analysis of the facts as found to be causative of the injury against the relevant actions in determining the question under s 11A of the 1987 Act.” This was required to support a finding of ‘predominantly’, if that was the basis on which the Arbitrator upheld the defence. This was not done.
[122] Appellant’s submissions, [6].
The Arbitrator made a general finding at [226] to [228] of his reasons, which essentially involved accepting the opinion of Dr Martin both regarding causation of the psychological injury and whether the respondent’s actions fell within those matters protected by s 11A(1). The second of these matters was not a medical issue.
The failure to appropriately identify the causes of the conceded psychological injury, and to engage in the necessary causal analysis, resulted in the fact-finding process miscarrying. There are various other errors in fact finding identified above. Grounds Nos 2, 3 and 4 are upheld.
DISPOSITION OF THE APPEAL
In the circumstances, the appropriate course is that the decision dated 28 October 2019 be set aside and the matter be remitted to a different Arbitrator for re-determination.
DECISION
The Certificate of Determination dated 28 October 2019 is revoked.
The matter is remitted for re-determination by another Arbitrator.
Michael Snell
DEPUTY PRESIDENT
7 May 2020
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