Bennett v The Hills Shire Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bennett v The Hills Shire Council [2024] NSWPIC 394
APPLICANT:	Jacob Bennett
RESPONDENT:	The Hills Shire Council
MEMBER:	John Turner
DATE OF DECISION:	24 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; section 11A(1); psychological injury; whether psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal, discipline and/or provision of employment benefits; Irwin v Director-General of Education, Ivanisevic v Laudet Pty Ltd, Northern NSW Local Health Network v Heggie; Pirie v Franklins Ltd; Department of Education and Training v Sinclair, Ponnan v George Weston Foods Ltd, Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd, Kooragang Cement Pty Ltd v Bates, A1 Granny Flats v Workers Compensation Nominal Insurer (icare), Ponnan v George Weston Foods Ltd, Dunn v Department of Education and Training, and Bottle v Wieland Consumables Pty Ltd; Held – applicant’s accepted psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to performance appraisal, discipline and/or provision of employment benefits.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant’s accepted psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to performance appraisal, discipline and/or provision of employment benefits. 2. Within seven days of the date of this Certificate of Determination the parties are to advise the Personal Injury Commission (Commission) in a joint email as to the agreed documents to be referred to the Medical Assessor who will conduct the assessment of impairment. 3. If the parties are unable to reach an agreement within seven days of the date of the Certificate of Determination as to the documents to be referred to the Medical Assessor in accordance with order 2 then the parties are to email the Commission detailing those which it has been agreed are to be referred to the Medical Assessor and those in respect to which there is a dispute and the dispute in respect to what documents are to be referred to the Medical Assessor is to be referred back to me. 4. If in accordance with order 2 the parties agree the documents to be referred to the Medical Assessor the matter is to be referred back to me so that the matter can be remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment of whole person impairment for psychological injury sustained on the deemed date of 5 March 2021. 5. Once the Medical Assessment Certificate has been issued the matter is to be referred back to me for determination of the claims for medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 as well as the claim for weekly compensation.

STATEMENT OF REASONS

BACKGROUND

Jacob Bennett, the applicant, was employed by The Hills Shire Council, the respondent, as a Senior Project Manager having commenced employment with the respondent in August 2014.
It is the applicant’s evidence that his duties as a Senior Project Officer included project management work for local government, often involving upgrades or replacements in open settings.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which he alleges that he sustained psychological injury on the deemed date of 5 March 2021 as a result of workload demands, pressure due to organisational restructure and being subjected to bullying and harassing type behaviours by his supervisors, commencing from about 2019 until he ceased work on 5 March 2021.
The applicant seeks:
(a) weekly compensation from 5 March 2021 to date and continuing pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act);
(b) the costs of medical, hospital and related expenses pursuant to s 60 of the 1987 Act, and
(c) permanent impairment compensation pursuant to s 66 of the 1987 Act for psychological injury.
It is the applicant’s evidence that he has been off work since 5 March 2021.
It is the applicant’s evidence that his manager at the respondent was Mr Andrew Brooks, and his coordinator was Ms Allie Trojko. That Ms Trojko was appointed to her role approximately two years prior to the applicant ceasing duties and Mr Brooks commenced in his role approximately 18 months prior to the applicant ceasing duties. It is the applicant’s evidence that he had never experienced any issues in respect to his work performance until approximately the last two years prior to ceasing duties.

ISSUES FOR DETERMINATION

At the time of the arbitration hearing the parties agreed that the only issue to be determined at the arbitration hearing was that of liability. If liability is determined in favour of the applicant, it was agreed that the matter would be referred to a Medical Assessor (MA) for assessment of impairment prior to the matter being brought back for determination of the claims for weekly benefits compensation and medical and related treatment expenses.
It is not in dispute that the applicant has sustained a psychological injury.
The parties agree that the following issue remains in dispute:
(a) the respondent asserts pursuant to s 11A(1) of the 1987 Act that no compensation is payable as the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal, discipline and/or provision of employment benefits.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 31 May 2024. Ms Nicole Compton, counsel, instructed by Mr Kin Lap Chow, solicitor, appeared for the applicant, who was present. Mr Adrian Coomb, counsel, appeared for the respondent, instructed by Ms Holly Ulmer, solicitor. The proceedings were conducted in-person. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The arbitration hearing was unable to be completed in the available and the parties provided written submissions.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply and attached documents;
(c)    documents attached to Application to Admit Late Documents (AALD) lodged on behalf of the applicant dated 24 May 2024;

(d)    documents attached to AALD lodged on behalf of the respondent dated 28 May 2024;
(e)    documents attached to AALD lodged on behalf of the applicant dated 28 May 2024, and
(f)    documents attached to AALD lodged on behalf of the respondent dated 5 June 2024.

The respondent did not seek to have documents attached to its AALD’s dated 7 and 13 June 2024 admitted into evidence for the purposes of the arbitration hearing. The respondent deferred any application to have those documents admitted into evidence until such time and in the event of any referral to a MA for impairment assessment.
In respect to applicant’s AALD dated 24 May 2024 the applicant did not seek that those documents be referred to an MA for assessment of impairment. The respondent agreed that those documents should not be referred to an MA.
The respondent objected to the reports of Dr Shannon Paisley, psychiatrist, being admitted into evidence. Those reports dated 27 July 2022 and 1 May 2024 (x2) were attached to the Application to Resolve a Dispute and the applicant’s AALD dated 28 May 2024. In the respondent’s submission, as the applicant was also relying on a forensic report of Dr Oldtree Clark, psychiatrist, the reports of Dr Paisley offended reg. 44(1) of the Workers Compensation Regulations 2016.
Oral evidence was taken from Mr Kin Lap Chow, solicitor, that Dr Paisley was retained in the place of Dr Oldtree Clark when his office was advised in response to inquiries made by it as to the availability of Dr Oldtree Clark that Dr Oldtree Clark had retired. I admitted the report pursuant to reg. 45(3) on the basis that the evidence supported that Dr Oldtree Clark had ceased to practice in which case supplementary reports could be obtained from a different practitioner.

Oral evidence

Neither party sought to adduce oral evidence apart from the applicant adducing oral evidence from Mr Kin Lap Chow in respect to the availability of Dr Oldtree Clark to provide a forensic report.

FINDINGS AND REASONS

The respondent does not dispute that the applicant has sustained a psychological injury for the purposes of s 4 of the 1987 Act. The respondent however submits, relying on s 11A(1) of the 1987 Act that no compensation is payable as the psychological injury was caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal, discipline and/or provision of employment benefits.
Section 11A(1) of the 1987 Act states:
“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 respondent bears the onus of proving the defence under s 11A of the 1987 Act.[1]
[1] See: Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346; Department of Education and Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206.
The phrase “wholly or predominantly caused” has been held to mean “mainly or principally caused”.[2]
[2] See: Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92; Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd [2008] NSWWCCPD 96.
Issues of causation are determined on the facts in each case through a commonsense evaluation of the causal chain.[3]
[3] See: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
Geraghty J in Irwin v Director-General of Education NSWCC 14068/97, 18 June 1998 (Irwin) considered the meaning of “reasonable action” in s 11A stating:
“…the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
Truss CCJ in Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998) observed:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected.”
In Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie), Sackville AJA observed at [59]:
“(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”

Laptop request

It is the applicant’s evidence that from approximately 19 March 2020, he was working from home after the COVID-19 situation arose and that in the months following, he made multiple requests of Mr Brooks via email for a work laptop, which were ignored. This was despite a statement by Mr Brooks, which the applicant thinks that Mr Brooks may have made verbally at a monthly meeting around this time, that it was likely that the respondent would assist its employees prior to the COVID-19 situation by providing them with laptops or possibly other devices such as iPads or iPhones.
It is the applicant’s evidence that a lack of a laptop being provided to him during this period as well as Mr Brooks ignoring his requests hindered his progress and caused him stress and also financial burden. In this respect, in the weeks after he started working from home, he resorted to buying a larger computer monitor for himself to use at home at a cost of approximately $600.
It is the applicant’s evidence that later in 2020, Mr Chris Stutchbury, a colleague at the same level as the applicant, was issued with a laptop to use for work purposes. It is the applicant’s evidence that he did not understand and could not reconcile Mr Stutchbury being provided with a laptop whilst he was not.
It is the applicant’s evidence that he felt victimized and targeted by Mr Brooks as a result of these matters.
In the respondent’s submission the basis for the applicant’s request for a laptop “is somewhat opaque but appears to have occurred in the context of the applicant working from home in the initial phase of Covid-related lockdowns that commenced in around March 2020.”
I do not find the reasons for the applicant’s request for a laptop to be “opaque”. In my view the evidence is clearly to the effect that the applicant sought the provision of the laptop in response to the altered work situation which arose out of the COVID-19 pandemic.
It is the applicant’s evidence that he made the multiple requests for a work laptop following commencing working from home from approximately 19 March 2020 due to the COVID-19 situation. It is also the applicant’s evidence that a lack of a laptop being provided to him during this period hindered his progress and caused him stress and also financial burden with the applicant resorting to buying a larger computer monitor for himself to use at home.
The email communication between the applicant and Mr Brooks indicates that both Mr Brooks and the applicant believed that the supply of work laptops would be desirable in the COVID-19 work environment.
On 26 March 2020 at 9.03am the applicant emailed Mr Brooks asking if there was any progress on the supply of laptops. At 2.44pm Mr Brooks responded to the applicant by email advising that he had requested one for everyone in the team, but he did not think that they would be “getting them anytime soon, if at all.” Mr Brooks observed that they could login on their home computers stating “please do what you can to remain as productive as possible. Obviously this is not ideal for anyone…” Mr Brooks also asked the applicant if he had a specific need which required a laptop. The applicant responded that he assumed that they would get sim cards as well as the laptop observing that his internet was stretched at home with everybody at home and the laptops and desktops “at full tilt”.
In an email from the applicant to Mr Brooks dated 4 August 2020 the applicant explains that he had only requested a laptop as it would make it “easier to work in these trying times.” The applicant advises Mr Brooks that he has endeavoured to be as efficient as possible under the circumstances, but it would be more efficient to have a work laptop especially as he was working on a major council project (Sam Riley Drive) and whilst he had purchased his own screen whilst working in isolation, he is working off his own personal computers which “are a little old now.”
The applicant goes on to state that he had received no assistance from the respondent with hardware and also noted that they had not been allowed to take home any of the work hardware.
The usefulness of a laptop for work purposes is also supported by the evidence of Mr Stutchbury that following the onset of the COVID-19 pandemic and commencing working from home in March 2020 he spent approximately $1,000 on a laptop and related PC equipment in order to assist him in his home-based work arrangements.
The evidence in my view clearly indicates that the applicant believed that a work laptop would improve his efficiency with direct reference to his home internet being stretched as well as to his personal home computer being old.
The respondent submits that whilst the applicant reagitated the request for a laptop in July 2020 he had by 5 August 2020 “clearly changed his mind” confirming to Mr Bernard Hungley, Principle Coordinator – Technical Infrastructure at the respondent, by email that he no longer required the laptop. In the respondent’s submission the omission by both the applicant and Mr Hungley of that “critical email” from the chain of events relating to the laptop does not reflect well on the credit of Mr Hungley and the applicant. I do not accept the respondent’s submission for the following reason.
On Monday 6 July 2020 at 7.19am the applicant emailed Mr Hungley and Mr Brooks inquiring as to whether it was possible to obtain a laptop for a meeting that was to be held that morning. The applicant also inquired as to whether it was also possible to get a work laptop on a permanent basis noting that he had made a similar request some months prior.
At 9.36am Mr Brooks emailed the applicant and Mr Hungley volunteering the use of his laptop to the applicant for the morning meeting. The applicant responded by email thanking Mr Brooks for the offer but advised that he had been to “IT” early and had it “sorted”.
At 9.37am Mr Hungley emailed the applicant and Mr Brooks advising that a laptop for that morning was being sorted out for the applicant and advising that for a permanent laptop they needed approval from Mr Brooks and then they would “sort it out” for him.
The contemporaneous evidence would therefore indicate that a laptop was potentially available for the applicant.
Mr Brooks does not appear to have responded to the email from Mr Hungley and on Wednesday 8 July 2020 at 6.46pm the applicant emailed Mr Brooks requesting approval from him for the supply of a laptop. No response appears to have been received from Mr Brooks.
On Thursday 23 July 2020 at 9.44am the applicant emailed Mr Hungley inquiring as to whether he had received the approval for the laptop.
On Monday 3 August 2020 at 12.56pm the applicant emailed Mr Hungley again asking whether he had received the approval for the laptop. At 1.02pm Mr Hungley responded by email to the applicant that they had still not received any approval from Mr Brooks. The applicant then emailed Mr Brooks at 1.15pm advising that Mr Hungley could supply the laptop but required his approval.
On 4 August 2020 the applicant emailed Mr Brooks following a telephone conversation which they had that day. It is the evidence of Mr Brooks that he does not recall and has been unable to locate this email and it is the evidence of the applicant that he never received a response to the email from Mr Brooks. Even if Mr Brooks did not receive the email the email represents a contemporaneous record.

In the email the applicant explains that he had only requested a laptop as it would make it “easier to work in these trying times.” The applicant advises Mr Brooks that he had endeavoured to be as efficient as possible under the circumstances but it would be more efficient to have a council laptop especially as he is working on a major council project (Sam Riley Drive) and whilst he had purchased at his own expense a screen whilst working in isolation he is working off his own personal computers which “are a little old now.”
The applicant goes on to state that he had received no assistance from the respondent with hardware despite the IT section stating there was hardware available referring to the email from Mr Hungley of 3 August 2020. The applicant stated that he understood (presumably from Mr Brooks) that a decision had been made to not to supply anyone other than managers and coordinators with a laptop at that stage and he would notify Mr Hungley not to proceed.
Consistently it is the evidence of Mr Brooks that he confirmed with the applicant on or around 4 August 2020 via a telephone call that a strategic decision had been made that issuing laptops to staff had been prioritised and that new laptops were only available to Coordinator level.
At 8.22am on 5 August 2020 the applicant emailed Mr Hungley advising that he would not be needing a council laptop at this time, “just closing the loop!”
The evidence supports that the applicant had therefore not changed his mind in respect to needing a laptop but had sent the email of 5 August 2020 to Mr Hungley after having been told by Mr Brooks that he would not to be supplied with a laptop. The applicant’s email of 4 August resonates with the applicant’s dissatisfaction and frustration with the situation.
It is the evidence of Mr Brooks that on the basis of the applicant’s email dated 5 August 2020 there was no need for him to follow up any further on the requests made by the applicant for a laptop and he was not aware of any subsequent request or follow up being made. I find Mr Brooks’ evidence in this respect to be misleading. There is no dispute on the evidence that Mr Brooks had told the applicant on 4 August 2020 that he would not be supplied with a laptop. It is evident that the applicant still wished to be supplied with a laptop and this would have been abundantly clear to Mr Brooks at the time from the email requests.
The respondent submits that the provision of (or prospective provision) of a laptop is an “employment benefit” for the purposes of s 11A(1). In the respondent’s submission the laptop would have been provided free of charge and would have been available to him for use in both personal and employment contexts. I do not accept the respondent’s submission. The respondent bears the onus of proving the defence under s 11A of the 1987 Act. There is no evidence that the applicant would have made any personal use of the laptop or even that he would have been permitted to use the laptop for non work related purposes. The request for the laptop only refers to work uses. The evidence supports that the applicant was seeking the supply of a work laptop for the performance of his work duties for the respondent. Whilst the expression “employment benefit” is to be viewed broadly[4] it does not in my view extend to the provision of work tools for the performance of a worker’s work duties.
[4] A1 Granny Flats v Workers Compensation Nominal Insurer (icare) [2023] NSWPICPD 69.
Consistent with the emails of Mr Hungley of July 2020 Mr Hungley states in a document dated 20 June 2022 that a laptop had been prepared for the applicant in July 2020 (Mr Hungley refers to July 2021 which is clearly incorrect in the context of the correspondence and the fact that the applicant was no longer at work by July 2021) awaiting the approval of Mr Brooks. No explanation has been provided by Mr Brooks as to why he did not approve the supply of the laptop to the applicant when requested to do so by the applicant and Mr Hungley in early July 2020.
It is the evidence of Mr Stutchbury he received an email from the respondent regarding a prospective upgrade to his desktop computer at work and at this time, his Coordinator, Ms Allie Trojko, raised the possibility of him being provided with a laptop computer instead of an upgraded desktop. To the best of Mr Stutchbury’s memory, this was approved in approximately October 2020 after Ms Trojko had discussed it with Mr Brooks.
It is the evidence of Mr Brooks that Mr Stutchbury was provided with a laptop in the context of his old work desktop computer being in the process of being replaced.
At 9.42am on 22 September 2020, Jacob Colantonio, IT Helpdesk Support Officer, emailed Mr Stutchbury and Ms Trojko advising that IT had identified that they were both using older model Dell machines and requesting that they provide details of any extra programs they have stored on their computers to assist with transition.
At 10.21am on 22 September 2020 Mr Stutchbury emailed Mr Colantonio and Ms Trojko in respect to the list of programs and suitable times for the transition.
At 2.11pm on 22 September 2020 Ms Trojko emailed Mr Stutchbury and Mr Colantonio asking if there was any chance for the PC’s to be rolled out as laptops instead.
At 2.43pm on 22 September 2020 Mr Colantonio emailed Ms Trojko and Mr Stutchbury that at that stage he was only replacing the current desktops.
At 3.52pm on 22 September 2020 Mr Brooks emailed Mr Wong asking if there was any opportunity to review this as both Ms Trojko and Mr Stutchbury would benefit from being issued sim laptops with an office based docking station rather than desktop PC’s.
At 10.44am on 23 September 2020 Mr Wong emailed Mr Brooks letting him know that he would see and get back to Mr Brooks.
At 8.59 am on 24 September 2020 Mr Wong emailed Mr Brooks advising that he had discussed it with Bernie (who I take to be Mr Hungley) “and he will organise 2 laptops, one for Allie and one for Chris. It may take a bit of time as we need to ensure all software they need are installed properly.”
It is not explained by the respondent as to why Mr Hungley was able to approve a laptop for Mr Stutchbury and Ms Trojko in September 2020 whilst Mr Brooks would not accept a laptop from Mr Hundley for the applicant in July 2020 when offered. I am of the view that the actions of Mr Brooks in failing to respond to the emails requesting his approval of a laptop for the applicant was not reasonable conduct in the circumstances.
It is the evidence of Mr Stutchbury that on a few occasions after the onset of the COVID-19 situation from March 2020, the applicant did make comments to him to the effect that he was upset regarding unanswered requests he had made to Mr Brooks to be provided with a work laptop whilst he worked from home.

7 July 2020 conference call

It is the applicant’s evidence that on 7 July 2020, he felt that he was effectively "ambushed" and therefore unprepared for a telephone meeting which was initiated by Mr Brooks when he called the applicant whilst he was out on site with Nicholas Prell from the respondent.
It is the applicant’s evidence that when Mr Brooks called, he stated that he just wanted to have a "quick catch up" also saying, "I just wanted to touch base with you so I understand where you're up to.” The applicant took the call in his work vehicle. Mr Prell was not present with him when he did so.
It is the applicant’s evidence that as the conversation commenced Mr Brooks advised that he had Ms Trojko with him. It is the applicant’s evidence that the conversation quickly erupted into an argument with the applicant having to defend himself against Mr Brooks and Ms Trojko, both of whom were questioning his progress on various projects. The applicant recalls them saying that he had not spent enough time on the Sam Riley Drive project, which had only been assigned to him at around the end of the financial year.
It is the applicant’s evidence that it quickly became clear to him that the call was in no way a simple “catch-up” as titled by Mr Brooks. Instead, he felt that they both “ganged up” on him during the call, with both Mr Brooks and Ms Trojko taking it in turns to verbally criticise his performance and perceived lack of progress regarding the project. It is the applicant’s evidence that he found it hard to get a word in to defend himself and was being cut off when he tried to and that he told Ms Trojko at one point that he would talk to respond, but that she needed to stop talking when he did so, following which she could then talk again.
It is the applicant’s evidence that when he could respond to them, he told Ms Trojko and Mr Brooks that he was still just getting his head around the project, its briefs and its contractors and that he was also finishing off a number of other projects at that time.
It is the applicant’s evidence that he felt upset and anxious after taking this call.
In the respondent’s submission there are competing accounts of the conference call. In the respondent’s submission the applicant’s account is substantially at odds in terms of the tone of the meeting and the behaviour of the respective parties with the accounts of Mr Brooks and Ms Trojko, whilst the accounts of Mr Brooks and Ms Trojko are generally consistent. The respondent submits that the accounts of Mr Brooks and Ms Trojko should be preferred to that of the applicant.
It is the evidence of Mr Brooks that in the joint telephone conversation he and Ms Trojko sought information from the applicant in relation to particular project work he was performing at the time. It is the evidence of Mr Brooks that he does not remember the exact details of what was asked, but he does not consider the call as anything other than routine in nature and intended for them to seek necessary clarification and updates regarding the progress of the work in question. It was not in Mr Brooks opinion necessary to give any formal notice of this call. It is Mr Brooks evidence that ideally, they would have had these types of discussions in monthly catchup meetings in a face-to-face setting, however that was not always practical given the remote working arrangements and depending on people's movements.
It is the evidence of Mr Brooks that he does not agree that the applicant was "ambushed" or that he should have been surprised in any way by receiving the call.
It is the evidence of Mr Brooks that what he does remember from the call is that it was in no way hostile or accusatory from their point of view, but that the applicant did become defensive in his tone when responding to their questions about progress on the particular jobs they were addressing.
It is the evidence of Mr Brooks that if the date of 7 July 2020 is correct for the conversation, the Samantha Riley Drive Reserve project would only just have been handed over to the applicant at the start of the financial year and it would be unusual if they were particularly focused on that job or asking for updates as to its progress at that stage. Whilst he cannot recall the full details of what the call related to, apart from the tone used by the applicant at times during it. It is Mr Brooks evidence that if the Samantha Riley Drive Reserve project was mentioned in the call, it would simply have been a matter of he and Ms Trojko asking how it was progressing or perhaps the planning in respect to the procurement of consultants for the project.
It is the evidence of Mr Brooks that he does remember the applicant making a comment to Ms Trojko at some point during the call after he had become defensive in his tone in which he said to Ms Trojko, something to the effect that he would speak in order to respond to her but that she needed to "stop talking" when he did this, after which she could then talk again. Mr Brooks remembers being quite taken aback by this comment and feeling that it was inappropriate, particularly as he regarded the conversation with the applicant as being in the order of a normal discussion that he as a manager and Ms Trojko as a coordinator were entitled to have with him. Mr Brooks cannot remember anything that he or Ms Trojko said to prompt this comment by the applicant.
It is the evidence of Ms Trojko that she does not recall the details of any specific telephone conference she may have had with the applicant and Mr Brooks on 7 July 2020. However, it is the evidence of Ms Trojko that if they did call the applicant jointly this would have been for a specific reason rather than for a general catchup.
It is the evidence of Ms Trojko that in a conversation on or around this time she recalls the applicant interjecting as she was saying something to the applicant and making a comment to the effect, "Let me speak, Allie," also telling Ms Trojko to, "Stop talking," at one point in the discussion.
It is the evidence of Ms Trojko that in her numerous conversations with the applicant, that she had found that the applicant often goes off track and rambles in his responses, and it has been necessary for her at times to try to keep him to the point.
I do not accept the respondent’s submission that the evidence of Mr Brooks and Ms Trojko as to the tone and the behaviour of the respective parties at the meeting is generally consistent with each other. I can find little consistency in their evidence and in many respects the evidence of Ms Trojko is more consistent with that of the applicant than Mr Brooks.
Whilst it is the evidence of Mr Brooks that the call was routine in nature and intended for them to seek necessary clarification and updates regarding the progress of the work in question and that ideally, they would have these types of discussions in monthly “catchup meetings” in a face-to-face setting. It is the evidence of Ms Trojko that whilst she could not recall the details of the specific telephone conference if they did call the applicant jointly it would have been for a specific reason rather than for a general catchup.
It is the evidence of Mr Brooks that the call was in no way hostile or accusatory from their point of view, but that the applicant did become defensive in his tone when responding to their questions about progress on the particular jobs they were addressing. Ms Trojko cannot recall the telephone call and gives no evidence as to its tone. However, the applicant, Ms Trojko and Mr Brooks all agree that the applicant asked Ms Trojko to stop talking, so he could speak which is consistent with Ms Trojko talking over the top of the applicant and also the applicant’s evidence that he was defending himself which is also consistent with the evidence of Mr Brooks that the applicant was defensive.
Mr Nicholas Prell confirms that he was with the applicant on 7 July 2020 and that following the telephone call with Mr Brooks and Ms Trojko the applicant referred to the intensity of the phone call without going into the details of what was discussed.
I am of the view that the weight of the evidence supports that the mood in the call was heightened. The evidence of Ms Trojko is to the effect that the meeting would have been focused and not just a general catch-up which is consistent with the evidence of the applicant and also the evidence of Mr Brooks that the applicant was defensive. That the mood in the meeting was heighted is supported by the evidence of the applicant and Mr Prell as well as the evidence of all three participants that the applicant asked Ms Trajko to stop talking so that he could speak which would seem to indicate that the applicant did not feel that he was being given the opportunity to answer. In my view the weight of the evidence is inconsistent with the evidence of Mr Brooks that the call was in no way hostile or accusatory.
The respondent submits that based on the applicant’s evidence the discussion during the conference call was about the applicant’s performance of his job, it being the applicant’s evidence that Mr Brooks and Ms Trojko “taking it in turns to verbally criticise my performance”. The respondent submits that if the applicant’s evidence is accepted, then the conference call is properly characterised as an informal performance appraisal process. That is, a preliminary step in a process potentially leading to a more formalised performance appraisal or management process such as that in which the applicant participated about a month later. I do not accept the respondent’s submission for the following reasons.
Handley ADP in Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 (Ponnan) stated at [25]:
“…I understand ‘performance appraisal’ to mean a process involving the employer discussing with the worker his or her performance at work: this could include, for example, discussing the degree of efficiency with which the worker undertakes his or her duties or the number of mistakes made by the worker in performing his or her duties.”
In Dunn v Department of Education and Training [2000] NSWCC 11; (2000) 19 NSWCCR 475 (Dunn) Geraghty J at [68] referred to his earlier unreported decision in Irwin v Director-General of Education NSWCC 14068/97, 18 June 1998, (Irwin) noting that in Irwin he had observed that “performance appraisal should be formal, somewhat like an examination or a test rather than an extended and continuing assessment”. In Bottle v Wieland Consumables Pty Ltd [1999] NSWCC 32; (1999) 19 NSWCCR 135 Nielson CCJ, as he then was, followed Irwin.
There is no evidence that the conference call which took place on 7 July 2020 was part of any process of performance appraisal. It is the evidence of both Mr Brooks and the applicant that the applicant was provided with no information as to what was to be discussed prior to the meeting. It is also the evidence of Mr Brooks and the applicant that the meeting was represented by Mr Brooks as a “catch-up” not as anything to do with performance appraisal.
In the respondent’s submission there is nothing inherently unreasonable in an employee’s manager or managers having an informal performance related discussion with an employee without prior notice. Whilst there may be nothing inherently unreasonable in having a performance related discussion with an employee there is no evidence that the discussion in this case formed part of a process. In this case the applicant is not only given no prior notice of what was to be discussed in the meeting but if the respondent’s submission were to be accepted the meeting was misrepresented being referred to by Mr Brooks as a brief catch up.
In respect to the content of the meeting neither Mr Brooks or Ms Trojko can recall the content of the meeting. It is the applicant’s evidence that he was criticised in respect to having not spent enough time on the Samantha Riley Drive project. It is the evidence of Mr Brooks that the Samantha Riley Drive Reserve project would have only just been handed over to the applicant and any inquiry would simply have been as to how it was progressing.
I accept the applicant’s evidence in respect to the Samantha Riley Drive project forming a significant element of the discussion. The applicant in his previously mentioned email to Mr Brooks of 4 August 2020 refers to a telephone conversation between him, Mr Brooks and Ms Trojko on 3 July 2020 in which the applicant clarifies the problems which he had encountered with the Samantha Riley Drive project. The applicant refers in the email to feeling like he was being attacked. It is unclear as to whether the conference call referred to on 3 July 2020 is in fact the call of 7 July 2020. In any event the email is a relatively contemporaneous record to the effect that the applicant was being questioned in respect to the performance of the project at the time which is contrary to the evidence of Mr Brooks.

Targeting over damage to leased vehicle

The respondent submits that the as part of his employment conditions the applicant was entitled to a leased vehicle. In the respondent’s submission the provision of that vehicle and the applicant’s continued use of that vehicle was an “employment benefit”.

I accept the respondent’s submission that the provision of the leaseback vehicle was an “employment benefit” for the purposes of s 11A(1) with the vehicle being able to be used for private purposes as demonstrated by the use of the vehicle by the applicant’s wife.
In the respondent’s submission the applicant’s version of events as to what occurred between him and Mr Brooks in early August 2020 following the applicant’s leased vehicle being damaged is at odds with the evidence of Mr Brooks. In the respondent’s submission the applicant appears to have been particularly aggrieved by being required to pay an insurance excess.
The respondent submits that the evidence of Mr Brooks should be preferred.
It is the applicant’s evidence that in approximately July 2020, his wife, was driving his work leaseback vehicle in a carpark when she was involved in a minor accident. Based on a conversation that the applicant had with his wife it is the applicant’s understanding that this involved another driver backing into her which resulted in dents being sustained to his work car’s driver side boot area and a cracked taillight, although this remained functional. There does not appear to be any issue that the applicant’s wife was permitted to drive the vehicle.
It is the applicant’s evidence that he was aware that the usual process was to report damage to the respondent’s vehicles to the Fleet Manager. It is the applicant’s evidence that he did not report the damage immediately as he was very busy with work, and he then took approximately two weeks of annual leave. He reported the damage to the Fleet Manager on his return.
It is the applicant’s evidence that Mr Brooks telephoned him after he returned to work from leave, on 4 August 2020. It is the applicant’s evidence that he felt verbally attacked by Mr Brooks during this conversation, during which his tone sounded angry. It is the applicant’s evidence that Mr Brooks criticised the applicant for taking too long to report the accident to the Fleet Manager to which the applicant responded that the damage was only minor. In the applicant’s evidence Mr Brooks then said that the applicant had not been in touch with the Fleet Manager about renewing the lease on the vehicle. It is the applicant’s evidence that he explained to Mr Brooks that he had sent an email to the Fleet Manager about this.
On 22 June 2020 at 2.15pm the applicant had sent an email to the respondent’s Matthew Gallahar. The email asked Mr Gallahar to let the applicant know when his current lease car was to be returned. The applicant thought it might be a couple of months away.
It is the applicant’s evidence that the Fleet Managers usually contacted him about six weeks before the work vehicles were due for renewal. Mr Brooks went on to refer to the applicant “closing the loop" in relation to this issue, which the applicant considered he had done.
It is the applicant’s evidence that Mr Brooks went on to suggest that the applicant had to apply to retain his work vehicle as he was working from home. This was not the applicant’s understanding of the situation, and the applicant explained to him that he needed the vehicle every day for site visits.
It is the applicant’s evidence that Mr Brooks also advised that the applicant would be obliged to pay for the vehicle damage despite a decision having not been made by the insurer at that time. It is the applicant’s evidence that Mr Brooks said that this was the respondent’s policy. The applicant’s understanding was that staff are not liable to pay any repair costs or excess when they are not at fault.
It is the applicant’s evidence that Mr Brooks also said that the applicant should have let him know about the accident. The applicant told Mr Brooks that he had followed the respondent’s intranet policy which did not state any requirement to inform his manager about these matters, but only the Fleet Manager. In the applicant’s evidence Mr Brooks replied that it is “common courtesy” to do so.
It is the applicant’s evidence that he is not aware of any other staff member being targeted or questioned by Mr Brooks or any other manager about matters relating to their fleet vehicles, as he was in this instance.
It is the applicant’s evidence that he is also unaware of any other staff member being targeted or questioned by Mr Brooks or any other manager about matters relating to retaining their fleet vehicles whilst working remotely from home or part time in the office.
It is the applicant’s evidence in relation to the insurance excess that he was directed to pay the $600 excess despite the respondent having all the details of the other driver.
It is the applicant’s evidence that he felt unfairly treated and put under additional financial and psychological strain.
It is the evidence of Mr Brooks that on approximately 4 August 2020, he had a telephone conversation with the applicant in which he addressed a report of damage which had been sustained to his work leaseback vehicle on 26 June 2020. In reviewing the matter, Mr Brooks noted a delay of some weeks in the applicant reporting the accident. It is the evidence of Mr Brooks that during the telephone conversation, he reminded the applicant that he needed to use the correct process and reporting channels to advise of these types of incidents within 48 hours of them occurring and that he should also let Mr Brooks know about them as a courtesy. Mr Brooks also advised the applicant that he would have been happy to assist him in any way with the reporting process.
It is the evidence of Mr Brooks that during the conversation, he asked the applicant whether he had received a request to pay an insurance excess. Mr Brooks recalls that the applicant was surprised by this question. It is the evidence of Mr Brooks that he commented that if drivers of leaseback vehicles were at fault, an excess was liable to be paid by them under the terms of the leaseback agreement. It is the evidence of Mr Brooks that the applicant’s tone became very short with him when this possibility was mentioned.
It is Mr Brooks evidence that in relation to his own tone during the call, he denies that he was angry in any way when addressing this matter with the applicant.
It is the evidence of Mr Brooks that he recalls mentioning to the applicant during the course of the telephone conversation that his work vehicle was due for changeover as it was more than three years old. It is the evidence of Mr Brooks that he indicated to the applicant that he could expect to be contacted soon to order a replacement vehicle.
It is the evidence of Mr Brooks that he recalls mentioning to the applicant a requirement to obtain approval for continued use of a leaseback vehicle when working from home. This was on the basis that a condition of use of leaseback vehicles is that they be made available to other staff as pool cars during normal business hours.
It is the evidence of Mr Brooks that he has no recollection of using the specific term "closing the loop" to describe anything the applicant had done in relation to the above matters during this telephone conversation.
On 4 August 2020 the applicant sent an email to Mr Brooks in response to an earlier telephone call. A copy of the applicant’s email to Mr Gallahar of 22 June 2020 appears to have been attached to that email at the request of Mr Brooks. In his email of 4 August 2020 the applicant refers to “closing the loop” and explains that he sent the email of 22 June 2020 to avert having to make a quick decision on whether to have a new lease back vehicle or purchase his own vehicle. The applicant understood from Mr Brooks that the lease period was complete however he had not received any notification from the respondent.
The applicant went on in the email to reiterate his apology for the delay in reporting the “minor damage to the council lease back.” As reasons for the delay the applicant referred to end of financial year work pressures, annual leave, working long hours on the Samantha Riley Drive Reserve project and being ill on returning from leave. The applicant also observed that he had been issued with more projects and higher values than any other staff which was not without stress.
The applicant advised Mr Brooks that he had followed the policy as per the respondent’s intranet with regard to accidents with vehicles which according to the applicant did not state that managers/coordinators are required to be informed, only to complete the forms (intranet and insurance forms) and notify Matthew Gallagher which the applicant states he did in July. The applicant also requested that it be confirmed that he is required to pay the excess when he believed the other vehicle to be at fault.
The applicant went on to note that Mr Brooks had mentioned that it may be necessary for the applicant to apply for the retention of his leaseback while working remotely for part of the average week. The applicant requested that Mr Brooks confirm he was required to put an application into the general manager. The applicant observed that he had been working remotely since the end of March and utilising the vehicle most days for site visits.
As previously discussed, it is the applicant’s evidence that he did not receive a response to his email of 4 August 2020. It is the evidence of Mr Brooks that he had reviewed his emails from the August 2020 period and had not been able to locate and does not recall receiving any emails from the applicant as a follow-up to this telephone conversation. Even if the email was not received by Mr Brooks the email represents a contemporaneous record of what occurred.
In the respondent’s submission the applicant appears to have been particularly aggrieved by being required to pay an insurance excess. This would appear to be understandable on the evidence. It is the applicant’s evidence that his wife as the driver of the vehicle advised him that she was not at fault and that it was his understanding that the excess was not payable if the respondent’s vehicle was not the vehicle at fault. It is also the evidence of Mr Brooks that he said to the applicant that the if drivers of leaseback vehicles were at fault, an excess was liable to be paid by them under the terms of the leaseback agreement. The evidence of the respondent does not dispute the applicant’s evidence that he was required to pay the excess or that it was the other vehicle which was at fault.
It is the applicant’s evidence that he is not aware of any other staff member being questioned by Mr Brooks or any other manager, apart from the fleet manager, about matters relating to their fleet vehicles as he was in this instance or of any other staff member being questioned by Mr Brooks or any other manager about matters relating to retaining their fleet vehicles whilst working remotely from home or part time in the office.
There is no evidence from Mr Brooks as to any conversation that he had with any other employee(s) in respect to their lease vehicles or of any policy from the respondent in respect to the lease vehicles given the situation which arose with COVID-19. In particular I note the evidence of Mr Brooks at [27] of his statement made 7 May 2021 that at that time many staff were still working at least partially from home.
There is therefore no evidence from the respondent that the treatment which the applicant was receiving was consistent with the way other employees of the respondent were being treated.
The respondent has the onus of proof in respect to the defence under s 11A(1). Whilst I accept that it was appropriate for the respondent to question the applicant about the delay in reporting the accident involving the respondent’s vehicle and to advise him of any issues in respect to the lease including the renewal a significant portion of the applicant’s compliant is that he was being singled out and treated differently from other employees and the respondent has submitted no evidence disputing this. I am therefore of the view that the applicant has not satisfied its onus of proof.

Return to the office directives

It is the applicant’s evidence that Mr Brooks asked him during a telephone conversation on 4 August 2020 what his “return to work policy” was in relation to coming back to the office following the COVID-19 pandemic. It is the applicant’s evidence that he was confused and rather thrown by this question, and essentially just explained to Mr Brooks that he was working from home at that stage consistent with what he felt was necessary and appropriate at the time.
Mr Brooks denies that he asked the applicant at that time to return to work in the office however it is not the applicant’s evidence that he was asked to return to work in the office. The applicant refers to some confusion in respect to the inquiry and that is all. In my view, on the applicant’s evidence, the incident is of little significance.
It is the applicant’s evidence that in September 2020, Ms Trojko spoke to him advising him that he needed to come into the respondent’s offices three days per week. It is the applicant’s evidence that he did as instructed and did come into the respondent’s offices on three days each week. On the evidence there does not appear to have been any particular issue with respect to the applicant returning to work in September 2020.

24 August 2020 meeting

It is the evidence of Mr Brooks that in the weeks leading up to 24 August 2020, he had become aware through discussions with Ms Trojko and also through his own observations of certain performance issues emerging in respect to the applicant’s project work. In particular, certain issues had been identified in relation to his work on the Ted Schwebel Reserve project where work on the project was required to be postponed when it was revealed that critical processes had not been implemented. In this regard, no review of environmental factors (REF) had been completed, no resident notification letters were sent providing sufficient notice to residents of work commencing, a quotation was not obtained through the respondent's procurement, no copy of the quote was stored in the respondent’s corporate system and the purchase order had been approved by someone other than the Coordinator without good reason.
At 11.25am on 21 August 2020 the applicant emailed Mr Brooks stating that he would prefer if it was just him and Mr Brooks at the meeting which was to be held the following week.
At 4.09pm on 21 August 2020 the applicant emailed Mr Brooks asking for a list of the questions that he would be asked at the meeting on 24 August as well as details as to the specific nature of the meeting so that he could prepare.
At 4.54pm on 21 August Mr Brooks replied by email to the applicant that there were no specific questions, but he wished to discuss the handling of the Ted Schwebel Reserve soft fall replacement project and the following points to understand what had occurred and to ensure the applicant understood his expectation:
(a)    obtaining quotes for work via Council's formal procurement system;
(b)    attaching electronic copies of quotations to “PO's” in Finance One to ensure our corporate record is complete, accountable and auditable;
(c)    approval for purchase orders are required by your Coordinator;
(d)    “RFQ/Ts” to be issued to your coordinator for approval for works over $10k;
(e)    sending neighbourhood notification letters in advance of work commencing to provide sufficient notice to residents;
(f)    completing REPs for project, and
(g)    utilising resources such as checklists that have been developed and made available to assist your work delivery and to prevent processes being overlooked.
It is the applicant’s evidence that on 24 August 2020, he was called into a meeting with Human Resources (HR) regarding his performance. He attended this meeting with his wife as his support person. Also in attendance were Mr Brooks, Ms Trojko and Tess Harding from HR.
It is the applicant’s evidence that at this meeting, Mr Brooks and Ms Trojko addressed with him the way in which he had approached the Ted Schwebel Reserve project, in respect of which they said that he had not distributed letters of notification to local residents with sufficient time. It is the applicant’s evidence that he explained that he had in fact distributed the letters to the residents by hand delivering them with approximately one weeks’ notice of the works.
It is the applicant’s evidence that Mr Brooks and Ms Trojko also told the applicant at this meeting that he had not followed the respondent’s procurement policy, in that all purchase orders over $10,000 needed to be authorised by Ms Trojko, whereas the applicant had used Mr Stutchbury for this. It is the applicant’s evidence that he explained that his understanding was that Mr Stutchbury had delegated authority to authorise these purchase orders.
It is the applicant’s evidence that Mr Brooks and Ms Trojko also made general comments to the effect that he was a senior project officer and that as such, he should be setting a better example to others. The applicant apologized if he had not followed all of the new procedures which applied to the job, also explaining that he was operating under a lot of stress at the time.
Following the meeting the applicant received a Letter of Expectations dated 26 August 2020 which was signed by Mr Brooks. The letter refers to the meeting which was to discuss the applicant’s performance and issues in respect to his handling of the playground soft fall renewal project at Ted Schwebel Reserve.
The letter notes that they had also spoken more generally about prioritising certain projects to ensure they are satisfactorily progressing.
The letter advised that further “instances of these performance issues may result in disciplinary action.”
It is the evidence of Mr Brooks that he does not agree that this meeting was in any way oppositional or negative in its tone. In the opinion of Mr Brooks, the meeting ran quite smoothly and was very supportive in nature.
It is the evidence of Mr Brooks that amongst the various matters outlined in the Letter of Expectation was the need to submit purchase order requisitions to Coordinators for approval. This in Mr Brooks evidence allowed Coordinators to review work, check that the respondent’s Purchasing Guidelines had been complied with and that documentation is stored in the corporate system for future auditing purposes.
Significantly it is the evidence of Mr Brooks that prior to the meeting with the applicant on 24 August 2020, the applicant “and other team members” had been sending Purchase Orders to junior or equivalent colleagues for approval causing Coordinators to be omitted from the process without good reason.
It is the evidence of Mr Brooks that the applicant had actively sought to avoid having contact with Ms Trojko, as demonstrated by his email request of 21 August 2020. In the evidence of Mr Brooks there appeared to him that there had been something of a breakdown in the working relationship between the applicant and Ms Trojko, which he attributed primarily to the applicant’s approach towards Ms Trojko. There is no evidence that Mr Brooks ever attempted to discuss with the applicant any issues in his relationship with Ms Trojko not even inquiring of the applicant why he wished to meet without Ms Trojko.
It is the evidence of Ms Trojko that in relation to the specific points covered in the Letter of Expectation, she was quite sure that the requirement for purchase orders to be approved by the Coordinator for amounts of over $10,000 was confirmed at some stage prior to the meeting. In Ms Trojko’s evidence this was most likely confirmed by Mr Brooks at a team meeting. Ms Trojko was not sure of the exact date or details in this regard, but the Letter of Expectation in Ms Trojko’s opinion “firmly indicates to me that this arrangement was already in place at the time of our meeting with Jake.”
It is the evidence of Mr Stutchbury that in the past, purchase orders of up to $50,000 had been able to be authorised by staff in his position, rather than having to be approved by coordinators or other managers. In keeping with this practice, at some stage in approximately the second half of 2020 and at the applicant’s request, Mr Stutchbury had authorised a purchase order for the applicant in connection with the Ted Schwebel Reserve project. As far as Mr Stutchbury was aware, this was authorised practice at the time, and no issue had been raised with him about his authorisation of the purchase order since.

It is the evidence of Mr Stutchbury that the requirements regarding authorisation of purchase orders did change at some stage shortly after the Ted Schwebel Reserve authorisation he had given. This was communicated to them in one of their team meetings at the time and may also have been reduced to writing thereafter but Mr Stutchbury is not sure of the details. The new requirement was that all purchase orders needed to be authorised by Ms Trojko as the Coordinator.
It is the evidence of Ms Harding that in the days prior to 24 August 2020, Mr Brooks asked her to attend a meeting he planned to hold with the applicant in order to address certain aspects of the applicant’s performance. Mr Brooks asked Ms Harding to attend the meeting as an impartial HR observer and in order to take notes recording what was discussed. Mr Brooks also made Ms Harding aware that he was intending to issue a Letter of Expectation to the applicant following this meeting and that he would be seeking her assistance in preparing this.
It is the evidence of Ms Harding that at the meeting, Mr Brooks addressed with the applicant aspects of his performance relating to aspects of the Ted Schwebel Reserve project. It is Ms Harding’s understanding that these related to omissions in following certain requirements of the procurement process including those relating to the obtaining of quotations, the preparation of electronic copies of these, obtaining approval from Ms Trojko for purchase orders, the issuing of letters to affected residents and other legislative and procedural matters.
It is the evidence of Ms Harding that Mr Brooks and Ms Trojko also spoke more generally about the need for the applicant to properly prioritise his project work to ensure that these projects progressed satisfactorily.
It is the evidence of Ms Harding that her observation of Mr Brooks during the meeting were that he remained very professional in his manner and factual in terms of the matters addressed. At no stage did Ms Harding have any concerns with the way in which Mr Brooks ran the meeting. Ms Trojko was not particularly vocal at the meeting and played a more minor role.
It is the evidence of Ms Harding that the meeting with the applicant on 24 August 2020 was not disciplinary in nature but instead was reflective of a more informal attempt to resolve the applicant’s performance issues prior to resorting to any more formal processes.
I accept the respondent’s submission that the meeting on 24 August 2020 fits within “performance appraisal” for the purposes of s 11A(1). Whilst Ms Harding refers to the meeting as a more informal attempt to resolve the applicant’s performance issues she does so in comparison to a disciplinary meeting. The meeting was in its own right formal in nature with HR in attendance, the applicant having a support person and the issues being outlined to the applicant prior to the meeting. On the evidence the applicant was clearly aware that the meeting was in respect to performance. However, I am of the view that the respondent’s actions in respect to the meeting was not reasonable.
The Letter of Expectation issued by the respondent following the meeting lists eight expectations. Six of those actions relate to interactions with his Coordinator, Ms Trojko.
As previously discussed, it is the evidence of Mr Brooks that in his opinion the applicant had actively sought to avoid having contact with Ms Trojko and that there appeared to have been something of a breakdown in the working relationship between the two which Mr Brooks attributed primarily to the applicant’s approach towards Ms Trojko. However, as previously discussed there is no evidence that Mr Brooks, or anyone else, ever attempted to discuss with the applicant any issues in his relationship with Ms Trojko not even inquiring of the applicant why he wished to meet on 24 August 2020 without Ms Trojko present.
Given that Mr Brooks was clearly aware, on his evidence, that there was an issue in respect to the relationship between Ms Trojko and the applicant, those issues should have been explored before dictating a series of actions which the applicant “must” complete most of which related directly to interactions with Ms Trojko especially when the applicant was being advised that further instances of performance issues may result in disciplinary action.
It would also seem that a significant issue at the meeting was the approval of a purchase order for the applicant by Mr Stutchbury. It is the applicant’s evidence that it was his understanding that Mr Stutchbury had delegated authority to authorise these purchase orders.
It is the evidence of Ms Trojko that she is quite sure that the requirement for purchase orders to be approved by the Coordinator for amounts of over $10,000 was confirmed at some stage prior to the meeting with the applicant and in her mind, whilst she is not sure of the exact date or details in this regard, the Letter of Expectation in Ms Trojko’s mind “firmly indicates to me that this arrangement was already in place at the time of our meeting with Jake.” Ms Trojko does not state whether it is her recollection that the requirement was in place prior to the purchase order being authorised by Mr Stutchbury.
It is the evidence of Mr Stutchbury that as far as he was aware at the time that he authorised the purchase order for the applicant in connection with the Ted Schwebel Reserve project, this was the authorised practice. Tellingly it is the evidence of Mr Stutchbury that no issue has ever been raised with him about his authorisation of the purchase order. It is the evidence of Mr Stutchbury that the requirements regarding authorisation of purchase orders did change shortly after the Ted Schwebel Reserve authorisation he had given.
I accept the evidence of Mr Stutchbury that at the time that he authorised the purchase order on behalf of the applicant he was authorised to provide that authorisation and that it was accepted practice. I prefer the evidence of Mr Stutchbury as he was a key figure in the events and tellingly had not been reprimanded in providing the authorisation which supports that he in fact did have authority.
The evidence therefore in my view supports that not only was the applicant being criticised at the meeting on 24 August 2020 for failing to follow a procedure that had not at the time been implemented but he was also singled out for criticism with no issue having been raised with Mr Stutchbury.

Potential restructure email

It is the applicant’s evidence that on 30 August 2020, Mr Brooks telephoned him stating that he was issuing a restructure proposal via email and that the applicant’s pay would not change while he was in his current role.
It is also the applicant’s evidence that at 4.28pm on 31 August 2020, Mr Brooks’ email was sent to all team members. This email contained a document which highlighted the applicant’s name and position in red, while other names and positions were highlighted in blue noting that those in blue would have no change to their remuneration. The applicant does not know why his name, and that of two other staff members, had been highlighted in red rather than blue in this email but was concerned by this as it was soon after his meeting with HR, Mr Brooks and Ms Trojko.
It is the evidence of Mr Brooks that the email confirmed that the applicant’s role was one identified for future change, but the present occupant would retain current salary and conditions.
It is the evidence of Mr Brooks that the applicant raised no issue with the team structure diagram at the time and in fact responded to him with an email dated 21 September 2020 confirming that he had no comments to make in relation to the matter, which Mr Brooks took to mean he had no issues with it.
The respondent in its submissions concedes that the applicant’s “concern” was understandable.
The respondent submitted that it is curious however that the applicant did not seek any clarification from Mr Brooks in order to address his concerns. I am of the view that no inferences can be drawn from the failure to seek clarification of the email especially in light of the applicant having recently been the subject of a performance based meeting on 24 August 2020 and the applicant’s expressed belief that Mr Brooks and Ms Trojko were trying to force him out of his job.

Drug and alcohol testing

It is the applicant’s evidence that on 9 February 2021, he was notified by Daniel Hansen of HR that he was subject to a random drug and alcohol test at 8.27am at work. Within five minutes of parking and walking over to the testing site, two people were placed in front of him. The applicant had meetings arranged that day at 9.00am and 9.30am with internal staff and a meeting at 10.30am with an external consultant, manager and various staff, and was therefore directed by Mr Hansen to return for the drug and alcohol test at 10.00am.
It is the applicant’s evidence that he arrived back for the test at approximately 10.02am that morning but was told by Mr Hansen that someone had just gone in and he would have to wait 10 minutes. The applicant had been under the impression that he had a slot booked for 8.30am and had been told by Mr Hansen that the test would only take 10 minutes. It is the applicant’s evidence that he felt that he did everything within reason in attending as and when he had been told to, but he ended up being approximately 10 minutes late for a consultants’ meeting that day which Ms Trojko started in his absence before he arrived for it. It is the applicant’s evidence that Ms Trojko told him later that day that this had been “stressful” for her, although the applicant could not identify why this was the case given that it was a standard meeting with about eight people attending.
It is the applicant’s evidence that on the day following the drug and alcohol test, Mr Brooks emailed him about it, asking why the test had not run smoothly. The applicant replied to Mr Brooks via email explaining what had happened and that he thought it had been poorly handled by HR. The applicant felt after receiving Mr Brooks email that the blame was coming back to him again for an incident which had been beyond his control.
On 10 February 2021 at 4.32pm the applicant emailed Mr Brooks in respect to the drug and alcohol testing. In the email the applicant observed that in his opinion there was not much more he could have done noting that the process had caused him stress and frustration. He thanked Mr Brooks for following it up observing that he was informed at 8.25am on his way to work by a phone call. That he had informed Mr Hansen that he had organised meetings at 9.00am, 9.30am, and 10.30 am and that of all days this was a difficult day. The applicant was told that it would take 10 minutes. They agreed that the applicant would be allocated an 8.30am timeslot whilst on the phone to Mr Hansen. The applicant noted to Mr Brooks that he had not previously had testing done, so was not aware of the procedures or any delays that may occur.
On arriving for the random test, he was told two people had been placed in front of him and he could return at 10.00am for his 10 minute test. The applicant was under the impression that this timeslot would be allocated and ready to go so he could leave as quickly as possible. He arrived again at 10.02am for his test. He was told that someone was nearly finished and that he would be seen to shortly. The applicant told Mr Hansen that he had a meeting with consultants, staff and his manager at 10.30am to which Mr Hansen responded that it would take 10 minutes maximum and that they would be ready very shortly.
Whilst he was waiting the applicant notified by SMS the consultant and one of the respondent’s staff that was attending the meeting to let them both know he was detained. The consultant wasn't concerned and said he was in the café and could wait.
At an estimated 10.20am he left the waiting room and approached Mr Hansen and said he had to go to a meeting. He was informed by Mr Hansen that he was required to stay for the testing. The applicant had already started to alert attendees that he was likely to be detained for five minutes.
The applicant rang Ms Trojko to tell her that he was delayed explaining the situation and that he would be around five minutes late. Ms Trojko was familiar with the project and was already attending the meeting. At 10.30am the applicant was called into the room for testing.
It is the applicant’s evidence that some time later Mr Brooks told him that he was chasing up the situation with the drug and alcohol testing but that he wanted to hear the HR version of the story as to what had occurred. It is the applicant’s evidence that Mr Brooks stated that the applicant should have got there for the test “immediately” even though the applicant had already explained in an email to Mr Brooks that he attended within about five minutes of the surprise call that morning. Mr Brooks said, “Maybe next time, cancel any meetings that are internal.” It was clear to the applicant that Mr Brooks had not read his responding email with a clear explanation of his action.
It is the applicant’s evidence that by this stage, he was starting to really feel that he could not do anything right. He was depressed by the constant fault-finding of Mr Brooks and Ms Trojko.
It is the evidence of Mr Brooks that it is his understanding that the applicant was contacted by Mr Hansen at 8.26am on Tuesday 9 February requesting that the applicant attend a drug and alcohol test, however the applicant advised Mr Hansen at the time that he had meetings scheduled that morning. Mr Hansen reportedly acknowledged this and directed the applicant to return later that morning. This aspect of the matter immediately concerned Mr Brooks as he felt that a random drug and alcohol test should be attended by the participant at the time required as a priority unless extenuating circumstances existed, in which case the situation should have been discussed with Mr Brooks before being decided upon.
It is the evidence of Mr Brooks that it subsequently emerged that the meetings referred to by the applicant were informal, low priority internal meetings and in the view of Mr Brooks were able to be rescheduled as a lesser priority than the drug and alcohol test on the day. On review of the applicant’s electronic calendar for Tuesday 9 February 2021, there were no scheduled meetings between 8.30am-9.00am, a meeting in Council's Cafe scheduled between 9.00am-9.30am with internal colleagues.
It is the evidence of Mr Brooks that he was aware that on the same day, there was a significantly more important meeting which had also been scheduled by the applicant for 10.30am involving attendance by three external consultants and other internal stakeholders. It is the evidence of Mr Brooks that it is his understanding that the applicant had arranged with Mr Hansen to return for his drug and alcohol test at 10.00am. Mr Hansen called the applicant again at 10.06am and the applicant undertook the test at approximately 10.15am. The applicant was subsequently late for the 10.30am meeting and as a result, Ms Trojko was required to initially handle the meeting in the applicant’s absence. In the evidence of Mr Brooks this was not ideal given that Ms Trojko was not the responsible officer.
It is the evidence of Mr Brooks that during the same timeframe, he spoke to the applicant about the matter in person, requesting that he not defer any drug and alcohol tests in future and also advising that he should talk to Mr Brooks if there were any difficulties or issues in this regard. Mr Brooks also advised him that he should cancel any internal meetings of the kind described if this situation arose again. Mr Brooks states that he was not angry about this, however he was extremely disappointed with the approach that the applicant had taken. Although he had no suspicions about drug or alcohol consumption, the fact that the applicant as a senior member of staff appeared to have exercised poor judgment in this instance by deferring the drug and alcohol test concerned Mr Brooks as he relies on senior team members to display role model behaviour to others. It is also the evidence of Mr Brooks that he was also frustrated by the HR team's allowance of the test to be deferred on the day, as indicated above and he expressed that to them.
It is the evidence of Ms Trojko that on the morning of 9 February 2021, the applicant telephoned her about five minutes prior to an important meeting involving external stakeholders which was to take place that day and which he was supposed to run. It is the evidence of Ms Trojko that the applicant told her in this call that he was attending a mandatory drug and alcohol test at the time and that he would be late to the meeting.
It is the evidence of Ms Trojko that she was informed by the external stakeholder attendees at the meeting that the applicant had already telephoned them that morning indicating that he would be late due to having to attend a drug and alcohol test. They were laughing about this, and Ms Trojko was very concerned by what appeared to be the applicant’s highly inappropriate communication. Ms Trojko thought it was unprofessional on the applicant’s part to have communicated the reason he was detained.
It is the evidence of Ms Trojko that random drug and alcohol tests typically happen at work quite early in the morning, as was the case here. It is the evidence of Ms Trojko that she is aware that the applicant’s meetings included having coffee with a new colleague as well as another which involved project discussions with internal staff only. In the view of Ms Trojko, both of these meetings should have been postponed by the applicant, with the drug and alcohol test to be taken by him as a priority. This would also have allowed him to attend the more important Rose Garden project meeting on time that day. In my view, he exercised poor decision-making and prioritisation in this instance.
In the respondent’s submission the requirement to undergo periodic drug and alcohol testing falls within the concept of “discipline” for the purposes of s 11A(1). I do not accept the respondent’s submission.
In Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie) Sackville AJA observed at [59]:
“A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.”
In this case there was no disciplinary process. There was simply a test. A test which Mr Brooks concedes he had no concerns about and which the applicant I assume passed. Such tests are common and routine in many workplaces and as the respondent noted in its submissions “can lead to” discipline or punishment but only in the case of a breach.
In any event the applicant had no issue with being tested and attended the test. The concern for the applicant was that he felt that he was being criticised for issues which were outside his control and that he could not get anything right in Mr Brooks eyes. These issues related to prioritisation, the attendance of meetings and the rescheduling of the tests.
I am of the view that the criticism of the applicant by Mr Brooks and Ms Trojko is unreasonable and unfair for the following reasons. The applicant, as asked, attended the initial scheduled drug test time of 8.30am within approximately five minutes of being advised of the test.
It is the applicant’s evidence that it was the first time he had to undertake testing and that he thought he had been provided a set time for his attendance but on arriving at approximately 8.30am was advised that two people had been placed in front of him. He spoke to the HR team member who was managing the testing and advised him that he had some meetings, and the HR team member advised the applicant that the test would only take 10 minutes and it was agreed that he come back at 10.00am with the knowledge that he had a 10.30am meeting.

The applicant came back at about 10.00am assuming that he had a set timeslot and that it would take 10 minutes and therefore would have the testing comfortably completed prior to his 10.30am meeting. When the applicant realised that the testing was not going to be completed in time, he discussed his predicament with the HR manager who advised him that he had to stay for the test which he did not dispute and started to contact the attendees to advise that he was going to be late. I do not understand why Ms Trojko would consider the applicant advising the attendees as to the reason for his being delayed unprofessional especially when one considers that the industry in which they are in involves construction and the use of heavy equipment, environments in which mandatory drug testing is common.
Whilst the applicant could have taken the alternate approach of cancelling his first meeting on the information which he was supplied with that did not appear necessary and in my view on any reasonable analysis the course of action which the applicant did take was rationale, sensible and reasonable.

Procurement discussion, 22 February 2021

It is the applicant’s evidence that on 22 February 2021, Mr Brooks came out of his office and stood in the open area between his office and the applicant’s desk. He spoke loudly to the applicant so that around one third of the office would easily hear. He stated that the procurement requirements are that they receive three quotes, not that they request or seek three quotes for over $10,000. It is the applicant’s evidence that to his knowledge he had followed the correct procurement guidelines which had been approved by Ms Trojko. The applicant was not sure why Mr Brooks was correcting him about this issue in public.
It is the applicant’s evidence that he stated, “Ok. However, we have never done that before.” Mr Brooks went on to say, “I'll approve it this time, but from now on we have to get three quotes as someone could manipulate the outcome to the one winning submission.”
It is the applicant’s evidence that he felt Mr Brooks was making an example of him. The applicant felt belittled, embarrassed and bewildered that this directive was delivered in such a manner.
It is the applicant’s evidence that he subsequently spoke to Grant Clement and Mr Stutchbury, who confirmed his opinion on the accepted procedure.
It is the applicant’s evidence that he had previously been directed by Ms Trojko to find out why one of the contractors in this instance had not responded with a quote. To the applicant’s knowledge, no one else in the department was required to do this. The contractor responded to the applicant advising that it was over Christmas time and that he had been on holidays and had forgotten. The applicant then contacted the third contractor by phone who said similar things. As he was going on extended leave over Christmas, the applicant had had been directed to put it out over Christmas and have it ready on his return.
It is the applicant’s evidence that after this interaction he started to use the term “dead man walking” meaning that he was targeted no matter what happens.
It Is the evidence of Mr Brooks that on 22 February 2021, he spoke to the applicant at his desk regarding the respondent’s procurement requirements for quotations following his investigation of the George Suttor Playground replacement project. This arose after receiving an email from applicant requesting that Mr Brooks approve a "Letter of Acceptance" that effectively engaged a contractor to perform work. As Mr Brooks could not recall reviewing any supporting documents such as an evaluation of quote submissions, he searched the respondent’s corporate system and was unable to locate any supporting documentation that justified engagement of the recommended contractor. Such documentation would usually summarise all quote submissions comparing parameters such as price, time, past performance & experience with a conclusion recommending a preferred contractor based on best value. After asking the applicant to demonstrate where such supporting documentation was located, he directed Mr Brooks to a document registered in the corporate system.
It is the evidence of Mr Brooks that he noted that whilst the applicant had requested three quotes, he had only obtained one quote in response. Mr Brooks was also unable to identify what steps the applicant had taken to follow up submissions from the other two requests he had made. Mr Brooks advised the applicant that, in future, three written quotes must be obtained.
It is the evidence of Mr Brooks that these comments were made by him in direct tone but he was annoyed and frustrated.
It is the evidence of Mr Brooks that he subsequently confirmed these procurement requirements at a team meeting.
It is the evidence of Mr Stutchbury that in approximately March 2021, he was in the office and got up to go into the kitchen area. At that time, he noticed Mr Brooks walking over towards the applicant’s desk. Whilst he was in the kitchen, Mr Stutchbury was aware of Mr Brooks and the applicant having a conversation, but he did not hear what was said.
It is the evidence of Mr Stutchbury that when he came back from the kitchen, the applicant informed him that Mr Brooks had instructed that they need to receive three submissions back for quotations in order to award contracts. Mr Stutchbury and the applicant agreed that this was not their understanding of the relevant requirements. Mr Stutchbury also recalled the applicant indicating that he had not been happy in some way with Mr Brooks delivery of this information to him, suggesting that this had been "a bit harsh" or something to that effect.
It is the evidence of Mr Stutchbury that in the days following this discussion, both he and the applicant spoke to Ms Trojko following her return from leave seeking clarification from Ms Trojko about the directive that they needed three submissions to be received for quotations in order to award contracts. Ms Trojko indicated consistent with their understanding that this was not a requirement.
It is the evidence of Grant Clement, Capital Works Projects Officer with the respondent, that he recalls in February 2021 witnessing Mr Brooks telling the applicant that from now on they were required to receive a minimum of three quotes not just request three quotes. This was a conversation which took place between Mr Brooks and the applicant whilst they were all sitting at their desks.
It is the evidence of Mr Clement in relation to the respondent’s policy for requesting quotations, that it was his understanding that the policy and practice had been to request three, though they had not usually had to actually receive three in order to proceed with recommending a quote. Mr Clement did think to himself at the time of overhearing Mr Brooks instruction that this seemed different to the usual practice, and he took the opportunity to approach Mr Brooks shortly afterwards to clarify this instruction. Mr Clement confirmed with Mr Brooks at the time that he did want them to get three quotes back as he had said.
It is the evidence of Ms Trojko that the respondent has very clear procurement guidelines for the obtaining of quotes and that she helped with new software for these and was very familiar with them. It is the evidence of Ms Trojko that part of the requirements in this area was that they must seek three quotations for work involving amounts of over $10,000.
It is the evidence of Ms Trojko that she could recall a situation which arose in February 2021 in which the applicant had received only one of three quotes he had requested for a particular job.
It is the evidence of Ms Trojko that the requesting of three quotes but obtaining of less in some instances was normal practice.
The respondent submits that the applicant claims that the procurement discussion with Mr Brooks on 22 February 2021 was conducted by Mr Brooks in a publicly humiliating fashion as part of a personal vendetta on the part of Mr Brooks against him. In the respondent’s submission this is an example of the applicant using loaded and intemperate language to advance his claim. I do not accept the respondent’s submission for the following reason. There is no issue on the evidence that the conversation took place. The only observation that the applicant makes in respect to the delivery is at [64] of his statement where he states that Mr Brooks “…spoke loudly to me so that around one third of the office would easily hear.”
Mr Clement confirms that the conversation took place in an open setting whilst they were all sitting at their desks, and it is clear from Mr Clements evidence that the conversation was overheard. It is the applicant’s evidence at [64] that he was not sure why Mr Brooks was correcting him in public. It is the applicant’s evidence at [66] that:
“I felt embarrassed at Andrew's announcement in this regard. I felt that he was making an example of me. I felt belittled, embarrassed and bewildered that this directive was delivered in such an inappropriate manner.”
The respondent submits that the direction to the applicant regarding the tendering process accords with the respondent’s procedure and was the subject of further comment by Mr Brooks to the team he managed. The evidence does not support that it was the accepted procedure. It is the evidence of Mr Stutchbury and Mr Clement that the procedure was to request three quotations but that they could proceed on one. The evidence of Ms Trojko also supports this. It is the evidence of Mr Clement that he checked with Mr Brooks as to the change in procedure after the subject conversation between Mr Brooks and the applicant.
The respondent submits that neither Mr Stutchbury nor Mr Clement appear to have heard the applicant referring to himself as a “dead man walking”. It is the applicant’s evidence that he started to use the phrase “dead man walking” after this interaction and not during. There is no evidence that Mr Stutchbury or Mr Clement were questioned about the applicant’s use of the phrase following 22 February 2021.
The respondent submits that the conversation is properly characterised as ‘performance appraisal’ which re-enforced and naturally flowed from the previous ‘performance appraisal’ letter of expectations of August 2021, as the applicant was effectively being asked to adhere to one or more of those previously recorded and communicated ‘performance appraisal’ expectations. I reject the respondent’s submission. The conversation in question is ad hoc and not part of a process and at best, as far as the respondent is concerned, the applicant is being advised of a change in procedure and at worst the applicant is being chastised and singled out for following what was the accepted practice.

24 February 2021 meeting

In the respondent’s submission the topics of discussion identified by Mr Brooks in meeting on 24 February 2021 were those traversed at the Letter of Expectation provided to the applicant on 24 August 2020. Therefore, in the respondent’s submission the meeting of 24 February 2021 was an extension or continuation of that performance appraisal process. I do not accept the respondent’s submission.
It is the evidence of Mr Brooks that on 24 February 2021, he and Ms Trojko had a monthly project update meeting with the applicant. It is the evidence of Mr Brooks that these were recurring monthly meetings held with every team member and their Coordinator to discuss all aspects of every project, to provide an opportunity to raise issues preventing progress and to ensure projects remain on track for delivery. It is the applicant’s evidence that it was his understanding that these meetings were about projects and not personal performance.
It is the evidence of Ms Trojko that she recalls attending a discussion with the applicant and Mr Brooks in Mr Brooks office on what may have been 24 February 2021 regarding matters associated with the Rose Garden project in particular and its lack of progress. The matters in question were necessary for Mr Brooks and Ms Trojko to discuss with the applicant as his managers given that they needed information about them and for the project to be progressed.
The evidence supports that the meeting was not in respect to “performance appraisal”. It is the evidence of Mr Brooks that these were recurring monthly meetings held with every team member and their Coordinator to discuss all aspects of every project, to provide an opportunity to raise issues preventing progress and to ensure projects remain on track for delivery. The meetings were standard meetings conducted with every team member to discuss projects. The meeting was not part of a performance appraisal process. It was not characterised by Ms Trojko or Mr Brooks as such and the applicant did not understand it to be such.
As observed in Dunn performance should be a formal process. The applicant was not advised that the meeting formed part of a performance appraisal process and he was not advised of what was to be discussed in respect to performance appraisal.
In the respondent’s submission emails between the applicant and Ms Trojko of 24 February 2021 (Reply page 50) and from Mr Brooks to the applicant of 3 March 2021 (Reply page 49) following up on the 24 February 2021 meeting, reinforce the impression that this was a meeting about the applicant’s performance, undertaken in the context of following up the previous Letter of Expectations. The emails in question do not mention performance appraisal, do not mention the letter of expectations, but rather relate to discussions in respect to the applicant returning to the office full time.

Medical evidence as to causation

It is not disputed that the applicant sustained a psychological injury.
In the respondent’s submission the opinion of Dr Hong should be accepted that the whole or predominant cause of the applicant’s psychological injury was the performance appraisal, disciplinary and employment benefit related processes in which the applicant was involved.
The applicant attended Dr Jeremy Yen on 8 March 2021. The clinical note of the attendance records that the applicant had been experiencing ongoing stress since August 2020 compounded by his mother's declining self-care. The applicant described a toxic workplace where the new manager repeatedly targets him and berates him for petty issue.
Dr Richa Rastogi, treating psychiatrist, in a report to the applicant’s solicitors dated 10 November 2022 records that in her opinion the psychological injury is predominantly caused by interactions with the coordinator and manager and the way the respondent’s work should be undertaken. The negative and hostile behaviours at work with lack of support was the main contributing factor. His anxiety heightened and he felt dismissed, unacknowledged and excluded. Her psychological injury stems from trajectory of work-related harassment and lack of support.
Dr Michael Hong, psychiatrist, provided forensic reports to the respondent. Dr Hong observed that the applicant did not believe that the way he had been treated was appropriate and he formed the perception that his managers were bullying him and targeting him, and he would lose his job. That perception, in the opinion of Dr Hong, is the basis of the applicant’s psychological injury.
In the view of Dr Hong, it was the applicant’s interaction with the coordinator and manager, which the doctor understood all revolved around his performance and the way the work should be undertaken, which was the main contributing factors to his psychological injury.
The doctor deferred to an industrial expert as to whether that performance management was appropriate.
Dr Thomas Oldtree Clark, psychiatrist, provided a forensic report to the applicant dated 20 September 2021 observed that the applicant became disturbed and absorbed with the details of the pressures he was under at work, petty matters. That over a year, he became more frustrated and felt victimised. His anxiety and depression absorbed him.
Dr Oldtree Clark diagnosed of major depressive disorder directly related to circumstances at work.
Dr Shannon Paisley, psychiatrist, provided a forensic report to the applicant dated 27 July 2022. Dr Paisley diagnosed a major depressive disorder.
Dr Paisley observed that the applicant described a sustained pattern of criticism, humiliation, unfair treatment and micromanagement from his new manager following a restructure in 2019. In the opinion of Dr Paisley, the applicant’s psychiatric condition was caused by the cumulative exposure to these factors in the workplace. There were multiple examples of these incidences in the workplace. There was not one isolated event which caused his psychiatric condition.
Dr Paisley confirmed the above opinion in his subsequent report dated 1 May 2024.
In my view the medical evidence supports that the main contributing factor to the psychological injury was the applicant’s interaction with his manager, Mr Brooks, and his Coordinator, Ms Trojko. This conclusion is supported by the opinions of the treating psychiatrist, Dr Rastogi, as well as Dr Hong, Dr Oldtree Clark and Dr Paisley. No particular event(s) are identified as being causative rather as Dr Paisley succinctly observed it was the “cumulative exposure”. As was observed by the NSW Court of Appeal in Department of Education & Training v Sinclair [2005] NSWCA 465 (Sinclair) at [96] such actions:
“…usually involve a series of steps which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such a context the ‘whole or predominant cause’ is the entirety of the conduct ...”

Conclusion – s 11A(1)

For the above reasons I find that the applicant’s accepted psychological injury has not been wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal, discipline and/or provision of employment benefits.

[2024] NSWPIC 394

24 July 2024